In countries like India and the U.S.A., independence of Judiciary lays down the foundation of democracy. One of the four minimum requirements for securing independence of Judiciary is the immunity of judges from civil accountability. At the same time, it is also true that Judiciary needs to gain legitimacy through public support. The courts have neither the power of the sword nor the power of the purse to enable them to address some of their most serious needs; they must rely on public grants of authority and legitimacy.
On January 28, 2024, while heading the ceremonial bench with the judges of Higher Courts of India to commemorate the first sitting of the Supreme Court on January 28, 1950, Justice D.Y. Chandrachud, the then Chief Justice of India emphasized that the independence of judiciary should be preserved.
He emphasized that the legitimacy of the Supreme Court as an institution of justice does not solely rests on the Constitution but it must gain the confidence of the public at large. The independence of judiciary is not only threatened by the executive and legislative actions but also by the personal biases of the judge himself. In such a scenario, public opinion plays a very important role. Public opinion influences the judiciary majorly in two ways, firstly when the judges utilize strategic behavior to maintain its legitimacy. Secondly, by bringing an attitudinal change in the judge’s behavior as both the judges and public at large go through the same events. However, there are both positive as well as negative results of the effect of public opinion on judiciary.
INSTANCES WHEN PUBLIC OPINION HAS INFLUENCED THE JUDICIARY IN INDIA.
Firstly, there have been a number of cases where judges have utilized strategic behavior to maintain its legitimacy. For instance, the Graham Staines Murder Case is one such precedent where the judiciary has strategically altered the phrases of a judgement in order to avoid public outrage. The case is related to the murder of Graham Staines, an Australian missionary along with his two sons while sleeping in his station wagon during a Jungle Camp. The matter reached Supreme Court and the court awarded life imprisonment to 2 suspects and other 11 were acquitted. The judgement received retaliation from the leading newspapers and civil societies arguing that remarks like “It is undisputed that there is no justification for interfering in someone’s belief by way of ‘ use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better” as used by the court were unconstitutional and gratuitous. Following which the Supreme Court acting suo moto to amend its own judgment, expunged the said remarks.
Similarly, the verdict of Allahabad High Court in 2010 in the Ram Janmbhumi Case also highlighted the impact of public opinion on judiciary. The judgement cited incidences from both of the religious mythologies which suggests that the judgement was not delivered according to the principles of laws but according to the sentiments of public.
In 2007, Dr. Binayak Sen was detained for allegedly supporting the outlawed Maoists, following which he filed a petition for bail. The Supreme Court first dismissed the bail petition in December 2007. However, the same court granted bail to Dr. Sen on 25 May, 2009. The reason behind this different approach from the same court being the public outrage.
The infamous Salman Khan hit and run case is also one such example where the judiciary has used strategic approach to gain public trust. The Bombay HC gave a judgement appeasing those public supporting the actor and the elite class of the society negating the criminal jurisprudence.
Hence, these are some of the cases in which judiciary has utilized certain strategic behaviour to maintain its legitimacy.
Secondly, there have also been instances where an attitudinal change in the judge’s behaviour is apparent as an impact of Public Opinion. For example, in 1959 an incident received enormous media coverage. A Parsi naval officer shot a Sindhi businessman Prem Ahuja of Mumbai after his wife confessed being in an illicit relationship with the man. The accused collected an indestructible support of public. The accused was tried by the session court with the aid of the jury. The jury brought a verdict as ‘not guilty’ by 8:1 ratio. The Bombay High Court convicted him under section 302 of Indian Penal Code but he was later pardoned by the government. The reason behind the jury’s decision and finally his pardon was the large public support, specially by the Parsi community for the accused which portrayed accused as an “upright officer” and a “wronged husband”.
Subsequently in 1993, another case showcased the attitudinal change in the judiciary. Both Zaibunissa Kazi and Sanjay Dutt were accused for the same offence yet only Zaibunissa was convicted under Terrorist and Disruptive Activities (Prevention) Act because the public had not shown any support or sympathy towards her as they had shown for Sanjay Dutt.
In Mohsien Sheikh lynching case, the Bombay HC granted bail to three accused by stating that they were provoked by the religious sentiments and do not hold any personal grudge towards the defendant. The Supreme Court condemning this judgement stated that judges cannot make such observations which may appear to be coloured with a bias for or against a community.
These are only a few of the many examples which suggest that the judiciary indeed gets influenced by public opinion.
SHOULD PUBLIC OPINION BE TAKEN INTO ACCOUNT?
It is evident form the abovementioned cases that judges pass certain judgements getting influenced by the currents of public opinion. The role of a judge is extremely significant and many a times this position is in dilemma as they know quite well the legally correct decision of the matter at hand conflicts with the public opinion. In such a scenario the question becomes extremely important, “Whether public opinion should be taken into account?” There are two perspectives to consider in response to this question.
Firstly, there is a notion according to which public opinion should not be given any consideration. The former Slovak Constitutional Court President has stated that judges in a democracy should decide only according to the law, without regard to public opinion. Similarly, the renowned politician and philosopher, Edmund Burke, in his speech to the electors of Bristol, said “Your representative owes you, not his industry only, but his judgement, and he betrays you instead of serving you if he sacrifices it to your opinion.” Recently, the Chief Justice of India pointed out the fear of district judges in taking strict decisions due to the knowledge of attracting a huge public dissent, due to which there is a pendency of cases in higher courts, which leads to delay in justice. In the case of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, it was held that public opinion should not be treated in the form of a significant feature while giving punishment. Moreover, avoiding public opinion leads to eschewing the populist decision. Hence, according to this notion judges should not be intimidated by the public opinion that tends to change with the development of society as they have a duty to protect the well-established constitutional values.
Secondly, some theorists argue that public opinion should be taken into account as the law itself is not adequate to provide complete justice. According to the famous American academician Barry Friedman, public opinion is a substantial factor in judicial decision making. The courts rely not just on assistance from elected bodies of government to exercise their authority, but also on a reservoir of public support. In the case of Gurvail Singh v. the state of Punjab, the Supreme Court asserted that public opinion should be regarded as a relevant factor in judicial decision-making. Additionally, there were instances where by looking straight into the law, failing to consider the intention behind it and by not taking the public opinion into account, the justice was compromised. Judges should not be isolated from society to effectively serve the public. Maintaining an open and transparent judiciary can enhance its legitimacy, retain public support, and protect it from interference by other state branches. A positive relationship with the public can further strengthen judicial independence.
Having discussed both these perspectives, while considering this question in Indian context, it seems that neither of the two perspectives can be applied in their absolute sense in India. A balanced approach is required to uphold both, judicial independence as well as popular confidence in judiciary.
In some cases, where public opinion has a positive impact on judicial decision making and it plays a constructive role in the society, it should be taken into account. The infamous Nirbhaya rape case is arguably the most prominent example in this regard, as the nationwide outrage compelled the courts to ensure that justice was not delayed but served. Another example where the influence of public opinion was rather positive is the Mathura rape case. Although the judgement itself was not influenced by public opinion, but it is considered as one of the gravest judicial errors in Indian history, where courts failed to deliver justice by limiting themselves to the texts of law. Following which, the public outcry brought a revolution regarding rape laws in the country. Hence, in cases where the plain texts of law are not sufficient to provide complete justice, public opinion can be taken into account.
However, as previously discussed, this approach cannot be adopted in India in its absolute sense as there have been instances where the impact of public opinion on judicial decisions has led to a miscarriage of justice. For example, in a split decision in RIT Foundation v. Union of India, Justice C. Hari Shankar while upholding the constitutionality of marital rape held that the exception is important for the protection of sanctity of marriage and any change must be brought only through societal consensus. The stand of judiciary on marital rape has resulted in persistent miscarriage of justice. Hence, the cases in which the impact of public opinion leads to violation of basic individual rights, it must not be taken into account. The judgement of the Court of Appeals of New York in People v. Liberta is significant in this regard. In this case the court, as against the popular view, held the exception of marital rape as unconstitutional and convicted Mario Liberta of first-degree rape and sodomy of his wife.
Hence, in Indian context a balanced approach is required in order to ensure that both independence of judiciary and its popular legitimacy is preserved.
CONCLUSION.
From the above-mentioned averments we can conclude that public opinion has both positive as well as negative influence on the independence of judiciary. On one hand where it is paramount to have decisions based on facts and evidences, the need of popular support to the judges cannot be neglected. Consequently, it is substantial to utilize methods to achieve both the aims simultaneously. One of such ways is writing crystal clear opinions as William C, Vickrey, Douglas G. Denton and Hon. Wallace B. Jefferson have meticulously stated in their book “Opinions as the voice of court”. Likewise Justice Clarence Thomas has remarked that communication is the key to a better understanding and good communication is done in clear language that people can understand easily and show their assurance regarding the same. Another method could be maintaining a positive relationship with media as it plays an vital role in shaping the public opinion. Furthermore, measures can be implemented in the judicial appointment process to ensure independence from public opinion, similar to the system in India where judge appointments are entirely independent. This contrasts with the US system, where the executive branch significantly influences judge appointments.
Hence, maintaining the judiciary’s fairness and credibility can be ensured by striking a balance between public opinion and judicial impartiality. For this reason, maintaining transparency, effective communication, and independent appointment procedures are essential for achieving this balance and preserving judicial integrity.
