Can a High Court Judge criticise the Supreme Court ?
By Justice Katju
The Supreme Court has taken suo motu cognizance of an order of a Punjab High Court judge, Justice Rajbir Sehrawat, criticising the Supreme Court for staying the contempt of court proceedings initiated by the High Court
I am not going into the merits of the controversy and the facts and issues, relating to this particular case ( though I certainly feel that Justice Sehrawat could have been a bit restrained and circumspect in the choice of the words he used for the Supreme Court in his order ). I am only going into the general question, unrelated to any particular case, whether a High Court Judge can criticise a Supreme Court order where he feels that the latter was clearly erroneous.
In my opinion a High Court judge can in his order, while showing respect to the Supreme Court and without showing any defiance, point out logically where he thought the Supreme Court had erred. He should also say that although he thought that the Supreme Court order was erroneous, yet, as a High Court judge he is complying with it, as indeed he is duty bound to do, by virtue of Article 141 of the Constitution.
At the same time, while complying with the Supreme Court order, he can give his reasons as to why he believes the Supreme Court order was incorrect, since in the future a case involving a similar legal point may come before the Supreme Court, and his reasons may persuade the Supreme Court to change its earlier view. This will help the law to grow, and correct errors
“A dissent ” wrote US Supreme Court Justice Charles Evan Hughes, “ is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been misled.”
Justice HR Khanna of the Indian Supreme Court, in his dissent in ADM Jabalpur vs Shivakant Shukla ( 1976 ) quoted the above observation of Justice Hughes.
In 1976, at the peak of Indira Gandhi’s Emergency, four Judges of the Supreme Court held that even the right to life stood suspended during a state of Emergency. The lone dissenting voice in the Habeas Corpus Case was Justice Khanna’s. It cost him the Chief Justiceship of India, but he did his duty, and much later in Puttuswamy vs Union of India ( 2017 ) a larger bench of the Supreme Court held that Justice Khanna’s dissenting opinion laid down the correct law, while the majority view was wrong.
No doubt this dissent was by a judge of the Supreme Court, not of a High Court. But in my opinion the same reasoning applies in either case
