‘Scandalising’ the Courts

The verdict of the Supreme Court on Prashant Bhushan’s tweets opens a new chapter in India’s public life. It holds Bhushan’s tweets “malicious, scurrilous” and calculated to lower the image of the Supreme Court in the eyes of the public. Critics of the judgment have been dismayed by the harshness of terms used to characterise the conduct of the person held guilty of contempt. There have been murmurs from among senior advocates as well as some former members of the higher judiciary that it might devalue the very idea of “freedom of expression” that is one of the core concepts of democracy.

But the honourable members of the bench unanimously passing the judgment declared that there was only “a thin line” between freedom of expression and criminal contempt against the august judiciary. People in our country are already bombarded with allegations thick and fast of contempt against certain religious icons, the nation, the government and certain executives of the state and whatnot. Now there is the inadvertent peril from criticism of the court. Perhaps people will think several times before expressing their opinion on any subject of any public significance from now onwards. What contribution such outcomes will make to preserving our democracy is best left to guesswork!

The tweet on the photo of the CJI astride a motorbike, which was probably making the rounds without any caption, was perhaps a little too hasty and casual, and in my opinion it deserved an apology. But the tweet he is held mainly guilty of was nothing personal and was intended actually to throw some light on the general condition of our democracy. There have been complaints galore on the arbitrariness and overreach of the executive imperilling our democracy, and many times opinion-makers have expressed their anguish and disappointment at the apparent impassiveness and stolidity of the Supreme Court in pulling up the executive in the latter’s flagrant derelictions.

It has been held by impartial observers that the present government seems to be flouting constitutional propriety and the fundamental rights of the citizens, often with tacit support of the legislature, on a number of occasions in ways that generate disquiet. And people have often expressed disappointment at the tardiness and apparent feebleness of the courts’ response. Prashant Bhushan’s tweet is in line with these general and quite voluble complaints. The only difference is that he puts the matter more bluntly and starkly.

It is therefore not as if something has come out of the blue or all of a sudden. There has been widespread apprehension that our democracy is in decline, and all the three pillars of democracy as well as the popular media as the fourth one are tottering. The future for the country is thought to be clouded and we are apparently being led towards a precipice we have not had a hint about.

Time was when people looked up to the Supreme Court as the last and impregnable bastion of our Constitution and democracy. But over a period of time, I am not sure whether during the tenure of the last four CJIs or even longer, there has been a growing feeling that the Supreme Court was failing to put the curbs on despotic governments acting on power it has received from the Constitution. These critics include retired members of the higher judiciary who will be the last persons to “scandalise” the courts.

Prashant Bhushan’s tweet puts the blame implicitly on four CJIs, but maybe it ought not to have been so specific. However, he seems to have held the judiciary at large to blame and not particularly the CJIs, during their watch, and not the institution itself. According to the honourable judges handing out the judgment this is the crux of the matter, i.e. Prashant Bhushan has demeaned the dignity of the judiciary.

Anything worthy of respect sometimes comes under attack from people who find fault with it. If it has true sterling worth it remains unaffected and serene after the storm clears. Is it possible that a mere tweet even by an influential person (even if it reaches millions of viewers) can damage the credibility of an institution if it is in sound functioning health? Hardly. Let us hope it does not turn out to be like the child’s wondering cry that the emperor is naked.

The judiciary has been founded through the Constitution by the people in the belief and expectation that it will uphold the Constitution and preserve the state created by the people to serve them. True, it should not be subject to cheap ridicule or its high function as the umpire in the rule of law should not be questioned casually. But in the last analysis that will depend on the way it functions. It should, I would like to say in all humility, earn respect from the general public by upholding the rule of law without fear or favour. The President of the United States has been traditionally held in the highest honour in the land. Yet some of the incumbents have been held to have deeply disgraced that high office.

So it may be pleaded that high office by itself may not guarantee due respect unless wisely used. Can the judiciary be exempt from this universal rule? It seems to me, though subject to correction by wiser heads than mine, that the law of civil contempt is sufficient in supporting the honour of the judiciary. The criminal contempt ought to be very sparingly used, and if at all, without a vindictive spirit.

Voltaire is credited with writing to Rousseau that he detested his views but would give his life to defend Rousseau’s right to hold and express his views. This is regarded as the touchstone for freedom of expression, and the honourable judges could give it a thought.

The author is a socio-political commentator and cultural critic. The views are personal.