'Not About the Size of the Dog, But the Size of the Fight in the Dog'
Case of Contempt Against Prashant Bhushan
So Mr. Prashant Bhushan stands convicted of contempt.
But judges do not always have the last word. There's a joke about a pompous judge who was trying a robber, standing in the dock. The judge , pointing a magisterial finger at the accused, roared: " Do I see a scoundrel at the other end of my arm?" The criminal replied: " Depends which end of the arm you are looking at, my lord." But a joke, as George Orwell said, can be the beginning of a revolution. The contempt petition against Prashant Bhushan makes me think again of that robber's riposte- who exactly was on trial here- Bhushan or the court itself?
The Supreme Court may have allowed it hurt feelings to get the better of its good sense. Relying on a Constitution which has given them a status and a protection they do not appear to have lived up to of late, the honourable judges may have decided to muzzle once and for all an irritating lawyer, send a signal to others inclined to speak the brutal truth to power, and perhaps get brownie points from the government in the bargain.
After all, what is one lawyer against the majesty of 32 wise men who by law always have the last word?
But they forgot two important caveats to their power. One, as Robert Jackson said, Judges are not final because they are infallible, they are infallible because they are final.
Two, they would have done well to have remembered Mark Twain before getting into this scrap: " It's not about the size of the dog in the fight, it's about the size of the fight in the dog." And Bhushan has plenty of fight in him, even though he may not ride a superbike, as the Chief Justice of India does. This contest is not over yet by a long shot.
Bhushan has an unmatched record for probity and for fighting for the rights of the citizens. He is a pro bono warrior who has consistently held power to account, regardless of who is wielding that power. By invoking against him a law which the rest of the civilised world has discarded - the law of criminal contempt- our judges have not shown due respect for the most important component of a democracy- the right to criticise. It was perhaps an inevitable reaction by a court which increasingly gives the impression that it has become extra cautious about its own right to criticise an overarching executive, but that does not justify their action. Especially as they have done it in their own cause. But perhaps this too was inevitable, following in the footsteps of another Chief Justice who presided over a bench to consider a complaint of sexual misconduct against himself.
But I am not on the wisdom or correctness of Bhushan's claims or charges, even though that part of India which still retains the capacity to think and not be led by the nose by Whatsapp or a bought out media will find a lot of merit in them. The very fact that as many as 18 retired superior court judges and hundreds of intellectuals, lawyers and eminent citizens had asked the SC to drop the proceedings against Bhushan lend a lot of credibility to his allegations.
My point is this; we all have felt for some time now that there is something rotten in the state of Denmark; the combined might of the executive and its various institutions has prevented us from doing anything about it; but can we not even voice our opinion about this, complain about an ever growing perception that judicial independence and the protection of human rights is no longer in the cause list of the court?
Are we not even allowed to bleed when you stick a knife in our innards? To me, Bhushan's tweets are an indication of how highly we value our judiciary, his criticism reflecting the anguish of the citizens when our courts are not perceived to be living up to the high standards we expect from them. They reflect disappointment, not disrespect, and it is unfortunate that the hon'ble court was unable to discern this difference.
Judges are the only category of government servants who are allowed to criticise the executive and the legislature; in fact, I would go so far as to say that they are MANDATED to criticise them. Other government employees can, and have, been punished and even dismissed for doing so.
It is a precious and invaluable right which the higher judiciary is perceived by many to have foregone in favour of the executive in recent times , to have become " more executive than the executive." A judicial officer who does not have the courage to confront the executive in deserving cases is not doing justice to his calling. Just as, for an ordinary government employee criticism of the government amounts to misconduct, I would venture to say that , for a judge, the obverse should be true: failure to criticise when it is warranted amounts to misconduct.
Pride goes before a fall, and by failing to realise this the Court has allowed Bhushan, and the civil society he undoubtedly represents, to exhume the corpses long buried, corpses which were denied a fair forensic examination by the government of the day before they were consigned to history. And there are almost as many corpses buried here as in a graveyard.
In his 162 page reply to the contempt notice Bhushan had submitted a list of omissions and commissions which is longer than the creative list of charges in the Bhima-Koregaon case, and far more credible: assignment of sensitive cases only to particular judges, judges sitting in their own causes, delay in hearing habeas corpus petitions, Judge Loya's death, the suicide note of Kalika Pul, police violence and complicity in the JNU/ JamiaMilia and Delhi riots cases, reluctance to curb the executive's excesses in Kashmir including denial of internet and 4G, covering up of the sexual harassment allegations against Ranjan Gogoi, unconscionable delay in hearing cases pertaining to Electoral bonds, abrogation of Article 370, abolition of statehood for J+K, the medical college bribery case and denial of permission to prosecute Justice Shukla, an accused in the PIMS scandal, the Sahara Birla case, nomination of Ranjan Gogoi to the Rajya Sabha, the failure to protect the human rights of the "accused" in the Bhima Koregaon case, the sudden midnight transfer of Justice Muralidharan from Delhi to Chandigarh when he castigated the Delhi police, the perverse concept of " sealed cover jurisprudence".
There are more instances pointed out where the SC has been perceived to be more papal than the Pope, but this list is enough to appreciate the minefield which had been laid out for Justice Arun Mishra and his brother judges. And let us not forget that sealed cover list of corruption charges against previous Chief Justices submitted in the 2009 case, waiting to be opened some day.
It would have been difficult for the Hon'ble justices to negotiate this minefield without serious outcomes. As I see it, the Court had only three options.
One, drop the contempt notice and close the case after creating some facing saving formula.
Two, proceed with the case under the impulse of their hubris. To do so in a fair and judicial manner, every instance of inappropriate conduct or questionable judgment mentioned by Bhushan would have had to be investigated and anatomized. To have done so would have been a blunder of suicidal proportions by the court, for once you start probing there is no saying what darker secrets might emerge.
Three, find Bhushan guilty on purely technical grounds ( eg: calling a judge "corrupt" is itself contempt, even if there is proof to show that he is, in fact, corrupt: in other words, truth cannot be a defence against contempt- an abhorrent postulation.)
None of these options would have done much for the stature of the Supreme Court, it would stand diminished in any case because our judges have not heeded the wise words of Lord Denning, perhaps the greatest jurist England has produced, refusing to use the power of contempt as a shield:
" The jurisdiction (of Contempt) undoubtedly belongs to us. But we will never use this to uphold our dignity, that must rest on surer foundations. Nor will we use it to suppress those who speak against us."
It would appear that the Court has chosen the third option. It states that Bhushan's two tweets have " brought disrepute " and "scandalised" the Court.
Two tweets? Is that all it takes to bring disrepute to a court of almost 75 years' standing? In which case, our judges should seriously ponder about the next question that inevitably follows- how is it that its reputation, credibility and independence have become so fragile that it feels threatened by one man's tweets?
Surely, its foundations are- or should be- stronger than that? By refusing to examine Bhushan's charges on their merit before convicting him the Court has not rendered true service to itself and the nation.
In the ultimate analysis independence, conduct and conscience cannot be legislated or assumed on the basis of an oath taking ceremony, nor can legislation conceal the lack of them. Like justice itself, not only must they exist they must be seen to exist. True legitimacy does not come from a legal time but from a favourable public perception. That, I think, is what Lord Denning was talking about.