SOFT AUTHORITARIANISM CLOAKED IN JUDICIAL MAGNANIMITY: MORAL VICTORY OR MORAL REPUGNANCE?

Firstly, my congratulations to Prashant Bhushan for his pyrrhic victory, not forgetting that he was found guilty and ₹1 is still an amount against his crime. However, the major questions that arise from this case are: Why the Honourable Supreme Court put up the contempt case in the first place? What would have been the consequences had it been somebody else other than Prashant Bhushan? And for how long does the most powerful public institution deliver nothing but breadcrumbs disguised as moral victories?

Gone are the days when describing thief as a thief and rogue as a rogue was not considered as undermining the most powerful public institution of this country, when common people could repose their fullest confidence in the sagacity of this institution which now seems to wield the thunderbolt of authority against dissent, and when the country was not swept by the dictatorial rhetoric overriding the fundamental rights of its citizens every now and then.

Few days back, the apex court took suo moto cognizance for contempt against Prashant Bhushan, a well known public interest lawyer who has a record of standing up and showing mirror to the people in power. His crime was to tweet a picture of Chief Justice of India, where he was riding an expensive bike owned by the son of a BJP Politician, Sonba Musale and that too, without wearing any mask, while physical hearings in courts are on halt all over the country. In another tweet, he pointed out the contribution of the last four CJIs in assisting the government for assaulting democracy and as expected, the most powerful public institution saw it as an attempt to undermine its credibility in the eyes of people, unaware that people’s credence in the public institution is already on the downward spiral since January 2018, when the four judges of Supreme court held a press conference alerting the people that judiciary is at stake as the government is trying to hijack it and as per basic common sense, the institution is now required to act more cautiously and little less like an instrumentality of the government to rectify it’s image.

Coming back to Prashant Bhushan’s contempt case, the three judge bench led by Justice Arun Mishra, the same judge who parted with Amit Shah in Justice Loya’s mysterious murder case and our honourable Prime Minister in Sahara Birla Case, deemed Prashant Bhushan’s two tweets as false, malicious and scandalous in a 108 pages long judgement. The quantum of punishment came out to be a fine of 1 rupees, which if he failed to pay so, he would have faced an imprisonment of 3 months and would have been disbarred from practicing with the Court for 3 years.

Bhushan’s prior refusal to apologize suggested that he would not pay the fine – as per the Right Wing Intellectuals, it wasn’t about 1 rupees, but his admission of guilt. However, the Left Wing Intellectuals believed that the Court was scared to give him any severe punishment because of the public outrage, hence they accepted their defeat and asked for only 1 rupees as fine. Disagreeing with both the statements, I find myself in a moral quandary. Neither do I want the poster boy of free speech nor the most powerful public institution to cave in; I want the tyrants, the authoritarians, the emperors to cave in and that too, before the common people of the nation.

The question here is not only on the order convicting Bhushan for his tweets, but also on the constitutionality of Section 2(c)(i) of the Contempt of Court Act, 1971 which deals with the offence of criminal contempt on the ground of scandalizing the court or lowering the dignity of the court and as suggested by the 21st Law Commission, it should have been scrapped long time back owing to the fact that it produces deblitating effect on the fundamental rights of people. Prashant Bhushan also pointed out that as per article 145(3) of the Constitution of India, there shall be a quorum of minimum five Judges for deciding any case involving substantial questions of law. Following that, this case should not have been heard by the three judge bench which is why he and other members of legal fraternity called it a mistrial.

Many well known activists, as well as eminent lawyers criticized the apex court on hasty suo moto action against Bhushan, while myriad of petitions raising issues vital to our constitutional democracy and its institutions, like the electoral bonds case, the challenge to demonetisation, the abolition of Article 370, conversion of the state of J&K into a union territory, ‘lockdown’ on the liberties and freedom of the people in J&K, illegal encounters in Uttar Pradesh, etc., are languishing in the court.

I am not learned enough to comment on the judgement of supreme court, but as an active viewer of the court’s proceedings, I can say that the judgement is prima facie authoritarian and is potent enough to produce a chilling effect on the fundamental right of freedom of speech and expression. I believe that people holding public offices taking umbrage at genuine statements is not only making a mockery out of constitution, but it is also a breach of faith with the fundamental rights of the citizens.

At the same time, I believe that the ‘third pillar of democracy’ is the only bedrock left for the efficient functioning of our democracy, and as an ardent believer in liberal democracy, I think that the mantle of protecting the institution from the populist government is on our shoulders and we can do so only by reposing our complete faith in the institution. Undoubtedly, the attainment of justice is the conscious end of the Supreme Court and questioning the administration of such institution can have profound destabilizing effect on a liberal democracy, especially when the populist government is continuously trying to disparage it so it’s our duty to refrain from saying or writing anything against the institution without rock solid evidence to back our statement.But as Lord Acton said and I quote ‘power corrupts and absolute power corrupts absolutely’, the Chief Justice is and will always be liable to answer questions concerning his position in a democratic society. People holding power in any institution, be it government or judiciary are not allowed to play truant with the fundamental rights of the citizens, reducing them to an idol dream.

The actions of all the power holders in a democracy should be in conformity with the standards set by the constitution because democracy is government of the people, for the people and by the people, and it works best only when it is protected from the people in power.

Sadaf Parvez is a student pursuing Law from Jamia Millia Islamia.

Edited by: Nuzhat Khan

Disclaimer: The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Jamia Review or its members.