Greetings. It’s a pity that in the India of 2020, in the Era of Minus 23.9, we should have to gather to discuss something as primitive as the Right to Free Speech – surely the most fundamental building block of a functioning democracy.
On the other hand, perhaps we have ceded the right to call ourselves one – economically, and socially we are on our knees. Over the past few years our country has suffered from a series of artificially induced heart attacks (the sudden and unexplained demonetisation, the rough-shod introduction of the Goods and Services Tax, the abrogation of Section 370 in Jammu and Kashmir, the attempts to ram through the Citizenship Amendment Act, the bungled Covid-19 lockdown and now Covid itself.
Like often happens to patients with diabetes, these heart attacks have been silent attacks – masked by the pre-existing illness. That illness in the case of our country is the cacophony of relentless propaganda and the dereliction of duty by public institutions who have done little to stop the slide. And this includes the judiciary. Our heart is failing. And one of the doctors who – like the many academic, activists, lawyers and scholars who are in jail right now – has been warning us for the longest time about our condition, is Prashant Bhushan. For his pains, he is now a convicted felon.
A list of failures
In his lengthy reply to the Supreme Court’s 2020 charge of contempt of court, apart from the legal arguments challenging the accusation, Prashant Bhushan has listed a number of issues in which he maintains that the Supreme Court has failed, by commission as well as omission, to act as the guardian of the Indian Constitution, safeguard citizens fundamental rights to life and liberty and stem the slide into illiberal majoritarianism.
Among these are the habeas corpus petitions by the relatives of some of the thousands of Kashmiris jailed around August 5 of last year, the internet siege (which in my opinion amounts to a crime against humanity), the Supreme Court’s role in the execution of the National Register of Citizens in Assam (resulting in untold suffering and tens of millions of people being excluded from the list), the assault by police and rightwing thugs in the campuses of Jamia Milia Islamia and Jawaharlal Nehru University, the mysterious death of Judge Loya, the scandal around the government’s purchase of Rafale fighter jets, the court’s refusal to intervene to protect workers during the lockdown which resulted in horrifying migration on foot of millions as they walked hundreds and sometimes thousands of miles home to their villages.
Prashant’s reply affidavit also details several egregious corruption scandals some of them involving judges of the Supreme Court who have been named. This is a monumental public document that ought to be compulsory reading for anybody seeking to understand how modern-day India works – or, as the case may be – does not work.
But now that Prashant has been convicted and punished, we cannot cease to pursue, question and write about all of these things. We must follow his example, and build on the courage he has shown.
I’d like to raise one more important issue.
Between its judgment holding Prashant Bhushan guilty for “scandalising” and “lowering the dignity” of the court and the quantum of punishment he has received – a symbolic fine of one rupee there – is a whole swampy universe. I am glad that Prashant plans to challenge that judgement, because as long as that judgment stands, it is a dangerous trap for those of us who are not well-known Supreme Court lawyers from illustrious families.
In recent years, others have been convicted of contempt of court too. Among them, Justice Karnan, a judge – a Dalit judge – in the Kolkatta High Court. He was convicted under a different section of the contempt law – interfering in the administration of justice – and sentenced to six months in prison. The Supreme Court lawyer Mathews Nedumpara was convicted of contempt of court in 2019 for “contemptuous allegations and attempting to “browbeat” the court. He was given a suspended three-month jail sentence and barred from practicing in the court for a year. Neither of these two were given the option of symbolic punishments.
There is a fair amount of commentary in the social media about the different strokes for different folks – both in terms of the Supreme Court’s judgement as well as the groundswell of public support.
A whiff of upper-caste patriarchy
Speaking for myself, I found the language used in the judgment that convicted and jailed me for contempt of court in 2002, intemperate, sexist and denigrating. To be sure the “offences” that each of us are supposed to have committed are by no means the same, and Prashant’s sterling record of public service plays an enormous part in all of this.
However, there is certainly a whiff of upper-caste patriarchy in the air that must not go unremarked upon. In an unequal, caste-ridden and overtly sexist society such as ours it is the duty of not just the courts, but everybody, to be alert to all forms of discrimination.
We cannot expect that the judicial establishment will volunteer to reduce its powers by repealing the section in the contempt law with its Victorian notions of “scandalising the court” and “lowering its dignity” – even if it knows full well that the only way it can gain respect is through its judgments and not through this ridiculous law.
Since the law is unlikely to be repealed we must strive to make it redundant. Not by deliberately and gratuitously insulting the court, but by, like Prashant Bhushan has, speaking our minds about courts, judges and their judgements, conscientiously and responsibly.
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