The most important factor while discussing the intersection of the Indian Judiciary and the right to dissent guaranteed by the Constitution of India is the Contempt of Court Act, 1971. This issue has come to the fore since the Supreme Court of India convicted former Supreme Court justice Prashant Bhushan on the charge of criminal contempt for his derogatory tweets concerning the judiciary. In the light of the case, there has been a barrage of criticism leveled against the decision of the court from members of the bar, former legal luminaries and academicians as well as common people in the form of street protests. The opinion stemming from said criticisms revolve around the right to dissent being an essential fundamental right in a democracy and the Supreme Court cannot be shielded from such criticism on the back of it being an institution ‘upholding the majesty of law.’ In this light, the laws of contempt should be revisited, to strike a balance between upholding the majesty of justice and administration of the courts and protecting the inalienable right to dissent guaranteed by Article 19(1)(a) of the Constitution. Such decisions of the Supreme Court dilute the conception of freedom of expression and dissent which it seeks to protect, hindering progress towards a rights-conscious civil society.
The right to dissent is an inalienable right guaranteed under the right to free speech under Article 19(1)(a) of the Constitution of India. Democracy should be allowed to have diverse opinions and an inherent right to disagree. The multi-cultural identity of India makes it vital for the country to have an environment where a multiplicity of ideas can exist simultaneously. Moreover, in the institutions of this country, particularly institutions concerned with governance, the need for the right to free speech and the right to dissent are essential since they strengthen accountability and transparency.
A democracy is built on the virtues of accountability and dissent, hence all its institutions in the country should respect and value the need to inculcate democratic values in their functioning and philosophy. Earlier this year, Justice Deepak Gupta of the Supreme Court called majoritarianism “the antithesis of democracy”, saying dissent cannot be called “anti-national” since it is a “human right to disagree” amid protests against the Citizenship (Amendment) Act.
In the words of Sanjay Hegde, a senior advocate in the Supreme Court, abhorrent thoughts are bound to exist in a democracy, and democracy should be mature enough to tolerate it, and even encourage its publication. He went on to opine that only a totalitarian government will suppress dissent, and only a country still suffering from the colonial hangover of an imperial government labels dissent as seditious. If dissent is such an essential facet of democracy, then why does the Judiciary, one of the three major institutions of the government, shield itself from criticism of its functioning? It does so by employing archaic legislation in the form of The Contempt of Court Act, 1971.
It is powerful legislation aimed to ensure the fair administration of justice and to punish any acts offending the dignity and authority of the courts of India and its judges. However, since the Prashant Bhushan contempt case, in which he was charged with criminal contempt for his derogatory tweets concerning the judiciary, the question of the Judiciary abusing its inherent power to punish for contempt came to the fore. The decision of the court to convict Mr Bhushan while not strictly adhering to statutory regulation has drawn the ire of several former judges, advocates of the bar, and the civil society in the form of street protests. Over 1,800 members of the Bar issued a statement condemning the Supreme Court’s decision.
If the Supreme Court considers itself the upholder of the majesty of justice, guardian of the rule of law responsible for delivering fearless and impartial justice, then why does it exercise near-absolute power to initiate contempt proceedings against coherent and popular criticism against its functioning? I don’t believe it is justified to allow the Supreme Court to have a mechanism where it can suppress constructive criticism and normalize a culture where dissent is characterized as seditious. It can have both short and long-term determinants for the evolution of civil society in India.
Since the Judiciary is one of the three pillars of government in India, wherein it considers itself to be the ‘central pillar’ of the democratic state, it should be held accountable for its functioning and decisions the same way the other two organs of the government are. This article will further explore this idea and argue that the Supreme Court engages in institutional narcissism when it considers itself the purveyor of justice while restricting an individual’s fundamental right to personal liberty using the contempt laws.
I believe this narcissism stems from the fact that the Contempt of Courts Act, 1971 is archaic legislation rooted in the colonial conception to preserve the unchallengeable authority of the monarch and it is antithetical to the virtues of democracy.
Violence in the Name of Preserving the Sanctity of Law
The Supreme Court’s decision to convict Mr Prashant Bhushan on the eve of independence has sparked a fascinating debate surrounding the exclusivist approach the Judiciary takes towards the conception of Justice. Dissection of said judgment reveals that the Court busied itself in searching for ‘power’ to try for contempt. In this exercise, the Court discovered that said powers were ‘inherent’, but the word the Court was looking for was ‘absolute’. Procedural laws provide a framework and limit the ways in which a government institution might take liberty in interpreting substantive laws.
However, in Mr Bhushan’s case, the Court was intent on stretching the boundaries of statutory legislation to re-discover its powers to try for contempt. The case was taken up ‘suo moto’ on July 22 and the verdict was handed down in merely three weeks. This approach was manifest since the Court doesn’t see itself as a mere purveyor of justice, but justice itself. That is why an attack on the functioning of the judiciary is read as an attack on the ‘majesty of justice’.
There is a prevalent conception in civil society, academia, and digital media as well that the Judiciary is the sole representative of justice; its independence and exceptionalism elevates it from the playing field of all other governmental institutions as they are tainted by partisan politics.
The higher regard which is placed into the judiciary for being an impartial institution engaged in the noble work of upholding the conception of justice is conceptualized in how the Supreme Court describes itself as the upholder of the majesty of law, guardian of the rule of law, and the deliverer of fearless and impartial justice in a narcissistic attempt to announce its own royalty in the realm of justice. This pedestal on which the Supreme Court sits is awarded to it on the account of the executive and legislature being characterized as political, and inherently partisan.
In this scenario, the Judiciary is perceived to be an overseer of the other two organs and considered to be the ‘central pillar’. I believe the virtue of justice should be equally distributed to all organs of governance, and only the Judiciary should not be expected to meet the high standards of carrying out impartial justice.
In all previous contempt cases, the Supreme Court has gone on to adorn itself with a garland of superlatives on the back of ascertaining the contemnor’s guilt, in an attempt to solidify the conception of it being the very meaning of justice. As a result, an attack on the Judiciary is construed to be an attack on justice itself. More than a few times in legal academia and discourse has the Supreme Court been defined as the ‘people’s court.’ Despite the fact that the Supreme Court is not directly elected, it is expected to uphold the strong virtues of justice and protect the rights of the common man.
It is on the back of this promise, political independence, and nobility, that the Supreme Court enjoys the public’s confidence. The Supreme Court initiates contempt proceedings on the justification to uphold said confidence and not let any individual scandalize the sanctity of the Court, and consequently, of justice. In the words of Hannah Arendt, power seeks ‘legitimation’ from the founding decisions of a community, violence seeks ‘justification’ from an end that lies in the future.
In the light of the Prashant Bhushan case, the Court tried its best to legitimize its actions as necessary to defend its ‘public confidence’, however, as Mr Bhushan refused to apologize for his alleged transgressions, the Court decided to fine him Re. 1 in a desperate attempt to set an example of him and satisfy its insecurity about the ‘foundations of its edifice.’
Contempt Laws of India need Revision
The almost absolute powers to initiate contempt proceedings accorded to the Supreme Court helps in strengthening the conception that justice is a domain solely operated on by the Judiciary. This archaic legislation reflects the colonial conception of preserving the unchallengeable authority of the monarch. Undoubtedly, such legislation is designed to suppress dissent, antithetical to the virtues of democracy. The legislation provides for an extremely wide interpretation of the term ‘Criminal Contempt’, which gives immense power to the Courts to act in an arbitrary manner while initiating contempt proceedings.
Section 21 of the Contempt of Court Act, 1971 defines Criminal Contempt to mean, “the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which: (i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”
The scale is prejudicially tipped to favour the Courts by the virtue of this definition, giving them an upper hand in initiating contempt proceedings. Since criticizing any aspect of the Judiciary is considered an attack on the very concept of justice, the Courts enjoy considerable liberty in interpreting what is scandalous to the sanctity of the law. A revision is required wherein a balance is struck between protecting the majesty of justice and the inalienable right to dissent, flowing from the right to expression guaranteed by Article 19(1)(a) of the Constitution of India.
Public confidence in the Judiciary arises from the fact that the Courts are impartial, apolitical, and independent in their operation and can be trusted to uphold the values of democracy, justice, and those others enshrined in the Constitution. However, the contempt laws are tipped in the favour of the Judiciary in a rather hypocritical fashion wherein the institution sworn to uphold the rule of law is the one benefitting from the lack of the same.
As discussed earlier, all government institutions should be upheld to the same standards with regards to the enforcement of justice; the first step to achieving this would be to amend the archaic contempt laws. This would go a long way for a healthier intersection between the Judiciary and dissent, manifesting in a progressive reinforcement of the ideals of democracy.
The Supreme Court is considered the bulwark of justice and the supreme protector of the fundamental rights of citizens. In this light, the Court cannot be allowed to rise above the very idea of justice it seeks to protect. The conception of rule of law dictates that the law is supreme and no individual or institution is immune from what it dictates. However, the functioning of the Court, especially with regards to contempt laws, proves otherwise. The Court is allowed to take a rather hypocritical stance in terms of dictating what constitutes free speech and what constitutes scandalizing the majesty of law.
This conception is allowed to stand since the Supreme Court is seen as the cradle of justice, meaning it coincides with the very meaning of justice. The Supreme Court should be treated on par with all other government institutions with regards to its standing before law and the ideals of justice. It cannot be allowed to supersede its authority on the back of it being the very meaning of justice. In other words, the Supreme Court should not be allowed to redefine the meaning of freedom of speech if it considers valid criticism as a slight to the very idea of justice.
The idea of justice and the Supreme Court cannot be allowed to coincide. The Supreme Court is an institution engaged in the protection of justice and not justice itself. Hence, in the name of preserving the majesty of law, the Court shouldn’t take liberty in reinterpreting the fundamental rights guaranteed to the citizens of this nation.