This petition is being filed against the respondents (High Courts and the Supreme Court of India) for contempt of the Constitution committed by their varying interpretations of fundamental rights guaranteed in what is a holy book to all of us, the citizens of India. This book looks at freedom of speech and expression as our paramount right that should prevail over all others. Without wasting the time of the Honourable Judges, let us get to the point.
The inherent weakness in the way our democracy functions is that the response to any issue is often based on the individual(s) who raises it or the political colour of the person concerned, juxtaposed against the line of the party in power. As it happened yet again a few days ago when senior lawyer Prashant Bhushan posted two tweets—one of them by and large factual and the other, a comment against four past Chief Justices of the SC. He could have been wrong in respect of the latter but it was a citizen’s perception of the state of the judiciary. Yet, contempt has been preferred on the ground that the remark has brought the administration of justice into disrepute. Let’s delink Prashant Bhushan and evaluate the issue at hand.
Two of the four former CJs referred to in the tweets figured in the famous January 2018 press conference by the then sitting judges of this very court: Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph. Their letter of complaint against the then Chief Justice Dipak Misra began thus: “It is with great anguish that we thought it proper to highlight certain judicial orders passed by this court which has adversely affected the functioning of the justice delivery system besides impacting the administrative functioning of the office of Chief Justice…” Referring to cases of far-reaching consequences assigned selectively by the CJI, they said, “… such departures have already damaged the image of the institution to some extent.” When the Rajya Sabha Chairperson rejected the plea of MPs for the impeachment of the CJI, a PIL was filed and Justice Misra himself decided and dismissed it!! As for Gogoi, he ascended the same seat later and is now a member of the Rajya Sabha, nominated by the ruling party. Could the four judges be guilty of contempt, even though one should accept they were leaning on the side of justice at the time of holding the press conference?
Lest people lose faith in the justice system, comments such as “dissent cannot be suppressed” keep coming from the HCs and SC. We heard it again most recently in the context of Congress MLAs of Rajasthan revolting against the chief minister. Even if one were to argue that the MLAs in the current episode are defectors willing to sell themselves in an auction, a tradition set by the Congress and pursued with greater vigour by the current rulers, the court was right in saying they still have a right to dissent. How then, in the same breath, My Lords, can your critics be called contemnors?
Judges often remark that their judgments are based on law and on arguments advanced within the four walls of the courtroom. But experience has been that they are also largely influenced by the ideologies of the justices—their values, views, prejudices and so on. And this is true of the more evolved American Constitutional jurisprudence, too. Erwin Chemerinsky, whose legal acumen has been undisputed, indicted the US top court as a failure at its most important moments. He accused it of being a silent spectator to “egregious violation of basic liberties”, “always sailing with the majority, businesses and those in power” and described it as an “Emperor that truly has no clothes”. None considered hauling him up for contempt.
We have our own Chemerinsky, late H M Seervai, arguably the most distinguished exponent of Constitutional law and whose books are widely used in the HCs and SC. It may be useful to current practitioners of law—both in the Bar and Bench—to read up his scathing observations against six of the seven SC judges who delivered the verdict in a contempt case involving a member of the UP legislature in 1965. Seervai accused the judges—Gajendragadkar (CJ), Subba Rao, Wanchoo, Hidayatullah, J C Shah and Rajagopala Ayyangar—of “having turned a blind eye”, “closing their minds”, “being personally interested in the case” and “approaching the issue with a predetermined mindset”. None dared say anything against Seervai because more often than not, the judges themselves depended on his interpretation of the Constitution. When former Union Law Minister late P Shiv Shankar said in 1987 that the SC essentially comprises people from the elite and had become a haven for “FERA violators, bride burners and reactionaries”, the SC merely felt he could have avoided such harsh language. Renowned Marxist E M S Namboodiripad, of course, saw the judiciary as “an instrument of oppression”.
My Lords, we have declared ourselves a democratic country (whether it’s just a façade is a bigger debate). We have given ourselves a Constitution that protects individual liberties and a Supreme Court to ensure that they are enforced. The underlying emphasis being that the majority should never be allowed to trample on the rights of the minorities—be it political, social, racial or economic. The Emergency saw the detention of political opponents, from sympathisers of Naxalites to RSS swayamsevaks. What we are seeing now is denial of bail to those who have no reason to be kept in jail, including 60-plus intellectual-activist Sudha Bharadwaj, despite her suffering from an ailment that reduces flow of blood. It is as violative of fundamental rights as it was to deny bail to an Islamic preacher who stayed in prison for nine years only to be acquitted finally, or to police officers accused in an encounter case and kept in prison for years as undertrials—both during the earlier regime. The point that should not be missed is that fundamental rights apply even to those who do not profess faith in the Constitution. It will be a waste of time and space to recall how our own SC behaved during the Emergency. As to what is happening now, it will be recorded in the days to come.
My Lords, there is nothing personal in the criticism of the judiciary or those who helm it. Like Seervai and the four former judges, some feel it is their duty to speak out, maybe even to indulge in personal criticism, for a larger cause. This is because inconsistencies in judicial pronouncements, particularly those that go against the disadvantaged and opponents of government, are only increasing. The remedy is not the threat of contempt but to ensure respect for the notion of justice, which is fast eroding. Remember, countries like the UK, from which we have borrowed our jurisprudence, abolished contempt power as incompatible with the freedom of speech.