Banikanta Mishra
I had just finished the rituals pertaining to the 40 th death anniversary of my father, when my son approached me and said that “Prashant Bhushan has been found guilty of Contempt of Court, and grandfather’s case has been referred to quite a bit in the SC judgment”. There was a momentary flashback to my family’s trials and tribulations as well as pride and perseverance during those challenging and difficult times. What a coincidence. I felt sad. My mourning for something that my father zealously fought for throughout his whole life now got appended to my mourning for him. Like Poet Robert Frost in The Road Not Taken, my father had chosen to tread on the path perhaps less travelled, the one of speaking up. Bhushan seems to have done the
same. Martin Luther King, Junior, would have been happy; he always lamented the “silence of his friends” rather than the “words of his enemies”.
In a landmark judgment (Shreya Singhal vs Union of India, 2015), the SC had quoted two famous judgments of USA. One is Justice Holmes’s statement (Dissent, in Abrams versus United States, 1919) about “free trade in ideas” and “that the best test of truth is the power of thought to get itself accepted in the competition of the market” Another was that of Justice Brandeis (Concurrence, in Whitney versus California, 1927), who had eloquently said that 'those who won our freedom' believed “that public discussion is a political duty; ….they knew …. that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies"
Though Supreme Court has given time to Bhsuhan till Monday the 24 th to apologize for his two tweets, he has categorically declined, adding that “We are living through that moment in our history when higher principles must trump routine obligations, when saving the constitutional order must come before personal and professional niceties, when considerations of the present must not come in the way of discharging our responsibility towards the future.” One of his tweets referred to the CJI’s riding a 50-lakh motorcycle belonging to a political
leader…without a mask or helmet…when he keeps the SC in lockdown mode. I felt that the second part was a bit uncharitable, as the SC and other courts have been trying their best to dispense justice even during these challenging times. I was more concerned about the first part, since it seems to question the impartiality of the CJI – it does not matter whether the politician belongs to the ruling party or the opposition. It is indeed surprising that the SC verdict has not
made any comments on that!!
The other tweet is probably far more judgmental. But he was carrying out a political duty, towards a free discussion of ‘supposed’ grievances – which may not necessarily be always justified or existent –, so that ‘proposed’ remedies, if warranted, can be arrived at. If expressing an ‘opinion’, without denigrating the judges in loose words, is considered Contempt of Court, how can free trade in ideas take place? If there be untruth, it would anyway fail to be accepted. Why shoot the messenger? Aren’t we in a country “Where the Mind is Without Fear”?
In a concurring opinion in my father’s case (Baradakanta Mishra versus Registrar of Orissa High Court & Another, 1974), Justice Krishna Iyer had talked about the role of “constructive criticism” of the judicature’s “serious shortcomings”, if any, and urged that “the contempt power should not be an interdict”; he had noted that “far from undermining the confidence of the public in Courts,” this increases it. In a later case (S Mulgaokar versus Unknown, 1978), he continued to advise ‘detached tolerance’, though he alerted that the
judiciary “strikes when offensive excesses are established.”
If the SC punishes Bhushan, he would become a hero. I feel that, whatever mistakes might be attributable to my father’s side, the two-day jail sentence he suffered, because of his refusal to bend down, made him a real idol. One who had been imprisoned due to his involvement in the Anti-Union-Jack Movement in his Ravenshaw College days during the British Raj could not possibly have been threatened by the potential incarceration, especially if he felt that it was another ‘freedom’ he was fighting for. SC later reduced his jail sentence to a fine of one thousand rupees or three months simple imprisonment in lieu thereof, but that could not reduce the admiration he had already started commanding, especially from the youth and the legal fraternity. In fact, following the Justice Karnan episode, The Samaja, one of the oldest and best-known vernacular dailies of Odisha, had said in its Editorial on 14 May 2017 that (translation ours) "late Baradakanta’s image as a self-respecting, honest, and fearless judge had, however, earned respect of the people” and juxtaposed by highlighting that “Justice Karnan of today and the unsavory incidents related to him distorted the image". But, if the SC orders Bhushan to establish his claims and he fails – as the SC expects -, it can write a caustic judgment
castigating him, which would surpass any legal ‘punishment’.
My former colleague at Emory University Business School, the ever-humble erstwhile US President Jimmy Carter, had once said that “a strong nation, like a strong person, can afford to be … restrained”, while, a weak nation behaves with “signs of insecurity.” Our judiciary,
which, in its own words, is “the central pillar of our democracy”, must behave in a manner that no insecurity is attributed to this unshakeable fulcrum.
In fact, SC has not reacted when denizens have said many serious things about it. The highest court possibly has been driven by a “majestic liberalism” that Justice Iyer had talked about in the Mulgaokar case and took the stance of magnanimous quietude, with the feeling that “the dogs may bark, the caravan will pass”? So, why is the caravan finding it difficult to pass in the Bhushan case?
What worries me is that the society’s image of judges is so frail that it can waver at a judge’s simple expression of hostly pleasantries or his receipt of a mere social visit from some prominent ministers. Why can’t the society generously ‘assume’ that professional relationship and personal bonhomie would remain completely independent? I believe that it is a complex case of ‘trust deficit’. That should worry our highest court far more than occasional light aberrations and conflicts.
A ‘sacred’ principle that must be adhered to by all the esteemed courts in a contempt case is that, if any of the defendants has ever brought any covert or overt allegation against a judge – whether they are well-founded or unfounded, adjudicated or not – that honorable judge must
never sit in judgment in any Contempt of Court case involving that defendant. . If s/he did, s/he would not have the image of Caesar’s Wife (sorry that this popular, history-based phrase does sound a bit sexist), even if s/he might have a record of impeccable honesty till that point.
The whole world is watching the Prashant Bhushan case with disinterested interest. If the very act of the highest court to ‘protect’ its image pulls down this very image, that would be a momentous paradoxical travesty. At stake is the image of not merely some particular judges, Indian judges in general, or the Indian judiciary, but something far more sacrosanct: the country.
(The writer is a Professor at XIMB, Xavier University, Bhubaneswar (XUB). The views expressed here are
personal.)
