Suppose the emperor did not have the grace to accept his mistake even after being called out by the child in the crowd? The child would be found guilty of les majeste, of offending the majesty of the ruling court. Prashant Bhushan has been found guilty of contempt of court. Most major lawyers of the Supreme Court have opined against the ruling.
Thousands have petitioned to the same effect. People are not oozing sympathy for Bhushan, the individual. They see the contempt ruling against him as an attack on free speech, the use of public criticism as an instrumentality of institutional account- ability. In India’s constitutional scheme of things, the Supreme Court plays a special role. It is expected to rein in the executive when the executive treads on the citizens’ constitutional rights, of which free speech is one of the most important. Free speech is not the right to sing praise of those in power, but the right to tell the bitter truth, to criticise and raise dissent. If the Supreme Court proves incapable of suffering criticism of itself, it erodes public confidence in its ability to protect the citizens’ right to criticise the executive.
India is a society where the traditional social values of hierarchy and subordination of the subaltern rungs of the hierarchy to those above them have deep roots. These are antithetical to democracy. While political con- duct would be the primary change agent, the judiciary, too, is expected to play a supportive role in ridding society of values associated with pre-democratic socio-political orders. The contempt finding serves to reinforce the notion of re- spect as something that attaches to hierarchical position rather than as something that is earned through con- duct and character.
What constitutes contempt of court has never been laid down in detail, just as what constitutes breach of Parliament’s privilege has not been codified. In consequence, members of Parliament and members of the judiciary have licence to range far and wide while smelling out what offends their privilege or dignity. This is a legacy of our pre-democratic past and must be extirpated for our future to be democratic.
The British Law Commission, which recommended in 2012 that the law on scandalising judges be abolished, listed three democratic functions of freedom of speech. One, it promotes the self-fulfilment and development of those who express ideas and those who receive them; two, truth is likely to emerge from the free expression of conflicting views in the marketplace of ideas; and, three, it ensures that opinion and information about those who govern us or wish to govern us are available to the citizenry, and expose errors or shortcomings in the process of government, including the administration of justice. And then it lists avoidance of an atmosphere of fear and resentment as an example of other benefits arising from the freedom to criticise.
It also points out that punishing people for contempt of court is unlikely to re- move public scepticism about the sanctity of judicial conduct; on the other hand, it is likely to reinforce the perception that judges are using the power vested in them by the con- tempt law to quell any criticism. It recommended abolition of the law on scandalising judges. The law was abolished the follow- ing year. In the debate in the House of Lords on the bill to give effect to the abolition, Lord Carswell, a former Law Lord and Lord Chief Justice of Northern Ireland, said: “Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright and deliberately mislead- ing, the same applies.”
Should judges of India be made of stuff that is less stern? Why should their skin be a whole lot more sensitive than that of their brother judges in other lands? Freedom of expression and the right to criticise are the life force of democracy. That is un- der assault in India, with magistrates happily slapping charges of sedition against anyone who criticises the government, in full-throated violation of the Apex Court’s ruling that sedition subsists only when there is an exhortation to proximate violence. The Court should hold such magistrates in contempt, for substantive violation of its own learned judgment, not champions of the public good who criticise it. India’s judiciary has no institutional means of accountability, save Parliament’s right to impeach judges.
Criticism of judicial conduct becomes, therefore, a form of essential feedback and accountability that preclude the extreme step of impeachment. Does this mean it is okay to malign judges or publish material designed to impede the working of the judiciary? Certainly not. The laws on libel and obstruction of justice can take care of such unworthy acts. Scurrilous criticism would be dismissed as something on par with the vapid ranting of some television anchors, while reasoned criticism would enrich the public discourse and enhance the quality of governance, which includes the administration of justice. The judges would do themselves a favour by withdrawing the contempt verdict against Bhushan.