The Majesty of the Law Cannot Surely Be Entrusted to Those With Skin so Thin

If the government can't silence opponents by proclaiming the need to “protect” itself from malicious attacks, why is it permissible for the highest constitutional court to seek refuge behind reasons as weak as the need to protect future judges from being scandalised?

I write this today with a deep sense of betrayal – feeling like a child who discovers for the first time that their favourite fictional character does not really exist. Growing up in the India I did, my faith in the Supreme Court was no less absolute, no less childlike in its deep belief that this one institution was resolute and fair as an equal arbiter of justice.

A three-judge bench of the Justices Arun Mishra, B.R. Gavai and Krishna Murari passed a 108 page order today holding lawyer Prashant Bhushan guilty of criminal contempt of the Supreme Court for posting two tweets. The court took suo moto cognizance of the issue after a petition was filed by one Mahek Maheshwari on July 9. From filing to listing to hearing to passing judgement, the matter was over in less than 30 days. The fact that the court has not found the time to consider crucial issues like the legality of electoral bonds, the Citizenship (Amendment) Act, habeas corpus petitions and the scrapping of Jammu and Kashmir’s constitutional status and statehood does nothing to elevate its majesty.

Some have asked what is so fundamentally wrong with this judgment.

After all India does have a Contempt of Courts Act 1971 which gives higher courts the power to curb an individual’s right to free speech and personal liberty for “scandalising the court” or for “willful disobedience” of any judgment or direction of the court. Some believe today that as long as this Act is in existence, the Supreme Court almost certainly must punish Bhushan. If I, as a member of parliament, believe the law is not a good one, well, then I am welcome to try and amend or abolish it – but as long as it exists, it is the bounden duty of the bench to enforce it.

It would do us all well to recall that in March 2018, the Department of Justice wrote to the Law Commission of India suggesting that the Act could be amended to exclude “scandalising the court” (as has already been done in England & Wales) and be limited to only “willful disobedience” of its orders.

The Law Commission however, responded that such an amendment would serve no purpose since the powers of contempt of the Supreme Court and high courts are independent of the 1971 Act, and spring from the constitution itself. These inherent constitutional powers are supplemented by Article 142 (2) of the constitution and allow the Supreme Court to punish anyone for contempt. The Law Commission further believed that the 1971 Act actually restricted the unlimited powers of the courts in deciding contempt cases and hence was a good influence. Thus, the fallaciousness of the argument that our Lordships were somehow duty bound to follow the 1971 Act and make an example out of Bhushan lies exposed.

What next? The bench said the tweets were “patently false”. Prime Ministers have lost their chairs, governments have fallen due to a lie repeated often enough to create a perception of truth. The most honest of politicians and bureaucrats have had to spend a lifetime trying to disprove an untruth. Apart from filing for defamation, no other option is available to anyone in high office to stop fingers pointing or tongues wagging. Can an elected prime minister claim the “majesty of his chair” and wield vast authority to punish those who may call him names, however unfounded? Can a democratically elected government assume extraordinary powers of censorship and silence opponents by proclaiming the need to “protect” itself from malicious attacks? No. Why then is it permissible for the highest constitutional court of the largest democracy to seek refuge behind reasons as weak as the need to protect future judges from malicious attacks? Is the majesty of justice so thin-skinned that two posts on social media are enough to fell it? Does the blindfolded deity of law who administers equal justice to all have feet of clay?

Is speaking the truth contemptuous MiLords? Or do you simply want to follow in the steps of the executive and scare us all into silence. Make a strong example of a few to make the rest of us crawl.

The fear of a six month jail sentence does not stop me today from stating some uncomfortable truths: it is not within the realm of constitutional propriety to accept a nomination to the Rajya Sabha within a month of retiring as the Chief Justice of India; propriety similarly demands that judges should not hear cases which concern them directly, yet the ‘foundations of constitutional democracy’ were not shaken when this principle was thrown to the wind by a former CJI last year.

Constitutional propriety, MiLords, must first pass the sniff test – if it doesn’t smell right, it probably isn’t. I can only hope and pray that the Supreme Court gets both a sharper sense of smell along with a thicker skin.

The majesty and dignity of the Supreme Court depends only and only on the strength of the faith Indians place in it. Like true love, it cannot be pursued, it must ensue.

Mahua Moitra is a member of the Lok Sabha from West Bengal