The Supreme Court of India is a Court of Rights, Not of Contempt

As Indians, we have watched helplessly in the past months as the government has held our liberties and constitutional values to ransom, while the court appears to have abandoned us.

This article was originally published on April 29, 2020, and was republished on August 14, 2020, after the Supreme Court found Prashant Bhushan guilty of contempt.

I read a disturbing news report in early March, which detailed how a prominent social activist, Harsh Mander, was severely criticised by the Supreme Court for allegedly making derogatory remarks about the judiciary. I found it odd that the court had prioritised focusing on his alleged remarks, rather than the grounds of his petition which concerned political hate speech.

In similar vein I read a newspaper headline two days ago which really stayed with me: “Bar members can’t hold the judiciary to ransom: SC”. The irony in that statement was so acute that I could not help but sigh in dismay.

As Indians, we have watched helplessly in the past months as the government has held our liberties and constitutional values to ransom, while the court appears to have abandoned us. It has delayed, dithered and finally refused to take a stand on most issues that are fundamental to our democratic ethos and indeed to every principle laid down by our founding fathers. Constitutionality of the Citizenship (Amendment) Act? No urgency, let matters settle down. Habeas corpus? Not important, it can wait. No internet access for the people in an entire state? Sorry, won’t strike down restrictions that are unreasonable. Desperate, dying migrants? Adjourn, adjourn and adjourn. Give the government enough time to render the matter infructuous. How about the legitimacy and transparency of political funding via electoral bonds? Do we really need to rule on that right now – elections are happening efficiently after all aren’t they. I could go on and on.

I read again with a mixture of irony and amusement the exchanges in court between our judges and a senior member of the bar, Prashant Bhushan, for whom I carry no brief. Bhushan had been fairly caustic in his observations about the court, post the migrant wage-payment writ being dismissed. When he reappeared before the court in a different case, their Lordships hauled him up for “insulting the institution” and asked why they should hear him given that he appeared to have no faith in it. To which he said that he was only expressing his deep anguish at the bench accepting the Centre’s representations without verification. Was he wrong in saying that? Was it wrong to expect a neutral arbiter of disputes to doubt those before it, equally?

I too experienced something starkly similar, first hand, only a week ago. The playbook goes something like this. The solicitor general appears in any case that has the potential of greatly embarrassing the government, or of exposing its clumsiness in dealing with a crisis. With great dexterity, he almost always manages to get the very first hearing adjourned by at least a week, often on the flimsiest of excuses. In my case he had “forgotten” to serve me a copy of the Centre’s status report. He then claimed it was the court registry which had erred. In any event, this convenient and very tactical error (I’m sorry but I cannot give the honourable gentleman the benefit of even the slightest doubt) cost us a vital week in which more migrants walked, helpless and hungry to their avoidable deaths.

When the much awaited ‘Status Report’ was finally sent to me, I received all but two pages and it consisted of phone numbers of various control rooms which the Centre had ostensibly set up where migrants could call and apparently get “instant” access to food and shelter. It also mentioned that since I, the petitioner, had been approached for help by stranded migrants from my own state via text messages, it confirmed the solicitor general’s brilliant argument that these people had access to mobile phones. Hence they could download the Aarogya Setu app, and bingo, all their problems would be solved. Just like that.

After the first adjournment, my petition was adjourned yet again – this time for no specific reason. When, after three vital weeks into the lockdown it finally came up, the court considered it appropriate to dismiss the writ on the grounds that the Centre was “looking” into the problem and that the court would not interfere at this juncture.

I was absolutely appalled that a constitutional court vested with more power than any other public institution in the world, could simply choose to look away from a humanitarian problem that it was duty bound to engage with.

In the weeks since, this country has watched the most pitiable images of human desperation and misery play out on their television screens and across broadsheets. It is shocking that even six weeks into this lockdown, there has not been a single intervention or positive direction by the court despite multiple petitions before it begging for justice. The court must also bear in mind that its exercise of taking suo motu cognisance ought not to be limited to instances of perceived slights on its own “dignity” but rather it should be deployed in matters of actual national importance, where the lives and livelihoods of India’s weakest are at stake.

While writing this piece, and perhaps with a view to discourage me from writing anything contemptuous, a lawyer friend of mine sent me an article from 2003 titled “Scandalising the Court,” in which the author very comprehensively explained that the very idea of being in “contempt of court” had outlived its use. Amongst the many judgments he quoted, one caught my eye. In a case titled Bridges v. California (1941), the US Supreme Court judge, Felix Frankfurter, had this to say:

“There have sometimes been martinets upon the Bench as there have been pompous wielders of authority who have used the paraphernalia of power in support of what they call their dignity. Therefore the judges must be kept mindful of their ultimate public responsibility by a vigorous stream of criticism expressed with candour, however blunt.”

The author of the article, which appeared in the SCC Journal, ended with an ominous warning, that is strikingly relevant to what we are observing today:

“We cannot countenance a situation where citizens live in fear of the court’s arbitrary power to punish for contempt for words of criticism on the conduct of judges, in or out of court.”

The author was Vinod A. Bobde, the illustrious senior counsel of the Supreme Court of India who passed away in 2016. I can only hope similar conscience keepers continue to remind us of Yato Dharmastato Jayaḥ: Where there is righteousness (dharma), there is victory (jayah).

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