Prashant Bhushan’s conviction: nation, democracy and the bar are poorer now

I usually do not find myself to be in agreement with Prashant Bhushan’s views. I always disliked the idea of public interest lawyering. As a conservative, I have always found the idea of an activist court quite worrisome. I did not like the blurring of the lines between judicial matters and policy matters that were emerging in our PIL Jurisprudence.

It has become painful to watch the Supreme Court in the last few years, frequently unsettle the law on a myriad of issues all in the name of public interest. This has not just affected Part III rights but has also seriously affected commerce in this country. Judicial delays and the lack of clarity on some fundamental issues of the law are having a real impact on commerce. It should not be a source of pride that businesses are preferring arbitration over regular courts. It should be cause for introspection to see why businesses perceive that they have been let down by the courts.

Judges are appointed behind closed doors, by their fellow judges, with limited scrutiny. Further, they are also protected from allegations of corruption and investigations into those allegations. By trying to immunise itself from the Executive branch, the judiciary in India has effectively raised itself to a position where it is beyond rebuke or accountability.

There is no way to hold a judge accountable sans impeachment and even an impeachment may finally be subject to review by the same Court. In such a situation, how else do we hold our judiciary accountable other than speaking about issues in public? Should an institution in a democracy be such that it almost has zero accountability to the nation it represents?

Our Courts today have so much power, it has the power to affect the lives of the smallest and the largest, the meekest and the mightiest. It can change our lives, it can tell us whether we need to wear masks, dictate how much hospitals should charge patients, even tell us if we can have tinted windows on our cars and what kind of fuel needs to be used to power buses in the National Capital.

There is only one conclusion for when you have a Court that acts in this manner. Even though it is not political in nature, the Supreme Court’s actions have attained a status where they make policy in character which has a definite and tangible impact on the public.

This is why I am in anguish seeing Prashant Bhushan being convicted of contempt for merely pointing out what he thought was the state of things and what he felt about them. If the Supreme Court can interfere in matters that were once the sole domain of our elected representatives, then why can’t people affected by the court’s actions express their anguish in the same manner they would do to say a petty politician?

Where is the “majesty” of the Law that remains to be preserved?

Citizens should be able to pass critique and judgment on all that plays out in public. It will be an unfortunate day if people are sent to jail for pointing out that the Emperor wore no clothes.

The Court has developed into an institution where its critique will be a matter for future historians for it has played an active role in the political, socio-economic, and cultural life of this country.

A role it walked into willingly when it expanded its jurisdiction in the name of public interest. A consequence of this is that if one is to look at Indian History, one will have no choice but to look at the actions of the Supreme Court. It is beginning perhaps to dawn on the Court that the light with which these actions are to be looked at, may not be charitable. For public interest matters i.e. PIL’s are matters in which the public is interested in. This means, that unlike regular matters, they will have a higher element of public scrutiny. If the Court is to exercise this jurisdiction, the Court must face the scrutiny that comes with it.

The Supreme Court that I learned to admire was one that took Habeas Corpus more seriously than it would take a hurricane attacking the court premises. Now those petitions languish at the Bar or are stuck for want of a Government reply.

What is this government reply in straightforward Habeas Corpus cases? The Government’s reply is the justification for the detention. The Government should not be given time after detaining someone to work out a reply. It defeats the entire object of the writ.

But if I compare the situation to the famous Habeas Corpus Case, then I am liable to be locked up for contempt. At least that is what the Court said on Friday by convicting Prashant Bhushan.

So, it has decided to gag us all, for we are all Prashant Bhushans. Post that judgment, thisvery article could be considered contemptuous.

The Indian Bar is one that is fiercely independent and has always been. Back in the days of the British, it was this Bar that fearlessly fought for

the rights of nationalists and patriots. But the Bar could do so then, for as K.M. Munshi pointed out because it was still detached and impartial.

Today, when advocates are gagged for speaking their mind, merely because the Court finds that these statements lower its “majesty”, I do not think there is much the Bar can do. For the judges of India, who have a history that is far older than our constitution, have decided today that Indians must respect them out of fear rather than freely give that respect.

The Bar, the Judiciary, and the Nation are poorer with Prashant Bhushan’s conviction.

Courtesy: The Leaflet (IPA Service)