For a concerned citizen, three not-too-past events concerning the apex court in the last few months are troubling. The first relates to the former CJI Justice Thakur’s ranting against a senior advocate, Rajeev Dhavan, in the Sahara case. During the hearing, the CJI is said to have commented that Subrata Roy should go to jail and then the court will hear the counsel on merit. Irked by this, Roy’s counsel Dhavan replied that “It is the most unfair comment by the CJI.” This retort riled Justice Thakur, who reportedly shot back at Dhavan, “Don't tell us what we should say or do.” Further, the CJI allegedly seems to have made certain uncharitable remarks about Dhavan as a lawyer and his conduct in court behind his back. Does such behaviour dignify the high office of the CJI? I leave you with this thought.
The second issue concerns Justice Markandey Katju and the bench headed by Justice Ranjan Gogoi that slapped a contempt notice on the former. The manner in which a former judge of the apex court was invited, then humiliated in full public glare, with the security asking to escort Justice Katju out of the courtroom, not only breaches every strand of public decency/etiquette, but also diminishes the dignity of the apex court.
Worse is that the contempt of court law, is a relic of medieval past when judges exercised power delegated to them by the king and any offence to the court was deemed as offending divine kingly power. So misplaced it is today that even the hidebound Brits have given this law a heave-ho long ago. For not only is it antediluvian, it’s also anachronistic in a democracy where power lies with the people and where public servants are mere servants of this master.
“Justice is not a cloistered virtue,” Lord Atkin said, today a cliché in common parlance. “It must suffer the scrutiny and outspoken comments of ordinary men”. It must, much as in democratic India all organs of public service suffer from criticism and open discussion. More when the clamour for transparency has reached fever pitch and openness is the buzzword. No institution is absolute; the separation-of-power and check-and-balance architecture is a conscious design, done after much deliberation and premeditation in the Constituent Assembly to stop untrammelled power. This is what defines a mature democracy – to ensure a citizen’s freedom of expression is not stymied.
But rather than going into the merit of criticism, what’s agonising is the punitive manner in which contempt of law has been exercised to shush voices of dissent. Dissent is at the heart of democracy. It needs encouragement; unless the administration of justice is impaired, there is no contempt.
Recall the three decade-old Spycatcher case when an English newspaper called the judges “You Old Fools”. No contempt notice was served. Roll back two decades to 1968 when Lord Denning’s telling observations captured the spirit of times: “Let me say… that we will never use this jurisdiction to uphold our own dignity… Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself… We must rely on our conduct itself to be its own vindication”. If some 50 years ago the law was seen as obsolete and out of date, invoking such provisions today can only smack of arrogance on one hand and a willful winking at history and reality on the other.
In a democracy, even the head of the government – PM – isn’t spared; he’s often attacked mercilessly. Nor such privileges are accorded to other elected representatives. Recall President De Gaulle’s memorable words during 1968 Paris strike when Jean Paul Sartre was arrested: “You don’t arrest Voltaire!” To invoke such anachronism can only invite derision and detract from fair play, dissent, openness and transparency – a vivid antithesis for dispensation of justice!
The third issue is the Supreme Court’s order on national anthem, which inter alia says that in cinema halls “the citizens of the country must realise that they live in a nation and are duty bound to show respect to National Anthem, which is the symbol of the Constitutional Patriotism and inherent national quality.” What is Constitutional Patriotism and inherent national quality as symbol for citizens? Won’t duty binding citizens ‘to show respect to National Anthem’ encrypt a fuzzy notion in people’s consciousness?
Rousseau’s paradox of freedom in a layered social compact – for all its polemics on surrendering a fraction of individual’s right – doesn’t even envision anything remotely as this. Also issues of implementation: How? Who – to ensure compliance? What punitive measures? Related issues will follow: what about other entrepôts of entertainment – songs and plays in theatre, sports in stadia, horse-race in racecourses? Are they to be exempt? Why?
Confident nations need no such forcing. Respect is not enforced; when done it ceases to be respect, diminishing the very symbol of veneration; it morphs into coercion, verging on interference in citizens’ private space. Yes, it can be instilled, even inculcated; yet given its abstract nature it is best left to citizens to feel, inhere, and appropriate. No intellectual forcing can be foisted and made enforceable much as no abstraction can be mandated; it would hollow out, sounding oxymoronic in terms.
The Supreme Court is too precious an institution to suffer diminution in citizens’ perception. We look up to it as the bulwark of liberty and as our constitutional umpire. We respect it like no other institution. Hence, the need to firewall it from dross. Yet, given our feudal makeup, public offices can vest public servants with outsized sense of importance where individuals make institutions identify with their actions and breach turfs. Hence, the need for conscious self-restrain and emerging of individual and institutional prescriptions. Also, the humility to internalise that public functionaries are but mere instruments for discharging public duties within the bounds of propriety, courtesy and realism, both enjoined and expected.
(Reproduced from The Quint)