Unity in Adversity

In 1978, Prashant Bhushan first published a book titled “The Case That Shook India.” A narrative of how, for the first time in independent India, the election of a Prime Minister was set-aside by a High Court, the publisher describes it as a “watershed case… which acted as the catalyst for the imposition of the Emergency.” When a young Prashant, who was still to obtain a law degree, picked the title, he could not have imagined that four decades later a Supreme Court verdict holding him guilty of criminal contempt would itself shake-up a large section of the legal fraternity and civil society more generally, raising many questions. Foremost amongst them, does not the judgment strike at the very root of the independence of our judiciary? And does not the judgment curtail the right to free speech?

The day after the judgment, the nation celebrated its 74^th Independence Day and front pages of most English dailies reported the landmark verdict and their editorials discussed the decision. The Indian Express stated that “the Supreme Court has broad shoulders. By convicting Prashant Bhushan for contempt, it diminishes itself.” It went on to describe the verdict as constricting the fundamental freedom of expression and notes that the Court’s power of contempt needs to be reconciled with the Constitutional values of free and fair criticism. In similar vein, the Times of India noted that a “liberal outlook towards trenchant critics only reaffirms that Courts function without fear or favour.” The Hindustan Times titled its editorial “The SC must introspect” and asserts that criticism of Courts should be allowed. It further states that “these criticisms may not always be well-reasoned or even fair, but it is through discussions in the public sphere that institutions become stronger and democracy thrives.” Other publications termed the judgment as a “blow to the rule of law” and a “dark day for Indian democracy.”

The verdict rightly casts a responsibility on all those who are part of the judicial ecosystem and expects them to protect the majesty of the law. But will this not include Judges as much as it includes lawyers? And when the judgment uses words like “iron hand” and “firm/firmness” (the latter repeatedly), to deal with what is best termed as an individual’s resentment at judicial functioning, is it not bound to have a chilling-effect and browbeat lawyers who are equally vested in the administration of justice? An independent judiciary also requires an independent Bar. After all, the trust and confidence of the general public can only be built if there is a great degree of trust and confidence between the Bench and the Bar. And to develop that trust there needs to be a certain degree of openness in dialogue. As the judgment itself notes, “bodies like the Law Commission or the Law Institute and researchers, legal and sociological, may run “contempt” risks because their professional work sometimes involves unpleasant criticism of judges, judicial processes and the system itself and thus hover perilously around the periphery of the law if widely construed. Creative legal journalism and activist statesmanship for judicial reform cannot be jeopardised by an undefined apprehension of contempt action.” And therefore all the guardians of the rule of law need to reflect on how the judgment itself and the ‘firm’ observations made therein are likely to affect the future and growth of an independent judiciary, where the Judges and lawyers are equal stakeholders.

When there is already a growing perception on the steady denigration of democracy in India, is it not incumbent for the Bench and the Bar to come together, in a timely manner, and collectively work towards restoring the judiciary to its due place as the strongest pillar of our democracy? Will this judgment allow for that coming together or is it likely to widen the gap where lawyers will come to fear contempt just as much as medical professionals had come to fear a negligence suit? Does not this judgment cast doubts on where bona-fide fair-criticism ends and when the judiciary is likely to treat it like an attack? When disagreements arrive, and are not substantially settled, conflicts grow. It’s therefore important to immediately course correct and avoid at all costs any potential confrontation, as that would only further weaken the judiciary and the trust of confidence of the public, which is exactly what is sought to be protected.

The issue here is no longer about a particular individual or his utterings. When freedom to criticise is outlawed, it’s a matter that concerns the entire legal fraternity; one that affects every lawyer. Unlike what’s been said, it’s not only independent judges and noisy journalists who are democracy’s first line of defence. Democracy can’t do without independent, noisy, courageous and the loud baritone lawyers. It also can’t do without an active and vocal Bar. And at this time of adversity we need a unified Bar. A Bar that within bounds and respectfully can hold a mirror to the powers that be. And for that State and local Bar associations need to come together and act collectively.

In recent times, several have commented that the Indian judiciary is once again facing its darkest hour. It’s time that both the Bar and the Bench undertake a deep introspection and become self-critical to confront the truth. Any potential face-off must be avoided at all cost as that will only further harm judicial institutions. It’s time all stakeholders redeem our judiciary from any such continued external criticism and resolve matters within the legal family as has been a long standing tradition. An example needs to be set on how really to create a win-win situation, which will eventually lead to a triumph for our judiciary and all its stakeholders.

The author is an advocate based in New Delhi. A graduate of Harvard Law School, he’s licensed to practice both in India and New York.