This time, through their judgement, it will be the court that will be judged by the citizens.

EVERY HUMAN ACT is a reciprocation. When one does anything to anyone, the act also affects the doer. However, mostly in modern human society, the law is supreme, and courts are above human interaction. The verdicts the Courts give affect people and not the judges or the institution.

That is exactly why the law, the judges, the courts need to be super conscious and reflective about how they act and pass judgements. India is a heap of justice delayed or denied, bad decisions, biases and prejudices in judgements. Yet, the courts have their place in society and are generally upheld as institutions of excellence.

In recent years, there have been instances when courts have decided based on a strange entity: ‘public conscience’. Now that is an ambiguous position. Isn’t the law supposed to do what is laid out in the Constitution? Even if it does not appeal to majoritarian bias?

The courts have also neglected deciding upon many petitions leading the government pushing its agenda and compromising human rights and values, leading to chaotic circumstances. Yet, recently the Courts showed great alacrity on one matter – a supposed ‘contempt of court’ through tweets by a senior lawyer Prashant Bhushan.

The matter was from June 28 when the Chief Justice of India was seen in a picture sitting atop a fancy black Harley Davidson motorcycle. Even in the time of the contagion the CJI himself was not wearing a mask. The picture on twitter went viral and generally the response was how cool is the CJI.

Prashant Bhushan, however tweeted his dismay. He mentioned the ‘Supreme Court in lockdown mode was denying citizens their fundamental right to access justice‘.

The sub-text was- the vast exodus of migrant workers due to the sudden lockdown to contain the coronavirus outbreak. An estimated 2.2 to 3 crore people, double the estimated displaced during Partition of India and Pakistan, had migrated from cities to their villages, often on foot.

The Courts had first blindly believed the government’s lie that ‘no one was on the roads’ and later deemed that since the workers had been fed, they did not deserve cash transfer. Not only this, many other important and time critical legislations related to access to healthcare during COVID-19 pandemic, arrests of activists who supported the anti-CAA protests, environmental matters are just not being heard.

A Supreme Court notice on shifting hearings to video mode which meant instead of an average of 800 cases a day, now the Supreme Court takes up only 10-15 cases a day. However, it is Bhushan’s other tweet which is more scathing:

‘When historians of future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, and more particularly the role of the last 4 CJIs.’

The irony is great. The very same Court that has delayed justice on so many cases has now found time by turning the tweets into a suo-moto case, establishing a three-bench to pass judgement of its criticism. In fact, they have even invoked a 2009 case in which Bhushan had given an interview to Tehelka magazine on the functioning of the courts. The court demanded Bhushan apologise. Bhushan refused to do so.

The 108 page judgement does not even consider Bhushan’s statement and states: (Bhushan’s tweets raise) ‘A possibility of the other judges getting an impression that they may not stand protected from malicious attacks, when the Supreme Court has failed to protect itself from malicious insinuations, cannot be ruled out.’

The inference is purely hypothetical, in an unforeseeable future, that too ‘possibly’. Who can deny the CJI was indeed holidaying and merrymaking during the lockdown? The intent of the judgement is not really to punish Bhushan but to send a chilling message to quell all future criticism.

A quantum of penalty is now due. It could be Rs 2000 or 6 months in jail or both. However, Bhushan has turned the tables. Yesterday, when the punishment was to be announced, he submitted a plea that another bench should pass the sentence. The Supreme Court rejected the petition.

At the same time, a defiant Bhushan also released a statement quoting Mahatma Gandhi from his sedition case against the British from March 1922. By summarising Gandhi’s words, Bhushan said:

‘I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to be the highest duty of a citizen.’

In fact, yesterday in the court, in a strange comedy verging on irony, both the contending lawyers Attorney General K. K. Venugopal and Bhushan’s lawyer Dushyant Dave spoke in favour of Bhushan. In his personal capacity, Venugopal argued the judges shouldn’t impose any punishment on Bhushan.

Dave used the courtroom to speak truth to power. He cited delays in the hearing of the case filed by the Jamaat over demonization of the Tablighi Jamaat in the pandemic by the media.

On the hearing of habeas corpus petitions in Kashmir; he cited the impropriety in former CJI Ranjan Gogoi getting a Rajya Sabha seat soon after giving several judgments that favoured the government. He spoke of travesty of judicial proceedings where former CJI Gogoi heard a matter in which he himself was an accused in a case of sexual harassment, and many other cases.

Yesterday, the Supreme Court gave Bhushan more time to re-consider his position. Bhushan did not need the time. He refused to reconsider.

Now the Supreme Court is in a fix. Truly, the Court has invited this misery upon itself. It could have clearly not responded to the tweet. This is a free country. People have the right to free speech. Yet, it chose to entangle Bhushan assuming he would apologise. When he refused, he changed the contours of the battlefield.

Now, the court cannot get out of this situation. If they pass a punishment, they are damned. Already over 3000 lawyers and civic society has rose up to support Bhushan. If the Courts grant pardon, they show up as weak.

This time, through their judgement, it will be the court that will be judged by the citizens of the nation. The British did it, now this regime is hell bent on doing it – making a mockery of themselves. If Bhushan ends up doing jail, he will be hailed for generations to come. This is how arrogant regimes manufacture heroes.

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