Today's Contempt, Tomorrow's Peril.
What can a tweet do? Apparently much.
Prashant Bhutan’s tweet has caused considerable free speech storm in the country. While Soli Sorabjee the eminent jurist gave a practical solution, Bhusan should give evidence of corruption while, the apex court should move on from the case, thanks to the contemporary divisive society, the issue has its conundrums.
In the gilded age of media and information tsunami when our society stands highly divisive on every single issue, will every free speech Vs Contempt issue offer a potentially easy way out? Probably no. In this contemporary age, the courts around will have to be much more tolerant, and if you wonder why? the answers are very much in the way in which court has functioned in the past few decades.
‘Demoprudence’ of the court has been a very celebrated concept and prof. Baxi describes this prudence as one, where the court gives away from logical and legal doctrine to rule in the favor of the demos. This is what is popularly called judicial activism or Social litigation. The court does way with legal maxims like Stare decersis and decides solely on the ethical ground of ‘Interest of Demos’.
The problem of contemporary society is that ‘demos’ are hugely divided and that wedge now informs the opinion people make on the Supreme Court and its decisions. Highly contested social issues have reached the court and either have been decided or will be litigated very soon. One section of demos has been rather critical on some judgments like Rafael case and Ram Janambhumi case to note a few. They have been vocally critical of the court’s laziness in taking up ligation related to Article 370 and internet restoration in Kashmir. What makes these questions uncomfortable is the fact that the Court has shown judicial inconsistency in applying legal maxims. While the court normally comes hard on illegal detentions, they refused to take a call on detentions of Kashmiri leaders. Thanks to demoprudence, this inconsistency makes the other part of demos angry and they have all the right in the world vent their anger. Demoprudence when practiced on bipartisan issues like Vishaka or Nirbhaya enhances the public acceptability of the court, but divisive issues like 370, CAA, and probably NRC in the future will attract sharp socio-political comments on the court. The Court cannot go after everyone in safeguarding its reputation. Though these arguments give the impression that only liberals have issues with the court, the right-wing has consistently questioned court’s wisdom on Sabrimala judgment and have prompted the court to refer to a 7 judge bench the women’s right to go to a temple which now also includes women’s right to go to the mosque. A similar kind of inconsistency has propped up in the administration of the court and Justice J. Chelmeswar has pointed out serious issues with its working. J lokur had cited previously many cases were appointments of judges to certain courts were rejected with no explanation given but they were then appointed elsewhere. Bhusan’s tweet by the public has been understood has extrapolation of these accusations. Retribution through contempt is no answer to these accusations.
Whether it is the wisdom of its judgment or it is the administration of the judicial system, the Court has shown some inconsistency and it will attract some serious dissent from divided demos and taunts will be made from both sides. And let me remind, that Court is the final arbiter and despite these issues enjoy the widest acceptability in the people in comparison to other organs of the state. Some of the sneers will be made in anticipation of action so that the Court’s acceptability can be tarnished and thereby erode an effective medium whose rationals are still accepted by society. Erosion of court acceptability will be a hammering blow to democracy and a quick one.
Dissent Is a fundamentally important tool of constitutionalism and we must not forget that it carries a serious potential of sparking deliberative process in a democracy. While, suppressing this dissent will only sprout a modicum of anarchy in our democratic society, encouraging dissent followed up by deliberation though the public debate will only go on to enhance the legitimacy of judicial as well as the juridical process. It is people’s job in this country to both question the Court and defend its honor. If the Court questions them, it does so on its peril and at the peril of our democratic system.
Prashant Bhutan’s tweet has caused considerable free speech storm in the country. While Soli Sorabjee the eminent jurist gave a practical solution, Bhusan should give evidence of corruption while, the apex court should move on from the case, thanks to the contemporary divisive society, the issue has its conundrums.
In the gilded age of media and information tsunami when our society stands highly divisive on every single issue, will every free speech Vs Contempt issue offer a potentially easy way out? Probably no. In this contemporary age, the courts around will have to be much more tolerant, and if you wonder why? the answers are very much in the way in which court has functioned in the past few decades.
‘Demoprudence’ of the court has been a very celebrated concept and prof. Baxi describes this prudence as one, where the court gives away from logical and legal doctrine to rule in the favor of the demos. This is what is popularly called judicial activism or Social litigation. The court does way with legal maxims like Stare decersis and decides solely on the ethical ground of ‘Interest of Demos’.
The problem of contemporary society is that ‘demos’ are hugely divided and that wedge now informs the opinion people make on the Supreme Court and its decisions. Highly contested social issues have reached the court and either have been decided or will be litigated very soon. One section of demos has been rather critical on some judgments like Rafael case and Ram Janambhumi case to note a few. They have been vocally critical of the court’s laziness in taking up ligation related to Article 370 and internet restoration in Kashmir. What makes these questions uncomfortable is the fact that the Court has shown judicial inconsistency in applying legal maxims. While the court normally comes hard on illegal detentions, they refused to take a call on detentions of Kashmiri leaders. Thanks to demoprudence, this inconsistency makes the other part of demos angry and they have all the right in the world vent their anger. Demoprudence when practiced on bipartisan issues like Vishaka or Nirbhaya enhances the public acceptability of the court, but divisive issues like 370, CAA, and probably NRC in the future will attract sharp socio-political comments on the court. The Court cannot go after everyone in safeguarding its reputation. Though these arguments give the impression that only liberals have issues with the court, the right-wing has consistently questioned court’s wisdom on Sabrimala judgment and have prompted the court to refer to a 7 judge bench the women’s right to go to a temple which now also includes women’s right to go to the mosque. A similar kind of inconsistency has propped up in the administration of the court and Justice J. Chelmeswar has pointed out serious issues with its working. J lokur had cited previously many cases were appointments of judges to certain courts were rejected with no explanation given but they were then appointed elsewhere. Bhusan’s tweet by the public has been understood has extrapolation of these accusations. Retribution through contempt is no answer to these accusations.
Whether it is the wisdom of its judgment or it is the administration of the judicial system, the Court has shown some inconsistency and it will attract some serious dissent from divided demos and taunts will be made from both sides. And let me remind, that Court is the final arbiter and despite these issues enjoy the widest acceptability in the people in comparison to other organs of the state. Some of the sneers will be made in anticipation of action so that the Court’s acceptability can be tarnished and thereby erode an effective medium whose rationals are still accepted by society. Erosion of court acceptability will be a hammering blow to democracy and a quick one.
Dissent Is a fundamentally important tool of constitutionalism and we must not forget that it carries a serious potential of sparking deliberative process in a democracy. While, suppressing this dissent will only sprout a modicum of anarchy in our democratic society, encouraging dissent followed up by deliberation though the public debate will only go on to enhance the legitimacy of judicial as well as the juridical process. It is people’s job in this country to both question the Court and defend its honor. If the Court questions them, it does so on its peril and at the peril of our democratic system.
