Why Prashant Bhushan’s conviction is a symptom of a political judiciary

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. This was perhaps because I have always felt that it is up to the people to make their laws, even if they make their laws in a manner that hurts their own interests. Professors in law school would come into the classroom ringing praises about how good the judiciary is, while I'd wonder whether this is a court or a second type of executive branch. 

No doubt, this has brought relief for many across the spectrum and has resulted in the unearthing of large amounts of public wrongdoing. However, it has also put us in a place, where the people have certain expectations of their judiciary. Prashant Bhushan's conviction is merely a symptom of a judiciary that has over the years of doing things with good intentions, lost some of the very foundations on which it is to stand.

If one reads the Constituent Assembly Debates about the Privy Council (Abolition of Jurisdiction) Act, 1949 one finds that abolishing appeals to the Judicial Committee of the Privy Council was a symbol of India's judicial sovereignty. 

K.M. Munshi, speaking in support of the bill in the Constituent Assembly said: "Sir, on the 26th of January our Supreme Court will come into existence and it will join the family of Supreme Courts of the democratic world of which the Privy Council is the oldest and perhaps the greatest. I can only hope and trust that though we part with the Privy Council our Supreme Court will carry forward the traditions of the Privy Council, traditions which involve that judicial detachment, that unflinching integrity, that subordination of everything to the rule of law and that conscientious regard for the rights and for justice not only between subjects and subjects but also between the State and the subjects. And no higher tribute can be paid to the Privy Council than my hope that our Supreme Court may be given the strength to maintain the traditions of fearless justice which have prevailed in this country as a result of the supremacy of the Privy Council." 

Readers may judge if this hope has been fulfilled and if the Supreme Court has lived up to its calling. Matters before the Court are frequently political in nature, not just in the cases of those pleading at the bar but sometimes in their very judgments. 

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. 

India's judiciary took a beating during the Emergency era. After the Emergency was over, many decided that it was time to make sure the judiciary was protected from all manner of interference and control. 

This landed us in the position that we are in today. 

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 busses 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, this very 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.

(Ajay is an advocate at Bombay High Court. Views expressed are personal.)