In the theatre of law, both the court and Prashant Bhushan have been performing exemplar roles. Shiv Visvanathan, Professor of Law at O.P. Jindal University, critiques the performances and the power in the script of the law.
The case of Prashant Bhushan is attracting debate, outrage, and interest in many ways. It is full of ironies and paradoxes that define law and power. As a citizen, I think Contempt of Court is a legal fiction. It was invented not just to insulate the Court from the hurly-burly of politics but to remind the Court of the necessity of ideal behaviour in an everyday sense. It is an invitation to the Court to be an exemplar, paradigmatic to set up the highest ideals of legal and normative judgment. It is to distance it from ordinary passions so it can play this role.
The rules of the game are simple. The onus is on the court to behave, to be exemplary. There is an aesthetic to it. Truth and justice need a style, a decorum to sustain it as a way of life. This is why while the legislature and executive speak the ordinary language of politics, the Court is in a partially sanitised space. Like Ceaser’s wife, it has to be true and look true. Of late the Court’s behaviour has invited contempt. What I want to argue is that contempt is a ritually permissible act. It has to be immaculately conceived and immaculately executed. Contempt is not an insult but a reminder, a concern that the Court has failed in its expectations.
The Court faces the irony of a situation it has created.
Let us be honest, the Court has suffered from self-inflicted injuries. The case of Justice Ranjan Gogoi is clear. He murdered the Court’s reputation and his acceptance of the Rajya Sabha seat shows that judges do not keep a distance from power. Justice Gogoi showed how the Court can slip from the ideal to the slapstick. His ideas on Assam and the Citizen Amendment Act could have waited till his retirement. By articulating it officially, the judge plays to populist and executive demands. The ecology of respect around the Court has been polluted.
Enter Prashant Bhushan, professional lawyer, dissenter. It is clear his avocation is the law and he has a sense of what law, as a creative form of society can achieve. His expose of the Rafael deal along with Arun Shourie and Yashwant Sinha is a courageous classic investigation lost in the murky waters of the regime.
He has been an act of conscience and a promoter of legal consciousness. He is an activist with a pedagogic style, creating better parables of law out of the cases he fights. He is carrying out a legal experiment.
The prisoners of conscience are the responsibilities of society.
He creates the drama of another fiction, the right of conscience. The right of conscience is a reminder that the individual can affirm the truth, his interpretation of the truth against the collective judgment. The prisoners of conscience are the responsibilities of society.
Dissent is as sacred as the law. I think the case has gone beyond personal idiosyncrasies. It is not about Justice Bobde and the like though one must admit Justices Gogoi and Bobde are enticing targets for any cartoonist. It is a clash of two great political fictions now, Contempt of Court versus Prisoner of Conscience. The first is a ritual to insulate the Court from the hurly-burly of everyday politics and controversy. Like scientific objectivity, it is an immaculate conception, which needs to exist but should not be treated as law. It is a life giving heuristics. But so is the right to conscience, the right to dissent without which law looks uncertain and shaky.
The case now is how does one adjudicate between two norms. At one level the right to conscience has a moral appeal, a halo which the contempt of Court regulation does not carry. If the latter is conducted clerically rather than normatively the rule loses its sanctity. The theatre and grammar of action is clear. If Contempt of Court becomes a self-serving device, an act of pomposity, a holier than thou exaction, it loses credibility. Instead of a legal ideal, it degenerates to being a Linus blanket, overused by the Lucy’s of the Court. It becomes a symbol of bullying, an arrogance which the Court as a venerable institution cannot sustain.
The law provides its own politics and pedagogy reminding the Court of the difference between the real, empirical, and the true.
The right of conscience is equally demanding as a satyagrahic act. It demands purity of purpose; it is an experiment on the self before it is a challenge to the law. It has to be non-violent and Bhushan has been an exemplar in all this.
In fact, it is the judges, if one sees them as a bunch of actors, who have created unconvincing theatre both in words and behaviour. A sense of pomposity. As the plot evolves the script gets rewritten. It is now a battle between correctness, with the Court as custodian and the lawyer as exemplar. The law provides its own politics and pedagogy reminding the Court of the difference between the real, empirical, and the true. Suddenly the Bhushan-Court debate becomes a morality play, a legal theatre where the Court must tread softly. It has to understand that it encompasses the power of the text and the drama of theatre. If it goes wrong, it will ironically invite more contempt. The Court faces the irony of a situation it has created.
One must thank Prashant Bhushan for sustaining both the spirit and the content of law. It might be his finest legal performance.
(Shiv Visvanathan is an Indian academic best known for his contributions to developing the field of science and technology studies, and for the concept of cognitive justice- a term he coined. He is currently a Professor at O.P. Jindal Global University, Sonepat. Views expressed are personal.)