QUESTION: The Supreme Court of India punished Adv. Prashant Bhushan, a well-known civil activist and social critique for a contempt case based on some critical tweets.
Can one bluntly argue that the sanctity of a constitutional institution fades though few tweets or through the remarks in the social media?  – Paul T. Thomas 

ANSWER: Saji Mathew Kanayankal CST

The question on the integrity and magnanimity of the constitutional institutions and the supreme offices of our country is one of the important discussions now, especially after the contemptuous case against Adv. Prashant Bhushan. We have serious concerns on the impartiality and fairness of our different independent institutions like the Supreme Court, Election Commission, RBI, and the offices like that of the governors of States and speakers of Assembly, who were expected to uphold truth and justice as the ‘pillars of democracy.’ The recent Prashant Bhushan case raises paramount questions of democracy beyond the ego and fate of individuals. As Yogendra Yadav pointed out; “this wasn’t just about Prashant Bhushan, it was about something much deeper. In a way, Prashant Bhushan became a symbol of thousands, probably lakhs of people who are in a situation much worse than him, and yet are continuing their fight for freedom of expression.” Many members of the civil society, including former judges, have expressed their disappointment and anguish on the same issue.
I would like to see the issue beyond the realm of any particular individual or his utterings. The present scenario and many contemporary events forced us to ask certain challenging questions on the authenticity and credibility of many of our constitutional institutions. Can we say that the comment or critical remarks of someone drastically affects the dignity of such magnificent institutions? More precisely, what should be our criteria in valuing the legal and moral sanctity of an institution like the Supreme Court? What is the role of free and fair criticism in a democratic country? All the more, how should one approach to such a magnificent institution if he/she is convinced that justice is curtailed and its office-bearers act biased? We have the strong conviction that the Supreme Court stands as the last bastion of hope for the people of our country! As Bhushan himself told, ‘it is ‘supreme’ and can adjudicate on all matters between various third parties.’
IS DEMOCRACY IN ICU?
It is an undeniable fact that there is already a growing perception of the steady degeneration of democracy in India. Recently there are many incidents in the different parts of our country of trampling down the Preamble of the Constitution of India that promises liberty of thought, expression, belief, faith and worship and Article 19 (1) which guarantees freedom of speech and expression. Many civilians who are actively involved in human rights movements are harassed, intimidated and threatened and there were many fictitious and fabricated cases against the social workers, writers and civilians who fight for justice and equity. The pluralism of our country and its secularist ethos are highly challenged. The voices of dissent or dissidence are silenced somehow. The stories of the ‘encounters’ are not new! As per the report of the British newspaper ‘The Guardian,’ on 31st July 2020, India arrested dozens of journalists just on the report of Covid-19 response. Accordingly, “more than 50 Indian journalists have been arrested or had police complaints registered against them, or been physically assaulted. The majority of those facing action are independent journalists working in rural India.”
To worsen the situation, the authenticity and genuineness of our legal and judicial systems are in a dubious position. Many, including the former judges of our country, have commented that our judiciary is once again facing its darkest hours. In her speech, Smt. Mamata Banerjee, the CM of West Bengal, on August 15, 2012, at the occasion of the Platinum Jubilee celebration of West Bengal legislative assembly, accused that corruption had made inroads into the judiciary and democracy as a whole and she asked; “Why should judgment be delivered in exchange for money?” While taking this speech as a contemptuous case, the court has pointed out that “the speech was a discussion on the issue of the impact of money power and corruption in the functioning of the various institutions of the state.” Most recently, former Supreme Court judge Markandey Katju deposed in favour of Nirav Modi, a fugitive economic offender in the UK court telling that he will not get a fair trial in India. According to Justice Katju, the “judicial system in India had collapsed” and there is “direct and indirect political or government interference in the Indian Judiciary and CBI and ED.” The post-retirement appointment of former CJI Justice Ranjan Gogoi to the Rajya Saba has brought a lot of criticism and a bucketful of suspicion related to the independence of the judiciary. Moreover, many others, including former judges of the Supreme Court, have criticised the court’s inability to secure the rights of the poor, marginalised and migrant workers to access justice during the recent lockdown period.
THE MAGNANIMITY
OF AN INSTITUTION AND THE DIGNITY OF THE OFFICE
In the contemptuous case against Prashanth Bhushan, the court pointed out that his remarks were “patently false, scandalous and malicious” and it had shaken “the very foundation of constitutional democracy.” Once we go through the whole event, naturally one may have a serious concern on the fairness of the institution as well as the persons who assume the offices. Can we claim that an institution like the Supreme Court gets its high profile of integrity ipso facto? The law courts in general, and the Supreme Court in particular, gets it status and stature through the fearless judgements and unbiased interpretation of the law. Its various interactions with the people, its policies and judgements, all the more its steadfastness and alacrity at the moments of crucial issues, increase the trust and confidence of the general public. It proves its authenticity and integrity through the verdicts and timely interventions and its primary duty is to convince the citizens of the country that it fulfils its object at any cost, irrespective of any kind of undue interference. Similarly, the actions of the individual persons who uphold the office are also significant in this regard.
It is a fact that our society has esteemed the judges during their tenure as well as after the retirement. The civil society in a large evaluates the integrity of a judge based not only on their judgements but also on their interactions in the society both at the time of their office and the post-retirement period. In his recent article in Hindu daily, Vivek Katju, a former diplomat, described some of the characteristics of the judges of our country. Apart from intellectual uprightness and impartiality, they kept sobriety and aloofness as important principles of their life. According to him, “sobriety is not greyness, or humourless grimness but a characteristic that denotes balance and connotes a desire to shun the sunlight.” They were away from public attention and to save this purpose, they moved without pilots and escorts and there was no sirens or red light in their vehicles. “They mainly confined themselves to their judicial work and only spoke through their judgements.” In order to keep the dignity of the office, they avoided issues of public policymaking and was never given any views on political and social issues. Even if it does not affect the verdict directly, the personal conduct of judges, especially of high courts and the Superior Court will be counted very much by the public. It is the primary responsibility of the person who undertake the office to keep the magnanimity of the office and its disposition. As Justice V.R. Krishna Iyerhas observed; “…if judges’ decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife, must be above suspicion.” In his Special Reference No.1 of 1964, the then CJI of India P.B. Gajendragadkar says: “we ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgment, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”
FAIR CRITICISM: THE SOUL OF DEMOCRACY AND JUSTICE
In a democratic system, the right to freedom of speech as well as the fair criticism are the core principles that designate our commitment to protect the constitutional values. As it is marked; “eternal vigilance is the price of liberty.” It means that only by continuous oversight and keen attention and alertness the offices of the democratic system will be prevented from hardening into a despot. Openness to criticism is not a weakness, rather it is a mark of the strength of individuals and institutions and a sign of growth and maturity. Among the many stories on Pandit Jawaharlal Nehru, his relationship with Shankar the Cartoonist, who mercilessly lampooned him in some of the cartoons, is noteworthy at this juncture. For Nehru, the cartoons of Shankar were the expressions of the weakness and foibles of those who display themselves on the public stage as he comments; “it is good to have the veil of our conceit torn occasionally.” Nehru saw those critical satires were as occasions of introspection. Without proper attention, liberty or democracy will not be sustained.
Showing magnanimity to critics and openness to criticism is not weakness, rather it is a mark of the strength of individuals and institutions. Justice Deepak Gupta, before a few months of his retirement, in a lecture organised by the Supreme Court Bar Association said that the right to dissent is the most important right granted by our Constitution. According to him, “to question, to challenge, to verify, to ask for accountability from the government is the right of every citizen under the constitution. These rights should never be taken away otherwise we will become an unquestioning moribund society, which will not be able to develop any further.” The civil rights of the citizen are as important as the economic rights and both are to be protected. Dissent and disagreement are to be permitted and encouraged, for it is through discussion, disagreement and dialogue we may arrive at better ways of running a country. These should be the beautiful moment of introspection, renewal and revitalisation. According to a Rule in Madras high court on May 2016, “fair criticism of judgment and its analysis is permissible. Lawyers’ fearlessness in court, independence, uprightness, honesty, equality are the virtues which cannot be sacrificed.” While concluding the contemptuous case against Mamata Banerjee the bench instructed the judges not to fear on criticism nor they resent it. Quoting Lord Denning, it asserted that the freedom of speech is the right of each citizen of a country and they have every right to tell that the judges are mistaken and their decisions are erroneous, whether they are subject to an appeal or not. Even though the criticisms may not be well reasoned or fair, it is through criticisms, discussions and dialogue the public institutions will become strong and democracy will thrive. Reformation will take place only through creative participation, independent and courageous interaction, and timely intervention.
Finally, we should not forget the role of the ‘fifth pillar’ in a democratic system. We know well that the representatives, the executive and the judiciary are the three pillars of democracy and the press or the fourth estate functioned as the vigilant observer. However, we can see a kind of frigidity in these systems. At this crucial moment, the social media functions as an active role in the formation of public opinion. Since the internet became very common, people have access to the different platforms of social media and they can express their thoughts fearlessly and it has wider accessibility than newspapers and television. So, the general public can function as the ‘fifth pillar’ in a democratic system. One should be courageous enough to honestly stand for the truth in the face of great odds. Even if a tyrant tries to subsidise the voice of the public, it may not last long. The ultimate victory will be of the truth. “Sathyamevajayathe!”