The Prashant Bhushan Contempt Case is About Power and Politics, Not Law

Last week, the Supreme Court of India pronounced senior advocate Prashant Bhushan guilty of contempt of court. In late June, Bhushan had joined a chorus of Twitter users in chiding the Chief Justice of India for posing astride a superbike. Around this time, he had also tweeted a lament about the ‘destruction of democracy’ in India during the reign of the present government.

In his view, the Supreme Court and the last four Chief Justices were culpable for this state of affairs.

Provoked, the Supreme Court took up the case ‘suo motu’ on July 22 and, in barely three weeks, handed down its guilty verdict. 

Over the past week, the decision has been met with an outpouring of critical commentary and street protest from civil society, members of the bar, former judges and academics. Possibly in response to this onslaught, or shaken by Bhushan’s moving invocation of Gandhi at his sentencing hearing, the Supreme Court has deferred announcing his punishment for three days. 

Virtually every element of the court’s decision has, by now, been incisively analysed. However, in this article, I approach the decision from the lens of political theory and suggest, firstly, that we need to read this decision as an instance of judicial ‘violence’ by the Supreme Court; and secondly, that, more than just legal reform, the path towards rehabilitation of the court may entail a broader recognition of the inherently ‘political’ nature of justice.

For roughly half the judgment’s length, the court wonders whether any statutory procedures could fetter its power to punish for contempt. Can, for instance, a law like the Contempt of Court Act 1971 regulate the manner in which contempt cases are brought before the SC? Would the SC be bound by the statutorily prescribed maximum punishment for contempt (currently six months imprisonment)? This was an important question to resolve since, in taking up Bhushan’s case, statutory procedure had not been strictly followed.

Also read: Supreme Court, Prashant Bhushan and the Sentence Conundrum

Unsurprisingly, the Supreme Court fails to discover any legitimate constraints over its contempt power. The court describes its power to punish for contempt as ‘inherent’, but the word it really wants to use is ‘absolute’. 

Can the Supreme Court punish someone for contempt by hanging them, or ordering a public stoning? Although the court does not consider these questions pointedly, the logic of the Supreme Court’s decision, issued on independence-eve, suggests that not even the fundamental rights of citizens would so constrain the Supreme Court. They simply do not register as relevant considerations.

What follows in the second half of the decision, is a tedious precis of every major decision by the Supreme Court on its contempt ‘power’. We learn that the Supreme Court has an unfaltering record of justifying the exercise of its contempt jurisdiction. On every occasion it has punished someone for contempt, it has self-certified its actions as impartial, and calculated to restore ‘public confidence’ in the judiciary. Carefully conforming to this tradition, the court pronounced Bhushan guilty in this case.

Leaving aside the many defects in the court’s legal reasoning, I would like to focus analysis on two rhetorical features of the court’s decision.

‘Violence’ under the guise of exercising ‘power’

Firstly, the decision is constructed as a search and discovery of the court’s ‘power’ to punish for its contempt. I would like to suggest, however, that the word ‘power’ does not accurately describe what the court discovered. When courts sentence convicts to imprisonment or even death, we do not customarily describe this, in criminal terms, as a ‘kidnapping’ or a ‘murder’. What distinguishes the court’s action in these cases is a fiction that it is not acting individually, but representatively on behalf of the community. In Bhushan’s case, however, I think grounds exist to withdraw this fiction.

In the name of exercising judicial ‘power’, it would appear that the Supreme Court has armed itself with the license to judicial violence. 

In her celebrated monograph On Violence, the philosopher Hannah Arendt usefully distinguishes ‘violence’ from ‘power’. There are three features of her account of violence that, I find, easily attach to what the Supreme Court calls its contempt ‘power’.  Firstly, for Arendt, while power seeks ‘legitimation’ from the founding decisions of a community, violence seeks ‘justification’ from an end that lies in the future. Tellingly, she notes, “Violence can be justifiable, but it never will be legitimate”. In our present context, it bears reflection whether in the name of seeking legitimation for its actions, the Supreme Court is really justifying itself by citing the abstract need to secure ‘public confidence’ in the judiciary.

Secondly, in Arendt, “Violence appears where power is in jeopardy”. It is what regimes have to resort to when they become insecure about their legitimacy. Lurking beneath the court’s reasoning last week, in the way it skirts Bhushan’s voluminous charges, might we not read a tacit acknowledgement that it is really quite a ‘power’less institution? That public confidence in it is at such a low-ebb that only spectacular violence of this kind can secure its foothold?

Lastly, in Arendt’s conception, violence is essentially arbitrary and for this reason, it has seldom been theorised. When a hyena mauls a fawn, one can react with horror, disgust, or anger, but it is pointless to analyse this violence. There are no principles it observes. One might say the same of the arbitrary and absolute contempt jurisdiction that the Supreme Court has articulated in this case. Much of the response to the decision has, consequently, taken the form of anger and disappointment.

The discourse of judicial exceptionalism

Let me turn to a second important rhetorical feature of this decision. Contempt cases are possibly the most pleasurable forms of adjudication that the Supreme Court indulges in. In each case of this kind, behind the sombre facade of having to determine a contemnor’s guilt, the court really gifts itself an occasion to unabashedly and publicly adore itself.

Thus the Supreme Court announces, in this judgment, that it is an institution engaged in the business of ‘upholding the majesty of the law’, of ‘delivering fearless and impartial justice’, that it is the ‘guardian of the rule of law’, and that it is not just “any pillar”, but the ‘central pillar’ of the democratic state. It is the ‘overseer’ of the executive and the legislature and is responsible to ensure that they act within the framework of the constitution.

It would be vain to try to dispute any of these convictions. Instead, I would like to direct attention to a troubling suggestion – that the immense institutional narcissism that these statements evince is affirmed continuously by extrinsic sources. Specifically, this narcissism is nourished by a scholarly, journalistic, literary and cinematic discourse of ‘judicial exceptionalism’. At least since independence, but possibly even longer, we have trafficked in a particular discourse about the Supreme Court that anoints it as exceptional – both in the activity in which it engages and its relation to other institutions. It is the invisible hand of this discourse, along with the judge’s pens, that convicts Bhushan.

Let me list merely three features of this discourse, and the role they have played in convicting Bhushan. Alongside, I offer a few feeble suggestions for discursive amendments that we need to undertake. Absurdly, this seems more attainable than legal reform. 

Firstly, it has been an effect of this discourse that we think of justice as the exclusive province of the judiciary. The executive may deliver services and parliament may pass laws, but we get ‘justice’ solely from the judiciary. Only when one begins with such an exclusionary conception of the site of ‘justice’, could it follow that criticism of the judiciary equates to an attack on the ‘majesty of justice’.

Also read: All the Times the Supreme Court Turned a Nelson’s Eye to Injustice

When we criticise politicians or bureaucrats, by contrast, ‘the majesty of justice’ does not seem to be imperilled. As a countermeasure, I think it is very important that we discursively redistribute the ‘justice function’ more equally among the executive and legislature. Justice must be depicted as the default activity that every organ of the government is charged with doing, and we ought to have the license to rebuke them for their failure in doing so. This is not to be read, however, as implying that the executive and legislature should be allowed to punish for their contempt. 

Secondly, it has been an effect of this discourse that we think of the activity of justice as something that stands apart from and above the messy business of politics. What politicians do is regarded as inherently partisan and in need of overseeing by the judiciary. It is only when one starts with such an impossibly pristine expectation for ‘justice’, that insinuations of political collaboration, such as those made by Bhushan, would ‘diminish the dignity’ of the judiciary. To rival this conception, we may need to popularise an insight, arrived at by the patient work of a generation of critical legal scholars and feminist theorists, that ‘justice’ is inherently and always ‘political’ – even in its best moments, and whether delivered by the judiciary, the executive or parliament.

Also read: Here’s What the AG Wanted to Say About the Judiciary, Before Justice Arun Mishra Stopped Him

In the context of Bhushan’s case, the advantage of acknowledging the judiciary’s political existence is that it would enable us to re-conceive criticism directed against the institution as political dissent, rather than contempt. Constitutionally, political dissent has always enjoyed a longer leash than contempt. Once again, this ought not to normalise an easy relationship between judges and politicians. But it ought not to occasion punishable ‘scandal’ when politicians and judges are spoken about as collaborators.

Lastly, one effect of this discourse is that it constructs the judiciary as the sole institution that the public can really turn to for relief with ‘confidence’. It is commonplace, for instance, within legal scholarship to flatter the Supreme Court as a ‘people’s court’. If parliaments are appointed by public election, this discourse implies that the judiciary in India is no less elected by ‘public confidence’.

Little surprise then, that the court regards any attempts at ‘shaking’ this confidence as insurrectionary. Against this notion, let me suggest that we need to normalise the notion that the Indian public permanently ‘lacks confidence’ not just in the judiciary, but in any institution. That this suspicion is primordial, and has its roots in our struggles against colonial power. And that far from being a threat to our democracy, this suspicion might, in fact, serve as a source of vitality for our post-colonial republic. Other publics in other countries may be lulled into professing ‘confidence’ in their institutions, but our historical experience has schooled us to never be so naive.

Within a milieu of such institutional hostility, Bhushan’s tweets could never truly ‘shake’ the confidence of the Indian public – it was already and irretrievably ‘shooken’ from the start and has never really stopped.

Can a republic, much less a judiciary, survive when the ‘foundations of its edifice’ are ‘eroded’? This is an anxiety that appears to nag the court. They needn’t fear, though. As a stroll through any Indian slum would tell us, life continues obstinately even amidst ruins. It has no alternate existential modality.

Prashant Iyengar is a doctoral candidate at the Department of Middle Eastern, South Asian and African Studies at Columbia University, New York.