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SC’s Self Goal In Bhushan Case

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Prashant Bhushan was held guilty of contempt last Friday. The Supreme Court found that two of his tweets about the judiciary constituted publication that scandalised and lowered the authority of the court. What happened today (20 August) at his sentencing hearing, may have had consequences that the court probably did not foresee when they convicted him.

The law of contempt is justified on the grounds that courts being authorities that have to be respected, should be able to punish people who do things to lower their authority. For the power of courts only works on respect. They do not have an executive machinery to enforce their orders. The executive branch enforces the orders and they do so out of respect to the court and it is this respect that we call constitutionalism— where authorities of the state bow to the law. The courts being the keepers and speakers of the law, must be respected if constitutionalism has to survive. So exists the law of contempt, to protect the Court and to preserve its dignity.

What played out today, was quite a pantomime if one may be permitted to use such a term. It was live tweeted thankfully so everyone got to hear what went on in the Supreme Court.

Bhushan made a statement where he refused to apologise and quoted MK Gandhi and said he would accept any punishment willingly as he stood by his statement. The court wondered if this was an aggravation or mitigation when it concerned his sentencing. However, this statement puts the court and the entire system in a difficult position. For if they send him to jail, they will look like a Pontius Pilate, when he sent Christ to the cross. If they don’t, then the entire country will feel that the “iron hand” (to use the language of the court) is nothing more than a rusty nail.

Which is perhaps why this entire contempt hearing should have never happened in the first place. Punishing someone for contemptuous tweets, as in the case of Bhushan, in the age of social media, means that whether one likes it or not, the trial will play out publicly. In this case, the accused may actually capture the public imagination. It’s not hard to think of John Lilburne when one sees Bhushan’s position. Some context is required here.

In Medieval England, there used to be a court called the Court of the Star Chamber. Those brought before that court were made to take what was called the Ex-Officio Oath. An oath that required them to answer all questions put to them, and to answer them truthfully. This put them in a peculiar position. If they answered, they could incriminate themselves. If they didn’t. They could be held in contempt. If they lied on oath, religious people as most were back then, they would have committed a mortal sin. John Lilburne was pulled up before the Star Chamber for making “unlicensed publications” (he was against the Stuart Monarchy). He refused to take the oath and contented that he had a right as a freeborn. He said, while asserting his right not to take the oath “Another fundamental right I then contended for, was, that no man’s conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.”

Courtesy – FirstPost

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