Long Read| Mainstreaming Constitutional Morality

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Representational Image | Bar&Bench

Ideally, the officer of the courts (lawyers) and the administrator of laws (judges) are expected to work cordially with mutual respect in the realization of justice for the citizens. However, the discordance being witnessed in the wake of Mr. Bhushan’ contempt case owing to his two tweets, perhaps appears to be an aberration to the above rule.

Another longstanding constitutional debate that has got a fresh lease of life with Mr. Bhushan contempt case is where to draw the line between constructive criticism and contempt.  Considering the Supreme Court judgment dated August 14, 2020 wherein it has said that Mr Bhushan’s tweets, “…undermine the dignity and authority of the institution of the Supreme Court of India…” indeed, merits that the question concerning the free speech jurisprudence under Article 19(1) (a), and as to what constitute “reasonable restriction” under Article 19(2) be re-visited.

Meanwhile, Section 2(c) (i) of the Contempt of Court Act, 1971 under which Mr Bhushan has been convicted is a colonial baggage which was first enacted in 1926, and then later amended in 1971, which unfortunately continues to adore the statute books till date. The problem with the contempt law is not just its colonial heritage but more so, the broadness and vagueness with which the phrase “criminal contempt” is defined, that an act which “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court …”[1]. Moreover, the usage of phrase like, scandalizes the authority of court, is quite subjective in its construct, therefore, giving wide latitude and discretion to the judges, which perhaps, how hard one tries, allow arbitrariness and inconsistency to creep in.

Further, since long the whimsical interpretation and reading of the same “criminal contempt” provision under the Act of 1971 for different cases has been debated . Thus leaving the citizens at the mercy of the individual judge,which indeed is anti-thetical to the pith of the law, that is, to protect the majesty of the judiciary as an institution. As an illustration, charges of contempt of court was brought against P. Shiv Shankar, law minister, owing to the lecture he gave in which he  said that because the Judges “unconcealed sympathy for the ‘haves”‘ they interpreted the expression “compensation” in the way they did. He went on to say “Anti-social elements i.e.: FERA violators, bride-burners and whole hordes of reactionaries have found their haven in the Supreme Court.” However, he was absolved of the charge of Contempt of Court.[2]

While reading the order in Mr Bhushan’s case one also come across the procedural loopholes. It is to be noted that the nature and status of procedure was completely overhauled in the Menaka Gandhi case. The concept of natural justice and the idea of  just, fair and non-arbitrariness should guide every judicial proceeding.  In so far as the criminal contempt proceeding is concerned, the Supreme Court in P.N. Duda vs. P. Shiv Shankar[3] has held that“…cognisance for criminal contempt could be taken by the court by three methods namely, on its own motion, or on the motion of the Attorney-General or the Solicitor-General or on motion by any other person with the consent of the Attorney-General or the Solicitor-General.” Thus, in light of the above judgement, Mr. Bhushan’s case falls out of the framework of the procedural requirement wherein the consent of Attorney General for India is a must.

Against the above background, though it may sound and appear bizarre but though not irrelevant, both Mr. Bhushan and the Supreme Court are fighting ‘in the name of Constitution’. Mr. Bhushan, however, is fighting under the banner of freedom of expression/speech, which is guaranteed by the Constitution, whereas the Apex Court is fighting by way of defending the judiciary, as an organ of the state, from being tarnished by scurrilous remarks.  However, one needs to question, given the above paradoxical and contested situation, which amongst the two is actually fighting for the Constitution.

Mr. Bhushan’s contempt case should and must not be seen and analysed as a standalone case wherein the fundamental constitutional principles of freedom and, liberty have been tossed in the air. Rather it’s in continuum of the erringly disturbing trend being witnessed, of late, in India. These trends are manifested in the utter disregard shown while one objectively examines the legal developments via, the abrogation of Article 370; enactment of Citizenship Amendment Act, 2019; the secrecy enveloping the Electoral Bond case, among others, though not lest important and, with far reaching implications.

Amidst such monumental Constitutional crisis wherein the free speech jurisprudence, the constitutional liberalism or for that matter perhaps the constitutional order , which  are gasping for breath one needs to stop and ask – How and why, did we reach at this crossroad? And if so, what is the possible remedy to revert back on to the constitutional track which can facilitate in realizing the objectives of the Constitution? Does our Constitutional text provide any guidance to resolve this crisis? The answer to these set of question cannot be in black and white; it cannot be exhaustive; it cannot be specific, however, one can attempt. In this post I attempt to explore the possible solution to the crisis.

When Tweets create Flutter

Challenging, asking or holding the institutions/power-that-be for accountability, or to pose ‘hard-question’ to them, when it commands brute majority in the Parliament, or is excessively powerful (lopsided), is not a mean task. Though, ideally, asking question or airing ones opinion however uncomfortable, but within the permissible limit, is one of the most basic human rights, which even the United Declaration of Human Rights recognises. More so, in a functional and representative democracy, the culture of scrutiny of the institutions and the elected representative becomes much more important for its healthy sustenance. But unfortunately these very basic and fundamental rights often become a privilege for “constitutional commoners” at times.

Though this disturbing and abominable phenomena is not new. History teaches us that one of the most despised things which the dictators, totalitarian regimes or anyone who holds disproportionate power, anywhere and anytime, has hated is dissent, accountability and challenges. The time-tested mechanism adopted by the powerful or, for that matter states to quell, muzzle and stifle the dissent has been to use of state machinery and other extra-constitutional means of disciplining the recalcitrant.

Mr. Bhushan’s contempt of Court case, to me, is what is called as history repeating itself, though, again for the same egregiously wrong reasons. Challenging the status-quo has always comes with a cost. Though this is egregious in nature, but it’s a crude fact. And, Mr Bhushan’s case comes in this league. Before engaging with this lets have a look at other such similar cases of past decades to have a perspective about this rich tradition of criminal contempt of Court in India.

Way back in 2002, Arundhati Roy, the renowned author and activist, was convicted for criminal contempt in Re: Arundhati Roy vs. Union[4] . The background to this case was the Narmada Bachao Andolan (NBA). Roy along with Medha Pathkar, and others, was at the forefront of the Narmada Bachao Andolan (movement), which basically was a fight for the rights of the tribal and others, who would be displaced and dislocated by the construction of the Sardar Sarovar dam over the river Narmada. Roy has vehemently criticised the Narmada project as it will leave thousands of people homeless. Needless to mention about the environmental havoc that it would unleash. Her 1999 essay “The Greater Common Good[5] is a sharp commentary on the Sardar Sarovar dam issue.

In the fall of 2000 in an F.I.R, it was claimed that Ms. Roy along with her NBA members , while protesting outside the Supreme Court has used such languages against the judges and the Supreme Court, which eventually lowered the dignity of the court. For this, Ms Roy was served a notice by the Supreme Court. It’s the three paragraph of the affidavit which Ms. Roy gave to Supreme Court as a reply to the notice, which formed the basis of the criminal contempt cases against her. Ms. Roys in her affidavit,inter alia,said,:

“… when it comes to an absurd, despicable, entirely unsubstantiated petition in which all the three respondents …. questioned the policies of the government and severely criticized a recent judgement of the Supreme Court, the Court displays a disturbing willingness to issue notice.

“It indicates a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm.”

The Supreme Court while holding Ms. Roys guilty of criminal contempt for her affidavit’s three paragraphs said that it   “scandalizing its authority with malafide intentions.”

You call it an irony or fate, Mr Prahsant Bhushan was Ms. Roy’s lawyer during that tumultuous period when she was in the throes of law.

Fast forward to 2020. Mr. Bhushan’s case is not much different from her client’s case, Ms. Roy. At most, there may be little difference here and there – in the sentences or the words or the phraseology, or the cause pursued. Apart from that, the actors against whom the voice has been raised, in both cases it’s the Supreme court , and the underlying spirit for whom the voice has been raised, so that it could be heard and  be defended, is the underlining, and even  the connecting chord between Mr. Bhushan’s and Ms. Roy’s contempt case.

Destruction of democracy; undeclared emergency are few of the phrases which Mr Bhushan has used in his tweets. Such comments basically paints the executive in bad light suggesting that they are de facto authoritarian, and have scant regard for institution and constitutional norms. True, Mr Bhushan was critical of the role of the Supreme Court, not in the commission, rather in the omission of arresting the destruction of democracy in India. Still, the jury is out struggling to find out a legal answer, though backroom chats are abound otherwise, as to why the Supreme Court got so incensed over Mr. Bhsuhan’s comment. It is also being said that the contempt case has shifted the whole spotlight from the executive to the judiciary. Strange, isn’t it!  It this disturbing confusion could be wrapped by giving words to the expression then no one could do it better than renowned human rights activist K.G.Kannibaran[6]. He says

“All institutions of governance, it seems, have ganged up against the people. Criticism of the government or participation in protest will lead to prosecution …Criticism of Parliament while it is in session invites contempt for breach of privilege. Speaking or arguing loudly in a court invites contempt.”

An Eerie Continuum

Mr Bhushan’s case in the last few days have evoked shades of response from different quarters. Scores of lawyers, senior counsels and retired judges, from across the country, have expressed their discontent and reservations over the criminal contempt order running into 108 pages. For instance, Rajeev Dhawan[7], senior advocate, said that the order is “great imbalance”, whereas Times of India commented that the order could, “…constrain the space for bona fide criticism of the judiciary”. In this, the civil society too registered their protest against the contempt order claiming it to have a chilling effect.

If one takes stock of the series of legal development in India, in recent past, it would perhaps help in locating as well as in understanding both the context and essence of Mr. Prashant Bhushan’s two tweets.

To being with, since the abrogation of Article 370, unprecedented violation of civil rights have been reported in Jammu and Kashmir; enactment of the Citizenship Amendment Act, 2019 which predicates citizenship on religion is  indeed antithetical to the core of the Constitution; and the latest being, surely not the last, the insensitive and cavalier manner in which the migrant workers were treated during the lockdown at  the hands of  executive (the government of the day); perhaps sets the backdrop in which Mr. Bhushan’s tweets ought to be seen.

Dissent- Hallmark of Democracy

If, just for a moment, one divorce the tweets from its action-reaction binary of producing  scandalous effect, as the Supreme Court and few other commentators   have said and, just literally take the tweets  at its words, it appears nothing but anguish of a responsible citizen worried at the sorry  state of the affairs around him. Truly, Mr. Bhushan’s tweets and the Supreme Court response against it, show the classical conflict/discordance between the form of the Constitution and the form of administration.This phenomenon in the legal phraseology is known as Constitutional Morality.

The role and significance of dissent in the furtherance and rooting of democratic ideals/ethos is indispensable and perhaps undisputed. Capturing this ideal, underlining its significance and recognising its utility Justice D.Y. Chandrachud said in a lecture [8] that, “…dissent is the safety valve of democracy”

Not only the legal literature but even the rich Indian civilization too inform and educate us about the hallowed role of dissent in its evolution. For instance, the emergence of Buddhism and Jainism in the 6TH century B.C. against the Brahaminical order; the revolt of Basava in South India against the regressive social structure ; the seminal role played by social reformers such as Raja Ram Mohan Roy and Ishwar Chandra Vidya Sagar  for waging a movement for the abolition of Sati and passage of widow re-marriage act, respectively, and that too going against the popular current of that time validates that the Indian history has a rich tradition of dissent.  This dissent therefore has help in the development of individual and helped in the development of India.

In India’s Constitutional scheme, where liberalism is a defining feature, the Supreme Court is mandated by the Constitution to uphold the constitutional values and safeguard the rights of the citizens against the state intrusion. Also, as an institution, the Supreme Court is tasked to check on the executive and legislative overreach.

That said, Bhushan’s tweets should be seen in line with the rich tradition of dissent which has been the guiding light in India since ages. Also, in our Preamble no where the word judge has been mentioned; rather it’s the word Justice. Therefore it needs to be identified that where justice in lacking, and accordingly the judges should work in its realisation.

Constitutional Morality – A Saving Grace

Constitution of India is not just a mere document that puts down in black and white the administrative details for the governance of a nation. However, it’s much more than that. It is a living document, which was not just meant for, say, for 50 years or 100 years. Rather, it’s a document, which talks to the posterity.

Since last few years and especially after the abrogation of Article 370 followed by the enactment of CAA 2019,  and now this contempt case, one cannot help thinking that things are going awry, in the sense that, there is an aberration from the Constitutional path and vision. Following the above grim developments  the immediate question  that props up in one’s mind is that why is this happening.

Given the above, if one turns to the principle of constitutional morality and check the above mentioned constitutional crisis on its anvil, then one comes closer to the fault line which is plaguing the Constitutional order. Before further anatomy of different constitutional issues in light of constitutional morality it’s important to know what actually it means.

“Permanent reverence to the form of the Constitution” is how George Grote defined Constitutional Morality. Grote in his magnum opus A History of Greece explained that the Athenian democracy flourished and survived without getting into farcical wars was due to the deep sense of constitutional morality within the people of that city-state. He further adds that constitutional morality is not just meant for the ruler and ruled, however, its equally important for the opposition too to follow it. In case of defiance of doctrine of constitutional morality peace will be replaced by anarchy.

What does the word “form” suspended between the word “reverence” and the “Constitution” in Grote’s definition means? This “form” if loosely defined means the unwritten but understood rules and norms followed in a constitutional setup, which helps in the furtherance of its stated objective. The unwritten but understood rule can be in many forms like traditions, principles, convention etc.  Renowned sociologist Andre Beteille[9] defines this undefined and unwritten yet indispensable principle for the proper functioning of the Constitution to be “impersonal rule of law”.

In regard to India, its legal literature and the doctrine of constitutional morality, the common link is Dr. B. R. Ambedkar. As the Chairman of the Drafting Committee of the Constituent Assembly while answered why the Indian Constitution is so lengthy, and why possibly all the administrative details have been incorporated in the constitution, Ambedkar talks about Constitutional morality drawing on from what Grote has written in his book. Ambedkar said:

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.”

The Supreme Court in India has applied this doctrine in many complex cases giving progressive judgments  viz. Sabarimala (the court uplifted the ban from entering the women in the temple of age group 10-50), Navtej Johar (Section 377 was de-criminalized) etc., and has given a new meaning and direction to the entire jurisprudence of individual liberty. The main rationale, if one analyze these judgement wherein the doctrine of constitutional morality, the courts relied upon was the silences of the constitution, that unwritten but the spirit of the constitution, to come up such landmark decision. More so by at least opening the debate so that it gets further enriched and helps in reaping the food of the constitution.

Way Forward

The demand for scrapping the colonial baggage, the Contempt of Court Act, has heightened amidst Mr. Bhushan’s contempt episode. But, would it serve any purpose? The answer to this simple, but equally significant question is an emphatic – NO.

The problem in India is not of law, but its execution. The problem is the individual judges, but the scant regard for constitutional morality at the institutional level. The problem is not democracy as an ideal, but the failure to democratize the society on the part of state, and equally citizens. The problem is not dissent as a way of expression, but the lack of the sense of civil rights in India. It’s high time.  Rights needs to be taken seriously both by the individual and its protector and, adjudicators and enforcers, or else it would further exacerbate the erosion of constitutional fabric

Commenting of the efficacy of the Constitution Dr.B.R. Ambedkar[10]  said: “However good a constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a constitution may be, if those implementing it are good, it will prove to be good”.  It is in this light and spirit that one needs to objectively engage whenever there is an issue wherein  the rights of the citizens is in direct conflict with  any  provision of the  law. The following illustration would be instructive:

  1. Truth as defence is an integral part of the contempt jurisprudence which was incorporated in 2006 by way of amendment. But this aspect of the law has not been highlighted by the Supreme Court in Bhushan’s case with the same vigour as the court has done in emphasising that the tweets have scandalized the court and the majesty of the institution has crippled.
  2. The other significant points is that the contempt is not punishable unless it is such serious and grave that it act as an impediment or substantially interfere in the administration of justice.
  3. The purpose of the law is to hold the majesty and dignity of the courts of law, and not that of individual judges.

The point I attempt to draw home by the above enumeration is that there are sufficient safeguards and checks available in the Contempt law, thereby ensuring that it is not misuse. But when the judges solely predicate the judgement on the technicalities, rather than following the objective for which it was enacted then the purpose of the law gets defeated. More so, in cases where subjectivity consideration and  the discretion of the judge plays a significant  while  interpreting the fine nuances  viz. “contempt” , “reasonable restriction” things become more difficult, and at times concerning.

The possible solution to the above quagmire is that the democratic institutions in India should be percolated with the principle of constitutional morality.  One of significant aspect of this principle which Ambedkar highlighted during his speech in the Constituent assembly while explaining it was that there has to be a corresponding consistency between the form of the constitution and the form of the constitution. Be it the parliament or the peon of the PMO , if they follow the principle religiously and seriously then not only the fruits of the constitutional would be realised, but it would even help is removing the vices from highly fractured  and unequal society like India

In this grand enterprise, for making constitutional morality a living reality, the legislature as it did by way of 73rd and 74th Amendment Act in the form of bringing Panchayati Raj and Municipalities  for the percolation of democracy to the grass root level, can come up with   similar legislation in regard to Constitutional morality wherein it informs each segment of the society. By this proposition it doesn’t mean that the bottom-up approach couldn’t be tried in this regard. Rather, if the society starts following the constitutional, not just in words, but in spirit, it won’t be an exaggeration to say that India would not only be counted as the largest functional democracy, but India would be a force to reckon with whenever any comparison of democracy is made.

The answer to the constitutional crisis that props up its head in India ranging  form the toppling of the state governments; the CAA 2019; the abrogation of Article 370 , among others, lies within the text of the constitutional text. It could be in the way of adopting liberal philosophy while interpreting the constitution; making the silences of the constitution which the unwritten spirit of the constitution to make loud through judicial pronouncements and lastly by being guided by the broad vision of the Constitution. In short, mainstreaming constitutional morality.

Md Zeeshan Ahmad is a final year law student at Aligarh Muslim University.

 

Refereces:

[1]  Section 2 (c) of Contempt of Court Act,1971

[2] https://www.outlookindia.com/website/story/contempt-of-court/214294

[3] (1988) 3 SCC 167

[4] https://indiankanoon.org/doc/21676/

[5] https://www.outlookindia.com/magazine/story/the-greater-common-good/207509

[6]  K.G. Kannibaran , The Wages of Impunity

[7]  Reported by LiveLaw on August 17,2020 https://www.livelaw.in/top-stories/contempt-verdict-against-prashant-bhushan-suffers-from-imbalances-will-file-review-dhavan-tells-sc-161537#:~:text=The%20August%2014%20judgment%20of,the%20Supreme%20Court%20on%20Monday.

[8]  Justice PD  Desai Lecture delivered at Gujarat High Court by Justice  D.Y. Chandrachud  https://timesofindia.indiatimes.com/blogs/toi-edit-page/what-binds-india-together-labelling-dissent-as-anti-national-strikes-at-the-heart-of-constitutional-values/

[9] Andre Beteille , “Constitutional Morality” , Economic and Political Weekly October 4,2008 43,40 pp. 35-42

[10] https://pib.gov.in/PressReleasePage.aspx?PRID=1545034#:~:text=words%20of%20Dr.-,Ambedkar%2C%20which%20are%20as%20relevant%20today%20as%20when%20he%20had,JAI%20HIND!%E2%80%9D

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