Setting precedent

Having a strong inclination towards progressive social movement, liberality and advocacy, what propelled me towards the legal profession was witnessing the immense influence that the judiciary had to transform the lives of ordinary people. India lives many centuries at the same time, it also abounds by the wounds and sleights of the past. A year before I would ultimately decide to pursue law, a panel of five judges from the Supreme Court would go on to decriminalise homosexuality as part of the colonial era Section 377. Widely lauded as being a progressive step towards equality, it had substantial implications in transforming how LGBT individuals could live with a greater sense of dignity. The judiciary had pushed the envelope of societal comfort and status quo, it even faced said and unsaid criticism, but it persisted and won the day for India.

The legal domain, in particular, seemed to stand out for our generation as the more outspoken, independent and transformational option, than most others. Ours is a generation that has witnessed tumultuous socio-economic changes, opportunities and has passionately chosen to question, criticise and challenge the norms. While many institutions and establishments were getting afflicted and compromised by political preferences and interferences, the legal fraternity and the armed forces seemed relatively insulated, progressive and fearless to withstand any political pressures to diminish its freedom of expression.

The hook that attracted students to the profession such as this, was its intrinsic insistence on 'arguing' (operative word, 'argue') in pursuit of furthering the public good. It necessitated the ability to articulate and listen simultaneously, even when uncomfortable with a contrarian opinion getting expressed. Today that fundamental spirit of expressing free dissent and counter-opinion is being challenged. In a series of tweets that would eventually lead to a Supreme Court case against him, veteran advocate Prashant Bhushan criticised the Supreme Court as contributing towards the corruption of India, in the past six years. It was an opinion — perhaps right or perhaps wrong, but still just an opinion. In the set of widely contrasting reactions that followed, the Supreme Court held him guilty of 'contempt of court', an offence that is committed by an individual that challenges the authority and disrespects the dignity of the court in question. The sheer optics of the drama suggest a certain thin-skinned reaction, against an opinion which was ostensibly rooted in a desire to cleanse the system, perhaps right or wrong, again just an opinion.

While Prashant Bhushan's lawyer, Dushyant Dave, argued that his tweets were merely an exercise of his right to fairly criticize an institution to make it stronger, the Supreme Court was quick to denounce the act by calling it an act of malice. Despite his apparent position as a Supreme Court advocate himself, Prashant Bhushan has been a vehement defender against corruption in the judiciary and has formed the Committee on Judicial Accountability as an initiative against the same in the 1990s. It would be incongruent for a veteran advocate with a vested interest in judicial accountability to act with any sort of malice towards the very same institution, he has assiduously committed to keeping transparent and corruption-free.

An expression of being just and ethical forms the very basis of being a virtuous lawyer. Would criticism of an institution to strengthen it form an extension of being a 'just and ethical' lawyer acting in the interest of said institution? If so, why must such an act be deemed an offence? The Supreme Court verdict seems to propagate an uncertain message that conflates criticism with malice and disrespect.

Criticism or the right to fearlessly question is essential to change and usher progressive evolution. Weakening the very basis that a profession is built on i.e., criticism and argument, by imposing restrictions and fear, especially when made in favour of strengthening the very institution comes across as counterintuitive. The courts, in an ideal sense, exist as an institution offering hope to the defenceless by existing as impartial and unbiased protectors of our constitutional rights. This seeming smallness-of-spirit regresses its core of progressive activism. Along with the obvious existence of substantially more pressing and long pending cases piled up in the Supreme Court, it could have been more thick-skinned about the sort of criticism made in this case. But, it reacted too swiftly.

With the Bar Association, former judges and many legal luminaries coming out in support of Prashant Bhushan, along with bipartisan support on social media, it is ultimately up to the Supreme Court to set the precedent for how criticism will be dealt by the most superior judicial institution of the country? Beyond the specifics of this case, it also sends a crucial message to the thousands of law students who have embarked on their journey in legal careers. While they may find a hero in an advocate charged with 'contempt of court' that considers an insincere apology 'contempt of his own conscience', the Supreme Court ought to re-earn its stripes in the eyes of those, who must always look up to it. Students of this generation are very perceptive, unforgiving and passionate about their future, their calling in life and the nation as a whole — and they wear their constitutional freedoms, liberality and progress on their sleeves. The courts must always remain 'Supreme' in their eyes, hearts and soul, with its actions.

The writer is a second-year law student at Jindal Global Law School. Views expressed are personal