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Wednesday, September 23, 2020

What would happen if Prashant Bhushan were given immunity, allowed to speak freely?

What would happen if the public were to be allowed to sit in on the arguments? The truth would come out. Details of compromised adjudication would perhaps come out.

Written by Colin Gonsalves | Updated: September 2, 2020 8:50:33 am
Prashant Bhushan after the SC verdict. (PTI)

The core question emanating from Prashant Bhushan’s heroic struggle is whether Satyameva Jayate is really possible within the confines of the present legal system. The existing laws and the present practices and conventions make it dangerous to speak the truth, particularly in respect of judicial corruption and the independence of judges from the executive. This maya of the “majesty of the law” is constructed not for the lawyers who can see through the camouflage, but for a society where even the highly educated and the widely travelled will believe that justice is possible within our legal system.

Bhushan was willing to lose all for the triumph of truth. The Supreme Court (SC) does not come across such characters often. Some surrender and apologise even if they are speaking the truth. The SC has punished Bhushan lightly, though the conviction was harsh, notwithstanding public opinion. There may be some judges who are so offended by what he said that they seek a harsh punishment. Being offended is not the yardstick for contempt. But I am sure there must be many in the judiciary who recognise what the real issues are and side with Bhushan in their hearts.

Why can’t the truth be told? Why can’t names be mentioned? Why can’t details be spoken of? Why can’t testimonies of senior lawyers who have practised in the SC for decades and know particulars not be recorded? Why cannot there be a commission of retired SC judges of impeccable integrity to take evidence of corruption and diminished independence from the executive? Who will allow this to happen?

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We have the Contempt of Courts Act that makes speaking the truth punishable. We have laws like criminal defamation that allow prosecution even in cases of free speech. After all, the SC has held that reputation trumps freedom of speech. Truth may be a defence but who wants to test this proposition in the court of a judge who is incensed by something said, even if true.

When I came to the SC in 2000, I was filled with hope and expectation. I came across wonderful judges. I came across terrible judges. But overall, I retained my optimism and felt that my decision to switch from engineering to law for one reason alone — to do justice — was a good move. As years passed, I was no longer so sure. I saw arbitrary power increase exponentially. With that, I saw the gossip in the corridors of the SC (with many young participants repeating what their seniors had told them in chambers) about the goings-on behind the scenes. Now I understand that if you have the future generation talking openly of the decline in the system, there must be a kernel of truth somewhere.

Then with Narendra Modi coming to power with a massive people’s mandate, I saw dramatic changes. Basically, the judiciary cannot deal with a powerful executive that has the people’s support. How does one speak truth to power? What courage does it take for a judge to go strictly by the Constitution and deliver a judgment which the judge knows will be sharply condemned by religious groups? How do judges continue to remain secular in these times? How do judges take to task an executive that can hurt them in myriad ways? Judges can be transferred. Judges can be superseded. Judges can have their phones tapped. The sons of judges who engage in questionable activities and amass seemingly inexplicable wealth can be investigated to get to the judge himself. There are myriad ways in which the executive can intimidate the judiciary. Conversely, by their own actions, the judiciary may invite intrusive investigations. Who will protect the judges? Who will ensure independence? Who will investigate judicial misconduct? Who will punish the executive for intimidating judges?

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Ultimately, Prashant Bhushan is saying to the judges that the system is decaying and must be opened up for, as the cliché goes, sunlight is the best disinfectant. But how does one persuade the judiciary and particularly those sections with political connections, to accept this because the continuation of the status quo is convenient for them? How does one convince those sections of the judiciary that have been honest and upright and independent of the executive to stand up and speak out? There have been very few outstanding examples for them to follow. And surely, the rabble of pro-government proponents will inevitably, stridently follow.

What would happen if Bhushan were to be given immunity and allowed to speak freely? What would happen if the public were to be allowed to sit in on the arguments? The truth would come out. Details of compromised adjudication would perhaps come out. The public would come to know what lawyers discuss in private. But he is not allowed to speak freely. The archaic laws in place of contempt and criminal defamation will punish him for speaking the truth. This is the reality of modern India. This is where we land up after 73 years of Independence.

This case is not about the words he used. It is about what he stands for. He is on the right side of history. The institution needs reform. The institution needs a strengthening of independence. The institution needs the recruitment of judges capable of standing up to power. And as for the verdict of guilty, remember the words of Bal Gangadhar Tilak when he told the British judges who held him guilty of treason: “In spite of the verdict of the jury, I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of Providence that the cause which I represent may prosper more by my suffering than by my remaining free.”

This article first appeared in the print edition on September 2, 2020 under the title ‘At stake, truth and justice’. The writer is a senior advocate, Supreme Court, and founder-director of Human Rights Law Network

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