oi-dr. Sandeep shastri
(The author has penned this article as a concerned and conscientious student of Indian democracy):
As the interpreter of the Constitution and the custodian of the fundamental rights of citizens, the Supreme Court finds itself engulfed in a controversy. Is the honour, prestige and privilege of the highest court in India determined by the influence it inspires among the people in the country or is that high stature a by-product of the authority it wields and demonstrates from time to time? The stand-off between senior lawyer Prashant Bhushan on the one hand and the venerable judges of the Supreme Court on the other, appears to have escalated to a point of no-return.
The way in which this episode has unfolded provides proof of the fact that the honour and dignity that goes with a high office is not always a corollary to the use of the power vested in the said authority but the consequence of the demonstration of the influence that should ideally contextualize the functioning of such prestigious institutions. Respect, trust and honour are not gifts to be conferred but habits to be acquired!
As the highest court of the land, one has seen the Supreme Court exercise its power and authority and play its legitimate role in defending and interpreting the constitution. When the executive and legislature abdicated their responsibilities, one applauded the judiciary for stepping and lauded its activism. Yet, t the same time one heard whispers of caution which asked the uncomfortable question on who will guard the guardian? What if the fence starts eating up the crop?. While many of us applauded the activism of the judiciary there was also the voice of restraint which pleaded for the judiciary itself to be accountable. The Supreme Court holding Prashant Bhushan guilty of contempt of the court for his tweets and offering a final fig leaf by encouraging him to apologize, has pushed the crisis to a brink. Bhushan refusing to apologize has led to an inevitable showdown that could well have been avoided.
Three points merit attention in the unfolding of the present crisis. The first is on the alleged contempt of the highest judicial institution. There is often an extremely thin line that separates legitimate criticism from visible contempt. Further this thin line is often subject to shifting goal posts and highly subjective interpretations. Further, can an institution be a judge on an act of contempt against itself? How does one avoid a possible subjectivity bias in this case. Principles of natural justice would require an institution not being a judge in a case of contempt against itself or one of its members.
Secondly, on a point of consistency. Over the years there have been range of attacks against the Supreme Court as an institution and against individual judges. Possibly it can also be argued that probity and respect for standards is a two way street. Did the open protest by the senior-most judges of the Supreme Court against the then Chief Justice evoke a similar reaction? The trend of retired judges of the Supreme Court accepting a range of positions post retirement may not be a strict violation of the letter of the law but does constitute for many an undermining of the spirit of the law. And how does one justify retired judges of the Supreme Court entering politics and/or accepting Gubernatorial assignments soon after stepping down from office? Any criticism of the same is met by a standard set of responses: a) that there is no bar on judges foraying into politics or accepting constitutional positions; b) if it is acceptable for those from other professions (retired bureaucrats as an example) to change tracks post retirement why not retried judges; and c) the omnipresent threat of foisting case of contempt of the court. Public confidence in the impartiality and probity of the judiciary often gets eroded by the absence of adherence to common standards in all situations.
The last word is till to be said in the Prashant Bhushan case. Even as the nation awaits the next move, the question on the minds of many is whether respect for an office is ensured by exercise of authority or exertion of influence. Power and authority when wielded by the highest of offices, is often about restraint and not its actual use. While terms like rarest of rare and last resort are being used in the present case, one is till unsure whether the actual exercise of a power which is more seen as a deterrent would strengthen or weaken the prestige and image that goes with that authority. It has often been argued that those in high offices should be able to assert their influence flowing from the position and the respect that the holder of an office bring to that office. In the long run, building trust and confidence in institutions is about the influence they are able to exert rather than the power that they are able to exercise.
The holders of public office play a major role in spreading this influence rather than in having to remind those around of the power they wield. Taking recourse to the exercise of power, even in the rarest of rare cases, is reflective of the inability to power holders to evoke respect by the exercise of their influence.
(Dr Sandeep Shastri is a leading political scientist and Pro Vice Chancellor, Jain University)
Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of OneIndia and OneIndia does not assume any responsibility or liability for the same.