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  Opinion   Oped  11 Sep 2020  Is the Supreme Court right in punishing Prashant Bhushan?

Is the Supreme Court right in punishing Prashant Bhushan?

Published : Sep 11, 2020, 6:58 pm IST
Updated : Sep 17, 2020, 1:17 pm IST

The Supreme Court should not fear any criticism no matter how scurrilous or malicious

Civil rights lawyer Prashant Bhushan. (PTI Photo)
 Civil rights lawyer Prashant Bhushan. (PTI Photo)

The Supreme Court can be considered an embodiment of justice. But this claim needs to be qualified by saying that it is not completely true because the Court does occasionally fall short of delivering justice. To put it simply, judges are not infallible.

It follows that the Supreme Court in so far as it “embodies” justice will never fail to deliver justice but in so far as it fails to do so it will definitely fall into error.

Now justice cannot have any fear of criticism and scandal because justice being an ideal or a standard can never be wrong.

If justice can also be wrong or relativistic as a post-modernist resorting to a relativistic philosophy would claim then there is no solid standard available to a judge to save him from committing errors.

It is true that political thinkers and jurists may propose different or even contradictory notions of justice by way of abstract academic exercise but the disagreements among them over the notion of justice would not solve the problem of delivering justice in concrete cases.

If the meaning of justice is other than what Justinian Institutes say, “the set and constant purpose which gives to every man his due,” then the wise Romans would not have produced one of the most robust and successful legal system in the world.

If the definition offered by Justinian is right then it can be reiterated that justice has no fear of criticism and scandal.

It follows that the contempt of court would amount to contempt of justice.

Now because the goddess of justice cannot be scandalized by criticism -- malicious or not; therefore, contempt would have no effect on it.

In other words, contempt cannot cause any hurdle in the working or movement of justice and therefore contempt law that criminalizes contempt needs to be done away with.

As for the judges who are fallible human beings it cannot be denied that they can be scandalized by malicious contempt. They may suffer emotional or psychological injury at the hands of mischievous members of the public.

But being chosen by Providence for the greater cause of justice and truth they must be ready to bear the burden. They must be ready to drink the hemlock like Socrates. They must be willing to take the venom inside their throats like the blue-throated god, Shiva.

As fallible humans they must know that they would sometimes fall short of “embodying” justice and by way of atonement they should willingly undergo the Agni Pariksha of nasty and malicious criticism.

To put it pithily, if a malicious criticism is directed at the goddess of justice it would have no effect and rebound itself to the criticizer and if it is aimed at the fallible judges or the fallible court then again it would have no effect. In either case, the faith in justice can never be shaken or undermined unless people stop believing in truth.

Justice being an aspect of Truth (with an uppercase T) could have no fear of losing its credibility, stability, and faith amongst public if the old maxim of Satya Meva Jayte or Vincit Omnia Veritas is true.

As long as the world lasts, people will continue to believe in Truth even if many of them will fall short of treading the arduous path of Truth.

So, the Supreme Court should not fear any criticism no matter how scurrilous or malicious, in so far as it takes the challenge to “embody” justice and tries to avoid the failure to embody it.

The writer is a professor of law at Jamia Hamdard University.

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