It's time India's judges, too, stood up for the law

There are good reasons why the institutions of the law are sought to be protected from casual and random vilification. We are living in – I hesitate to say through for fear of being over-optimistic – a time when all our institutions appear to be in a process of accelerated decline. The crisis of competence in the ruling elite merely compounds the malafide intent of the present political masters: and the demonetisation catastrophe is only the latest, most egregious, instance. (And no, troll, the reflexive resort to name-calling on the anti-social media is not going to help in the long run in which we are all, mercifully, dead.) Despite the famous reassurance given by Krishna in the Bhagavad Gita – yada yada hi dharmasya... (whenever there is decay of righteousness) – a card-holding sickular sepoy like myself cannot help but feel that, in the absence of God or any credible representatives therefor, we all have a common interest in preserving the legitimacy of the law and its institutions. The dignity of the court is not a matter of concern merely to judges, though I believe it should be a matter of concern to them, too.

Judges are not the law. They are – as indeed we all are, except in the deepest personal matters – creatures of the law. And all of us have a stake in maintaining the credibility and legitimacy of the law and its institutions. All of us exist under the law, and not above it. It follows that the honourable Supreme Court judge who on November 30 gave the interim order mandating the playing of the national anthem in cinema halls before every movie screening, which has been described as “popcorn nationalism”, must be similarly situated, that is, under and not above.

The contempt law

Hitherto, the law of contempt has been used primarily by judges to protect their fragile dignity, and to threaten others with their brief authority – as in the case in 2000 of the Allahabad High Court judge who summarily sentenced a subordinate railway official on the New Delhi railway station platform itself because he could not promptly provide the judge with last-minute accommodation on a train, presumably by dislodging a legitimate traveller with a reservation. Perhaps the time has come for the law of contempt to be invoked against judges who endanger the dignity of the institution of the law by their ill-considered words and actions? After all, the law of contempt exists to protect the institution of the law, not the personnel – human, all too human – who man these institutions from time to time. And there is no reason, prima facie, why the honourable judges (they are all honourable ex officio, aren’t they?) should be considered exempt from, or above, the provisions of this law, either.

An apocryphal story has the legendary parliamentarian Robert Lowe in 19th-century Britain exclaiming at one of the crucial junctures of the extension of their democracy, “We must educate our masters.” Perhaps we are at a similar juncture. And, indeed, the education is proceeding apace. Television journalist Ravish Kumar gave a timely tutorial to the finance minister the other day on India in 1947. But the chief target of public pedagogy at the moment is, of course, the honourable Supreme Court judge.

Suhas Palshikar’s Citizens into Subjects provides many of us an opportunity to compensate for our educational deficiencies. And Pratap Bhanu Mehta – Unconstitutional Patriotism – is generous in pointing the honourable judge to the German philosopher Jurgen Habermas, in case he wishes to refresh his understanding of “constitutional patriotism”. Unless, of course, like Humpty Dumpty in Alice in Wonderland, he takes the position that words mean whatever he wants them to mean, which, considering a 2003 Jabalpur High Court judgement excerpted by Bhairav Acharya, might well be the case. Consider this: “National Anthem is to be sung with magna cum laude and nobody can ostracise the concept of summa cum laude. […] The national anthem is pivotal and centripodal to the basic conception of sovereignty and integrity of India. It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour.”

As someone who has taught English at university level for over 40 years, I can say with full authority that any student who submitted work like that would promptly find himself out on his ear.

Law and morality

The legitimacy of the institutions of the law is a complex business, and is not strictly reducible to merely being technically correct. Mahatma Gandhi, after all, invented a whole style of politics on the basis of diverse strategies whereby the vaunted legitimacy of the colonial state could be subjected to examination. And, we know, the legitimacy of colonial law did not survive that examination – although, ironically, we in free India continue to exist under a legal apparatus that is, in crucial respects, a continuation of that same colonial law, as, for instance, in the matter of the law of sedition so beloved of our present leaders.

Law and morality are not the same thing, as Gandhi famously reminded Judge RS Broomfield during a sedition hearing against him in Ahmedabad in 1922. The domain of morality would lose something essential if it were to become a matter of legislation: choosing freely, being free to choose both good and bad – free as commentator Surjit Bhalla suggests, to sit or to stand – is of the essence of moral being.

But there is, still, a slippery relationship between law and morality. The law and and its institutions cannot afford to stray too far from commonly shared perceptions of morality. In fact, our courts have done commendable work in reminding the organs of the state that their legitimacy, too, derives not from the ever-serviceable forces of repression but from their being in some rough consonance with the moral sense of the people. It was the courts that reminded the state some years ago that there was something morally wrong in letting the people of the country die from starvation when granaries were overflowing and rats were dying from excess. I am aware that this consonance argument is problematic, particularly at a time when some people are arrogating to themselves the right to exclusive articulation of that moral sense. And when that moral sense speaks in plural voices, it is the law that must prevail. The khap panchayat of loud-mouthed nationalists cannot be allowed to trump the Constitution and the law. But who will remind the courts that their legitimacy too depends on some similar consonance – remind them, indeed, that one or other of their pronouncements appear dissonant?

It is only reasonable to suppose that, under their wigs and behind the ritual of their office, judges too are human and so, capable of error. After all, the process of judicial review, of appeals, rests on precisely this recognition. But in the way in which the contempt provision is sought to be deployed typically, there appears to lurk the arrogant assumption that only judges are allowed to identify judicial error. It is in the spirit of cooperative citizenship that I wish to suggest that the judges in the present case are, probably, guilty of contempt.

Alok Rai taught in the department of English, Delhi University.