One Rupee: The Price of the Narrative

   On 31st August, in Kerala, people celebrated Onam and in Delhi, people celebrated Prashant Bhushan’s victory- in both places, the scourge of the ‘co-opt and conquer’ strategy runs rife.

   One of the dominant myths of the Onam festival is that it is the return of the king Mahabali. The Hindu narration of this tale suggests that he is the descendant of a Brahmin who ran an incredibly egalitarian kingdom, but somehow he achieved this with evil courtiers (asuras) which led the Brahmins to summon Vishnu’s avatar to banish the king and restore power. This narrative makes little cohesive sense. However, if one is to listen to the subaltern Dalitbahujan narrative- another story comes to light. Mahabali was a Dalit king who had usurped Brahmin power and set up an incredibly egalitarian kingdom. The Brahmins, jealous, summoned their deity Vishnu to expel him and take hold, and thus people celebrate Onam when their king Mahabali returns to look over them. It is commonly understood among Dalits and Dalitbahujan scholars that ‘asuras’ are a way to demonise Dalits. (EN 1) This twisting of narrative is an incredible tool used to co-opt revolutionary tendencies by painting any success of the true masses as an evil, which the oppressors banished for the sake of a very vague morality, but in effect serves as a cautionary tale for those who dare to defy. (EN 2)

   It is this very strategy of staging, and controlling the narrative, that the Supreme Court has used to co-opt it’s critics’ strong wave of dissent. It is important to start with recognising what the real criticism of the court is- it has destroyed democracy. It has done so with questionable decisions over years- on free speech, legislation, property rights, Ayodhya, citizenship, reservation, resource distribution, migrant labour and more, besides the glaring lack of decisions in a whole other host of issues. These decisions (or lack thereof) have been directly linked to the material well-being of populations with little political capital- Kashmiris, North-Easterners, Dalits, Adivasis, LGBTQ+ folk, Muslims, the poor, the ‘left’, etc. The real revolution against the courts will come from them alone, and those who ally with them- for a revolution is necessary. I should clarify I don’t mean a destructive revolution, I use the word in the sense of radical change- increased transparency and inclusion, open access and structural reforms (starting with replacing the collegium/master of the roster , live-streaming proceedings and reforming post-retirement guidelines and incentives). Coupled with change in various other sectors, this will set the ball rolling on building a court that sees law as a rule of the people, rather than a decree of the State. Gautam Bhatia’s blog post covers some details. (EN 3)

   Last month Prashant Bhushan was charged as contemnor in a suo moto case by the Supreme Court for 2 tweets- criticising the current Chief Justice personally as well as the last 4 in general for its role in the deterioration of democracy. Over the course of the proceedings, Bhushan himself, as well as his advocates, Dr Dhavan and  Mr Dave, made strong and powerful liberal cases for his acquittal- that will doubtless serve as a standard to refer to in fighting frivolous contempt of court cases in the future. Although these arguments themselves are perhaps not going to go far enough- with the best step being to go as far as to repeal or strike down the provision, which is a petition that N. Ram, Arun Shourie and Bhushan said they intend to file. Anything less would only leave scope for continued abuse by a future Court that is insecure. The current case’s arguments also involved some unnecessary obeisance at some stages, despite the generally bold attitude of Bhushan, where the lawyers accepted some acts of publicising proceedings as wrong, and requested the court to clarify what lawyers can and cannot do, without question of whether what the court would suggest would be right. At the merits stage, the judgement was woefully inadequate and convicted Bhushan as contemnor. (EN 4) This was almost universally criticised. The Attorney General, KK Venugopal,  was allowed to speak in subsequent proceedings, beginning with bold references to the retired judges and eminent personalities who had criticised the previous judgement. These were quickly dismissed by the Court in its order as wrong ipso facto. But Venugopal was quick to also accept the Court’s view that Bhushan ought to apologise. In a now famous series of live-tweeted content, we saw Mishra J lament about the quality and function of an apology. Bhushan did not relent. Thus, we arrived at the judgement on the 31st, with its Re.1 fine, failing which there would be 3 months imprisonment and 3 years disbarment. (EN 5)

   Many people, journalists and commentators, but also a surprising part of the legal community saw this as a ‘victory’. The idea was that the Court had seen the incredible backlash, and had been pushed back, to ‘save face’ and fined a measly one rupee after the entire debacle. This could not be further from the truth. First off, we should consider the full punishment- failing the payment of the fine, the consequences are quite massive- 3 months is not an awful lot, but it is a fair amount, but more importantly, Bhushan is a lawyer. He can not afford being disbarred, even if it’s for an apparently martyristic reason, disbarment will be a permanent stain on his future legacy unlike other penalties he wants to avoid. In the alternative, he pays one rupee- an easy way for him to not face any consequences, but still maintain his position as the brave fighter. This is not a criticism of Bhushan, anyone would do the same, and he has admirably not rested, aiming for a review. It is instead an aid to understanding what the Court was trying to pull off.

   Why this push towards Re.1? It’s worth remembering that in earlier proceedings the Court wanted even less than that in punishment- it wanted only an ‘apology’. The way it attempted to extract that apology clearly shows the Court was not interested in punishing Bhushan, it only wanted to tell Bhushan, and the world, he is wrong. In the backdrop of the reasons why the Court was being criticised, the Court perhaps saw that the criticism was getting too harsh. It needed to respond to it. Like the king Mahabali was made an example of, it decided to make an example of Bhushan (with obvious important differences between the two). Unlike the cases for which the Court has been criticised where it has the distinct capacity of playing the role of a ‘neutral’ party that only finds what the law is amidst the arguments between interested parties, in this suo moto case, the Court itself was a party. In the former adversarial cases, the Court can often deflect criticism various ways, such as towards the government, but here in the contempt case, as an interested party itself, any criticism would have to come towards it. It went ahead with it anyway because it was already seeing a tide of criticism coming directly against it, more so than ever before, even in adversarial cases. This meant that criticism had to either be acknowledged and adopted openly, or dealt with an ‘iron hand’. The Court chose the latter. In doing so, however, it was important to avoid martyrisation, to avoid a swell of the critics- it had to co-opt the story of oppression to serve as a lesson to others less fortunate, cloaked in morality. This was not a change of mind at the last stage. It was the plan all along. 

   In 2002, Arundhati Roy was let off with a similarly nominal fine. Bhushan himself had apologised earlier to ‘purge’ his contempt in another matter. Contempt can often be a proxy decree to the masses: ‘This, thou shalt not say’. For people like Roy and Bhushan, these proceedings are ordeals, but not material harms. They received support from large sections of society, particularly sections of the elite. They did also, however, receive threats and underwent a campaign of destruction of personality (look, for example, at Amit Malaviya’s tweets). Others who hear this, especially those who lack the political capital to garner the support, will consider the ordeal alone. They will doubtlessly self-censor. Without the support, and also a niche safety bubble which people like Roy and Bhushan have, the image of such proceedings is a premonition of material loss. Lost jobs, money, reputations, and maybe even jail time or more. In this manner, the Court managed to deliver it’s message and make clear that speech will pay, but also emerged as an institution that has the capacity to listen and appear ‘magnanimous’- neither of which is borne out by any other acts of the Court.

   But in most cases they will not be picked up for suo moto contempt by a Supreme Court bench, will they? This is true, but it does not take a lawyer to know the law is used, rather than applied. It will not be contempt that the Court uses: it will be an evaluation of the ‘offender’s personality’ when they are framed as a Maoist; it will be being picked up more easily on government surveillance lists for saying certain things/being in certain company; it will be in the willingness to exercise that strained quality, mercy, in determining the ‘discovery of law’. At some points in this article, one may detect a hint at a nexus between the Court and the government. I don’t intend to allege anything ‘illegal’ or nefarious in that respect here. However, that hint can be read towards the current structuring of the law itself- that our legal system naturally intertwines our judiciary with its executive in ways we ought to reconsider, along with the much broader changes to our substantive and institutional law.

  This is a defect clear to most people, and Re.1 gives no solace to these people. The only solace that will come is from a successful review petition AND a continued criticism of how and why the Court continues to fail us. 

Endnotes:

1. Abhirup Dam, ‘Dalits Point out How Onam Is the Story of Upper Caste Domination’ (Onam 2017)
2. Kancha Ilaiah Shepherd, ‘Why I Am Not  A Hindu’ (2005)
3. Gautam Bhatia, ‘ICLP Turns 7: A Constitutionalism Without a Court’ (ICLP Turns 7 || A Constitutionalism Without the Court)
4. In Re: Prashant Bhushan (Merits) Order ([Breaking] SC Holds Prashant Bhushan Guilty Of Contempt For Tweets Against Judiciary; Will Hear Him On Sentence [Read Judgment]) 
5. In Re: Prashant Bhushan (Sentencing) Order ([Breaking] SC Sentences Prashant Bhushan To A Fine Of Rupees One In The Contempt Case Over His Two Tweets)