Prashant Bhushan’s Contempt & The Republic’s Feudal Vestige

16 Aug 2020 8 min read  Share

In convicting Prashant Bhushan of contempt, the Supreme Court partly relies on a 265-year-old British case, from an era of undue deference to authority. It uses “dignity” 31 times and “authority” 50 times in a vague, murky formulation that is the province of sophistry rather than legal justification.


New Delhi: “..undermining the dignity and authority of the court.”

This term is the operative logic of the decision delivered on 14 August 2020 in In Re: Prashant Bhushan & Anr. Despite employing the word “dignity” 31 times and “authority” 50 times, the court failed to clarify what it means by these terms.

Anyone studying mature legal systems would imagine that the judgment would present a close legal analysis of the terms. But following an established tradition in Indian jurisprudence, they remain unexplained concepts, even though they are accorded the most weight.

Unless clearly spelt out, terms such as “dignity and authority of courts” are vague, murky, terms that have low logical, empirical, and even legal verifiability and are the province of sophistry and superstition rather than legal justification. As counter intuitive as this might sound, there is good reason to purge such pre-Victorian terms from our constitutional and legal landscape.

Undermining The Dignity Of Courts

The idea of dignity has little relevance to contempt of court cases either literally, or substantively, even if judicial decisions have employed the term. Neither the constitution in the context of contempt of court, nor the Contempt of Courts Act, 1971, employ the word. In terms of substance, dignity might only appear relevant if we accept a feudal, discriminatory, and hierarchical sense of the term.

There are three prominent views that explain what dignity is: status-based views, Kantian inherent worth, and performance-based views.

The one which might vaguely support the court’s decision is status-based. Here dignity is employed to signify the special significance of some persons. For example, diplomats or other foreign state representatives are called dignitaries because they have immunities that ordinary citizens do not have.

Similarly, we usually speak of “dignitaries on the dais” when some people are given a special, high status. Status-based senses of dignity historically signified the special status of royalty and nobility.

Recent philosophical work has (here and here) tenuously tried explaining dignity in human rights discourse in terms of a high status accorded to all human beings, which was earlier available only to nobility or royalty. In the words of the Harvard philosopher Gregory Vlastos, this idea of dignity was one where “every man (was) a Brahmin”.

The problems of this status-based view is immediately apparent. It cannot explain why modern constitutions and human rights laws then do not give us the privileges that nobles and monarchs had: for example, to plunder and waste without justification; or how the special status of Brahmins only made sense in relation to lower castes.

One could reasonably ask whether such an idea of dignity can explain the idea of the equal dignity of all human beings that modern constitutional democracies embrace. To generate rights based on dignity, a justification for high status is imperative. That is missing from traditional status-based accounts, and cannot be based on justifications for why royalty, nobility, and brahmins had high status.

Perhaps that is why it is a Kantian intrinsic worth idea that has become the dominant view of thinking about human dignity both within constitutional law and international human rights law.

This idea of dignity stems from the capacity of human beings to give laws onto themselves due to their ability to figure out what our moral obligations were by exercise of reason. Dignity is rooted in the capacity of reason that can generate moral obligations and this special feature of human beings, and in varying degrees, other sentient beings, had no comparable price but had only dignity: a status beyond price which made it intrinsic and absolute.

It is this incomparable nature of dignity that yields the famous Object Formula: that no human being should be used merely as an instrument, rather they should be treated as ends in themselves. The agency of human beings cannot be denied by reducing them to mere instruments.

The Kantian idea of dignity has been accepted by the Supreme Court in multiple decisions starting with Francis Coraile Mullin’s case, through NALSA (rights of transgender persons), Navtej Johar (homosexuality), KS Puttaswamy 9 judge bench (Right to Privacy) to Indian Young Lawyer’s Association (Sabarimala).

This view of dignity has no relevance to the idea of contempt of court, unless we think that the court is like an individual, and therefore has the same rights. That surely is an absurd claim as the court is an institution and not an individual, and the Kantian idea of dignity is unsuited to understanding the features of an institution.

Even if one were to make such a comparison and argue that the court cannot be used merely as an instrument, where its agency is denied, it is unclear as to how Prashant Bhushan’s remarks fall foul of that. The statement that the court will be marked by historians as one of those institutions who played a role in destroying democracy, is surely something that the court and its defenders can counter. The court’s agency is intact.

The third idea of dignity is underdeveloped but can be understood as a performance-based view of dignity where individuals do not have inherent worth but earn their right to be respected by actions. It is a virtue-based view, where our worth is determined by our virtuous actions.

Only a very far throw could link this view of dignity with the idea of contempt of court. What it can entail is that the court should earn respect by its actions and not because it is accorded a high status by the constitution. How this would pan out is a matter of speculation and thus best avoided.

Employing the idea of undermining the dignity of the court on a status-based view of dignity is a mysterious concept that has no legal clarity. The only connotation it has is the archaic idea that your respect lies in some sense of unexplained high status that can be offended.

This was the privilege of nobles and royals, whose actual high status was dependent on coercive power, pragmatic bargains, and undeserved inheritance. Surely, that is not an idea that a modern legal system in an independent republic should draw succour from. These were ideas that the republic shunned when it gained independence. Dignity therefore has no relevance in questions of contempt of court.

Undermining The Authority Of Courts

Modern legal systems can be distinguished from primitive ones by at least two features.

The first is that they are autonomous systems that rely on their own internal norms, considerably excluding those of others, such as religion, culture, and politics. Max Weber, Niklas Luhmann, and the legal philosopher H L A Hart drove this point home.

Autonomy militates against any legal decision that is unable to justify itself on an analysis of its own norms, generating a pressure for analysis and coherence in legal decisions.

By not spelling out what “undermining the dignity and authority of courts” means, judicial decisions using the term deny this first basic feature of a modern legal system. In the law on contempt, the term “dignity and authority of courts” is absent from the Constitution as well as the Contempt of Court’s Act. Only “lowering or tends to lower the authority of courts” is found in the Contempt of Court’s Act.

In Prashant Bhushan’s case, the court cursorily discusses the idea of “authority of the court” by relying on the British case of Rex v Almon, decided in 1765, which was also quoted in the constitution bench’s judgment in Baradakanta Mishra v The Registrar of Orissa High Court and Anr, 1974.

In Rex v Almon it was stated that the term does not mean the coercive power of the judges, but a deference and respect which is paid to them and their acts, from an opinion of their justice and integrity”.

It is not surprising that this case employs terms such as “deference” and “respect which is paid”, as it is written in the pre-Victorian era of 1765, far removed from today’s democratic and republican ethos of accountability.

In Prashant Bhushan’s case, the court overlooked the marked change of words brought in by the constitution bench’s judgment that introduces a much more modern notion of authority:

“[It]is not to afford protection to Judges personally...; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened.”

The constitution bench also prioritized other concepts such as “jeopardizing justice”, “administration of justice”, and “obstructing justice”, which were material in determining whether there was an undermining of the authority of the court. The focus was not protection of the courts, but the interests of the public -- a radical turn that captures the second feature of a modern legal system brought out by 20th century legal and political theory: that law must have a legitimate claim to authority.

The paradigmatic theory of authority in jurisprudence is the service conception of authority proposed by Joseph Raz. It holds that an authority exists to serve those who it claims authority over. This is justified on two grounds: that the authority is in a better position to decide the matter than the disagreeing parties, and that the parties will be in a better position if they obeyed the authority. In effect, the expertise of an authority is a hallmark of its legitimacy.

This embellishes the idea that authority and coercive power are markedly different. An authority is not obeyed because of some presumed high status, or its ability to apply an ‘iron hand’. Much to the contrary, an authority is obeyed because people see a good reason for doing so.

In legal theory the classic example is that of a gunman and a cashier. A cashier might hand over the cash to a gunman because of coercive power, but when a cheque is presented to the cashier, she hands over the cash as she sees the cheque to be a good reason to hand over cash.

The cheque is authoritative, while the gun is coercive. This distinction was mentioned in Rex v Almon, but it received substantive content in the constitution bench’s decision where the court unambiguously stated that authority of the court is to be understood in the interests of the public.

On this contemporary view of authority, the authority of a court is lowered by actions that in fact make the authority incompetent and ineffective in administering justice. For example, one could surely imagine actions such as reducing the budget of court libraries, refusing to obey the decision of a court, or appointing persons of low competence as judges, or preventing a court from functioning, to be reducing the competence of a court, in turn reducing the confidence of the public in the court’s ability to administer justice.

In contrast, when an allegation is made that a court has contributed to the destruction of democracy, it does not make the court any less competent. Neither does it obstruct it from administering justice. The question of reducing public confidence based on questions about administering or obstructing justice therefore does not arise.

The judgment in Prashant Bhushan’s case is lacking an analysis of what the terms employed by the constitution bench entail. Instead, the court accords itself the status of the most important pillar of Indian democracy.

This high status is questionable as according to earlier decisions of the court itself, the rule of law and independence of the judiciary are some of the basic features of the Indian Constitution along with others such as secularism, federalism, and separation of powers.

Each basic feature is fundamental to the Indian Republic, and there is no constitutional reason to prioritize those related to the judiciary. Concepts such as separation of powers are as fundamental, if not more since they apply to the judiciary as well.

As much as the term “dignity and authority of courts” sounds palatable, it is in fact a feudal vestige that cultivates coercive power. No wonder it keeps company with other such concepts as “causing offence” rather than more determinable legal concepts such as “causing harm” or “causing injury”. Even words such as “obstruction of justice” and “administration of justice” are more fine-grained and specific than “undermining dignity and authority”.

All such vestiges must be questioned, and the spirit of reason-based critical inquiry must be applied to the very vocabulary with which we have become comfortable.

(Pritam Baruah is Associate Professor of Law at O P Jindal Global University.)