The Supreme Court’s contempt of court ruling against Prashant Bhushan has stirred India’s soul. Liberal anger has poured out. Several judges even spoke in his support. But not too long ago, many of them watched silently when Justice C.S. Karnan was sent to jail for six months for calling out corrupt judges. In fact, some, including Bhushan had welcomed the imprisonment of the outspoken Dalit judge, a first in India’s judicial history.
That the outrage is selective is obvious, and doesn’t need belabouring. I am not even saying the outrage is because of the caste difference, that would be simplistic and reductionist. But Prashant Bhushan is a product of Delhi’s power elite. Justice Karnan was an outsider to this cosy circle. And that says more about how Indians perceive the ‘rule of law and dissenters’ than last week’s Supreme Court verdict.
Nobody knows Justice Karnan’s side of the story
Justice Karnan had to serve the entire sentence and his appeal for pardon and review at various fora, including Parliament and to then President of India Pranab Mukherjee, was ignored.
Both the cases are related to the violation of Contempt of Courts Act that has a maximum punishment of six months jail term and/or fine of Rs 2,000. In that sense, Justice Karnan was awarded the maximum punishment under the Act and sentenced without even initiating the proceeding for his impeachment.
In a brief summary of the case, BBC World wrote: “The stand-off dates from January (2017), when Justice Karnan wrote a letter to Prime Minister Narendra Modi flagging up the names of 20 judges he alleged were corrupt.” The summary also stated that “The top court has barred the media from publishing and broadcasting Justice Karnan’s statements.” So, we don’t know his side of the story or the entire story.
Many journalists had opposed the Supreme Court’s gag order on the case reporting. Ashok Malik, presently Policy Advisor in the Ministry of External Affairs had tweeted saying, “So what if a newspaper reports Justice Karnan’s statements? Does the Supreme Court send the editor and reporter to prison? Under which law?”
Justice Karnan becomes first sitting HC judge to be sent to jail! But shouldn't SC at least allow him to speak? Why gag order? @IndiaToday
— Rajdeep Sardesai (@sardesairajdeep) May 9, 2017
So what if a newspaper reports Justice Karnan's statements? Does the Supreme Court send the editor and reporter to prison? Under which law?
— Ashok Malik (@MalikAshok) May 9, 2017
India’s love for the contempt law
The Contempt of Courts Act is an archaic legislation, first enacted in 1926. It has its origins in the British law. The legislation was amended later on and the present law was enacted in 1971. While the UK did away with the offence in the contempt law long ago, India continues to hold on to this. The Law Commission in its report on the Contempt Act 1971, has argued that India has a large number of cases (almost one lakh at the time of submission of the report in 2018) whereas the UK had its last such case in 1931. Hence, the Commission observed that “the high number of cases (in India) justify the continuing relevance of the Act.”
Ironically, in 2017, Bhushan had hailed the Supreme Court judgment against Justice Karnan and tweeted how he was “Glad SC finally jailed Karnan for gross contempt of court.” One cannot fail to observe that in his tweet Bhushan did not address the sitting judge of the Kolkata High Court as ‘justice’.
Glad SC finally jailed Karnan for gross contempt of court.He made reckless charges on judges &then passed absurd 'orders' against SC judges!
— Prashant Bhushan (@pbhushan1) May 9, 2017
Bhushan’s tweet also implies that he is not against the Contempt of Courts Act per se but rather supports the archaic legislation.
If we glance through the editorials and op-eds written at that time, we will find that every editor or writer was united in supporting the judgment. Same was the case with the prime time debates.
Pained by the coverage of his case, Justice Karnan had written an open letter to the media: “I have often mentioned in my communications that I am a victim of caste discrimination…It is most unfortunate and perhaps a national disaster that such critical issues never figured in most of the national publications.” He wanted the media to act in a fair and unbiased manner.
Outrage vs silence
There is a stark difference between the cases of Justice Karnan and Prashant Bhushan. Justice Karnan had not made any public allegation of corruption against any judge. Rather, he had sent his complaint to the Prime Minister’s Office in a sealed envelope. Bhushan made the allegations on social media and were thus in the public domain.
So, how does one understand the outrage in Prashant Bhushan’s case but silence when Justice Karnan was convicted?
One way to understand this is through the simplistic and reductionist reading: since Justice Karnan is a Dalit, the media acted with bias and failed to present his case in totality. Similarly, it can be said that since Prashant Bhushan belongs to the upper caste and the ruling elite, and his father Shanti Bhushan was the law minister in the Morarji Desai Cabinet (the father-son duo were the 75th Most Powerful Indians, according to a list published by The Indian Express in 2009), his case is generating so much heat.
I am not endorsing or ruling out any of these possibilities. At least not at this juncture. But the reason for the intelligentsia not supporting Justice Karnan has more to do with their association or disassociation with the ruling structure as well as with the nature of Karnan and Bhushan’s allegations.
‘Dalit gaze’ on the power elites
Justice Karnan was not just challenging the higher judiciary, but also putting the whole power structure under scrutiny. The gaze of a Dalit judge towards the upper caste-dominated judiciary, as stated by the Kariya Munda Committee of Parliament, was unnerving for the power elites. The panel, in its report, had said, “The Committee were surprised to note that out of 481 High Court judges only 15 were from Scheduled Castes and 5 from Scheduled Tribes in position as on 1-5-1998 and none was in the judgeship of the Supreme Court in spite of the fact that some suitable, eligible and well-qualified SC/ST candidates were available in the consideration zone.”
The situation in India’s judiciary hasn’t changed much. Justice Karnan was underlining the caste domination and hegemonic structure of the higher judiciary. This is almost blasphemy in the eyes of the power elites.
Justice Karnan’s allegations of corruption in the judiciary were also quite unsettling for the power elites. We do not know what would have happened had Prime Minister Modi decided to set up a commission of enquiry or a Joint Parliamentary Committee to look into the allegations of Justice Karnan.
Compared to Justice Karnan’s allegations, Prashant Bhushan was not raising any fundamental issue. His tweet was aimed at an individual: Chief Justice of India S.A. Bobde sitting on a superbike. Bhushan was only raising a question related to the personal conduct of the CJI, which has more to do with individual morality.
Bhushan finds many friends among the ruling elites after the Supreme Court verdict. Not only because he is one of them, but also because he is a man of the system. Justice Karnan is an outsider and it’s natural that he found no friends among the elites and opinion makers.
The author is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. Views are personal.