Kabir’s Canon: Did the SC pay heed?

The Supreme Court thinks it is upholding the “majesty of law” by holding the venerable lawyer and social activist Prashant Bhushan guilty of contempt for his remarks, which it dubs false, malicious and scandalous.

Well, all I can say is the Surpreme Court hasn’t heard of Kabir’s wise Doha, namely:

Kshma badan ko chahiye, chotan ko utpaat,

Kaha Vishnu ka ghati gayo jab Bhrigu mari laat?

Which can be translated as:

To forgive the errors of the mortals puts one’s majesty on the higher ground; after all, what did Lord Vishnu lose out on just because the Rishi Bhrigu kicked the Lord?

(The context of the Doha revolves around the story that Vishnu was asleep on the job and Bhrigu kicked him in anger to wake him up.)

Had the Supreme Court not taken affront at Prashant Bhushan’s tweets, not only would it have shown the generosity of its spirit, but more importantly, it could have taken his tweets as a call for introspection.

But in needing to pull up Prashant Bhushan, the Supreme Court has not only missed an opportunity to enhance its stature, it has perhaps emerged as a somewhat diminished institution.

Topping the list of Prashant Bhushan’s guilt seems to be his tweet accusing the CJI of riding a Harley Davidson motor-bike alongside his remarks – which the SC views as denigrating — that the CJI and some four former CJI’s were instrumental in compromising Indian democratic values.

Whether or not this or the former CJIs may have harmed Indian democracy, whether or not a CJI can preside over a sexual harassment case where he is the accused, whether or not a CJI may accept a political position as a Rajya Sabha member back to back upon demitting his office, whether or not a string of cases has patently gone a certain way; whether or not it is reasonable for the SC not to give a date for the hearing of the detention of Mahbooba Mufti for over six months, while the case for moving or not moving the case of a Bollywood actor from one state to the other is brought before its bench within a week, whether or not one or more Supreme Court judges may have private Trusts which attract donations in unstated quid for apparently unconnected quos – are all matters of public perception and citizens are free to hold their opinion.

But apparently a single tweet of a picture of the CJI can do more damage to the Institution of SC than all those perceptions put together.

So let us talk about perceptions. In his M. C. Setalvad Momorial Lecture, titled “Canons of Justice” –which may make a good read for their Lordships today – Justice Y.K. Sabbarwal says, quoting from the American Federal Code, seven canons of justice, namely:

Canon 1: A judge should uphold the integrity and independence of the judiciary;

Canon 2: A judge should avoid impropriety and the appearance of impropriety in all activities;

Canon 3: A judge should perform the duties of the office impartially and diligently;

Canon 4: A judge may engage in extra-judicial activities to improve the law, the legal system, and the administration of justice;

Canon 5: A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial duties;

Canon 6: A judge should regularly file reports of compensation received for law-related and extra-judicial activities;

Canon 7: A judge should refrain from political activities.

It appears to me that the larger angst or concern contained in Prashant Bhushan’s tweets probably arise from his perception of the violation of many or maybe all of the above canons by members of our highest judiciary in recent years.

Let us consider the matter of perception on one of the relevant counts for which Prashant Bhushan is being hauled up. This relates to Canon 2 above.

What may hardly be an act of “impropriety” for an ordinary mortal or even for most non-ordinary mortals, could be considered an act of impropriety for a judge. Visiting a pub, or even being occasionally tipsy, may hardly be an act of impropriety for most. But imagine if you see your Supreme Court judges or for that matter even you High-Court or even district judges in your neighbourhood pubs or in a state of even mild inebriation in a party! That’s why judges are not usually expected to be overly social animals, and therefore expected to sacrifice some of their social life at the altar of judicial demands of propriety.

Now it may be that the motorcycle in question was on a stand – a matter that Prashant Bhushan perhaps overlooked – and the matter was not as serious as actually riding the machine sans helmet. But propriety?

The image of a Harley Davidson is typically about gangs of tattooed toughies clad in steel-studded black sleeveless leather jackets with matching trousers and boots in the land of its production. And that’s why Canon 2 above refers to “appearance of impropriety”.

Whatever the guilt of Prashant Bhushan, was the CJI, even unwittingly, guilty of violating Canon 2 above? Is the former CJI’s acceptance of a Rajya Sabha seat, back to back, post his retirement, consistent with Canon 7? Try other canons as well … are other actions of many of our judges consistent with the other canons?

Some of us can be persecuted for eating the wrong food or transporting cattle, any of us can be arrested for cracking a joke involving the PM or a CM or even drawing a cartoon lampooning them, we can even be booked for sedition for writing open letters to the PM, or feel so vulnerable as journalists or TV anchors that we crawl when asked to bend. Why, I am somewhat scared even in writing this piece lest I too be booked for this or that by the SC or the Government. And I think that’s how our democracy stands diminished, and we see no saviors. Not even the SC.

I leave it to the collective perception of my countrymen to judge the guilt of Prashant Bhushan – the main burden of whose tweets perhaps arose from these very apprehensions and helplessness, which I for one do share.