PRASHANT BHUSHAN CONTEMPT CASE: AIMING BEYOND THE LIMITED BOURGEOIS DEMOCRATIC HORIZON

A Priya //

After the historic press conference on 12^th January 2018 by the four senior-most judges of the Supreme Court who came out saying that “democracy is at stake”, the latest suo moto contempt case against SC’s Senior Advocate Prashant Bhushan further brought out into the open the questionable state of Indian judiciary. As is well known, a three-judge bench headed by Justice Arun Mishra held Bhushan guilty of criminal contempt under the Contempt of Court Act which states that

“Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which

1. scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

Facts Of The Case

Prashant Bhushan has two cases of contempt filed against him. One was regarding his interview with Tehelka magazine in 2009 filed by Harish Salve and another was the abovementioned case which was taken up suo moto by the Supreme Court based on two tweets posted by Bhushan on 27^th and 29^th June 2020. The 27^th June tweet reads, “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.” The second tweet on 29^th June contained a photo of CJI S.A. Bobde riding an expensive Harley Davidson motorcycle owned by a BJP MLA’s son, which took the internet by storm and has been making rounds of social media ever since, said, “CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!” Prashant Bhushan replied with a 134-page affidavit in which he stated his position on his second tweet that it was a result of his anguish over the “non physical functioning of the Supreme Court for the last more than three months, as a result of which fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal” and so, this comment expressing his anguish over the existing situation and stating of genuine facts cannot be regarded as contempt or else it’ll constitute a case of curtailment of his right to free speech. The analysis of the first tweet also brings about interesting conclusions. The tweet mentions “the role of the Supreme Court” in destroying the democracy over the past 6 years, however, the judgement written by the bench mentions the “vital” role of the Supreme Court in destroying the democracy over the past 6 years. It’s as if the spaces left blank by Bhushan was filled up by the guilt conscience of the Supreme Court Justices themselves!

Even after finding him guilty of “serious contempt” on 14^th August 2020, the apex court reserved its judgement on his punishment till 31^st August 2020, which finally entailed a fine of Re.1, the non-payment of which would attract 3 months of imprisonment and debarment from practicing law for three years. The fine was duly paid by Bhushan on the same day.

Since the leveling of charges earlier this month to the pronouncement of punishment, the world saw the apex court incessantly requesting and coaxing an apology out of Bhushan which he denied time and again saying that his tweets were bona fide facts which express his anguish over the current deviations of the judiciary and hence, apologizing would be a “contempt of my conscience and of an institution that I hold in highest esteem”. He has reiterated his faith in the judiciary and is thereby ready (was ready from the very beginning) to receive any punishment as the court may deem fit, which he did in the form of paying Re.1 fine, and on the other hand, also saved himself from the punishment of serving a three month term and a 3-year-long debarment from law practice. One wonders as to what other fate of this fight could have been. Is he a revolutionary? Was this confrontation not restricted by the limitations of a bourgeois democrat like Prashant Bhushan? But yes, this confrontation has certainly brought to the surface the rot in the judicial system. More than that, this has shown how the judiciary has been subverted from within and finally made into an amenable system or tool of the fascist regime at the Centre.

Naturally there is a debate on whether he should have accepted the punishment or not. Some would say, the acceptance of punishment (Re.1 fine) even after stating again and again that his tweets should not amount to contempt in the eyes of law and not calling out the anti-democratic judgement of the judiciary which ultimately punishes a person for dissenting and is intolerant towards stating of facts about the shortcomings of the judicial system shows the tactical submission of a bourgeois liberal like Bhushan in front of the judiciary. And this is true given the abovementioned ideological-political boundary or limitations of this tussle. Although he has stated that he “reserve(s) the right to seek a review of the conviction and sentencing”, will he actually go for this option and will he accept the same fate as the current one, it is too soon to say anything. For now, all we know is that the sentence has been pronounced against raising the question of justice within the judiciary, the token punishment for safeguarding democracy has been “cheerfully” accepted and the fight has ceased right after it began.          

Prashant Bhushan And The Left – Some Pertinent Questions

There are various aspects of looking at this event which flared up an array of protest demonstrations across the country. The stifling of democratic voices by the judiciary, the whole institution becoming a weapon in the hands of the vested interests of the present open dictatorial regime for incarceration and punishment of voices that dare to go against the interest of the State and the big capitalists are few aspects which have made their way into the public discussions and flared up debates questioning the impartiality and sanctity of the apex court. This discussion has found its place among the left and the communist revolutionary sections along with the liberal sections as well. The fight taken up by Prashant Bhushan, from his own purview, is one which has challenged the Supreme Court that has turned amenable to a draconian State and has conveniently swayed away from its duty prescribed within a bourgeois democratic framework. For this reason, he has been hailed as a hero within the liberal sections, which, given the limitation of the people’s liberal perceptions, he must be. But the reaction of the left sections, from the revisionists to the communist revolutionaries, has been nothing but troubling.

The left section has by and large divided itself into two camps; one which is of the opinion that even acknowledging the confrontation that erupted within the system as a crisis within the system and recognizing the courage of Prashant Bhushan involved in this is equivalent to hailing him as a “hero” and amounts to joining the liberal bandwagon. They fail to see such events for what they really are, that is, an opportunity to expose the bourgeois institutions hiding behind the veil of “democracy” and thereby they fail to formulate immediate tasks from this and end up taking the line of no activity whatsoever or keeping mum. They are also those who raise questions like “Where was Prashant Bhushan when other democratic voices were being stifled in the past, where was he when other injustices were meted out to people?” This type of whining comes from an unscientific and apolitical analysis of the present situation and the failure in understanding the limitations of a bourgeois democrat. For they expect Bhushan to assume a revolutionary role and call out the judiciary for what it actually is, that is, an institution which from its inception has been tilted towards the propertied class along with enabling and facilitating the State to continue the exploitation of the toiling masses under the cloak of “justice for all”. But what this camp fails to see is that Bhushan is himself a part of this bourgeois order. The basis of the tussle between him and the Supreme Court is that the judiciary under the current fascist rule, like all bourgeois institutions, has assumed the role that go contrary to “itself” and is moving towards shedding the abovementioned cloak and is preparing to explicitly serve the interest of the big bourgeoisie and the fascists; and Bhushan has challenged this new development within the judiciary with his noble thought in favour of a bourgeois democratic judicial system. For this too, courage is required. And we must encourage such steps even if it is being carried out by a liberal or a person from within the system.

Bhushan is a good-intentioned person for the old bourgeois model of judiciary. He is a soldier and a protector of the bourgeois democracy and the judicial system based on it. He acts as a “safety valve” for the bourgeois democratic rule. He has seen the veil of democracy being shed away slowly but steadily and knows that once this is accomplished it’ll no longer be able to pacify the enraged masses as earlier with the old and worn out “promises of justice”. There will be nothing to befool the masses and nothing to pin their “last hopes” upon. With the illusion of a saviour in the form of judiciary being obliterated, the masses may rise against the present regime thanks to the perilous and outrageous living conditions meted out to them by the fascists. And this, per se, won’t be acceptable to the bourgeois democrats as the danger inherent in this is that the impending mass upsurge in the wake of fascist loot may sweep away the much loved (by liberals like Bhushan) bourgeois democracy, too. Herein lies the source of courage and commitment of Mr. Bhushan which is also of our use in exposing the bourgeois democracy’s fragility in the period of acute and permanent economic crisis leading to emergence of strong fascist tendencies from within. Bhushan wants the judiciary to assume the pre-2014 role, which is not possible. He cannot believe it, given his liberal attitude. He cannot believe that what has happened to the Judiciary is irreversible until a proletarian led peoples’ revolution intervenes to make a new society free from the shackles of capital. What he fails to understand, or what is beyond his capacity to understand as a bourgeois democrat is that under the current fascist regime such a “safety valve” is no longer needed. Nor is there any need of liberal personalities who would be called to rouse the best inner souls of the rulers. People like Bhushan thinks that his courageous fight would change the situation. In the ongoing permanent global economic crisis, which has been further deepened by the covid-19 pandemic, it is not possible for the bourgeoisie to continue their loot and plunder if they do it from behind the curtain of democracy which anyway puts a lot of restrain and constraints by way of respecting the “rule of law” which also means respecting the fundamental rights of the citizens. While maintaining this shred of democracy for the masses, they cannot go for open loot as they are going now. This has led to bourgeois democracies all over the world give rise to fascism and propping fascistic rulers under which the bourgeois democratic institutions have assumed roles that go against themselves to fulfil the fascist agenda of the big bourgeoisie. Even the illusion of democratic rights and institutions maintaining the check and balance of power under the bourgeois democratic rule was a hindrance to the big capitalist class in their quest to take over all the resources belonging to and built by the masses. Hence, this transformation came naturally to the bourgeois democratic rule which was never and can never be truly democratic to begin with. The need for unfettered loot created the need of breeding ground for the rise of fascism and fascistic tendencies. This natural course of the constricted bourgeois democracy transforming to fascism is unfathomable to the likes of Mr. Bhushan, who saw the earlier democratic setup as true, flawless and the only solution to the problems faced by the oppressed masses rather than seeing them as a tool actually used to oppress them. And hence, as of now, those who fail to see his allegiance and expect him to forgo his class interest and go beyond the horizon or limitation of bourgeois democracy are destined to err in their analysis of the present situation.   

On the other hand, the other camp, comprising of the mainstream and parliamentary left had long abandoned their position as the vanguard of the working class and toiling masses and so naturally got completely enchanted and enamoured by the courage of Mr. Bhushan and just “faithfully” rallied behind him, a bourgeois democrat. In him, this stream of left finds its own image and a co-traveler. Naturally, this Left has utterly failed in assessing their own role in the current situation. Their age old and very long derailment from the path of revolution, and the communist revolutionaries’ inhibition and inability to take up the correct path of fighting the fascist forces, have led to a situation where to hail and follow Bhushan unconditionally looks like their fate. The ability of critically assessing his position without falling in the ditch on either side of the road is impossible in this condition of desperation and disappointment. For them support means turning a blind eye to his limitations and surrendering the leadership position of the proletarian movement before him. Similarly, the tendencies to keep aloof from such revolts from within just because they are from within is just the other side of the same sad story of our movement suffering from extremities. Both the camps proved equally incapable in deriving well defined tasks.

Role Of The Communist Forces And The Way Ahead

History has shown that communists have stood against any attack on the democratic rights or any kind of oppression and exploitation meted out to the masses of all sections. The struggle for the right to dissent and freedom of speech has always been shouldered by the communists and it is they who will stay shouldering them till the very end. The limitations lie with the likes of Prashant Bhushan who, as explained above, cease to fight beyond a limit, the horizon of bourgeois democracy. But the problem with the left is that they, due to their weaknesses discussed above, hand over the reins to these bourgeois liberals and rally behind them, thus limiting the extent of the fight just to the threshold of bourgeois democracy. What is required to fulfil the agenda of ‘justice for all’, to establish a true democracy free from all forms of exploitation and oppression, to truly ensure the rights of every citizen and their power to exercise that right, is the end of the present fascist order and also of the previously existing bourgeois democracy that curtails democracy when it comes to be realized by the toiling masses. For the masses, there is no way of going back into the pre-2014 democracy as dreamt of by the bourgeois democrats like Prashant Bhushan. So, when the oppressed and exploited masses take up their fight for true democracy and justice, for employment, food and healthcare, for respect and equality, the bourgeois democrats like Bhushan will see it as an act of “unnecessary defiance” and instead of shouldering the fight of the poor, marginalized and toiling masses, he will choose to side with the state to put an end to the struggle of “rebels who are taking matters in their own hands” and not waiting for the Supreme Court, “(the) last bastion of hope, particularly for the weak and oppressed” (as described by Bhushan in his statement in response to the sentencing order) to bestow its divine justice upon them. Then in the fight between a new world order and the status quo, he may side with the latter. And due to this affinity for bourgeois status quo, when battle lines are drawn, we should not be shocked if we find him in the ranks of the Modi government as well.

But for now, we must realize that supporting all these democratic struggles, even if they’re limited to the horizon of tattered bourgeois democracy, is important because it is our duty and in favour of the downtrodden to stay in support and, if possible, try to lead such struggles so that they can be carried to the very end and taken beyond their limited horizon and joined together with the struggles of the working class and the toiling masses for a new society on the ruins of the present one. It is imperative for the communist forces to stay clear of both the left and right deviations while dealing with such situations and, assessing such bourgeois liberals and the struggles led by them and for whom they really are so that we can make the most out of these struggles and accelerate or decelerate the gear as per our need as well as according to the cracks and contradictions appearing as a result of such internal revolts. This can only be done by riding on the crest of such struggles. We must learn this without falling prey to deviations. By completely relinquishing our leadership of such struggles to the bourgeois liberals, we actually abandon and forget this art which is in essence the true condition for the success of our struggles aimed at establishing a truly democratic society which will be devoid of all forms of exploitation, where oppression of one man by another will be impossible and inequality, injustice and discrimination will become a matter of the past history.

Originally published in The Truth: Platform for Radical Voices of The Working Class (Issue 5/ September ’20)