Gautam Bhatia writes-
...there are some fundamentals about the judicial function, and about the function of law in a constitutional democracy, that are beyond cavil.
Quite false. Defeasibility is an essential property of all law and all the functions of the law. If this were not the case, there must be at least one indefeasible law or function of the law on the basis of which there can be a 'harmonious construction' of all law such that no concurrency problem or path dependence obtains. Unless one can show this is the case, defeasibility prevails with respect to all laws and functions of the law. How do we know? The answer is that the Law is a type of deontic logic. But such logics have a mathematical representation. They may have a 'buck stopped', protocol bound, decision process. But these are not univocal foundations because 'buck stopping' is ad hoc rather than itself intensional. This process can't be called indefeasible with respect to any function of the law. It is merely legal or not as the case may be. Otherwise, the Law has discovered some secret unknown to model theory. Mathematicians and Computer Scientists must discover this secret. Our technological frontier will expand exponentially.
Bhatia is making an imperative claim of an ignorant type. It can't possibly be true unless all the greatest mathematicians and logicians from the Nineteen Thirties onwards were unaware of some secret known to Bhatia. Of course, in the world of science fiction, this may actually be true. Bhatia will soon be kidnapped by Galactic Overlords who will torture him till he reveals the secret. But he can't reveal it to us. Why? We don't live in his science fiction world. In our world, the man is a cretin.
It is a different matter that indefeasibility may be asserted because anything at all may be asserted for a rhetorical or political motive. But this is special pleading. It has an imperative but not a ratiocinative force.
Good faith interlocutors do not “disagree” about these basic axioms.
Nonsense! There can be no 'Aumann agreement' unless there are common Bayesian priors. This is impossible in an idiographic field. What can obtain is 'overlapping consensus'. But that does not extend to indefeasible axioms. At best, we can say there is a cooperation game involving Tarskian primitives which are themselves undefined.
To act according to them is what it means to be a constitutional court in a constitutional democracy.
No. To be a constitutional court means to be recognised by all relevant organs of the State as a constitutional court. We are speaking of a Kripkean rigid designator.
An institution that flouts them is no longer recognisable as one.
Recognisable by whom? Some cretin like Bhatia? Who cares about him? A constitutional court which flouts the fuck out of shite Bhatia says is recognisable as one because organs of the State use it for that purpose.
This is why I want to begin with the writ of habeas corpus: the most elemental of all legal remedies, the heart and soul of a democratic legal system.
In the view of a cretin. Habeas corpus existed long before there was a democratic legal system. There have been plenty of legal systems which described themselves as democratic which had nor hide nor hair of any such beastie.
Habeas corpus protects the individual against the naked exercise of executive power.
No it doesn't. It is merely a writ by which unlawful detention gains a remedy. But where preventive detention, or detention for the purpose of ascertaining the facts of the case, is legal for significant stretches of time, it may be almost completely useless.
The executive power can get naked and fuck you up but good long before any legal remedy is available to you. It is the possibility that the executive power will be punished for egregious misconduct which protects one from being constantly sodomized by minions of the State. But that punishment may not emanate from the Justice system. It may arise purely by Executive Action.
It is a shield against illegal detention.
Unless there is a draconian preventive detention law which applies.
It authorises the Court to command that a detained person be brought before it, and to inquire into the legality of their detention. Habeas corpus is that “last law” marking the barrier between a democratic and an authoritarian polity.
That is merely a matter of opinion. A democratic polity is one where power arises out of the ballot box. An authoritarian polity may not have elections of any type, let alone free and fair ones. Some democracies are authoritarian. It depends.
A State in which the government can arbitrarily lock up people has a very poor claim to democratic credentials.
No. It may have superior democratic credentials. However, some would feel it had inferior credentials to be considered a country under the effective Rule of Law. But there is no connection whatsoever between habeas corpus and Democracy.
It is now a well-known fact that in the aftermath of the alteration of Jammu & Kashmir’s special status, almost exactly one year ago, a very large number of individuals were placed in detention.
By reason of a draconian act passed in 1978. This is perfectly legal and the reason habeas corpus has no magical power.
Some of these detentions were challenged in habeas corpus proceedings. One such case was that of Yusuf Tarigami, a J&K MLA. In November, I wrote about what the Supreme Court did in Tarigami’s case. I reprise it here:
Let us take the case of J&K MLA Yusuf Tarigami. His party chief, Sitaram Yechury, filed a habeas corpus for Tarigami to be produced, and his detention explained. After hearing the petition, the ex-Chief Justice “allowed” Yechury to “travel” to J&K to “meet” Tarigami, and then “report back” to the Court – on the condition that he could only travel for this purpose, and could not engage in any “political activities” while there.
The Court was giving Yechury an immunity for a particular purpose. What is wrong with that? Bhatia seems to think that saying 'habeas corpus' is like saying 'abracadabra'. The Court must immediately do what you want. The truth is, the Court saw no prima facie reason to suppose that detention was per se illegal. Yechury was given permission to verify if some further information or argument could be found to alter the Court's view. Suppose Tarigami said to Yechury- 'I want to join BJP. I have converted to Hinduism. Please get me released from jail so I can spend what is left of my life chanting Hanuman Chalisa. There is absolutely no reason to detain me. The State is wasting tax payer's money.' This information would surely have been germane and valuable to the Court. Tarigami had been detained for a reason. But that reason no longer applied.
Where does one even begin with the extraordinary perversity of all of this? Article 19(1)(d) guarantees to all citizens the freedom of movement within the territory of India. J&K is a part of India (is it not?). Yechury is an Indian citizen (is he not?). There was no Emergency declared in J&K, so Article 19(1)(d) had not been suspended (in fact, the government to this day insists that everything is “normal”). If at all Yechury’s movements could be restricted, it could only be on the basis of a “law” that met the test of reasonableness under Article 19(4). So where on earth did the Supreme Court get the idea that it had any power or authority to “allow” Yechury to travel to J&K, and place “conditions” on what he could or could not do when he was there? Where in the Constitution were these “conditions” sourced from? Was the ex-Chief Justice the head of the Supreme Court or the head of the Supreme Internal Visa Issuing Authority of India?
The answer is very simple. The Law under which Tarigami was detained could have been used against Yechury. So he was given an immunity in this respect.
And what happened to the right to habeas corpus?
It only applies where detention is not legal. Tarigami was detained under Jammu and Kashmir Public Safety Act, 1978 (PSA). That appears legal- though it may not be for some reason a smart lawyer- not Bhatia- could find.
Had it been erased from Article 21 by this newly-minted Supreme Internal Visa Issuing Authority of India?
Yechury approached the Bench, perhaps for a prudential reason.
As A.G. Noorani would point out a few weeks later, “the Gogoi court has, at reckless speed, run a coach and four through the centuries-old established law on habeas corpus.”
But Noorani is not an authority. His views have not been upheld. 4 years ago, the Bench decided that J&K had no shred of sovereignty. That drove a coach and four through that almost century old lawyers thesis re. Kashmir.
Indeed, not only did the Supreme Court “run a coach and four” through habeas corpus, not only did it abuse a habeas corpus proceeding to invent an entirely new set of constitutional restrictions, but it openly mocked that “great and celebrated writ” (and in the process, mocked itself). In a petition filed by Iltija Mufti asking that her freedom of movement be protected, the Supreme Court asked her counsel: “why do you want to move around? It is very cold in Srinagar?” To use a word that has become popular in judicial parlance lately, the Court visibly and openly demonstrated its “contempt” for habeas corpus, and for the rights guaranteed under the Constitution that it was enjoined to protect.
Nonsense! The Bench framed a question so it was not leading. The petitioner was given a chance to explain the entirely non-political nature of her intended visit. Why? So she could be given the protection she was seeking on the basis of her own declaration. The immigration officer at Heathrow might ask me 'This address- is it your parent's home?' I get hot under the colour. A man of my age does not live with Daddy and Mummy. They threw me out 40 years ago. So I answer, 'No! It is my house. I've been there 20 years. Before that I owned a house in such and such place.' The Immigration officer did not mean to insult me. He wanted me to confirm in declaratory sentences that I lived at that address and it was my home- no one else's.
Bhatia must understand that, in the law, people have to declare their intentions without prompting. They should use their own words. The Judge asks questions to get witnesses to clarify matters and to convince the Court of their sincerity.
This was not a one-off incident. In the one year since the alteration of Article 370, the Supreme Court is yet to actually decide upon the legal validity of any of the detentions challenged before it.
Because there is no prima facie case to answer. Maybe some new information will come to light. Maybe it won't.
The most recent exhibition of this phenomenon involved the detention of Saifuddin Soz. The detention of Saifuddin Soz was challenged before the Supreme Court on 8 June, 2020. Now, in the first mockery of habeas corpus, the Court issued notice in the case and adjourned it by four weeks. In effect, therefore, the Court was telling the world, “it doesn’t matter if a man has been illegally detained, the detention can continue for another month before its validity will be tested.”
Yes. That is true. But why? Soz is 80 years old. He is not in good health. He appears to be under house arrest. But, the alternative is detention under Sheikh Abdullah's draconian law. The Bench is being considerate of a distinguished ex-Minister who is probably better off where he is than in a jail cell catching COVID. His lawyers may prevail. That is a separate matter. But why be in a hurry to kill off that old man?
Contrast this with what Alfred Denning
who was writing about a monarchy with a hereditary upper chamber and no Supreme Court and no written constitution
wrote about what the habeas corpus was meant to be:
Let me start with an instance of how the courts approach the subject. Whenever one of the King’s judges takes his seat, there is one application which by long tradition has priority over all others. Counsel has but to say ‘ My Lord, I have an application which concerns the liberty of the subject ‘ and forthwith the judge will put all other matters aside and hear it. It may be an application for a writ of habeas corpus, or an application for bail, but, whatever form it takes, it is heard first.
It may be heard, but surely Judges are not obliged to release an old man from house arrest so that he can go straight to jail and drop dead of COVID?
So it goes. Let us now come to the actual hearing, at the end of July, which was a cross between a tragedy and a farce. At the hearing, the government insisted that actually, Soz was not being detained at all. Soz’s lawyer insisted that he was, that there was no formal order of detention, but that he was physically restrained from moving outside his house. What did the Supreme Court do? It simply “accepted” the government’s statement, refused to let Soz’s lawyer argue further, and “disposed” of the case. This led to sordid and surreal scenes that same night, when Soz was heard shouting from behind the locked gate of his house, “let the Supreme Court see how I am being detained.”
Why is Bhatia not mentioning the elephant in the room? If Soz isn't confined to his home, he goes straight to jail and dies of COVID.
The third story relates to Mehbooba Mufti’s detention, who was detained on the 5th August, 2019 and even as she was in detention, a detention order under the Public Safety Act slapped in February 2020. The order of detention was based on a dossier prepared by the Senior superintendent of police which the petition described as “manifestly biased, slanderous and libelous against the Detenu and which no reasonable person ought to rely on for depriving a citizen of her fundamental freedoms and person liberty.” Among other things, the dossier had described the detenu who is a former Chief Minister of the State, as “hard headed”, “scheming”, “daddy’s girl”, “Kota Rani” etc. The Supreme Court issued notice on the petition and was to be heard again on 18th March, 2020. The Petition however was not listed that day or at any time thereafter. The State did not even file a reply yet to her petition. Since then, Mufti’s detention has been extended by three months twice, now upto November 2020. The Chief Justice was asked in an interview in April about priority listing of habeas corpus petitions on Kashmir, presumably referring to petitions including Mufti’s. He is reported to have responded: “These and so many other matters are there, I cannot say when they will be heard but we will certainly hear them. … On Habeas and others, we are conscious of the nature of these petitions and they will be decided.”
So, the fact of the matter is, habeas corpus has no great significance- at least in J&K where 'subjective' suspicion is enough for up to 2 years in chokey. This is common knowledge. Bhatia and few other lawyers may feel outraged about it but there is nothing they can do. The pretence that rights mattered was one they promoted because it was in their class interest to do so. Then they turned against the Judges who, it seems, have a different class interest. What is the outcome? By weakening the authority and legitimacy of the Bench the judicial activists and pi-jaw merchants have done themselves out of a job. If the Judiciary is shit, why should we bother with it? Why listen to legal scholars? Only the Executive matters. This is perfectly 'democratic'. The Law is just a service industry- perhaps of a repugnant type. Let it sink back into obscurity.
Bhatia claims
habeas corpus is the most basic and fundamental element of a legal system.
Clearly this is not true. It is completely useless if you have a draconian Preventive Detention Law where the 'subjective satisfaction' of the authorities is enough to put you behind bars.
Whatever else a Court does or does not do, enforcing the writ of habeas corpus is something that it has to do.
But can't if preventive detention is legal. No good purpose is served by ensuring some old guy dies of COVID in a jail when he could have been tucked up all comfy at home.
And thus, a Court that is unable – or unwilling – to enforce the writ of habeas corpus or decide fundamental questions about the legality of detention and individual freedom, functions more as an extension of the executive branch than a “court” in a constitutional democracy.
To be an extension of the Executives, Judges must be under the control of the Ministry of Justice. Perhaps that is what will happen. If it does the legal system would still be 'democratic'. It just would not be 'independent'.
The formal trappings may remain. The reality is something different.
This is true. The Law does not matter- unless of course lawyers are smart because smart people can add value. The problem is that Bhatia is not smart. Bhushan is not smart. These guys are prejudiced and hold foolish views. Bhatia has a bug up his ass about habeas corpus which is wholly ineffective as a remedy where draconian preventive detention laws exist.
Bhushan, as per his affidavit, is equally prejudiced.
The tweet regarding the CJI riding a motorcycle dated 29.06.2020 was made primarily to underline my anguish at 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.
If the aim was to express anguish merely why did it not do so? Is Bhushan incapable of accurately conveying his emotions?
'Non physical functioning' was immediately replaced by Video Conferencing. If Bhushan has evidence that this has adversely affected fundamental rights why has he not supplied it? Is it because it does not exist? The Bench have taken this view. They say Bhushan had himself been heard both as lawyer and litigant. He was not expressing anguish in his tweet, he was lying in a malicious and criminally actionable manner.
The fact about the CJI being seen in the presence of many people without a mask was meant to highlight the incongruity of the situation where the CJI (being the administrative head of the Supreme Court) keeps the court virtually in lockdown due to COVID fears (with hardly any cases being heard and those heard also by a unsatisfactory process through video conferencing) is on the other hand seen in a public place with several people around him without a mask.
The CJI is welcome to endanger his own life. Those who wish to be near him are welcome to endanger their own lives. The administrative head of the Supreme Court has no such right to play with the lives of those obliged to seek redress through it.
The Bench feels that video conferencing is not 'unsatisfactory' and that many cases have been heard. Thus they dismiss Bhushan's arguments and convict him of criminal contempt.
My expressing anguish by highlighting this incongruity and the attendant facts cannot be said to constitute contempt of court.
Why did he not tweet 'I am anguished at the incongruity between CJI's actions as depicted in this picture and such and such concern that I have about the functioning of the Court under lockdown'?
The answer is because he is lying. He did not feel anguish. His aim was to commit the crime of criminal contempt. Why did he think he would get away with it? The answer is, because he is a shite lawyer.
If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article l9(1Xa) of the Constitution' .
But if Bhushan did not intend criminal contempt, for which he believed he had an immunity, why didn't he tweet 'I feel anguish at the following incongruity'? He is clearly capable of expressing himself correctly. Free speech is not stifled if it can express itself in a manner that is not mendacious, malicious and mala fide.
So far as the second tweet dates 27.06.2020 is concerned it has three distinct elements, each of which is my bonafide opinion about the state of affairs in the country in the past six years and the role of the Supreme Court and in particular the role of the last 4 CJIs.
Once again, Bhushan could have expressed that opinion in a manner which was not mendacious, malicious, and mala fide. He chose not to. He did not offer an apology. He justified his conduct but on spurious grounds.
The first part of the tweet contains my considered opinion that democracy has been substantially destroyed in India during the last six years. The second part is my opinion that the Supreme Court has played a substantial role in allowing the destruction of our democracy and the third part is my opinion regarding the role of the last 4 Chief Justice's in particular in allowing it. Such expression of opinion however outspoken, disagreeable or however unpalatable cannot constitute contempt of court.
But, an expression of opinion can specify that that is all it is. Bhushan did not tweet- 'I think' or 'In my opinion' or anything of that sort. He stated that the Bench was destroying democracy as a fact. He knew that the Bench would not accept that this was a fact. Thus he was committing what he knew the Bench would judge to be criminal contempt. He may believe that there shouldn't be such an offense. But, for the moment, he knows it exists. If he breaks a law because he believes that by doing so that law will be struck down or be rendered a dead letter then that is the reason for his action. It is not a matter of expressing an opinion or exercising free speech. The intention is criminal contempt- nothing else. Bhushan may have written other things which express the same view but which do not constitute criminal contempt because there is no intention of breaking the law. But, if his intentions were bona fide, that was all he should have done. It is not the case that this is a poor tongue tied fellow who can't get articles published in Magazines. All he has is his smartphone, his twitter account and his thumbs. No. The suggestion is ludicrous. Bhushan has not presented a defence. He has flaunted his breaking of the law and has dared the Bench to punish him. It remains to be seen whether he will get off with a token fine. But he certainly seems pleased with himself. He fought the Law and Twitter won. Democratic politics may have been unkind to him, but to his own mind he is as mighty and magnificent as Donald Trump.
Bhatia reads Bhushan's affidavit and the Bench's judgment. He sees no connection between the two.
He writes-
In the 108-page long judgment (the substantive part of which begins at page 93), the Supreme Court refuses entirely to engage with Mr. Bhushan’s reply. There are some colourful – and somewhat confusing – references to the Supreme Court being the “epitome” (?) of the judiciary,
i.e. it is perfect example, or role-model, of a particular quality we expect to find in Indian Courts of Law.
the need to maintain “the comity of nations” (?!),
i.e. a recognition of fundamental legal concepts that nations share. If Indians start to think of Indian Courts as evil and destructive of Democracy, they may come to have equal contempt for Courts in other countries with which they do business or which they might visit.
and an “iron hand” (!).
That means 'with firmness'.
There is, however, no legal reasoning, and no examination of the Reply.
The Bench explains why it has authority in this matter. It quotes Brahma Prakash Sharma (1953) and Daphtary (1971) to clarify that it is enough for there to be a tendency or likelihood that the administration of Justice to be adversely affected for the crime of criminal contempt to be proved. It examines and rejects as manifestly absurd the justification put forward by Bhushan. The tweets constitute criminal contempt because they are demonstrably mendacious, malicious, and mala fide. The justification does not explain why an innocent form of words was not used. We are free to conclude that this is because the justification is an after the fact fabrication. If 'anguish' at 'incongruity' was involved, why were those words not used? If an opinion was being given, why was the text declarative in a criminal manner?
Bhatia avers-
It stands to reason that if an individual has been accused of contempt of court because they expressed an opinion about the role of four Chief Justices in undermining democracy, and that individual has filed a Reply setting out the facts upon the basis of which they arrived at that opinion, a “judgment” holding that individual guilty of contempt cannot pretend that the Reply does not exist.
The Bench makes no such pretence. However, the fact that the 'Reply' exists is proof that Bhushan could have exercised free speech in a bona fide manner on this subject without breaking the law. True, it is the Bench itself which gets to decide what Contempt of itself is. But that is the law.
It reminds me of the times I used to take a football from the halfway line, dribble it across the pitch, and kick it into the goal – without any opposition players on the field.
That is a bad analogy. There is an umpire on the field. You kick him in the crotch shouting 'Goal!'. He gets angry and says he'll see you in Assembly a week from today. Will you get caned? Or will he give you a nice sweetie? Either way, you think you are a big hero. At least for the time being.
But if the Court chooses not to explain itself, then there is little purpose to be served in excavating an explanation that it ought to have made, and then engaging with that imaginary explanation on legal grounds.
It has explained itself. It has the authority to decide what is or isn't contempt. It decides the facts of the case and then applies what penalty it thinks fit. Habeas corpus or Right to Free Speech don't matter at all though in other countries they may be a fetish. Yeh hai India meri jaan.
Consequently, I end this post here. Interested readers may consult the Reply, the “Judgment”, and draw their own conclusions
My conclusion is Bhatia is a cretin. Sci Fi is his metier. Bhushan, by contrast, should abandon tweeting bile for twerking on TikTok. That will cause Kejriwal's moustache to fall off. Everybody will then flock to Bhushan and clamor to fondle his lok pal. Then a BJP leader will offer him a ride on his motorcycle which cost 50 lakhs. CJI will get so jealous, OMG! Bhushan is snaking my boo!, he will say and then everybody will start singing Om Shanti Om Bhushan and dancing in the streets and at last democracy will be saved.
No comments:
Post a Comment