In the Fifties and Sixties, intellectuals were suspicious of the Bench because they thought it was bound to side with the Maharajas and Zamindars and Religious leaders and so forth. Only radical, Socialist, policies could lift the country out of hunger and nakedness. Indira Gandhi took advantage of this popular feeling to ditch the Congress Old Guard and take power on her own. She also broke the back of the Judiciary, the Trade Unions, the Press and the Opposition. She had established autocracy. But, Autocracy is tempered by Assassination. This was okay for the Tzars because they had dynasticism. Indira could not be sure of having established a dynastic autocracy because of the servile, but very rancorous and cunning, nature of the North Indian politician. So she held elections and was voted out. But, predictably, her successors squabbled and so she returned to power. This was autocracy, that too a dynastic autocracy, but one with a single caveat. Indira understood that the masses did not like
1) police men. Why? They are constantly shoving things up your butt. Just this year, in TN, a father and son died bleeding from the rectum after a night in the police lock-up. They had committed no crime. But they had butts and policemen long to shove things up other people's butts. They derive great satisfaction from this activity.
2) petty bureaucrats. Why? Mrs Gandhi had threatened their jobs if they did not sign up 'volunteers' for sterilization. Thus the ubiquitous Indian Babu developed an unhealthy interest in the testicles of all and sundry.
The Indian masses accepted that policemen can't be stopped from shoving things up people's butts. But Babus should be discouraged from their new found obsession with testicles. Mrs G spoke loftily of her own disdain for the contents of the poor man's chaddi. 'Over zealous' officials were to blame for everything. In this context, it made sense for Judges- who were not known for sticking things up rectums or chopping bollocks off- to become 'activist' in response to Public Interest Litigation which had to do not only with rectums and bollocks but other such activities directed at the environment or social institutions. Thus was born the PIL industry under the shadow of a corrupt, incompetent, dynastic autocracy which, sadly, turned out to be a little too vulnerable to assassination. But PIL was a disaster. It held the country back. The rational solution was to have an effective Executive. But, because Indian intellectuals are barking mad, they insisted on the wholly irrational solution of pretending India was actually as rich as America and that a suitably 'woke' judiciary could elevate its poor to First World standards of living.
The Bench, increasingly staffed by either corrupt cretins or incompetent shitheads, acquiesced in its own instrumentalization by the forces of political stasis. Unlike the Executive, which enjoys a honeymoon period of legitimacy with the public when it wins a general election, the Bench was doomed to a sterile and loveless marriage with a bunch of cretinous PIL addicted hacks. Their mutual contempt has now crossed all borders of decorum. The Bench must get out of the PIL game and advocates must stop scandalizing their own sugar-daddy or else lose right of audience.
The Bench may reform itself. The Bar may reform itself. But the Academy is past hope of reform. As a case in point, let us look at an article by a Law Professor who has held senior posts and thus had an opportunity to cram his students' heads with shite.
Prof. G. Mohan Gopal writes in 'the Leaflet' that Prashant Bhushan tried to shake the 'foundation of constitutional autocracy'. This means he tried to attack the 'majesty' of the Bench. He sought to undermine its Constitutional Role. But Gopal denies this. His argument is that Bhushan is not guilty of contempt because he is guilty of more than contempt. The man is also a seditionist! No wonder Indian lawyers are shit. Their Professors are utterly stupid.
the August 14, 2020 finding of a three-judge bench of the Supreme Court in In Re Prashant Bhushan & Anr.,Alleged Contemnor that, by sending two tweets, Advocate Prashant Bhushan was engaged in an “attempt to shake the very foundation of constitutional democracy” in India by “destabilising” the Indian judiciary” is entirely unconvincing on facts and on law.
This nutter believes it is a fact that Bhushan tried to overthrow 'Constitutional autocracy'- i.e. the concentration of all legitimate power in the Constitution and such bodies as it licenses to exist. But if so, it must also be a fact that he is guilty of criminal contempt and sedition.
Gopal speaks of hyperbole. It may be rational to exaggerate matters in your own cause. Gopal is doing the reverse. He is exaggerating matters in a manner adverse to critics of the Bhushan judgment. He needs to show that Bhushan is innocent. Instead he says Bhushan is guilty of a much worse crime which, inter alia, must encompass the lesser offense. Suppose Gopal were to advise you on how to plead in an action for assault. It seems he would say 'Deny the charge! You were trying to commit genocide when you tried to chop off the head of that man. They can't find you guilty of slapping him though that's what happened after he touched your butt. They will be forced to give you the death sentence for planning to kill all males on the planet because of your demented feminist hate ideology.'
It comes across as hyperbole unbecoming of the dignity, dispassionate sobriety and reliable precision that has come to be expected from one the world’s greatest Apex courts.
By contrast, we picture Gopal as rolling in the gutter drunk off his head.
A charge that Mr. Bhushan has attempted to shake the very foundation of constitutional autocracy in India would, on the other hand, be credible. This, he has done. And there is every reason and every urgency for all of us to join him in attacking, through peaceful and legal means, “the very foundation of constitutional autocracy” in our country.
So Mohan says lawyers and Law Professors should seek to overthrow the independence of the Bench. It should be subordinated to some other Institution. But, in that case, lawyers lose salience. Why pay them? Deal directly with that other Institution. This may be a good thing. Indian lawyers are shite. Indian Judges, according to Indian lawyers, are corrupt. Everybody else thinks they are shite because they are Indian and started off as lawyers and were taught by cretins like Mohan.
Autocracy has, after all, been our norm since time immemorial.
No. India is a Caste society. Autocrats determine social hierarchy. This was possible in Tzarist Russia. It was tried in China where an 'impure' caste ceased to exist. But nobody tried it in India. The thing could not be done. The autocracy of the dynasty still has to rely on Caste Arithmetic.
In India, you could have demographic replacement but, otherwise, you had the countervailing power of caste such that though despotism was possible autocracy wasn't.
It is an ancient tradition for us.
This cretin does not understand that India was ruled by Britain which was not an autocracy. Westminster limited the power of its Governor Generals and Viceroys.
Democracy, on the other hand, is a new and nascent experiment, forced on an unwilling elite by a mass struggle for freedom.
Fuck off! Democracy was desired by some barristocrats so that they could fuck up the country with their stupidity. There have been 'mass struggles' against Communist shitheads. But they can take a hint and fucked off quietly enough when beaten on a sufficiently regular basis by Mamta's goons.
The language and culture of autocracy comes easily to us — a justice system in which the “king’s law” is conveyed by courts to an obedient people; the law is enforced with an “iron hand” which, with “firmness”, “strikes” those who “attack” the “majesty” of courts (words in quotes are from the judgment).
So what? Judges talk one brand of shite. Professors talk another brand of shite. 'Mass struggles' forsooth!
The fact is, Indian Law is shite because it won't do the only job it will be paid properly to do- viz. enforce contracts, uphold property rights and lock up bad hombres. So it gets peanuts to act like a bunch of monkeys whom you can sic on your enemy by way of creating a nuisance. But the smart can disintermediate the Law and fuck over any of its functionaries who try to monkey with them. Shame the country has to suffer- but then if it weren't a shithole shitheads like Mohan would not feel at home there.
Autocracy is still seen by those who have faith in the ancien regime
a phrase which refers to pre-Revolutionary France. This Mohan guy sure seems up to date!
as the best — in fact, the only — way to establish order and achieve progress in our “chaotic” country. Returning to a Hindu monarchy — the best system according to Golwalkar — may not any longer be an option in today’s world. However, for them, a ‘constitutional autocracy’ founded in majoritarian religion — ‘constitutional’ but in name — is a necessary and feasible second-best option. Keep a hollowed-out Constitution nominally in the frame, but photoshop democracy out of it.
Why bother? Just ignore cunts like Mohan, Bhushan and the cretins on the Bench. Nobody is saying 'guess what, guys, our lives are really shit right now but if we launch a PIL...' Why? Because everybody knows PILs are shite. Some NGO may make money. But nothing good will come of it. As Ghalib says 'ik tamasha hua, gila no hua'. There may be a spectacle, but the complaint won't be redressed.
In this context, Advocate Prashant Bhushan’s powerful, persistent, fearless and effective campaigns against autocracy have
by Mohan's own account been wholly ineffectual. Indeed, the stupid cunt is now blabbering about the 'Ancien Regime' and quoting Golwalkar.
become intolerable to autocrats in all branches of the State, and in our larger society.
Intolerable? Bhushan was useful against the dynasty. He could have been useful against Kejriwal. Now he is useless- but still pricelessly funny. The AG is pleading for mercy for him! Last year he was prosecuting him for contempt. What has changed? The answer is that the Executive has learnt that it is foolish to kick the can down the road by getting the Bench involved. If the Executive takes timely action on a current issue- it gets the credit. It appears bold and capable of delivering better governance. So the Bench no longer matters. India need not 'grow by night'. The Executive can push for Growth and cut off funding to NGO nutcases who try to fuck up the country.
He must be stopped. Criminal contempt of court (“scandalizing” the court) becomes an appropriate tool to stop him because criminal contempt power is, jurisprudentially and procedurally, an unruly horse providing vast unchecked discretion to the judiciary to impose criminal conviction and criminal punishment on those who challenge the system, free of normal checks and balances.
But the Bench is shy of using it. This is good because it is crap. Only the Executive should matter when it comes to political questions. Let the Bench concentrate on enforcing contracts and locking up bad guys. Then it will be respected- or at least left alone to get on with its job. Judges should be silent. It is better we think they are cretins than they should open their mouths and confirm they are cretins.
Many traditional grounds on which a person arrayed for other crimes can defend himself or herself are disabled when a Court unsheathes its awesome power of criminal contempt.
But we should get rid of those 'traditional grounds' because they are provided corruptly or by reason of the incompetence and stupidity of the Bar and the Bench and the prevailing ethos in Civil Society of corruption and criminality.
As the Supreme Court is not acting under the Contempt of Courts Act in this case, it lacks power to act against Advocate Bhushan’s speech.
No. It has suo moto power.
This is what enabled this case to race from the communication of the first tweet to conviction in 48 days — lightning speed that even Chinese criminal courts would envy
Nonsense! In China, Bhushan's kidneys would have been sold by now. His Estate would have been billed for the cost of the bullet in his head.
— while one of India’s top lawyers was reduced to the role of a helpless spectator of his own trial and conviction, with little meaningful opportunity to defend himself.
Bhushan can only bluster. He can't defend shit.
The Attorney General was given short shrift — even an Attorney General who is not in the least expected to defend Bhushan’s, or any one’s, free speech. Converting a matter initiated by a petition into a suo moto proceeding, making the cause its own, the judiciary became the accuser and the judge.
Yes. Contempt proceedings are 'self-interested'. But our own self-interested actions disintermediate Courts all the time. If you are rich, you make sure your assets are out of the jurisdiction of the Indian Bench. Indeed, the Indian Government has implicitly accepted extra-territoriality because it can't be sure the Bench won't go mad and suddenly arrest a foreign Ambassador claiming he had waived his immunity. This does not mean it can't be forced to renege on International agreements. It is just that a massive penalty is 'front-loaded'.
The judgment in In Re Prashant Bhushan is per incuriam.
Nonsense! In the Kurle case, may be. But not the Bhushan case precisely because the Kurle case was so recent.
Three legal errors deserve to be highlighted in particular.
(1) The Supreme Court lacks power over contumacious speech when not acting under the contempt of courts act
Mohan lacks authority to interpret the Constitution. He can't say what is or isn't in the Bench's power. But it can.
The judgment says (paragraph 18), “It has been held, that the Court is vested with the constitutional powers [under Articles 129 and 142] to deal with the contempt and Section 15 is not the source of the power to issue notice for contempt…the Court is exercising its inherent powers to issue notice for contempt. It is equally well settled, that once the Court takes cognizance, the matter is purely between the Court and the contemnor. The only requirement is that, the procedure followed is required to be just and fair and in accordance with the principles of natural justice.”
This is the settled law of the land. There are precedents for what the Bench is doing. Why is Mohan pretending the thing is Res Integra?
This has major implications for the powers of the Supreme Court.
Those implications had already led to convictions. This is nothing new.
Here’s why.
Article 19(1)(a) of the Constitution guarantees that “All citizens shall have the right to freedom of speech and expression”
Subject to numerous provisos- viz.
Under Indian law, the freedom of speech and of the press do not confer an absolute right to express one's thoughts freely. Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech under following heads:
I. security of the State,
II. friendly relations with foreign States,
III. public order,
IV. decency and morality,
V. contempt of court,
VI. defamation,
VII. incitement to an offence, and
VIII. sovereignty and integrity of India.
For an autocrat, this may be one of the most hated provisions of the Constitution.
Why? An autocrat can amend the Constitution- as Indira did- and, anyway, beating people and extra-judicial killing seems to have a magical effect on what slimy shitheads like Mohan say.
It is, however, the heart and soul of a democracy — a most precious right that can be restricted only in the rarest of rare cases, subject to strong safeguards.
Maybe in America. But it is difficult getting a Visa to go there. Also their taxes are very high.
Under Article 19(2), our precious right to freedom of speech and expression may be restricted only by legislation made by the State imposing “reasonable restrictions” in the interests of nine enumerated considerations, one of which is contempt of court.
Sadly, the Bench has decided that it has an inherent right, as part of the 'Basic Structure' of the Constitution, to prosecute criminal contempt as and how it pleases. This is now the law of the land. The legislature would need to pass a law and the Bench would need to uphold it as not violative of the Basic Structure for the law to change.
Mohan's opinions carry no weight. Those who rely on them may end up in jail.
The Constitutional scheme is clear. Under Article 19(2), only “reasonable restrictions” may be imposed on Article 19(1)(a) freedom by a legislature by enacting legislation. Restrictions cannot be imposed on Article 19(1)(a) freedoms directly by the judiciary or the executive. The judiciary is only to interpret and apply the restrictions imposed by the legislature.
The Bench asserts its suo moto power to decide what is reasonable and fair when dealing with criminal contempt. Arguably, this has always been the case.
Accordingly, pursuant to Article 19(2), Parliament enacted the Contempt of Courts Act, 1971, imposing, inter alia, “reasonable restrictions” on speech and expression that amounts to criminal contempt. Therefore, under Article 19(2), any restriction on speech and expression on the grounds of criminal contempt may be imposed only under the Contempt of Courts Act.
The Bench disagrees and the Legislature has not challenged its position. Thus the Bench, precisely because it is independent, can't be held to account for self-regarding actions in contempt cases. It only requires of itself that proceedings be fair and just. But that is an internal requirement, not an external constraint.
As a result, when the Supreme Court is not acting under the Contempt of Courts Act, it has no power to restrict contumacious speech or expression.
This fucker should have looked up Wikipedia. It says that there is no Constitutional right to numerous forms of speech. I can call Mohan a cretin. I can't insult his caste or religion.
The Supreme Court may punish other acts of contempt under its Constitutional contempt power, but not ‘speech and expression’.
Yet it has already done so and will continue to do so. Why? Because such is the law of the land. Mohan is simply lying.
It needs to be heard and tried afresh by a bench which does not include the judge whose conduct has been questioned by Advocate Bhushan.
In the opinion of Mohan. But Mohan is a foolish and ignorant man without any sort of power or influence.
As the Supreme Court is not acting under the Contempt of Courts Act in this case, it lacks power to act against Advocate Bhushan’s speech.
Mohan lacks power to act against the Bench. But the Bench can lock up Bhushan though it would be more sensible to just give him a suspended sentence and ban him from appearing before them- thus curbing a nuisance.
For this reason, the judgment is in error.
A future Bench may indeed decide that. But that time has not come. For now the law of the land remains what it has been not what Mohan says it should be.
(2) The judgment is vitiated by conflict of interest
So is Mohan's argument. He has an interest in making the Court look bad. Furthermore he is a stupid as shit. His arguments are vitiated by his self-interest and the fact that he is a cretin.
By contrast, it is a settled principle in law that contempt of court is a self-regarding action. It can't be vitiated by conflict of interest any more than any other self-regarding action for which an agent can avail of a Hohfeldian immunity.
This judgment is vitiated by conflict of interest. As is well known, and as Advocate Prashant Bhushan’s affidavit in reply appears to have specifically said, he has raised serious questions in the past about the judicial conduct of the presiding judge.
This is irrelevant. The essence of criminal contempt that a Judge can punish a person who has scandalised him. Some jurisdictions have abolished this remedy- e.g. England and Wales. But Scotland still has it.
Accepted canons of judicial ethics would require that, if indeed this is the case, the concerned judge should not be deciding this matter. It needs to be heard and tried afresh by a bench which does not include the judge whose conduct has been questioned by Advocate Bhushan. Justice must not only be done, it must be seen to be done.
This is a question which the Bench will go into in the other contempt case against Bhushan. But, for the moment, the Law remains what it was.
(3) Some of the legal standards applied in Prashant Bhushan to determine criminal contempt are illegal and unconstitutional
The judgment has convicted Advocate Bhushan on the basis of several extremely vague and imprecise grounds which have but the farthest logical link, if at all, to the statutory definition of criminal contempt.
In the opinion of a cretin. The ratio of the judgment clarifies that the Bench is relying on an inherent, not statutory, right.
The types of conduct found to constitute criminal contempt in the judgment include: (i)“undermining the dignity of the Supreme Court” (what is the Court’s legal understanding of the “dignity” of an institution?);
The answer is 'anything it decides provided it does so in a fair and just manner' But what is fair and just is again left up to it.
(ii) “lacking deference and respect paid to judges and their acts”; (iii) “attack” on one or more judges which judges find to be “scurrilous, offensive, intimidatory or malicious beyond condonable limits”; (iv) “shak[ing] the very foundation of constitutional democracy”; (v) “destabili[sing] the very foundation of the judicial system”; (vi)“caus[ing] non-Supreme Court judges to lose confidence in the Supreme Court”; and (vii) “demoralizing” the Judges of the highest court.
We notice a continuity here between what has been said in previous contempt proceedings against Bhushan. The question is will the monkeys on the bench punish the monkey at the bar? Or will they carry on shitting into their hands and flinging their feces at each other.
These standards suffer from extreme vagueness and arbitrariness that violate Article 14 of the Constitution and are “void for vagueness” .
The Bench could certainly argue that this is so. But they chose not to do so. So long as they are clear in their minds as to the offense, they can proceed in their accustomed manner.
In Grayned v. City of Rockford (1972), the U.S. Supreme Court said, ”It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.
This is irrelevant when speaking of an officer of the court who already faces or has faced similar proceedings.
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.
Why compare a Supreme Court advocate with a working class fellow who was arrested for taking part in a demonstration near a School? Perhaps Mohan means to say that there should be a presumption of cretinism in all cases involving Indian lawyers. Beat them with a stick. Don't try to talk to them. You will make only a vague impression on them.
Mohan goes on to argue that lawyers should not be allowed to question any type of 'enforcement' action. Why? They are too stupid to understand anything. Everything remains very vague to them.
Second, if arbitrary and discriminatory enforcement is to be prevented,
it can't be. Arbitrary is a vague word. So is discriminatory. What does prevention mean? Lawyers don't know. They are too stupid. So anything done by anybody is legal because constraints on what is legal are vague.
laws must provide explicit standards for those who apply them.
But this is impossible because legal language is vague- at least to Indian lawyers, according to Mohan- thus the law must itself demonstrate what needs to be done and keep doing so till no vagueness remains. But this means Judges should do everything while everybody looks on saying 'still, it is vague to me as to what should be done and how it should be done. Also, Judge Sahib, come and wipe my ass for me. It is very vague to me as to how to do it in a proper and legal manner.'
A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
So why have laws and lawyers and judges and so on? Let those concerned with such issues simply go around wiping people's butts and doing all lawful things in the proper manner.
Third, but related, where a vague statute “abuts upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.”
But India's First Amendment is of opposite valency to that of America! Gopal thinks the Bench has some magic wand to change India's economic condition into that of the USA!
Uncertain meanings inevitably lead citizens to “steer far wider of the ‘unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” In Kolender v. Lawson (1983) the U.S. Supreme Court said, “the void-for-vagueness doctrine requires that a penal statute define the criminal offence with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory treatment.”
Sadly, India has gone in the opposite direction. Why? Because neither lawyers nor Judges nor cretinous Professors want Justice to be a service industry which pays its way and catalyses Development.
Prashant Bhushan would not have ended in conviction had a Constitutionally compliant standard been used to define prohibited speech instead of the “bad tendency” test.
The 'tendency' test is Constitutionally compliant.
The new prohibitions of speech introduced in the Prashant Bhushan judgment
don't exist.
also suffer from constitutionally forbidden “over-breadth” in as much as they prohibit currently constitutionally protected conduct, which does not fall within the restrictions in the Contempt of Court Act.
That Act is irrelevant. The Bench is asserting an inherent right arising out of the 'Basic Structure'.
The expansion of the scope of criminal contempt by the judgment will have a chilling effect on legal discourse.
A chilling effect only applies to legally protected speech. Nothing of the sort features in this instance.
The criteria applied in Prashant Bhushan to determine criminal liability are illegal and unconstitutional.
No they are legal and constitutional because the Bench says so. Mohan's views don't matter.
For this reason also, the judgment is in error.
Mohan can write as cretinously as any Judge. But he isn't a judge. Thus he is misleading anyone who relies on his opinion. True, they'd have to be as thick as shit to rely on Mohan but still the stupid too deserve protection from cretinous charlatans.
Protection of free speech depends crucially on the definition of prohibited speech.
Nonsense! It depends on not getting your head kicked in.
The broader the definition of prohibited speech, naturally, the greater the reduction of free speech.
This is not the case. The remedy for a restriction on free speech may or may not be provided under a vinculum juris. All that matters is that it is effective and incentive compatible. Mohan and his ilk have pretending that the Bench will come and save you if you speak out against the local 'bahubali'. But what good has that pretence done anyone living in India? No wonder the masses have turned their backs on Bhushan. Petty corruption affected them and they flocked to Kejriwal. But Bhushan was an elitist living in an imaginary world where India was actually the USA and the Supreme Court was not a laughing stock.
The nearly half-century old Contempt of Courts Act, 1971, and several judgments including In Re Prashant Bhushan still follow, often without any explicit recognition, acknowledgement or discussion (as in this judgment), the outmoded “bad tendency” principle to define restricted speech. It has its origins in English common law. It prohibits all speech that has a mere “tendency” to incite or cause illegal activity, regardless of actual consequences arising from the speech.
But this remains the law of the land. Indeed, in Scotland and Northern Ireland 'murmuring judges' is still an offense.
In line with this principle, In Re Prashant Bhushan says that the two tweets tend to give an impression, that the Supreme Court has a particular role in the destruction of democracy in the last six years and the last four CJIs had a more particular role in the same. It says that the impression that the tweet tends to convey is that the judges who have presided in the Supreme Court in the period of last six years have a particular role in the destruction of Indian democracy and the last four CJIs had a more particular role in it. Further, the tweets are considered as having the tendency to undermine attitudes of people on which the justice administration rests (below); and that there is no manner of doubt that the tweet tends to shake the public confidence in the institution of judiciary.
So, the Bench have made no innovation. They have proceeded as they have always proceeded. Gopal thinks this is very wrong. India is a rich country like America.
A century ago, the “clear and present danger” test enunciated by Justice Oliver Wendell Holmes of the US Supreme Court in his renowned dissent in Abrams vs. United States (1919) offered a modification of the “bad tendency” test that widened freedom of speech and narrowed restriction. Holmes argued that for any restriction on speech to be constitutional, the speech it prohibits must constitute a “clear and present danger” of an evil consequence.
This is irrelevant.
In my view, the “bad tendency” principle is unconstitutional.
But you yourself are viewed as a cretin with a very bad tendency indeed. Fuck you know about the constitution?
The “clear and present danger” principle won only limited acceptance and co-existed with the “bad tendency” principle for several years. The “bad tendency” test was finally overturned by the US Supreme Court in Brandenburg v. Ohio (1969) and replaced by the “imminent lawless action” principle which refined and further developed the “clear and present danger” principle. Under the “imminent lawless action” principle, speech is restrained only where the speaker intends to incite by the speech an imminent and likely violation of the law. A mere tendency will not suffice.
India is not just much much poorer than America now is, it is also much much poorer than America was a hundred years ago. Moreover, whereas the American Supreme Court was and is respected, the Indian Bar and Bench are a laughing stock. In America, smart people become lawyers. In India this is not at all the case.
In my view, the “bad tendency” principle is unconstitutional. It hollows out our freedom of speech and expression under Article 19(1)(a) by setting an excessively broad and vague standard for prohibiting speech.
India disagrees. We want to lock up troublemakers before contentious events occur. But, Mohan is confusing the issue. He is speaking of a lawyer scandalising the court. That isn't about free speech. It is about browbeating judges.
Prashant Bhushan would not have ended in conviction had a Constitutionally compliant standard been used to define prohibited speech instead of the “bad tendency” test.
He would not have been convicted if he had turned into a pussy-cat and said miaow and went to sit on the lap of a Judge. You can't send a cute little pussy-cat to jail.
To secure our freedom more effectively, we need to
get richer as a country so as to have better policing such that we don't get beaten, raped or murdered. That is what America did. India did not. Nobody gives a shit about shite talked by shitheads in a shithole country. They may just as well say miaow or woof woof for all we care.
develop an alternative overarching principle that will protect free speech in all circumstances from State restriction, learning from tests used in other democracies.
No country has achieved this. In America, Corporations have extensive power to gag 'whistleblowers' despite much legislation and case law. Why? The answer is that the remedy is costly. Even a rich country can't afford it. Yet it makes a sacred cow of free speech. Why? Corporations, it seems, exercise free speech when they give money to politicians. Unions deny free speech when they do the same thing. Wonderful, isn't it? Why does Mohan want this for India? Is he in the pocket of Ambani?
What about the UK? There the situation is much worse. Ordinary people pitilessly defamed by Tabloids owned by plutocrats could not get legal aid to fight their battles. Even Judges withdrew from the fray. By contrast, the rich would pay a lot of money to get libel decisions in a London Court and then use them to harass their detractors.
Is Europe any better? No. The procedures are different but the problems remain. For every high profile 'win', there are a thousand anonymous defeats.
Maybe Mohan taught kids who hoped to do a Masters in America and then stay on as lawyers. Hence his obsession with America and ignorance of India.
In his Abrams dissent, Justice Holmes explains the crucial importance of maintaining the broadest possible freedom of speech:
“When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
The KKK, who were going great guns at the time, certainly believed in their own right to free speech. As for their opponents, the hanged tend to be tongue tied.
When the competition of ideas is suppressed using contempt power, or by other means, the truth is suppressed and the nation is blinded.
Nonsense! The Judiciary is not a place where ideas compete. It can only examine arguments which meet stringent tests. Contempt proceedings can curb a nuisance. If instead of an argument, the attempt is made to intimidate or browbeat the judge, then the Court has a remedy which it can exercise in a self-regarding manner.
If the voyage of a nation (or of a vital institution such as the judiciary) is to be charted safely through ever-dangerous waters, everyone must know the truth about where the dangerous rocks and whirlpools and sandbanks lie that can wreck the ship of nation or institution, so that they may be avoided.
This is impossible. Knightian Uncertainty obtains. We don't know all possible states of the world. Some would cause us to revise our Social Welfare Function. Most cause us to revise our Bayesian priors. The best we can hope for is that our course is globally 'regret minimizing'. But this means some ships sink. So we have to have subsidiarity and Tiebout sorting and jurisdiction shopping such that we are an armada, not a ship of fools- as Gopal's bogus scholarship would counsel.
The ship cannot be steered based on false information. Yet, in the words of Justice Holmes, “We have to wager our salvation upon some prophecy based upon imperfect knowledge”.
Holmes was a Judge- i.e. a fool. He didn't understand Knightian Uncertainty (though, to be fair, neither did Knight). He didn't know about Hannan Consistency or McKelvey chaos or Djikstra concurrency or the problem with Aumann agreement or the Revelation Principle or the Myerson General Feasibility theorem or even what we call Coasian 'Law & Econ' & Hohfeldian analysis which were beginning to make headway a century ago.
So how do leaders and citizens of a nation ascertain the truth? Not from gods by divination. Not from astrologers. Not from holy books. Or from priests. Or from oracles. Or from think tanks and smart people. Holmes says, the “best test of truth is the power of the thought to get itself accepted in the competition of the market [of ideas] and that truth is the only ground upon which ..the wishes of [men] safely can be carried out.” When the competition of ideas is suppressed using contempt power, or by other means, the truth is suppressed and the nation is blinded.
Fuck off! People like Mohan and Bhushan and the Bench are low I.Q cretins. Look at Taiwan. They have Audrey Tang- a bona fide genius. Thus they are way ahead in tackling COVID and doing mechanism design and so forth. Neither Indian Lawyers nor Judges can contribute anything to 'market for ideas'. They can get on with the boring, but worthwhile, business of enforcing contracts, protecting property rights, and putting bad hombres in jail. Just do what you are paid to do and shut the fuck up. That's all we ask.
In re Prashant Bhushan will have a chilling effect on public and legal discourse essential for safeguarding and strengthening our judicial system.
But the system is shit!
It reflects a mindset of an autocratic past
but a mindset which thinks India is as rich as America and that Judges have a magic wand which they can use to give very poor Indians the type of protections and entitlements which a very rich country can afford to give...some of its people some of the time.
that we must leave behind if we are to realize the Constitutional vision of a true democracy where criticism and questioning of courts is an essential part of the ”the very foundation of constitutional democracy” rather than a crime. India and the judiciary will pay a heavy price if we accept the legally erroneous approach taken by the Court in In Re Prashant Bhushan restricting freedom of speech and expression.
Mohan is telling us a fairy story. People in India are poor and keep getting fucked over coz of a Bad Wizard named 'Autocracy'. If all the good children clap their hands and say 'Drop dead Bad Wizard!', then the Wizard will die and everything in India will become very nice. Bench will kiss and hug Prashant Bhushan. Mohan will turn into a pussy-cat and will say 'Miaow, Miaow!' in a cute and contended manner. But the Bad Wizard had hidden its last horcrux in Modi-the-Rat. But Mohan pretending to be just a simple pussy-cat saying 'Miaow Miaow!' will quickly pounce on Modi-the-Rat and eat him. Thus the Bad Wizard of autocracy will be truly dead. Then Mohan will turn back into a man. A beautiful interdimensional portal will emerge from his rectum and all good children and animals and plants will pass through it into Paradise. Thus endeth Mohan's lesson to the Lawyers of India. May they all pass through his rectum to wherever the fuck they were going in the first place.
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