Opinion | There is need for more judicial restraint in India

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One of the questions raised during the Contempt of Court proceedings against lawyer Prashant Bhushan in the Supreme Court was whether the court could be both the initiator of proceedings and the final arbiter of justice in that very same case. The argument is that a Right of appeal is an absolute right of any convict, because no court is beyond mistakes.

However, often Supreme Court decisions condemn a citizen at the very first instance without possibility of any redress.

Take the recent case of Teesta Setalvad, and two officers of the Gujarat police force. In its judgment finding that no further probe was required into the role of the then Chief Minister, Narendra Modi, in the 2002 Gujarat riots, the court also said that those who pursued the case all the way to the Supreme Court were abusing the process of law, and that these people needed to be ‘in the dock’.

Undoubtedly, if somebody has abused the process of court, they should be made to answer for it. However, this judgment essentially takes away their right to protest their innocence. Remember, the Supreme Court was not hearing arguments on whether the case against Modi was motivated, and therefore the petitioners did not have the chance to put their defense before the court.

The trio, of whom one was already in jail, was promptly arrested. With such a scathing observation by the top court, almost in the form of a directive, it is unlikely courts will feel inclined to grant bail. More recently, the same bench imposed a fine of Rs 5 lakhs on an activist from Chhattisgarh who sought a probe into the alleged torture and extra-judicial killings by security forces in 2009; and directed an investigation into the motivations behind the complaint. One morning, a person is a mere petitioner before the court seeking accountability from the State (rightly or wrongly, but it is still a fundamental right); by afternoon, they have become the accused.

In Bhushan’s case, he was punished for tweeting about what he felt was inappropriate conduct on the part of the then Chief Justice of India. Unlike the usual procedure of obtaining approval of the Attorney General of India, in Bhushan’s case, the court commenced proceedings on its own motion (or suo motu, as it is called).

Others, like Justice Markandeya Katju, when threatened with contempt proceedings by the Supreme Court, chose to apologize to avoid going to jail, whether the apology was heartfelt or not.

The problem with each of these cases is that the Supreme Court’s order has become final, and a fresh pair of eyes will never look at whether the court might have erred. This is by design as the only available recourse is a Review Petition, which will be considered by the same judges who passed the original order.

To be clear, the grouse is not that the Supreme Court should not pass ‘erroneous’ orders. It is in the nature of the office to deliver judgments that are not universally welcomed, which many may even deem to be ‘incorrect’. In many courts around the world, such as the Supreme Court of the United States in the recent anti-abortion ruling, the judgments might even be thought to be motivated or pre-ordained.

But even in those cases, the judgments are the result of careful deliberation through multiple layers of judiciary, and those prejudiced by the court’s action could claim they were heard. This is where India pales in comparison. In far too many cases, judgments have been passed without hearing those who might be affected by them.

In civil cases, we are almost accustomed to these judicial excursions. For instance, the judgment that that national anthem should be played in movie halls, or that liquor bars adjacent to highways should be shut down were passed without hearing the many parties who would be affected by such orders. Thankfully they were both revoked hastily.

A big reason for this is the SC’s liberal use of Article 142 of the Constitution, which gives it powers to pass ‘any order’ in the interest of complete justice. While the court ought to desist from passing such sweeping orders in all cases, judicial restraint becomes all the more important in criminal matters, where the immediate consequence is jail time for the affected person.

Another solution, proposed by Prashant Bhushan in a writ petition that is currently pending, is that in case of suo-motu contempt of court, the top court should allow an appeal to be heard by a different bench of the same court. This is only a quick-fix. Ideally, the SC should respect its constitutional mandate.