Gridlocked into the global jurisprudence of the war on terror, some judges of the Supreme Court of India have internalized a war justified by the ‘state of exception’. War has been transformed by the judiciary from military campaigns at the border, to the “containment of internal dissent and uprising” within the boundaries of India.
Prashant Bushan’s tweets of the past were picked up by a Bench of the Supreme Court, treating it as a crime to be tried by itself. At the same time elevating it to the level of “internal dissent,” as a pretext to caution potential dissenters. Economist, John M. Keynes, referred to strikes, demonstrations of discontent and resistance as “civil dissension.” Discontent arising from deteriorating political and economic conditions is the ‘crisis’ for the State and the elites, “because they risk precipitating revolution in a broader sense.”(Geoff Mann 2107). This threat of precipitation is what daunts the Government. Behind every incident, tweet, and act of dissent, rulers and elites are aware of the people’s call for broad social and economic change in India. ‘Dissent’ that grows into a ‘crisis’ rears its head as an ever present ‘menace’ in the consciousness of the ruling elite, as protests resonate across the nation.
The apex Court’s response to Bhushan tweet seems exaggerated and contrary to the common sense of justice. Such rendering of justice—vindictive in reasoning from the highest Court of the land—results not only in miscarriage of justice, but also encourages unjust interpretations of the law across the judiciary for perpetuity. Such partisan expositions assume binding force based on the colonial legal concept of stare decesis: obligating Judges and Courts to unquestionably endorse violent explanations of law and concepts. When a dissenting voice like Bhushan’s achieves a wide public forum, the select few Judges suo motto initiates action to muffle it. Whenever demands for public scrutiny of the murky affairs of the State and judiciary are raised, a member of the Bench takes it upon himself to defend the ruling elite. This self-appointed defender from the Bench re-scripts the issue by pandering to the whims of the ruling elite.
In numerous matters that challenged the integrity of the Government before the Supreme Court, Justice Arun Mishra has invariably rejected all such pleas. These judgements have the potential to be treated as binding precedent, and at times could lay down the law. Furthermore, it enables ‘bhakts’ to replicate the decision as weapons to subdue dissent and stifle freedom of expression across India.
As the judge’s retirement date nears, a demand for public scrutiny is transformed into an act—likely to be interpreted as soliciting Government largesse. Exemplified in the instance of CDS General Vipin Rawat—who, on the cusp of retirement, voiced his views on political controversies and agitations of the day, endorsing ‘his master’s views’ on the widespread protests. The Hindu outlined that “in making thinly veiled comments on the protests against the Citizenship (Amendment) Act, 2019, the General crossed the line of military propriety.” Three days after such controversial statements, Gen Rawat was elevated to the newly-created position of Chief of Defense Staff. Evidently, post-retirement jobs for high ranking officials who mollycoddle the Government have assumed the stature of policy. Rewards in the form of lucrative post-retirement positions of power is another way by which authoritarian regimes ‘historically compel’ judges to defend the ruling elites during their tenure. As a bonus, future commitment of allegiance in the post-retirement position is all but assured. By scripting judgments as gifts to the beneficiary Government, it signals ‘a gratitude that demands new donations from the beneficiary’ (Esposito).
These Judges are legal scholars of much wisdom, yet in their compulsion to look for rewards they sacrifice their liberty to render justice. As a Judge of “the (once) most powerful court in the world”— self-proclaimed for its wide jurisdiction and in accordance with its expansive understanding of its own powers—Justice Arun Mishra and others of his ilk have become “ordinary Indians with ordinary (compromised) moralities” (Prof Sushankar Dam). In this state of compromise, law is interpreted to ensure judgments are narrated with a particular objective outcome, but not justice. This power of legal narrative gives rise to toxic fakery, reinterpreting the law in the manner the authorities deem they should. In the process, law-applied forges a blatant weapon, inflicting legal violence and suppressing dissent within India. Carefully examined, the legal show of force is not to serve the purpose of justice, but to discourage calls for public scrutiny and introspection. At the same time, power is further consolidated with the Prime Minister’s Office – the War Room against internal dissent.
A weaponised interpretational legal concept to combat future dissent across the landscape of impunity has been launched. Irrespective of whether a decision is against common sense of justice and general reason, the Judgement in the contempt case sentencing Bhushan becomes a binding precedent, a bulwark against any future criticism of the judiciary. Thus, the purpose of stifling challenge by precedent has been further consolidated. Unless the finding of guilt in the contempt case is annulled, this precedent will give rise to confrontations invoking crime reports against exercise of the freedom of speech.
In the name of ‘’evasion of drastic confrontation,” writes Eric Hobsbawm, “this preference for sticking old labels on new bottles” has to be rewritten—every precedent ought to be challenged, and revisited. Justice Arun Mishra, in his unconditional allegiance to the elitist Indian regime, has created precedents that need to be constantly reviewed. If not, students of law and judges may be forced into an “uncritical recital of history, into a kind of silence about present injustice; it may also serve to legitimise new institutions as the natural children of ancient ones” (Jonathan Swift); children sired by prejudiced Judges of the higher courts of India. Although Hobbes wrote that “all human law is civil,” dissidents are punished not as civil subjects, but “as enemies of government” – an internal enemy, a dissident, and marked to be declared anti-national.
The mind of the Judge, driven by a common commitment to abstract ideas, allows him / her to identify and think—for the leader. How different is this from the mindless crowd that throws all self-restraint, conscience, and morality to the wind—for the leader? Yet, towards the end of his career, Justice Arun Mishra has knowingly or unknowingly lit the flames of increasingly visible dissent in India. The flames shed light on the invisibilised radical dissenters like Anand Teltumbde, Varavara Rao, Sudha Bharadwaj, and others incarcerated as undertrials by the ethnic rubber-stamp majority—acting at the behest of finance capital.
In this age of civilizational progress that embraces difference, dissent, and individualism, legal luminaries at the apex Court are dragging India back into the age of the crowd. By their subjectivity of unconditional allegiance endorsing the political leadership, the legal minds signal the return of the crowd. Voices in India may no longer dissent, but instead unimaginatively parrot, whether consciously or not, the sentiments of big business, government, and views of the subjective ethnic majority. Indian civilization moving back into the age of the crowd is the nightmare oozing into India, courtesy the judiciary.
Vinod Kumar Edachery currently works with a strategic advisory firm in the Middle East. He believes that neoliberalism creates inequality and transfer of wealth to the hegemony. firstname.lastname@example.org