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Spectacle, Power, and Contempt

“Give evil nothing to oppose and it will disappear by itself”. These are the profound words of wisdom, expounded by Lao Tzu, which are often ignored by the socio-political or legal institutions in dealing with criticism. In the process of using power, such institutions create a discursive stimulation, which makes a powerful institution vulnerable in the eye of public. Michel Foucault, one of the greatest thinkers of power, diagnosed the evolutionary theme of power from the “spectacle of punishment” to “correctionary and disciplinary power”, and found its raison d'etre in human psyche, which sympathizes with those who, appear to be or, are portrayed as, victims. It appears to be a challenging task for the powerful institutions to allay dissatisfaction and suspicion, emerges out of the open display of the “spectacle of power”.

Soft Power

Modern society and the organisation of State have been developed over a few centuries along the line with soft-disciplinary power and its judicious exercise, only after the exhaustion of all the means of deliberation and communication. The recent judgement of the Supreme Court of India regarding the contempt of court in the case of Prashant Bhushan could be understood in this context.

Freedom of Speech and Democracy

There are various arguments in favour of the Freedom of Speech and Expression, and its role in shaping a substantive and vibrant democracy. Criticism is, as argued by the political commentators, including John Stuart Mill, the bedrock of progress and reform. In democracy, people are sovereign and supreme, and they have every right to criticise the institutions which are responsible for the administration of justice and governance. On the other hand, every freedom ought to be a responsible freedom. Freedom without responsibility is the fundamental cause of disharmony and disorder, results into un-freedoms. One should speak not for the sake of speaking; rather every expression must be made with fairness in the public interest.

Power of Punishment for Contempt

The power of punishment for contempt was originated in the Common Law System for the purpose of protecting the king from the criticism. Subsequently, this power was transferred to the judges, since they got the power on behalf of the king to exercise the judicial functions. In India, the power of punishing for the contempt was a part of the original scheme of the Indian Constitution. Article 129 of the Indian Constitution provides the power to the Apex Court to punish for its contempt. Article 215 confers the corresponding power to the High Courts in India. The Contempt of Courts Act, 1971 provides the categorisation of the concept of contempt as civil and criminal. Civil contempt is conceptualized as “wilful disobedience” of an order of any court, while criminal contempt includes, any word, act, or sign which scandalizes or tends to scandalize; lowers or tends to lower the authority of any court; which prejudices or interferes with any judicial proceeding; or which interferes with or obstructs the administration of justice.

Truth as Defence

In the case of Prashant Bhushan, he made accusation by tweeting that within six years the democracy in India has been destroyed without imposing a formal emergency, and he raised the accusation against the Supreme Court of India, particularly the last four Chief Justices of India. These accusations were very serious and general in nature. Of course, truth is one of the defences in the case of criminal contempt, added in the year of 2006. And one can express the truth without any fear in the interest of public. But in this case, he should have submitted the documents and other evidences to prove his accusation before the Supreme Court. Unfortunately, his allegations appeared to be more or less a personal reaction than a well-thought and reasoned expression. Twitter is not a perfect forum to criticize the public institutions. That space is not meant to provide a platform to argue scientifically with facts and evidences. It is required to be made in the space, where scientific discourse and discussions are possible. But in the end, the Supreme Court of India should have taken such opinions with a liberal attitude in the interest of institution. The proceeding against Mr. Bhushan has attracted all sorts of debates, discussions, and criticisms, which in the longer run, may be detrimental to the institution; especially in the public perception. Since the judiciary has no influence over “sword or purse”, to refer Hamilton, but it has only judgments. The power of judiciary lies in the public faith and confidence, which must be preserved through fairness in action and adjudication.  


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