Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Sunday 17 March 2024
Tuesday 5 March 2024
Thursday 22 February 2024
Thursday 15 February 2024
Saturday 27 January 2024
Saturday 7 October 2023
Sunday 13 August 2023
Tuesday 4 July 2023
No Affirmative Action in University Admissions: US Supreme Court
From The Economist
Should a fair country allow citizens to be treated differently based on the colour of their skin? Most people would say that it should not. But others insist that it should—if the ends are suitably enlightened.
Not long after America dismantled two centuries of slavery and segregation, it embarked on a project of “affirmative action”: a system of legally sanctioned positive discrimination for African-Americans (later expanded to other “under-represented minorities”) who sought entry to selective universities. At the time the affront to liberal norms of fairness and equality under the law was assuaged by the fact that the beneficiaries of the policy were oppressed not long ago. Yet after half a century, one marked with more racial progress than setbacks, it remained the case that an applicant to America’s top universities with the right skin colour had a much better chance of admission than one with identical credentials but the wrong skin colour. On June 29th the Supreme Court terminated the scheme.
It was right to do so. That is because affirmative action rested on contorted constitutional logic. It was also broadly unpopular outside progressive circles. Worst of all, it only marginally ameliorated America’s yawning racial gaps. Despite the sermonising of its administrators, even with race-based affirmative action the country’s best universities never represented America. The very same universities offer extreme preferences to children of alumni and donors—a shadow, unjustifiable affirmative-action scheme for the white and wealthy hidden behind the prominent one for black and Hispanic applicants (a disproportionate share of whom were wealthy themselves).
The Supreme Court’s ruling will reverberate widely. “Eliminating racial discrimination means eliminating all of it,” wrote Chief Justice John Roberts in his majority opinion. This will surely encourage lawsuits to end racial preferences in other areas, such as government contracting. But the immediate impact will be on university admissions.
A touch of class
Something better can come out of the demise of the present regime. Start with the shaky legal justification for race-conscious college admissions. After the civil war, America’s constitution was amended to guarantee all of its citizens due process and equal protection under the law, regardless of their race. Yet for decades, under Jim Crow, many states prevented black people from voting, forbade inter-racial marriage and enforced racial segregation in schools, among other outrages. After the correction of the civil-rights era, America began to try to live up to its constitutional promise. It passed landmark civil-rights legislation that forbade unequal treatment “on the ground of race, colour, or national origin”.
Yet for decades the Supreme Court allowed positive discrimination in universities. How so? The policy was justified, the justices of the day argued, not as reparations for a terrible past, but because the value of diversity was compelling for promoting “cross-racial understanding and the breaking down of racial stereotypes”. It was always odd that affirmative action was explicitly crafted for the benefit of students’ white peers. Nonetheless elite universities leapt on the rationale of diversity, using it to construct racially balanced classes while suggesting that these were the happy result not of quotas, which are banned, but of “race-conscious” holistic admissions schemes that treated people as individuals and not as avatars for their racial group.
Contrary to the dissent of the court’s liberal justices, who claim the new ban “will serve only to highlight the court’s own impotence in the face of an America whose cries for equality resound”, Americans were not happy with the old policy. In 2020 even liberal Californians voted down a referendum to reinstate affirmative action, banned in the state since 1996. Polls show that many more Americans oppose taking race into account for admissions than favour it. That is true also of Asian Americans, who typically lean left but bear the heaviest cost of race-based admissions because they are deemed “over-represented” (despite suffering discrimination in their own right).
The court’s decision could be the catalyst for fairer admissions. The extraordinary benefits that Harvard and Yale shower upon the children of alumni and donors make a mockery of meritocracy and those institutions’ self-professed progressivism. Those practices should go.
Universities that wish to do their bit for social justice should stop using race as an (often inaccurate) proxy for disadvantage and start looking at disadvantage itself. Instead of giving a leg-up to members of groups that are on average badly off, they should favour individuals who are actually poor. One randomised controlled trial found that simply offering application-fee waivers to promising students from poor backgrounds dramatically increased the chance of their applying to, and attending, highly selective universities.
There is reason to worry that elite universities will seek stealthy ways to preserve racial preferences. Many are dropping requirements for standardised tests, which would make quiet discrimination against members of unfavoured groups who do well on such tests harder to detect. Some are busily searching for loopholes. In a letter sent to its students and alumni, Harvard, which was party to one of the Supreme Court cases, quoted a portion of the majority opinion that opens the door to considering race if an applicant were to write about it in a submitted essay. “We will certainly comply with the Court’s decision,” its leadership wrote, impishly.
Rather than coaxing a generation of minority students into drafting adversity statements—and continuing to admit the hereditary mediocracy through the backdoor—schools like Harvard would do well to try to craft a fairer system of admissions. These universities should not be proud of the well-monied (albeit multicoloured) monoculture they have inculcated. They should take the opportunity to become the progressive institutions they claim to be. ■
Wednesday 31 May 2023
Wednesday 14 December 2022
Saturday 17 September 2022
Friday 29 July 2022
Saturday 25 June 2022
Everything you need to know about US Supreme Court’s abortion decision
LINDA C. MCCLAIN and NICOLE HUBERFELD in The Print
After half a century, Americans’ constitutional right to get an abortion has been overturned by the Supreme Court.
The ruling in Dobbs v. Jackson Women’s Health Organization – handed down on June 24, 2022 – has far-reaching consequences. The Conversation asked Nicole Huberfeld and Linda C. McClain, health law and constitutional law experts at Boston University, to explain what just happened, and what happens next.
What did the Supreme Court rule?
The Supreme Court decided by a 6-3 majority to uphold Mississippi’s ban on abortion after 15 weeks of pregnancy. In doing so, the justices overturned two key decisions protecting access to abortion: 1973’s Roe v. Wade and Planned Parenthood v. Casey, decided in 1992.
The court’s opinion, written by Justice Samuel Alito, said that the Constitution does not mention abortion. Nor does the Constitution guarantee abortion rights via another right, the right to liberty.
The opinion rejected Roe’s and Casey’s argument that the constitutional right to liberty included an individual’s right to privacy in choosing to have an abortion, in the same way that it protects other decisions concerning intimate sexual conduct, such as contraception and marriage. According to the opinion, abortion is “fundamentally different” because it destroys fetal life.
The court’s narrow approach to the concept of constitutional liberty is at odds with the broader position it took in the earlier Casey ruling, as well as in a landmark marriage equality case, 2015’s Obergefell v. Hodges. But the majority said that nothing in their opinion should affect the right of same-sex couples to marry.
Alito’s opinion also rejected the legal principle of “stare decisis,” or adhering to precedent. Supporters of the right to abortion argue that the Casey and Roe rulings should have been left in place as, in the words of the Casey ruling, reproductive rights allow women to “participate equally in the economic and social life of the Nation.”
The ruling does not mean that abortion is banned throughout the U.S. Rather, arguments about the legality of abortion will now play out in state legislatures, where, Alito noted, women “are not without electoral or political power.”
States will be allowed to regulate or prohibit abortion subject only to what is known as “rational basis” review – this is a weaker standard than Casey’s “undue burden” test. Under Casey’s undue burden test, states were prevented from enacting restrictions that placed substantial obstacles in the path of those seeking abortion. Now, abortion bans will be presumed to be legal as long as there is a “rational basis” for the legislature to believe the law serves legitimate state interests.
In a strenuous dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor faulted the court’s narrow approach to liberty and challenged its disregard both for stare decisis and for the impact of overruling Roe and Casey on the lives of women in the United States. The dissenters said the impact of the decision would be “the curtailment of women’s rights, and of their status as free and equal citizens.” They also expressed deep concern over the ruling’s effect on poor women’s ability to access abortion services in the U.S.
Where does this decision fit into the history of reproductive rights in the US?
This is a huge moment. The court’s ruling has done what reproductive rights advocates feared for decades: It has taken away the constitutional right to privacy that protected access to abortion.
This decision was decades in the making. Thirty years ago when Casey was being argued, many legal experts thought the court was poised to overrule Roe. Then, the court had eight justices appointed by Republican presidents, several of whom indicated readiness to overrule in dissenting opinions.
Instead, Republican appointees Anthony Kennedy, Sandra Day O’Connor and David Souter upheld Roe. They revised its framework to allow more state regulation throughout pregnancy and weakened the test for evaluating those laws. Under Roe’s “strict scrutiny” test, any restriction on the right to privacy to access an abortion had to be “narrowly tailored” to further a “compelling” state interest. But Casey’s “undue burden” test gave states wider latitude to regulate abortion.
Even before the Casey decision, abortion opponents in Congress had restricted access for poor women and members of the military greatly by limiting the use of federal funds to pay for abortion services.
In recent years, states have adopted numerous restrictions on abortion that would not have survived Roe’s tougher “strict scrutiny” test. Even so, many state restrictions have been struck down in federal courts under the undue burden test, including bans on abortions prior to fetal viability and so-called “TRAP” – targeted regulation of abortion provider – laws that made it harder to keep clinics open.
President Donald Trump’s pledge to appoint “pro-life” justices to federal courts – and his appointment of three conservative Supreme Court justices – finally made possible the goal of opponents of legal abortion: overruling Roe and Casey.
What happens next?
Even before Dobbs, the ability to access abortion was limited by a patchwork of laws across the United States. Republican states have more restrictive laws than Democratic ones, with people living in the Midwest and South subject to the strongest limits.
Thirteen states have so-called “trigger laws,” which greatly restrict access to abortion. These will soon go into effect now that the Supreme Court has overturned Roe and Casey, requiring only state attorney general certification or other action by a state official.
Nine states have pre-Roe laws never taken off the books that significantly restrict or ban access to abortion. Altogether, nearly half of states will restrict access to abortion through a variety of measures like banning abortion from six weeks of pregnancy – before many women know they are pregnant – and limiting the reasons abortions may be obtained, such as forbidding abortion in the case of fetal anomalies.
Meanwhile, 16 states and the District of Columbia protect access to abortion in a variety of ways, such as state statutes, constitutional amendments or state Supreme Court decisions.
None of the states that limit abortion access currently criminalize the pregnant person’s action. Rather, they threaten health care providers with civil or criminal actions, including loss of their license to practice medicine.
Some states are creating “safe havens” where people can travel to access an abortion legally. People have already been traveling to states like Massachusetts from highly restrictive states.
The court’s decision may drive federal action, too.
The House of Representatives passed the Women’s Health Protection Act, which protects health care providers and pregnant people seeking abortion, but Senate Republicans have blocked the bill from coming up for a vote. Congress could also reconsider providing limited Medicaid payment for abortion, but such federal legislation also seems unlikely to succeed.
President Joe Biden could use executive power to instruct federal agencies to review existing regulations to ensure that access to abortion continues to occur in as many places as possible. Congressional Republicans could test the water on nationwide abortion bans. While such efforts are likely to fail, these efforts could cause confusion for people who are already vulnerable.
What does this mean for people in America seeking an abortion?
Unintended pregnancies and abortions are more common among poor women and women of color, both in the U.S. and around the world.
Research shows that people have abortions whether lawful or not, but in nations where access to abortion is limited or outlawed, women are more likely to suffer negative health outcomes, such as infection, excessive bleeding and uterine perforation. Those who must carry a pregnancy to full term are more likely to suffer pregnancy-related deaths.
The state-by-state access to abortion resulting from this decision means many people will have to travel farther to obtain an abortion. And distance will mean fewer people will get abortions, especially lower-income women – a fact the Supreme Court itself recognized in 2016.
But since 2020, medication abortion – a two-pill regimen of mifepristone and misoprostol – has been the most common method of ending pregnancy in the U.S. The coronavirus pandemic accelerated this shift, as it drove the Food and Drug Administration to make medication abortions more available by allowing doctors to prescribe the pills through telemedicine and permitting medication to be mailed without in-person consultation.
Many states that restrict access to abortion also are trying to prevent medication abortion. But stopping telehealth providers from mailing pills will be a challenge. Further, because the FDA approved this regimen, states will be contradicting federal law, setting up conflict that may lead to more litigation.
The Supreme Court’s rolling back a right that has been recognized for 50 years puts the U.S. in the minority of nations, most of which are moving toward liberalization. Nevertheless, even though abortion is seen by many as essential health care, the cultural fight will surely continue.
After half a century, Americans’ constitutional right to get an abortion has been overturned by the Supreme Court.
The ruling in Dobbs v. Jackson Women’s Health Organization – handed down on June 24, 2022 – has far-reaching consequences. The Conversation asked Nicole Huberfeld and Linda C. McClain, health law and constitutional law experts at Boston University, to explain what just happened, and what happens next.
What did the Supreme Court rule?
The Supreme Court decided by a 6-3 majority to uphold Mississippi’s ban on abortion after 15 weeks of pregnancy. In doing so, the justices overturned two key decisions protecting access to abortion: 1973’s Roe v. Wade and Planned Parenthood v. Casey, decided in 1992.
The court’s opinion, written by Justice Samuel Alito, said that the Constitution does not mention abortion. Nor does the Constitution guarantee abortion rights via another right, the right to liberty.
The opinion rejected Roe’s and Casey’s argument that the constitutional right to liberty included an individual’s right to privacy in choosing to have an abortion, in the same way that it protects other decisions concerning intimate sexual conduct, such as contraception and marriage. According to the opinion, abortion is “fundamentally different” because it destroys fetal life.
The court’s narrow approach to the concept of constitutional liberty is at odds with the broader position it took in the earlier Casey ruling, as well as in a landmark marriage equality case, 2015’s Obergefell v. Hodges. But the majority said that nothing in their opinion should affect the right of same-sex couples to marry.
Alito’s opinion also rejected the legal principle of “stare decisis,” or adhering to precedent. Supporters of the right to abortion argue that the Casey and Roe rulings should have been left in place as, in the words of the Casey ruling, reproductive rights allow women to “participate equally in the economic and social life of the Nation.”
The ruling does not mean that abortion is banned throughout the U.S. Rather, arguments about the legality of abortion will now play out in state legislatures, where, Alito noted, women “are not without electoral or political power.”
States will be allowed to regulate or prohibit abortion subject only to what is known as “rational basis” review – this is a weaker standard than Casey’s “undue burden” test. Under Casey’s undue burden test, states were prevented from enacting restrictions that placed substantial obstacles in the path of those seeking abortion. Now, abortion bans will be presumed to be legal as long as there is a “rational basis” for the legislature to believe the law serves legitimate state interests.
In a strenuous dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor faulted the court’s narrow approach to liberty and challenged its disregard both for stare decisis and for the impact of overruling Roe and Casey on the lives of women in the United States. The dissenters said the impact of the decision would be “the curtailment of women’s rights, and of their status as free and equal citizens.” They also expressed deep concern over the ruling’s effect on poor women’s ability to access abortion services in the U.S.
Where does this decision fit into the history of reproductive rights in the US?
This is a huge moment. The court’s ruling has done what reproductive rights advocates feared for decades: It has taken away the constitutional right to privacy that protected access to abortion.
This decision was decades in the making. Thirty years ago when Casey was being argued, many legal experts thought the court was poised to overrule Roe. Then, the court had eight justices appointed by Republican presidents, several of whom indicated readiness to overrule in dissenting opinions.
Instead, Republican appointees Anthony Kennedy, Sandra Day O’Connor and David Souter upheld Roe. They revised its framework to allow more state regulation throughout pregnancy and weakened the test for evaluating those laws. Under Roe’s “strict scrutiny” test, any restriction on the right to privacy to access an abortion had to be “narrowly tailored” to further a “compelling” state interest. But Casey’s “undue burden” test gave states wider latitude to regulate abortion.
Even before the Casey decision, abortion opponents in Congress had restricted access for poor women and members of the military greatly by limiting the use of federal funds to pay for abortion services.
In recent years, states have adopted numerous restrictions on abortion that would not have survived Roe’s tougher “strict scrutiny” test. Even so, many state restrictions have been struck down in federal courts under the undue burden test, including bans on abortions prior to fetal viability and so-called “TRAP” – targeted regulation of abortion provider – laws that made it harder to keep clinics open.
President Donald Trump’s pledge to appoint “pro-life” justices to federal courts – and his appointment of three conservative Supreme Court justices – finally made possible the goal of opponents of legal abortion: overruling Roe and Casey.
What happens next?
Even before Dobbs, the ability to access abortion was limited by a patchwork of laws across the United States. Republican states have more restrictive laws than Democratic ones, with people living in the Midwest and South subject to the strongest limits.
Thirteen states have so-called “trigger laws,” which greatly restrict access to abortion. These will soon go into effect now that the Supreme Court has overturned Roe and Casey, requiring only state attorney general certification or other action by a state official.
Nine states have pre-Roe laws never taken off the books that significantly restrict or ban access to abortion. Altogether, nearly half of states will restrict access to abortion through a variety of measures like banning abortion from six weeks of pregnancy – before many women know they are pregnant – and limiting the reasons abortions may be obtained, such as forbidding abortion in the case of fetal anomalies.
Meanwhile, 16 states and the District of Columbia protect access to abortion in a variety of ways, such as state statutes, constitutional amendments or state Supreme Court decisions.
None of the states that limit abortion access currently criminalize the pregnant person’s action. Rather, they threaten health care providers with civil or criminal actions, including loss of their license to practice medicine.
Some states are creating “safe havens” where people can travel to access an abortion legally. People have already been traveling to states like Massachusetts from highly restrictive states.
The court’s decision may drive federal action, too.
The House of Representatives passed the Women’s Health Protection Act, which protects health care providers and pregnant people seeking abortion, but Senate Republicans have blocked the bill from coming up for a vote. Congress could also reconsider providing limited Medicaid payment for abortion, but such federal legislation also seems unlikely to succeed.
President Joe Biden could use executive power to instruct federal agencies to review existing regulations to ensure that access to abortion continues to occur in as many places as possible. Congressional Republicans could test the water on nationwide abortion bans. While such efforts are likely to fail, these efforts could cause confusion for people who are already vulnerable.
What does this mean for people in America seeking an abortion?
Unintended pregnancies and abortions are more common among poor women and women of color, both in the U.S. and around the world.
Research shows that people have abortions whether lawful or not, but in nations where access to abortion is limited or outlawed, women are more likely to suffer negative health outcomes, such as infection, excessive bleeding and uterine perforation. Those who must carry a pregnancy to full term are more likely to suffer pregnancy-related deaths.
The state-by-state access to abortion resulting from this decision means many people will have to travel farther to obtain an abortion. And distance will mean fewer people will get abortions, especially lower-income women – a fact the Supreme Court itself recognized in 2016.
But since 2020, medication abortion – a two-pill regimen of mifepristone and misoprostol – has been the most common method of ending pregnancy in the U.S. The coronavirus pandemic accelerated this shift, as it drove the Food and Drug Administration to make medication abortions more available by allowing doctors to prescribe the pills through telemedicine and permitting medication to be mailed without in-person consultation.
Many states that restrict access to abortion also are trying to prevent medication abortion. But stopping telehealth providers from mailing pills will be a challenge. Further, because the FDA approved this regimen, states will be contradicting federal law, setting up conflict that may lead to more litigation.
The Supreme Court’s rolling back a right that has been recognized for 50 years puts the U.S. in the minority of nations, most of which are moving toward liberalization. Nevertheless, even though abortion is seen by many as essential health care, the cultural fight will surely continue.
Thursday 12 May 2022
Friday 26 March 2021
Monday 15 March 2021
Wednesday 13 January 2021
Modi govt is answerable to farmers, not the judiciary. SC’s mediation beyond its remit
Yogendra Yadav in The Print
In rejecting the Supreme Court-appointed expert committee to mediate between farmers and the Narendra Modi government, the farmers’ organisations have not only wisely sidestepped a possible trap, but they have also reaffirmed a basic principle of democratic accountability and responsible governance.
Let there be no confusion about it. The expert committee appointed by the SC is not meant to advise the court on technical matters of agricultural marketing or on the implications of the disputed agricultural laws. The order of the Supreme Court makes it clear that the committee is to facilitate negotiations between the government and farmers’ organisations: “The negotiations between the farmers’ bodies and the government have not yielded any result so far. Therefore, we are of the view that the constitution of a committee of experts in the field of agriculture to negotiate between the farmers’ bodies and the government of India may create a congenial atmosphere and improve the trust and confidence of the farmers.”
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The court goes on to specify that the committee has been “constituted for the purpose of listening to the grievances of the farmers relating to the farm laws and the views of the government and to make recommendations.” Presumably, the committee will try to find a middle ground and advise the government on how the laws should be tinkered with in a way so as to satisfy both the government and the protesting farmers.
That is precisely why the farmers’ organisations had resisted, right from the beginning, the idea of any such committee. They have objected to being forced into binding mediation, questioned the instrument of a committee and suspected the composition of such a committee. On all three counts, their assessment has been proven right.
Beyond remit
First of all, the farmers have been suspicious of being pushed into binding mediations that they never asked for or consented to.
They have never said no to negotiations with the government. Sure, the talks with the government have been frustrating. The Modi government has been intransigent. Yet, that is the only site for negotiations in a democracy. In the last instance, elected representatives are there to speak to the people. They are accountable to the people and to the farmers. The courts are there to adjudicate between right and wrong, legal and illegal. The courts are not there to engage in give and take, which is a crucial part of any negotiation. That is why the courts are responsible to the Constitution and not accountable to the people. That is the logic of democratic governance. Any attempt to shift the site of negotiation from the government to the judiciary amounts to overturning this basic democratic logic.
The government’s keenness to shift this “headache” and the Supreme Court’s alacrity to take over has strengthened the resistance of the farmers. It needs to be underlined that the protesting farmers did not approach the court. Nor did the government, at least not on paper. The initial petitioners were third parties who wanted the court to evict the farmers from their protest site. The other set of petitioners questioned the constitutionality of the three laws and wanted these scrapped. None of the petitioners prayed for mediation from the court. Yet, from day one, that is what the court was interested in. The court dismissed, rightly so, the pleas asking for eviction of the protesting farmers. It recognised, again rightly so, the democratic rights of the farmers to engage in peaceful protest. As for the pleas, regarding the constitutional validity of the three laws, the court put this on the back burner saying that it will consider these at an appropriate time.
The Supreme Court could have expedited this process by setting a time frame within which it will decide upon the constitutional validity of these three laws. That would have been most appropriate. But it chose not to do so. Instead, the court chose to focus on a third issue beyond what was asked for by any party and beyond its legal remit. Farmers’ organisations were smart enough to resist this move from the beginning.
Technocrats can’t mediate
The second objection of the farmers’ organisations was to the very mechanism of a technical committee of experts. This idea was proposed by the Modi government in the very first round of negotiations held on 1 December, and the farmers rejected it there and then. Such a committee would be very useful to clarify a point of law, or to work out policy or fiscal implications of the proposed laws. Such a committee could also help work out the details of a compromise formula, once the basic framework is agreed to. But a technical committee cannot possibly work out the basic framework itself. Mediation is not done by technocrats. It is done by non-specialists who have some familiarity with the subject, but more importantly, who enjoy the trust and confidence of both parties. The Supreme Court-appointed committee of experts was never going to be that mechanism.
Dushyant Dave and the other three lawyers representing just eight out of 400+ farmers’ organisations involved in this protest were wise to keep away from the court’s deliberations on this issue.
A partisan committee
Finally, a committee is only as good as its members. It is no secret that the farmers’ organisations were apprehensive about the composition of a committee appointed by the court. The court’s order confirmed their worst fears. The process by which the court arrived at these four names left a lot to be desired, to put it mildly. The same court that chided the government for passing the farm laws without consulting the farmers adopted an even less transparent process to decide upon this committee. Names like P. Sainath and ex-CJIs were thrown around and quietly dispensed with. No one knows who suggested the four names. Little surprise then that the four names have invited disappointment and ridicule. Not because the four members are not respectable, but because these are arguably the four best advocates for the government’s position and the laws. That the court chose such a partisan committee to mediate between the farmers and the government has cast a shadow on itself.
Someone might ask: Forget the technicalities, but what’s wrong with the top court stepping in to resolve a deadlock? Well, that is possible provided the Supreme Court were to enjoy moral authority over and above its legal and constitutional powers. Such moral authority is commanded, not demanded.
Tuesday 12 January 2021
Monday 10 August 2020
The Supreme Court must remember: It is supreme because it’s final not because it’s infallible
Whilst justice is important, judges must not take themselves too seriously. Even if their amour propre is offended, it does not mean the institution has been questioned or justice brought into disrepute writes Karan Thapar in The Indian Express.
Are judges special or is justice special? It’s an interesting question and not because it’s a tricky one. Actually, it’s the issue at the heart of the debate around the Law of Contempt. It’s been discussed before but two cases of contempt against the human rights lawyer Prashant Bhushan in the Supreme Court have brought it back into sharp focus.
The first contempt case, called the Tehelka case, dates back to 2009 and hasn’t been heard for the last eight years. Why in the middle of a COVID crisis, when the Supreme Court is only functioning virtually and many cases are rejected because there is “no extreme urgency”, has this case been given priority? When the Court cannot find time for the Citizenship Amendment Act or habeas corpus petitions from Jammu and Kashmir, are we to believe this case is more important?
Of course, the Court’s concerns are allegations regarding the judiciary and corruption, made by Prashant Bhushan and published by Tehelka. But if this has really scandalised the Court how come it didn’t act for 11 years? The second contempt case is mystifying. It arises out of one of Bhushan’s tweets commenting on a photograph of the present Chief Justice. The Court claims his tweet “brought the administration of justice in disrepute … undermining the dignity and authority of the institution of Supreme Court in general and the office of the Chief Justice of India in particular”.
These two cases have brought contempt of court back into focus and that’s the reason why the question I started with is important. As regards the cases themselves, they were heard on consecutive days last week (the 4th and 5th) and in both cases a three-judge bench presided over by Justice Arun Mishra reserved judgement. It’s expected in a week or 10 days. If good sense prevails he ought not to be sentenced. I now want to turn to what ought to constitute good sense in this matter. The answer to the question at the very start hinges upon it.
The concept of contempt is a centuries old British law abolished in 2013. At the time the British Law Commission said the purpose was not just “preventing the public from getting the wrong idea of judges … but where there are shortcomings it’s equally important to prevent the public from getting the right idea”. In other words, one intention was to hide judicial corruption. The concept, therefore, clashed with the need for transparency but also freedom of speech.
As far back as 1968, Lord Denning, Britain’s former Master of the Rolls, had this to say of the Law of Contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity … nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It’s the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest … we must rely on our own conduct itself to be its own vindication.”
In 1987, after the Spycatcher judgement, when the Daily Mirror called British Law Lords “You Old Fools” or, in 2016, after the Brexit ruling, when the Daily Mail called three judges “Enemies of the People” the British judiciary consciously and sensibly ignored the headlines and did not consider contempt prosecution. In fact, Lord Templeton’s comment on the Spycatcher headline is worth recalling: “I cannot deny that I am old; it’s the truth. Whether I am a fool or not is a matter of perception of someone else … there is no need to invoke the powers of contempt.”
A similar position was adopted in a 2008 lecture by Justice Markandey Katju: “If a person calls me a fool, whether inside court or outside it, I for one would not take action as it does not prevent me from functioning, and I would simply ignore the comment or else say that everyone is entitled to his opinion. After all words break no bones”.
More importantly, Justice Katju added: “The test to determine whether an act amounts to contempt of court or not is this: Does it make the functioning of judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it’s harsh criticism … the only situation where I would have to take some action was if my functioning as a judge was made impossible … after all I have to function if I wish to justify my salary.”
I think that answers the question I began with. Whilst justice is important, judges must not take themselves too seriously. Even if their amour propre is offended, it does not mean the institution has been questioned or justice brought into disrepute. Judges deliver justice, they do not embody it. They should never forget their Court is supreme because it’s final not because it’s infallible. When they lapse they can be criticised, but of course, politely and fairly.
I hope the Supreme Court will bear this in mind when it pronounces on Bhushan’s two cases.
Are judges special or is justice special? It’s an interesting question and not because it’s a tricky one. Actually, it’s the issue at the heart of the debate around the Law of Contempt. It’s been discussed before but two cases of contempt against the human rights lawyer Prashant Bhushan in the Supreme Court have brought it back into sharp focus.
The first contempt case, called the Tehelka case, dates back to 2009 and hasn’t been heard for the last eight years. Why in the middle of a COVID crisis, when the Supreme Court is only functioning virtually and many cases are rejected because there is “no extreme urgency”, has this case been given priority? When the Court cannot find time for the Citizenship Amendment Act or habeas corpus petitions from Jammu and Kashmir, are we to believe this case is more important?
Of course, the Court’s concerns are allegations regarding the judiciary and corruption, made by Prashant Bhushan and published by Tehelka. But if this has really scandalised the Court how come it didn’t act for 11 years? The second contempt case is mystifying. It arises out of one of Bhushan’s tweets commenting on a photograph of the present Chief Justice. The Court claims his tweet “brought the administration of justice in disrepute … undermining the dignity and authority of the institution of Supreme Court in general and the office of the Chief Justice of India in particular”.
These two cases have brought contempt of court back into focus and that’s the reason why the question I started with is important. As regards the cases themselves, they were heard on consecutive days last week (the 4th and 5th) and in both cases a three-judge bench presided over by Justice Arun Mishra reserved judgement. It’s expected in a week or 10 days. If good sense prevails he ought not to be sentenced. I now want to turn to what ought to constitute good sense in this matter. The answer to the question at the very start hinges upon it.
The concept of contempt is a centuries old British law abolished in 2013. At the time the British Law Commission said the purpose was not just “preventing the public from getting the wrong idea of judges … but where there are shortcomings it’s equally important to prevent the public from getting the right idea”. In other words, one intention was to hide judicial corruption. The concept, therefore, clashed with the need for transparency but also freedom of speech.
As far back as 1968, Lord Denning, Britain’s former Master of the Rolls, had this to say of the Law of Contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity … nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It’s the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest … we must rely on our own conduct itself to be its own vindication.”
In 1987, after the Spycatcher judgement, when the Daily Mirror called British Law Lords “You Old Fools” or, in 2016, after the Brexit ruling, when the Daily Mail called three judges “Enemies of the People” the British judiciary consciously and sensibly ignored the headlines and did not consider contempt prosecution. In fact, Lord Templeton’s comment on the Spycatcher headline is worth recalling: “I cannot deny that I am old; it’s the truth. Whether I am a fool or not is a matter of perception of someone else … there is no need to invoke the powers of contempt.”
A similar position was adopted in a 2008 lecture by Justice Markandey Katju: “If a person calls me a fool, whether inside court or outside it, I for one would not take action as it does not prevent me from functioning, and I would simply ignore the comment or else say that everyone is entitled to his opinion. After all words break no bones”.
More importantly, Justice Katju added: “The test to determine whether an act amounts to contempt of court or not is this: Does it make the functioning of judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it’s harsh criticism … the only situation where I would have to take some action was if my functioning as a judge was made impossible … after all I have to function if I wish to justify my salary.”
I think that answers the question I began with. Whilst justice is important, judges must not take themselves too seriously. Even if their amour propre is offended, it does not mean the institution has been questioned or justice brought into disrepute. Judges deliver justice, they do not embody it. They should never forget their Court is supreme because it’s final not because it’s infallible. When they lapse they can be criticised, but of course, politely and fairly.
I hope the Supreme Court will bear this in mind when it pronounces on Bhushan’s two cases.
Friday 29 May 2020
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