Applying Foucault’s Theory of Power to the Supreme Court’s Power of

Criminal Contempt
- Selvi Palani, Advocate, Madras High Court

The separate judgments of the Supreme Court holding Mr Prashant Bhushan

guilty of criminal contempt and the punishment meted out to him has
purportedly not settled well with the public. Mr Bhushan was found guilty of
criminal contempt for two tweets that he posted in end June 2020 gained
traction after the court judgment dated 14 August 2020; the first tweet related
to the CJI on a motorcycle without a mask when the SC was under lockdown
mode, while the second related to his lament about the last 4 CJIs being
complicit in the destruction of democracy in the country.

This article will not delve into the criticisms against the judgments but focus on
the power relations between the legal institution and the individual.

Power of Courts to punish for criminal contempt

The Constitution of India grants both the Supreme Court and the High Courts’ as
courts of record under Articles 129 and 215, the power to punish for the
contempt of itself. The Supreme Court under Article 142 is also empowered to
pass such orders to ensure complete justice.

In Mr Bhushan’s case, the Supreme Court held that the source of its power for
proceeding for contempt is under Articles 129 and 142 and that its power to
initiate contempt is not in any manner limited by the provisions of the Contempt
of Courts Act, 1971 and thereby legitimises the ‘suo moto’ proceedings initiated
against Mr Bhushan. The court has denied affording Mr Bhushan constitutional
protection under Article 19 (1) and instead concluded that the tweets were
scandalous and malicious and were not made in good faith and out of public
interest after examining the attending circumstances that were required to be
taken into consideration to determine the bona fides. The top court ultimately
held that the contemnor would have to be punished in order to uphold the
majesty of the law and administration of justice.

Understanding of power relations through Michel Foucault

The power interplay between the Supreme Court and Mr Bhushan can perhaps
be understood by adopting a Foucaldian approach. Michel Foucault’s theories
primarily address the relationship between power and knowledge and their
usage as a form of social control through societal institutions. His analysis of
discourses in the fields of criminology, sexuality, psychology, medicine and
ethics has led to a perception that knowledge and discourse are shaped by
power. What Sigmund Freud is to psychoanalysis, Foucault is to the theory of
power.

For a simple understanding into the nature of power and its relationship with law
the ten insights provided by Nicholas John James in “Law and Power: Ten
Lessons from Foucault”, Bond Law Review, is a good start point.
Firstly, Power is not a bad thing. Power is often identified in negative terms, as
repressive and forceful, when a person is forced to think or do something they
would not otherwise think or do. But power can also be productive and exercised
in a way that facilitates desired outcomes. In contrast to being attributed to
negative terms, such as ‘excludes’, ‘censors’, ‘abstracts’, power produces reality;
it produces domains of objects and rituals of truth. The individual and the
knowledge that may be gained of him belong to this production.
Secondly, Power cannot be abolished. Power is always present in one form or
another and there is no place where power is absent and freedom prevails. If
freedom does exist, it is the capacity to choose the forms that power takes.
Foucault says that ‘freedom’ as a concept is itself a technology of power.
Thirdly, Power is not monopolized by the powerful. Foucault showed that while
the powerful do wield power, power is wielded by everyone and it is not held and
exercised by some and lacked by others. Men exercise power over women, rich
over the poor, strong over the weak, members of dominant culture over
minorities, the able over the differently-abled, but likewise, women also exercise
power over men, poor over rich, minorities over the dominant group, the
differently-abled over the able. There are no powerless but only different types
of power. However, that is not to say that power is exercised fairly or injustice
does not exist.
Fourthly, power is everywhere. We do not encounter power only when we
engage with the government, the legal system, our employers, or the wealthy
and the influential, but it is ‘at work’ in every situation. To distinguish these
localized types of power from the power exercised by the state, Foucault
referred to the ‘micro-power’ that is located away from central locations of
macro-power, which has become a defining characteristic of power. Micro-
powers do not exist in a vacuum but are interrelated and they compete and
sometimes align. Foucault emphasized that there is no binary with ‘dominators’
on one side and ‘dominated’ on the other, but rather a multiform production of
relations of domination, which are partially susceptible of integration into overall
strategies.
Fifthly, power always provokes resistance. Resistance is not external to power,
but it is the inevitable and ever-present consequence of the exercise of power.
The resistance may be as modest as a negative thought or a critical comment or
may take the form of refusal to cooperate and in extreme cases may take the
form of political action, insurrection and revolt. Whether it is a state imposing an
unjust law or an institution imposing an unjust punishment it will be resisted.
Sixthly, power shapes knowledge. The production and dissemination of
knowledge is an expression of power, and the expression of power always
involves the production and dissemination of knowledge. Foucault coined the
term ‘power-knowledge’ to signify that power is constituted through accepted
forms of knowledge, scientific understanding and truth.
Seventhly, power determines truth. According to Foucault, truth and knowledge
are not to be accepted as universal but instead investigated and understood.
There are no universal or self-evident truths. Something is accepted as the truth
because someone powerful insisted that it was true and others accepted it.
Eighthly, the law is a strategy of power. Law is a strategy of power used by the
state and such others who have influence over the state’s lawmaking processes
to influence the thoughts, actions and wellbeing of others by stating that certain
behaviours are acceptable, while others are punishable. Law is both the outcome
of conflicts of power and a tool used by some to exercise power over others.
Foucault acknowledged the historical importance of law as a technology of
power.
Ninthly, the law is only one of the many strategies of power. Foucault insisted
that a focus upon the sovereignty and centralised law obscured the operation of
subtle mechanisms of power. He concluded that any analysis of power should be
directed not towards juridical sovereignty and the state, but towards the
operations of power in dispersed and localized sites, which is micro-power.
Lastly, power and discourse are non-subjective. By this Foucault means that
power is not exercised by subjects and discourse is not created by subjects.
Rather, power in the form of discourse creates subjects, viz., penological
discourse produces both the law-abiding citizen and the criminal; neo-liberalism
creates wealthy capitalists; feminists are created by feminism.

Applying Foucault’s ideas about law and power to criminal contempt

The theoretical framework of Foucault is applied on the criminal contempt case

against Mr Bhushan to understand the underpinnings of law and power. The
judgment acknowledged the detailed reply-affidavit of Mr Bhushan, although
there was no analysis on its contents.

While the top court relied on its power conferred by the law, it failed to recognize
and acknowledge the power of the individual to produce domains of truth, which
is derived from his knowledge gained through the work that he has elaborated in
his reply affidavit. The ‘truth’ presented in the reply affidavit can be viewed as
expressions of power by the maker of the claim and cannot be regarded as a
‘bad’ thing or be brushed aside without examination. Rather, the material placed
by the contemnor should be looked at by competing truth claims that offer
useful insights into the dispute.

While exercising the power to hold the contemnor guilty, the Supreme Court
should have realized that power is not the monopoly of the state alone and is
found everywhere. While the judiciary wields power, power is wielded by all else
too as ‘micro-power’ and this cannot be ignored. The power of the tweets in a
micro-blogging website is the cause of consternation by the court as it based its
judgment on the damage that the said tweets caused to the “foundation of the
judiciary, which is the trust and the confidence of the people in its (judiciary)
ability to deliver fearless and impartial justice”.

The urgency displayed in listing and hearing the contempt case and deciding on
it when decisions for cases involving matters of life and liberty were pending and
when the court was still operating in virtual mode has caused a furore after the
judgment. In this age of technology, social media is considered an arena that
amplifies the ‘vox populi’ of “We the People” under the Indian Constitution.
Exercise of harsh and excessive judicial power will inevitably provoke resistance
as can be seen from the numerous re-tweets of Mr Bhushan’s original tweets
and the open adulation for the heroism exhibited by him in standing up against
the top court.

It may have augured better for the Supreme Court had it examined the reply-
affidavit, which is a repository of information and perhaps ordered a probe on
the serious charges of corruption and other dereliction of duties in its
functioning. The contemnor’s power arose from the accumulation of knowledge
about the functioning of the judiciary which may well end up as ‘truth’, unless
investigated.

The overwhelming support for Mr Bhushan, including from the Attorney General
who requested that he be not punished and highlighted the ‘tremendous amount
of public good’ done by him, which fact was also acknowledged by the Bench,
shows that law is only an instrument of power. It also establishes that law could
both be the outcome of conflicts of power and a tool used by some to exercise
power over others.

Conclusion
The case of Mr Bhushan may be used as a point of arrival to recognise that
power vests in all and is found everywhere. It is a prerogative of the state and
other institutions alone. It also heralds a time of recognising the sovereignty of
the people, given the current political landscape of the country, where each side
presents its perspective as truth; each side characterises the claims and
arguments of the other side as misguided, ignorant or ‘fake news’; and each side
deploys strategies to persuade those on the other side to change sides, to wake
up or to at least acknowledge their ignorance. While there is a powerful
temptation to choose a side, it can be useful and informative to step back and
see the field of discourse as a whole, to look at the debates and arguments as
vectors of power, to consider the strategies and technologies of power deployed
by both sides. The ultimate goal is not to resolve all differences and persuade
everyone to see things the same way, rather adopt an approach to see the state
of affairs and its emergence more clearly and describe it more accurately.
At the heart of the controversial tweets is the anxiety to preserve the dignity of
the courts and the majesty of the law. Both the Supreme Court and the
contemnor place the Constitution and the administration of justice at a pedestal,
but sadly the institutional power offered under the law has been made to trump
over the individual. Justice will be at peril if the ‘nyaya’ notion of justice is lost in
the quest to uphold the ‘niti’ notion of justice. [‘Niti refers to correct procedures,
formal rules, and institutions; ‘Nyaya’ is a broader, more inclusive concept that
looks to the world that emerges from the institutions we create, rather than
focusing directly on the institutions themselves].