TRUTH, DISSENT, CONTEMPT & THE LANGUAGE OF LAW

The first thing we do, let's kill all the lawyers.

-      King Henry VI, Part 2,

William Shakespeare

A VOICE OF DISSENT

In the world of Man, Truth and Opinion can betimes play sworn enemies, and other-times unite in consort at their limits. This would seem unsurprising if one considers our world as being one where the blind lead the blind and the one-eyed man is King to rule them all. In a world where no one can really see, all reality must be accounted for by imagination alone.

Lets begin with the following passages from the dissent penned by Justice Oliver Wendel Holmes in the landmark Supreme Court decision in the case of Abrams vs United States:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

 But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

 That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country… Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

And now lets consider the following passages written about Justice Holmes in the context of his above dissent in the Abrams case, long regarded as perhaps the most powerful dissent in American judicial history:

 No one else on the Court wrote like this. Only Holmes could translate the law into such stirring, unforgettable language. Yet even by his high standards this was unusually fine, and his colleagues worried about the effect it might have. Although the war had ended a year earlier, the country was still in a fragile state. There had been race riots that summer, labor strikes that fall. A bomb had exploded on the attorney general's doorstep-- the opening strike, the papers warned, in a grand Bolshevik plot. A dissent like this, from a figure as venerable as Holmes, might weaken the country's resolve and give comfort to the enemy.

The nation's security was at stake, the justices told Holmes. As an old soldier, he should close ranks and set aside his personal views. They even appealed to [Holmes' wife] Fanny, who nodded her head in agreement. The tone of their plea was friendly, even affectionate, and Holmes listened thoughtfully. He had always respected the institution of the Court and more than once had suppressed his own beliefs for the sake of unanimity. But this time he felt a duty to speak his mind. He told his colleagues he regretted he could not join them, and they left without pressing him further.

Three days later, Holmes read his dissent in Abrams v. United States from the bench. As expected, it caused a sensation. Conservatives denounced it as dangerous and extreme. Progressives hailed it as a monument to liberty. And the future of free speech was forever changed.

THE MARCH OF MAN & THE DOMINION OF INDETERMINACY

A dream is not reality, but who's to say which is which.

-      Alice in Wonderland

Lewis Carroll

There can be no revolution without crisis.

More than ever before, in 2020, Man may find himself perched at the tipping point of an unprecedented crisis. A crisis that is quite likely to serve as fuel for the next extraordinary revolution in civilization’s slow march to its final fate. 

The rate of inventions and discoveries has multiplied manifolds over the last 250 years. As has the frequency and magnitude of chaos and catastrophe.

20th century was, in some ways, the coming of age of the Modern Man. An Age that came to be, following magnificent Kuhnian revolutions, when the wheels of change seemed to turn faster than ever. This seemed like a fairly reasonable postulate. At least, till Man was confronted with the uncertain, the indeterminate, the inconsistent, the unpredictable. 

Just when mathematics was in the ascendancy following Russell's magnum opus, Principia Mathematicia, Godel exposed the self-effacing, infinitely regressive paradox clutching at the heart of formal systems by demonstrating the existence of undecidable formula within any formal system for number theory, i.e., a formula that is not provable and whose negation is not provable. As a corollary, Godel also established the equally impossible task of proving the consistency of a formal system within the system.

In principle, a formal system is an axiomatic system that has formal language composed of primitive symbols acted on by certain rules of formation (statements concerning the symbols, functions, and sentences allowable in the system) and developed by a process of inference from a set of axioms. A number of linguists including Chomsky and Halle assumed that language was such a formal system. There is something to be said about that. Perhaps another time though.

Recall also Saussure’s postulation of the relationship between a sign and the real-world thing it denoted as being purely arbitrary. He theorised how the relationship between a word and the object it refers to was not natural as also how the relationship between the inherent properties of the object and the nature of the sign used to denote it was not causal. Man had re-discovered the Tower of Babel in the 20th century in another failed overreach.

If the above weren't cues enough, language theorists mocked at Man’s attempt to grasp his world and its reality through language by pointing out that language was but a self-contained system and words could only ever refer to other words within the system. Suddenly, one was met with the absurdity of the notion of language as a means of communication or vessel for meaning. Instead it increasingly appeared to be a system that was all mirrors and smoke; a system sans doors, windows, and exits.

The dream of certainty and precision of meaning that was assumed to be the defining characteristic of language suddenly receded...like a dream at the break of dawn.

THE PROBLEM OF LANGUAGE & AN ILLUSTRATION OF CONTEMPT

Unsurprisingly, Man, equal parts beast, magic and paradox, a creature possessed with self-reflexive thinking, often finds his self farthest from that which is closest to him. Estranged to the very object that he seeks, such estrangement being in direct proportion to his proximity to the object.

Language is one such. Full of dialectical oppositions and conflicts playing in an endless loop. Language demonstrates every day how it is one thing to name an object or idea, quite another to fathom its properties.

As practitioners of law, we often find ourselves encountering the limitations of law at the limits of language; a limit where the neat structures of law begin to break down, where certainty of meaning tips over the event horizon, and crashes into a linguistic blackhole. At this point, judicial ingenuity steps in through the hidden backdoors, attempting to resolve irreconcilables with a whoosh of language clothed in invisibility cloak.

This might indeed sound incredible given that the whole system of law, its institutions, its processes, its actors, and their individual and collective endeavours would seem decidedly directed towards determination of “truth”.

Many might disconcertingly feel that all the notions of Truth in law would come to naught if Language was not salvaged and restored to its divine place in the world of Man. The hold of Language on the Human Mind is so great, and so powerful is its seductive force that it is easy to miss that Truth is not Language, nor Language, Truth.

Let’s take but one illustration. One that recently sprung up from two tweets published by the contemnor before it sparked a wildfire through the Indian legal fraternity: the sentencing of an “activist” lawyer by the Supreme Court last week. For criminal contempt, no less. A proceeding that culminated with a fine of Rupee One being inflicted upon him. Something about the sentence imposed might reek of mountains and molehills.

For some, the Supreme Court decision might have served to ignite a degree of curiosity about the nature of the power of contempt and the objective underlying the sentence that might be imposed commensurate with the magnitude or extent of the contumacious conduct. What is the rationale for the sentence that flows from a finding of criminal contempt? Is sentencing for contempt retributive, reformative, restorative, restitutory or entirely something else.

The instrument of contempt may sometimes be viewed as a double-edged sword. Given that it can often cut and bleed the hand that wields it.

Generally speaking, contempt of court is regarded as a broad, common law doctrine, a “the Proteus of the legal world, assuming an almost infinite diversity of forms”.

SANCTION FOR SPEAKING TRUTH TO POWER

In 2006, Parliament amended the Contempt of Courts Act to add Truth as a defence to a charge of contempt in 2006 with a view to introduce fairness in procedure and meet the requirements of Article 21 of the Constitution.

Section 13(b) of the Contempt of Courts Act provides that the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.

So far. So good.

But lets look closer.

WHAT IS TRUTH

Each of the three terms, “truth”, “public interest” and “bona fide” would seem tremendously problematic to any philosopher of Truth or Language under close scrutiny. Each of these words would almost always escape any attempt to define them with any degree of fixity, precision or certainty. Any one who thinks otherwise is more than welcome to try, or at least, to try to find how these terms have been defined by courts.

The difficulty is exponentially compounded when one considers that the validity of the defence of truth is subject to the truth being invoked in good faith and in public interest. Truth is a necessary condition but not sufficient to the defence.

Why must truth be filtered through the rather opaque and subjective tests of “bona fides” and “public interest”? Why should it not suffice as a defence in itself?

Why should Truth be subjected to these utilitarian tests ? Is Truth not morally competent when it stands alone? Does Truth no longer remain Truth if one is not able to concurrently establish that it is accompanied with the elements of "good faith" and "public interest" ?

Truth, as important as that might appear in the scheme of things for the purposes of establishing a defence to a charge for contempt, is an undefined term. Indeed, one might imagine the term to be incapable of any precise, self-contained and complete definition.

THE ELASTICITY & MALLEABILITY OF GOOD FAITH & PUBLIC INTEREST

A number of Indian decisions purport to clumsily and crudely define truth to mean “absence of deceit”. In some jurisdictions, it is simply understood to imply “fair dealing”. Law regards good faith and bad faith as binary terms with nothing in between. Commentators have noted that “the concept’s ubiquity is matched by its elasticity”. It has also been claimed that of all the principles of international law, the principle of good faith is perhaps the hardest to define. It would seem that the judiciary and the academia have, over time, abandoned their quest for “precise calibration” of good faith or bad faith, “as through the specification of necessary and sufficient conditions”.

What about “public interest”? The Supreme Court of India has fairly held that the expression 'public interest' is incapable of precise definition and cannot be attributed a rigid meaning. Public interest is elastic and takes its colours from the statute in which it occurs, the concept varying with the time and state for society and its needs. Thus what is 'public interest' today may not be so considered a decade later.

BACK TO THE SIMPLETON’S TRUTH

I want the truth of things. But there's nowhere to find it.

― The Pyramid

William Golding

By and large, the common man subscribes to truth on the basis of the correspondence of an assertion with an objective "object". The traditional correspondence theory of truth would postulate the existence of a relationship of correspondence between (i) a truth-bearer, such as a posit, sentence, proposition, or assertion and (ii) its truth-maker, the facts or state-of affairs that make the truth-bearer true.

Some attempt to explain the correspondence theory thus: a claim is true if and only if it agrees with the way the world is. Illustratively, the proposition that ‘the book is on the table” is true if and only if there is a book and there is a table where the book bears the factual relation of ‘on’ to the table. 

Not surprisingly, the rather simplistic versions of traditional correspondence theories quickly run into rough conceptual terrain. To begin with, these theories fail to explain how a proposition can say anything about a non-existent thing.

Lets consider this: Albeit ‘the book is on the table’ must be clearly about a book and its relationship with a table, ‘the unicorn has one horn’ fails to refer to anything and cannot be about a non-existent unicorn or its non-existent single horn. There cannot be a correspondence relation without two relata, the truthbearer and its truthmaker.

Another curious example would be: The Cow jumped over the Moon. Both the words, Cow and Moon have objective referents in our world. But that would not ipso facto make the sentence true since it expresses an impossible relationship between the Cow and the Moon.

Before moving on, one must also consider that the word “God” has no corresponding "objective" verifiable object or referent. Or so it would seem. Gravity, strong force, weak force, electromagnetic force, all the forces imagined to exist in the physical universe are equally interesting words that take residence somewhere in between “God” and “Book”; given that one is only able to comprehend them only with reference to their effects.

THE UNCERTAINTY & AMBIGUITY OF TRUTH

Heisenberg's uncertainty relation measures the amount by which the complementary descriptions of the electron, or other fundamental entities, overlap. Position is very much a particle property - particles can be located precisely. Waves, on the other hand, have no precise location, but they do have momentum. The more you know about the wave aspect of reality, the less you know about the particle, and vice versa. Experiments designed to detect particles always detect particles; experiments designed to detect waves always detect waves. No experiment shows the electron behaving like a wave and a particle at the same time.”

― In Search of Schr?dinger's Cat: Quantum Physics and Reality

John Gribbin

It would appear trite (or axiomatic) that the notion of “Truth” must necessarily depend on reality. But 20th century science has established that much of what is assumed to be real could very well be a matter of perception or relative position or otherwise influenced by the observer or such other conditions and contingencies.

Hardly had the dust settled on Einstein’s superhuman achievement and his spectacular demystification of gravity and spacetime, that the physicists chanced upon a series of shocking attributes of their physical universe via quantum mechanics. This was another radical paradigm shift in the making.

Soon enough, the comforting certainties of classical physics and its conceptual framework were a thing of the past as quantum mechanics came to be generally regarded as the physical theory that was potentially the best candidate for a fundamental and universal description of the physical world. Everything seemed to be reduced to a matter of "probability" at best.

Quantum mechanics dared Man to imagine how the quantum state is likely to be in a state of perpetual superposition of possibilities, entanglements, indeterminacies, flux and such like till the intervention of an arbitrary observer. It seemed that overnight Reality could only be viewed in extreme red-shift. Verily a moment of anagnorisis, not epiphany.

This wasn't really very different from Man’s conception of Truth and its inherent dependence on Language. Is it not a terrifying notion to realize how all language is whimsical, arbitrary, shifting, unreliable and finally, nothing but a work of fiction of the highest order invented by Man through processes and structures that still defy comprehension. 

Even while Man struggled to master the language of Man, 20th century witnessed him undertake a series of audacious expeditions: expeditions directed towards mastering the language of stars and galaxies; the language of the universe as well as its constituent particles: from stellar dust to quantum particles; the language of proteins, DNA and neurons.

Should Truth always be verifiable and unfalsifiable, and must it always be consistent, fixed, unmoving, determinate, and certain. What properties must “truth” possess. Does it depend on consensus? Will it cease to be Truth if none but one perceives it? Thankfully, some might say, lawyers are seldom troubled or daunted with such epistemological, ontological or phenomenological questions.

A lawyer’s truth is different from a philosophers Truth and a scientists Truth; even opposed to those varieties of Truth. Likewise for judges’.

Lets take an example: A man charged of murder can be certain of getting an acquittal if there is no evidence to prove his guilt. In such a case, the Truth is (known only to the murderer but unknown to the world at large) that the man committed homicide. But that is not the truth that will emerge at trial. Simply put, “evidence” is a means of establishing correspondence with a “fact” in law. Absent such evidence, the existence of a “fact” will be disclaimed.

A CONTEMPT MOST CONTUMACIOUS

Consider the below.

I. CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!

II.When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.

[Suo Motu Contempt Petition (Crl.) No. 1 of 2020:

In Re: Prashant Bhushan and Ors.

Decision dated 14th August 2020]

The above were two tweets posted by Prashant Bhushan, a well-known, if not always popular, advocate practising at New Delhi for over three decades.

Those familiar with Twitter would agree that by Twitterati standards, the above tweets could well pass as some of the mildest 80-odd words to appear on anyone's Twitter feed. Considering that these tweets hardly match up to the more savage rants that have flowed from the hands of Donald Trump.

But the two tweets above noted landed Prashant Bhushan bang in the middle of the constitutional contempt jurisdiction of the Supreme Court of India and engendered close to two hundred pages of judicial writing from the Supreme “Fort” of India.

After an extensive analysis, on 14th August 2020- one day preceding India's Independence Day, the Supreme Court held that: The tweets which are based on the distorted facts, in our considered view, amount to committing of 'criminal contempt.

In the paragraph preceding its finding above mentioned, the Court noted:

The summary jurisdiction of this Court is required to be exercised not to vindicate the dignity and honour of the individual judge, who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is sought to be shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. The scurrilous/malicious attacks by the alleged contemnor No. 1 are not only against one or two judges but the entire Supreme Court in its functioning of the last six years. Such an attack which tends to create disaffection and disrespect for the authority of this Court cannot be ignored…

Then came Part II of the tragi-comedic anti-climax of theatre that was devoid of any catharsis.

THE WORD AND THE SENTENCE

With a date assigned for sentencing for contempt, Prashant Bhushan proceeded to file a supplementary affidavit on 24th August 2020 in the face of escalating judicial wrath. This is what he had to state:

“My tweets represented this bonafide belief that I continue to hold. Public expression of these beliefs was I believe, in line with my higher obligations as a citizen and a loyal officer of this Court. Therefore, an apology for expression of these beliefs, conditional or unconditional, would be insincere. An apology cannot be mere incantation and any apology has to, as the court has itself put it, be sincerely made. This is specially so when I have made the statements bonafide and pleaded truths with full details, which have not been dealt with by the Court. If I retract a statement before this Court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem…

Carefully examined, the statement would appear to give the impression that truth and belief are obfuscated in a neat trick. Surely, “believe to be true” is not the same as being “true”. Conversely, if something is true, a contrary belief cannot have the effect of negating it. Or can it. Either way, “believe to be true” is not a defence contemplated by the Contempt of Courts Act.

Not that it would have mattered to the end-result given that the Supreme Court had unshackled itself from the statute and had elected instead to tap into its preeminent extraordinary untrammelled constitutional powers.

The Supreme Court responded to Prashant Bhushan’s plea as follows:

21. The sine qua non for considering the truth as a valid defence are that the Court should be satisfied that defence is in the public interest and the request for invoking the said defence is bona fide. Be that as it may, since the contemnor is insisting that at this stage also the Court is required to take truth as a defence into consideration, we would be required to consider the same, lest the contemnor feels that we have avoided its consideration.

It also drew reference from its decade old decision rendered in the case of In Indirect Tax Practitioners' Association v. R.K. Jain, (2010) where it had held as follows:

39. The matter deserves to be examined from another angle. The substituted Section 13 represents an important legislative recognition of one of the fundamentals of our value system i.e., truth. The amended Section enables the court to permit justification by truth as a valid defence in any contempt proceeding if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide. In our view, if a speech or article, editorial, etc. contains something which appears to be contemptuous and this Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalise the court or is an interference with the administration of justice…

While concluding its decision of 14th August 2020, the Supreme Court noted that:

27. One of the reasons why we hold so is that though the tweet is of two lines, the affidavit in reply refers to series of allegations made by the contemnor with regard to the functioning of a large number of retired as well as sitting Judges including the Chief Justices as to their role on the judicial as well as on administrative side. If the averments are considered for taking truth as a defence, it would amount nothing else but the aggravation of the contempt.

28. We are of the view that, in the circumstances, the defence taken cannot be said to be either in the public interest or bona fide one. On the contrary, it is more derogatory to the reputation of this Court and would amount to further scandalizing and bringing administration of justice in disrepute, in which the common citizen of this country has faith and approaches this Court as a last resort for getting justice.

THE PURGE & THE PURGATORY

There may perhaps be only one thing more interesting than contempt. This would have to be the artifice of purging of contempt.

The Supreme Court drew reference from Pravin C. Shah v. K.A. Mohd. Ali and Anr. (2001) where it had had occasion to note the meaning of purging as follows: 

Purging is a process by which an undesirable element is expelled either from one's own self or from a society. It is a cleaning process. Purge is a word which acquired implications first in theological connotations. In the case of a sin, purging of such sin is made through the expression of sincere remorse coupled with doing the penance required. In the case of a guilt, purging means to get himself cleared of the guilt. The concept of purgatory was evolved from the word "purge", which is a state of suffering after this life in which those souls, who depart this life with their deadly sins, are purified and rendered fit to enter into heaven where nothing defiled enters (vide Words and Phrases, Permanent Edn., Vol. 35-A, p. 307). In Black's Law Dictionary the word "purge" is given the following meaning: "To cleanse; to clear. To clear or exonerate from some charge or imputation of guilt, or from a contempt." It is preposterous to suggest that if the convicted person undergoes punishment or if he tenders the fine amount imposed on him the purge would be completed. 

While doing so, the court also approved of the following reasoning contained in its Pravin decision:

We cannot therefore approve the view that merely undergoing the penalty imposed on a contemnor is sufficient to complete the process of purging himself of the contempt, particularly in a case where the contemnor is convicted of criminal contempt. The danger in giving accord to the said view of the learned Single Judge in the aforecited decision is that if a contemnor is sentenced to a fine he can immediately pay it and continue to commit contempt in the same court, and then again pay the fine and persist with his contemptuous conduct. There must be something more to be done to get oneself purged of the contempt when it is a case of criminal contempt.

After a magnified display of brinkmanship by all concerned, the Supreme Court, while suggesting that it had been desirous of giving quietus to this matter from the very beginning, ended things by imposing a fine of Rupee One on the contemnor. Prashant Bhushan, on his part, has appeared to suggest publicly that he would pay the fine as directed.

The One Rupee sentence inflicted by the Supreme Court (vis-a-vis the 6 months imprisonment provided under the Contempt of Courts Act) is of course, a far cry from the 14 years imprisonment that Beatty Chadwick served under the United States Federal law pursuant to a Court of Appeals finding him guilty of civil contempt. An Illinois Appeals Court went one step further when it sentenced Terrell Geiger to 20 years imprisonment under its contempt jurisdiction for refusing to testify at trial.

WHO WILL GUARD THE GUARDS

I'm not crazy, my reality is just different than yours.

-    Alice In Wonderland

To put things in some kind of perspective, lets read the following passages and compare it with the two almost child-like tweets of Prashant Bhushan.

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation…

And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks…

In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong. Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core. After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved. So it is necessary to fill in the gaps…

So the only way to understand the majority’s opinion is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights—in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends—the majority declines to provide any remedy. For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply

But in throwing up its hands, the majority misses something under its nose: What it says can’t be done has been done.

To prove its point, the majority throws a bevy of question marks on the page. (I count nine in just two paragraphs. But it never tries to analyze the serious question presented here—whether the kind of standard developed below falls prey to those objections, or instead allows for neutral and manageable oversight. The answer, as you’ve already heard enough to know, is the latter. That kind of oversight is not only possible; it’s been done.

The majority, in the end, fails to understand both the plaintiffs’ claims and the decisions below.

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness….

To some, if not most, the passages immediately preceding might certainly appear to be more categorical, direct, disparaging, unsparing and scathing in their criticism that, in that case, was directed towards the majority justices of the Supreme Court of United States.

What are the chances that, if tested on the anvil of the 14th August 2020 decision, these passages would be liable to be construed to be tantamount to contempt in India ?

While I’d leave you with that thought to brood and speculate upon, I must unravel the author of the above passages. It was none other than Justice Elena Kagan of the US Supreme Court and the passages above quoted were penned as part of her majestic dissent recorded in RUCHO ET AL. v. COMMON CAUSE ET AL (2018).

In the Magicland of Language, it is not always easy to distinguish dissent from contempt or to trace the line that separates them.