Two interesting but equally worrisome recent statements, which reflect the health of the judiciary in India, need our attention. While one involves the current Solicitor General, the other concerns a former one.
During a Supreme Court hearing on the plight of migrants in the aftermath of Covid-19 outbreak by a three-judge bench, Solicitor General of India Tushar Mehta made a foolish attempt at comparing journalists, covering the misery of lakhs of migrant labourers, to vultures. He also accused the high courts questioning the state governments for their inaction of “running parallel governments”.
He later made a rather unconvincing attempt to back down from his vulture comment, and claimed that he was not referring to journalists, but alluding to “speech warriors” such as NGOs and activists who were doing nothing to help migrant labourers except making statements against the Narendra Modi government’s ‘apathy’.
Criticising the judiciary
The second instance concerns senior advocate and former Solicitor General Harish Salve, who dished out a suo motu advice on why somebody’s suggestion that ‘judiciary is subservient to the government’ didn’t fall in the category of “legitimate criticism” of courts. He also said that he felt, a lot of people who are not elected think that they can impose their will on the government through the courts.
I wonder if his observation that ‘the Supreme Court is responsible for India’s current economic slowdown’ qualifies as a legitimate criticism or not.
There is no denying the fact that some lawyers do try to browbeat the higher judiciary by carefully alluding motives or suggesting that the judges who chose not to give relief to them in sensitive cases were under pressure from the government.
But it is a bit rich coming from someone like Salve to define the boundaries of legitimate criticism.
Criticism of courts and their judgments, as long of one doesn’t impute motives to the courts, is fine. The Supreme Court itself has granted this right to the citizens, whose rights it has to protect.
Salve’s view that unelected people are using the courts to score political points raises many questions.
Is he alluding to the likes of Bharatiya Janata Party leader Subramaniam Swamy, who has a long list of cases, many of them aimed at scoring political points, or BJP leader Ashwani Upadhyay, who regularly files PIL on various issues, many of them political in nature?
And, what about jurists like former Supreme Court judges V.R. Krishna Iyer or P.N. Bhagwati, who delivered landmark judgments in PIL matters.
Why Mehta’s statements should worry the SC
As Solicitor General, Tushar Mehta has been very busy, rushing from court to court to defend, often seemingly arbitrary actions of the Modi government or its agencies.
Courts have often given the Solicitor General too wide a quarter, refusing relief to those bearing the brunt of the state machinery, which works at the behest of its political masters.
It is another matter that often his arguments have little or no legal basis.
But his categorisation of some courts as “running parallel governments” is a signal to the subordinate judiciary.
The Supreme Court bench should have asked him to withdraw his statement. Unfortunately, nothing of this sort happened.
The top court must ask itself: where to draw the line?
It was a brazen attack questioning the independence of judiciary by someone who has a history of making misleading statements in the court.
The court should have, like it does with every other lawyer, asked him to confine his statements to the legal issues related to the case. But, for some reason, the bench didn’t check him, allowing him the space to needlessly attack the opposing counsel by questioning the bonafide of those who are doing some good work to help the migrant labourers.
Whether Mehta likened journalists to vultures or not is immaterial. The Solicitor General of India badgers the opposing counsel, questions the motives of everyone except his political masters and cleverly side-steps the main issues germane to cases in which he represents.
Since he represents the government before the court, all such attacks can be viewed as attacks by the government on the institutional integrity of the court itself.
Salve needs a lesson in law
Even a greenhorn lawyer knows that it is okay to criticise the courts and their judgments, the caveat being: don’t impute motive.
Several years ago, as a young reporter covering the Punjab and Haryana High Court, I was issued a suo motu contempt notice by the court. The contempt of court proceedings were initiated for my action of trying to verify information about a sitting judge.
In my reply, I told the court, very respectfully, that while I bowed before the majesty of court, I would not tender unconditional apology for I hadn’t done wrong, even if the court deemed it to be allegedly contemptuous.
After several hearings, the bench let me off. But the words of Lord Denning cited by Justice Rajive Bhalla who authored the judgment, have stuck with me ever since.
“Let me say at once that we will never use this jurisdiction (contempt of court) as a means to uphold our own dignity. That must rest on surer foundations. 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,” Lord Denning had said.
Salve would do well to remember Lord Denning’s subsequent words: “It is 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. Those who comment can deal faithfully with all that is done in a Court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.”
In 1936, Lord Atkin said: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out-spoken comments of ordinary men.”
Years later, in 1964, in Special Reference No. 1 of 1964 , the Supreme Court, while recalling Lord Atkin’s warning, said “…Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”
The author is a senior journalist. Views are personal.