Your Lordships, leaks are an essential part of democracy and journalism. Don’t get angry

The Chief Justice got angry about leaks, but in the past, the Supreme Court has strongly weighed in favour of the media when it came to publishing leaks.

Judges are human too, and must get angry sometimes. But should they also do so when in the bench? Should they also let their anger, however justified, affect their judgment?

We ask this because the judges Tuesday got really angry in the Supreme Court. In fact, the Chief Justice was so angry that he said “none of you deserve a hearing”.

We all know the background of this case. This is the fight within the CBI which has now shifted to the Supreme Court because it had led the reform in the CBI. The Supreme Court also has a role in the appointment of the director. In this case, the director, his number 2 and number 3, everybody was fighting everybody, and then the fight reached the Supreme Court because the director was abruptly removed by the government.

But the director had filed charges not verbally, but as an FIR against his deputy. So everything landed at the Supreme Court’s bench. Since then, those officers are all filing their affidavits and court wants these to be kept confidential.

Nothing in any capital city remains confidential, and particularly if it involves somebody’s personal career interest, confidentiality is impossible to maintain. I am not saying it should not be maintained. Of course, as a journalist, I love leaks. But it is OK for the Supreme Court to demand confidentiality. But if they leak, how should the court deal with it?

So, the court got very angry, and the Chief Justice said, “I will not hear, come back on the 29th November (that is 10 days later). “

Now, first of all, is it correct for any judge, least of all a Supreme Court judge, to say “you don’t deserve a hearing”?

Judges can’t afford to be so angry. They’re supposed to be rational and cool. Everybody deserves a hearing, even a murderer, terrorist or a foreign terrorist like Kasab deserves a hearing. A terrorist like Yakub Memon deserves a hearing so much that even after he is condemned to execution, judges can wake up in the middle of the night and give him a hearing. So, a hearing is everybody’s right. In my humble view, this outburst was uncalled for. Judges should have shoulders broad enough to handle these things.

So, what now? Because the judges got angry, they’ve said, come back on the 29th. That means 10 days gone. Alok Verma, the director of CBI, retires in January. Now, what’s happening?

First, you gave 10 days, then pushed it by another 10 days. If this goes on, then this problem will just waste away. Which means, if injustice is being done to Alok Verma, he will miss the opportunity of getting justice within his term at the CBI.

On the other hand, if injustice is being done to Rakesh Asthana, he will continue to be under a shadow all this while.

Finally, if any of them are guilty, and who knows if both of them are guilty, both will get away with the drift. So, what should have been a straightforward case of a corruption probe against one or the other is now getting both politicised and falling into a usual judicial delay cycle: taarikh pe taarikh pe taarikh. This is uncalled for.

Once again, an appeal to the judges. Judges are getting into executive functioning. Executive functioning is messy, imperfect, noisy and disorderly. I do not believe that judges and the courts system is designed to run these systems on a day-to-day basis because the way they run will irritate you.

Judges have to learn to accept the noise and the chaos of the democracy. It is their job to bring order when it goes out of control, and to interpret the law and to make sure the law is implemented. It is not their job to govern, and to govern a wild animal like CBI or BCCI, it is bound to have consequences. But if you have decided to do it, you got to keep your calm, hold your counsel and don’t get angry.

When the big power gets angry, then what happens? Maybe people like me will start quaking in our feet. But the bad guys are thick-skinned. Once again, please come back to the courts and calm down. Don’t worry about the leaks. Leaks are an essential part of democracy and journalism.

Leaks have been good in the past. The Supreme Court had upheld leaks as a legitimate thing — whether it was Radia tapes, Amar Singh tapes or 2G revelations, the court has strongly weighed in favour of the media when it came to the question of publishing leaks. They should apply the same rule to this and address this as a question of an institutional crisis in CBI, and find answers accordingly.

4 COMMENTS

  1. Yeah! Without leaks how could the things under cover come to the surface? Judges should never lose their cool except in matter of the security of the nation and human rights violation.

  2. Amongst all this din of leakages, the fundamental issue is being sidelined and remains unanswered: “Is the CBI Director guilty or not guilty?” If no, he must be reinstated, without any further delay. If yes, the question to be answered is “what is the nature of irregularities on his part and what should be the extent of punishment?” Here in the instant case, the CVC under the supervision of a retired SC Judge has submitted their report, which, as we understand it, does not give a clean chit to the CBI director. Yet, he has been given an opportunity to make additional submissions. Now, what should be the further course? This is the crucial point. In my opinion, if still a few question marks remain despite clarifications submitted by the CBI Director, the SC should direct the CVC to submit a report with suitable recommendations in respect of applicable punishments to the Ministry of Personnel and Training, which is the controlling authority for the CBI. The Ministry, in turn should make suitable recommendations to the appointing authority, consisting of the PM, the LoP and the CJI, to award suitable punishment. This should be end of the story.

  3. I am curious and glad at the allusion to “Radia Tapes’ in the last para. What happened to those involved in the ramifications following the exposure of the ‘tapes’?

  4. On secrecy, my view is that the RTI Act is a wonderful contribution to the strengthening of Indian democracy. Although there has been some pullback in recent times, the Act has brought into the public domain a lot of information that was being held back, not to serve the public interest but to save embarrassment to some. Why should a list of the largest “ wilful “ – implying mens rea – defaulters not be in the public domain ? 2. As far as the CJI’s anger is concerned, there could be two possible reasons. The apex court afforded Shri Alok Verma the highest form of responsive justice by taking up his petition the very next day, a relief it denied to Mr Asthana. When the enquiry report – dignified by Justice Patnaik’s association with it – found some “ very uncomplimentary “ material against Mr Verma, the CJI must have felt disappointed. To add to his unhappiness, it appeared he was sharing his responses – whether to the questionnaire or the Report is a matter of semantics – with an online portal that tends to be critical of the establishment. Next, DIG Sinha lands up in court with a canister of radioactive material and insists on sharing its contents with the whole world. Hence the statement : Don’t use us as a platform. 3. Nothing shocks us sums up the Court’s dismay over contempotprary developments. Within constraints of time, the apex court is keeping its doors open to all those who knock, sometimes in the middle of the night. It will give everyone- including murderers, terrorists and rapists – a hearing, that is its dharma. But the CJI does not want smugglers using the green channel. And the Court does not wish to be used as a shoulder for others to fire from. CJI Gogoi will do a lot of good during his one year term.

Comments are closed.