A former judge of the Court Justice Madan Lokur drew a picture of the SCI with very dark colours and mocked it with an ‘F’ grade in the matter of dealing with the migrants’ issue. The Solicitor General had every reason to bring out the real nature of the people who are out to scandalize the Court.
Solicitor General submitted, “Some individuals have started giving grades that this would be a ‘B’ Grade Court, a ‘C’ Grade Court, or an ‘F’ Grade Court. Unfortunately, people from our profession and that too certain learned people have started to do so.” The law officer also implored upon the Supreme Court to respond as an institution and make sure that a “handful of people” must not be able to drive the exercise of jurisdiction of the Supreme Court. The thinking of the Court is positively reflected in its response to the Solicitor General’s submissions. The bench remarked: “People, who have been a part of this institution, if they think they can run down the institution, it is unfortunate.”The manner and matter of the former judge who got an article published under the caption, “Supreme Court Deserves an ‘F’ Grade For Its Handling of Migrants”, definitely caused a diminution of the image of the court in the estimation of the members of the public. The former judge added that the Supreme Court had not even bothered to question the statement made or hold the Central government to account, despite more than enough evidence available everywhere. The learned former judge also speaks the same language of the antagonists of the government and the Court. Yes, all are honourable men. The genuine doubt and the question that is emerging in the minds of all ordinary witted and intellectually honest people is this: Is the Supreme Court to be attacked like this? Is Judiciary a drum on the pathway for anybody to beat and bang?
On the one hand, the former Judge scolds the Court in totality by sweeping observation; and a handful of media scolds the Solicitor General for what he said. No one should speak out however humiliating your experience is at the hands of those who are out to raise a rebellion against the courts. Their aim is really and substantially to discredit the government and specifically the Prime Minister. When that is not working as per their script they turn to a soft target- the judges and the court. They try to make the judges defenceless by misusing and abusing the judicial forum. In the course of this quixotic misadventure, they scandalize all who stand in their way- be it the Law Officers or the Court and the judges or anybody else. What cannot be done directly cannot be done indirectly and a circumloquacious route is a cardinal principle of the judicial process. If you cannot attack and defeat the government and the actions of the government directly confronting them, you are stopped from achieving the object of discrediting the government indirectly and constructively by belittling the stature and the prestige of the court and by gagging the law officers of the government who are as many officers of the Court as they are officers of the government. The net result is that you have damaged the high moral ground and the ecosystem of the judiciary and got yourself discredited. But this process will continue as it is there for some time and the spokespersons of anarchy will go on and nobody can correct them, stop them, or convince them. The corollary to their drama before the judges and the court is a rendition of voices heard through a section of the press with trenchant criticism of Solicitor General, the Union Government, and the Court.
The malicious propaganda was there in the air already; the events connected with the migrant labour matter activated the ferocity of the narrative. The charade against the Solicitor General goes on with the same basic narrative commonly discernable in all negative reporting in the media. ‘The Indian Express’ editorially responded to the submissions of the Solicitor on 30-05-2020 calling for, “Solicitor General’s hectoring and bullying needs to be called out — by the court too. That’s judicial independence.” They also said, “There is a question, too, for the Supreme Court. The Solicitor’s outburst draws attention to the court’s silence.” Here the Solicitor General is criticized but ultimately the arrow is pointed towards the Court. You cannot criticize a lawyer for the words he chooses, submissions he makes, his body language, his attitude to the opposite counsel provided all normal etiquettes and honoured traditions of the profession are maintained. If any excesses are committed it is for the court to respond. Justice emerging through litigation in India is through the medium of advocacy. A group of persons, even if they are senior lawyers, cannot dictate terms to the court or try to shut the voice of the Solicitor General or the Judges and deflect the course of justice.
“Solicitor General Tushar Mehta’s grandstanding in the country’s apex court crossed several lines. First the line of propriety. Unlike the Attorney General, the SG is not a constitutional but a statutory authority; he appears on behalf of the government in court. Yet, on a day when the country’s highest court finally, if belatedly, questioned the Centre and the states on the plight of stranded migrant workers, it takes particularly blind and blatant partisanship, apart from a moral obtuseness, to question, instead, the commitment and credentials of those who are pointing to the unfolding tragedy and calling for urgent redress and accountability. In Mehta’s overwrought rhetoric, they are “prophets of doom” who “only spread negativity, negativity, and negativity”, and who are “not showing any courtesy to the nation”. He contrasted them with ministers “working overnight”. Mehta also spoke of “the vulture and a panic-stricken child” — evoking the image captured by South African photojournalist Kevin Carter in Sudan, which, in the early ‘90s, sparked a debate on the journalist’s professional and personal responsibility, the dividing lines that can blue or grey in challenging situations. While that debate is an important one, and it goes on, Mehta’s attempt to hang his narrow range on it misfires completely. The fact is that it is the journalists’ focus on the arduous trek of the migrants, as they attempt to go back home, having lost their jobs and with no resources to fall back on, that has made their plight visible and compelled the government, and now the Court, to respond. The fact also is that Mehta had stood in court on March 31 and made the misleading claim that there are no more migrants on the road. Mehta crossed yet another line when he sought to lecture to the imagined enemies and critics of the government, and to the apex court itself, on the meaning of judicial independence — “For them, Lordships are neutral only if you abuse the executive”. Some high courts, he said, “are running a parallel government”. The latter was an allusion to the fact that high courts have seemed more outspoken about the humanitarian toll of the pandemic and the response to it. As this newspaper reports today, as many as 19 High Courts across the country have been pushing and prodding officialdom towards redressal and relief for the most vulnerable during the pandemic. Is the second highest law officer in a country that prides itself for the noise of its democracy suggesting that, in a public health emergency, any criticism of the government, from activists, journalists, Opposition, and courts, is unwelcome? Is he trying to pit the Supreme Court against the high courts? Of course, there will always be some in the Bar or in the PIL cottage industry who give out integrity certificates to the judiciary and quickly take them back, depending on which way a particular verdict goes. But it’s a bit rich for Mehta, as counsel for the government, to lecture the bench — and the world — on what judicial independence should mean. There is a question, too, for the Supreme Court. The SG’s outburst draws attention to SC’s silence. It would be unfortunate, indeed, if the SG’s unwise and mean-spirited exuberance is allowed to be seen to, in some way, or in any way, be endorsed by the highest court.”
The other side of the coin is the one reflected through a report in ‘The Hindu’ dated 01-06-2020 wherein a sitting Justice of the Supreme Court of India has expressed anxiety at the increasing tendency to embarrass the court Justice Sanjay Kishan Kaul during an online lecture said that intolerance against the judiciary is growing, and imputations are being made against judges for their decisions; and that there was a growing intolerance against the judiciary fuelled by the social media. The damage was done to the judicial institution if the tendency to criticize crossed certain lines. “Criticism is also information but boundaries need to be made or if such criticism becomes part of misinformation… This is not good for the system… If you mistrust every system, then you do not have a system and all you have is anarchy,” Justice Kaul said. Justice Kaul was part of the Bench which recently took cognizance of the Migrants issue in the Supreme Court. Even before the COVID-19 period, he said, “we had become increasingly intolerant of the opinions that do not match with ours. What is perceived as the middle path becomes the casualty? There are various shades of grey, it is not always black and white”.
Chander Uday Singh, a senior lawyer and one of the signatories to the letter given by the group of seniors to the judges of the Supreme Court, in an article in The Wire dated 28-05-2020 gives fillip to the narrative against the Supreme Court and the government. The article appeared in ‘The Wire’ captioned, ‘The Supreme Court Is in the Thrall of the Government’, takes up the thread of allegations against the SCI, the government and the Solicitor and marshals convenient facts to weave a plot. The writer delves into some academics initially and reaches a point of fault-finding to show that the Supreme Court should act differently from what it is doing now. “I started by stating that the bench was undeniably right when it declared that the institution is not hostage to the government. It certainly is not. The truth seems to be that the Supreme Court is in thrall to the government. It has somehow come to believe the relentless propaganda machine that tells us that a government that won an absolute electoral majority is entitled to be the sole decision-maker for 130 crore Indians and that even the courts should not question any decision taken by such majority government.
Indeed, this idea was driven home during the past two months’ hearings by the solicitor general, who often reminded the PIL petitioners as well as the court that his government knew best how to take care of the people. Tempting as it might be to place its “hope and trust” in a government that has an absolute majority, the Supreme Court might do well to remind itself that the ruling party secured 22.9 crore votes in 2019, representing 25.16% of the total electors, and 37.76% of the valid votes cast; as a proportion of the total population of the country, the votes garnered by the ruling party account for only 17.6%. The balance 107.1 crore Indians who either were not registered voters or chose not to vote for the ruling party, surely need to have a voice. And it is time that the Supreme Court hears those voices, and restores Oliver Mendelsohn’s image of it as “the most trusted public institution in India”.
To Be Cond…