(Below is the full transcript of the 50-minute interview.)

Karan Thapar: Hello and welcome to a special interview for The Wire supported by Glenlivet. Increasingly, over the last few weeks and months, there is growing concern about the functioning of the Supreme Court. And many people are now asking, has the court now transformed from an institution that used to defend the rights and freedoms and liberties of the people into an institution that now seems to defend the transgressions of the government? And if that is the case, has the court begun to let down the people of India?

Those are the issues I shall raise today with one of India’s foremost judges – former Chief Justice of the Madras and Delhi high courts and former chairman of the Law Commission, Justice Ajit Prakash Shah. Justice Shah, let’s start with how the Supreme Court is handling the Arnab Goswami case. Twenty-four hours after the petition was filed, it was listed for hearing, even though the Supreme Court was on vacation at the time and the petition had at least nine defects.

In an article that you wrote for The Hindu you said, ‘the decision of the Supreme Court to offer, bare-facedly, Mr. Goswami special treatment of an order that ordinary citizens of this country cannot even dream of, is a matter of concern’. Now normally, speedy justice is applauded. Why in this case is it a matter of concern?

Justice A. P. Shah: Let me say at the outset, that the Supreme Court was right to grant bail to Mr. Arnab Goswami. Personal liberty is paramount under the Indian Constitution. Justice Chandrachud’s remarks – that ‘we are a constitutional court, if we as a constitutional court do not lay down law and protect personal liberty, then who will?’ – are heartening.

The concern is about the preferential treatment given to Mr. Arnab Goswami. Just let me explain the legal position to you. Mr. Arnab Goswami filed a habeas corpus petition before the Bombay high court under Article 226 of the Constitution. Courts do not grant interim bail in a 226 petition; and secondly, the accused is required to go to a lower court first, in a matter of hierarchy. So, the Bombay high court judges followed the law and asked Mr. Goswami to approach the sessions court and asked the sessions court to decide the matter in four days. According to me it was an extraordinary direction; I have not heard of such directions in recent times.

Then, Mr. Goswami filed a petition before the sessions court and simultaneously before the Supreme Court. So, in short, he moved the lowest court and the highest court simultaneously. Under the Supreme Court rules, the petitioner is required to make a statement that he has not filed proceedings claiming similar reliefs. All this was violated. His case was taken on the next day and relief was granted. I have no issue with the granting of relief.

But you must accord the same treatment to all the accused who approach the highest court of this land. And you will find that many matters are pending for weeks…months before the Supreme Court – bail petitions etc. Mr. Dushyant Dave said that the registry is selectively listing. Justice Deepak Gupta – a very distinguished judge who retired – recently said that how certain priorities are accorded in cases involving big money and fancy lawyers. So, this is….my objection is to the unequal treatment meted [out] to different kind of persons.

KT: Now as you point out, there are many important, weighty matters pending in front of the Supreme Court which have been repeatedly postponed and these include issues of rational concerns such as Article 370, the Citizenship Amendment Act, a whole series of petitions about electoral funding which critically affects our democracy and of course, a whole series of habeas corpus cases which touch on the fundamental rights and life and liberty of the individual. Yet, none of these have been heard expeditiously. So, when Arnab Goswami is heard out of turn and given precedence, what does this tell us about the priorities of the Supreme Court?

APS: Priorities given by the Court in recent times is really a matter of some worry. In several cases, the Court has refused to act in defence of citizens who have been victimised for their protest and dissent or for simply exercising their fundamental right of speech…right to speak and [to] expression.

Now, apart from the cases mentioned by you, there are several other instances, like right of millions of migrant workers. There, the Supreme Court initially refused to interfere; denial of internet to J&K; persecution of public intellectuals in the wake of Bhima-Koregaon violence; the, as you said, blatant disregard of the cases involving political detenus in Kashmir. So, what is happening is, those cases are not taken up and finally either the government releases the detenu and the petition becomes infructuous, but the court won’t interfere.

The other example I would like to give is about providing 4G facilities in J&K; it is withdrawn. Now, in the 4G case, the Supreme Court refused to follow its own previous decision of…where it laid down provisions of necessity and proportionality – in Anuradha Bhasin [v. Union of India], it said that such measures should be of utmost necessity and proportionality. Now, in the second round of cases the Court asked the petitioners to approach a committee consisting of government officials for redressal of their grievances. J&K Valley, I mean the entire J&K, is without 4G for the last 18 months. One crore 30 lakh people don’t get…and this is, according to one writer, outsourcing justice! I mean, this is a new trend where the Court has completely abdicated its duty to protect the freedoms and fundamental rights of the citizens.

KT: You said ‘the Court has completely abdicated its duty to protect the freedom and fundamental rights of people’. You began this answer by saying that the priorities given by the Court to the cases it takes up and those that it postpones is a matter of some worry. Quickly tell me, how grave an issue is this? How serious a concern is this?

APS: See, the issue is one of the credibility of the Court; the prestige of the court. The Supreme Court of India has a glorious past. It is always regarded…it is on high pedestal and it is always regarded as one of the most powerful courts of the world. Now, in recent times, I mean, you will find that doubts are being raised about the ability of the courts to protect the freedoms and fundamental rights of the citizens. And this…I see a decline in the Court’s role as a sentinel on qui vive; as a protector of the citizen’s fundamental rights in recent times. At least in last couple of years I find that there is a clear decline in the Supreme Court’s ability to protect the rights of the people.

KT: A clear decline in the Supreme Court’s functioning as a sentinel on the qui vive. That is quite damning, even if most people may not understand the Latin phrase. What you’re saying is that the Court should be permanently on vigil and guard – that is what the phrase ‘qui vive’ means – and it is not. Let’s come back briefly to the Arnab Goswami case. Even if the Arnab Goswami case is interpreted as an instance of freedom of press, one finds that the Supreme Court has not shown a similar consideration and concern to other journalists. For instance, in the Siddique Kappan case, the Supreme Court tried to push the matter to the High Court and the Chief Justice declared in open court that he wanted to discourage petitions under Article 32. So, even in terms of journalism, Arnab Goswami ends up getting special treatment.

APS: I am really surprised that the CJI intends to discourage the use of Article 32. Article 32 provides a very important safeguard for the protection of fundamental rights of the citizens of India. The Supreme Court in this, characterised…this role of the judiciary as sentinel on the qui vive. These observations were made in the context of Article 32. In Prem Chand Garg’s [v. Excise Commissioner, U. P.] case, Justice [P. B.] Gajendragagkar says that Article 32 is a cornerstone of democracy. And now the Court is of the view that the litigant should be discouraged using Article 32, [it] is strange.

But it is even more surprising that only a few weeks back the CJI said that it was perfectly legitimate for Mr. Arnab Goswami to invoke Article 32 against the show-cause notice issued by Maharashtra Legislative Assembly and I want to quote the words of the CJI, ‘no authority of the country can penalise somebody for coming to the court’. What is article 32 for? Article 32 can be suspended during the state of emergency and there is no declared state of emergency in this country. But sometimes, Mr. Thapar, I’m getting the feeling that we are living in times of undeclared emergency.

KT: You’ve made a very interesting point. The Chief Justice specifically and explicitly defended the right of Arnab Goswami to invoke Article 32. As you said, what is Article 32 for? And yet a few days later, he wants to discourage other petitioners from using Article 32. That’s clearly a case of double-standards, isn’t it? It is okay for Arnab Goswami; it is not okay for other people.

APS: That’s true.

KT: Now in your ‘The Hindu’ article of the 19th of November, you raised an even bigger concern about the Supreme Court’s attitude to bail. You point out that the Supreme Court’s April 2019 decision in what’s called the ‘[National Investigation Agency v.] Zahoor Ahmad Shah Watali case’; in that particular decision the court, has created a new doctrine that an accused must remain in custody throughout the period of trial if he or she is charged under the Unlawful Activities Prevention Act. In fact, you point out, and I’m quoting, ‘courts must presume every allegation made in the FIR to be correct and the burden is on the accused to disprove the allegation’. Doesn’t this completely contradict the fundamental maxim of justice, that you are innocent until proven guilty?

APS: Let me say something more about this case. Let me explain it in more detail. This decision delivered by Justice Khanvilkar and Justice Rastogi in considering bail application under the UAPA, the courts must presume every allegation made in the FIR to be correct. Bail can be obtained only if the accused produces material to contradict the prosecution. In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most of the cases.

To make matters worse, the decision excludes the issue of admissibility of evidence at that stage – at the stage of bail. Meaning thereby, even if the evidence against the accused is inadmissible in law, he must remain in custody throughout the trial. And only when, in the trial; when it is found that the evidence is no evidence, because the material is inadmissible in law he will be acquitted. So, till then he must remain in jail. As a result of this decision, the High Court judge cannot assess the evidence which is relied upon by the prosecution in many cases.

For example, the cases of Varavara Rao and Sudha Bharadwaj, the Court’s hands are tied by the Watali judgement. So, in all these cases, the bail applications are rejected outright. This decision, I would say, that it comes very near to the ADM Jabalpur [v. Shrikant Shukla case] where the court dealt with these draconian preventive detention laws. I mean, it’s virtually a complete denial of the personal liberty to an accused charged under a particular statute!

KT: I want to briefly pick up and underline something you said because I think it is very important. Even if the evidence is inadmissible in law, even then the accused will remain in jail throughout the trial. Which means that a bail cannot be a granted and that means that a fundamental right to bail is being denied to the accused who by the way is innocent and not guilty and will be proven innocent at the end of the trial; but right through the trial, he’s denied or shall be denied bail. This is not just a mockery of justice, it’s a travesty of the rights of the individual.

APS: I feel that this is a complete negation of Article 21, right to personal liberty. And you will recall that at one time Justice Krishna Iyer laid down the principal – the bail is the rule and jail is an exception. So, we have now gone to the other extreme; now jail seems to be the rule and the bail is an exception. It is granted sometimes, in few cases.

KT: Now, in fact you point out in that The Hindu article, that a consequence of this April 2019 ruling is the Supreme Court has, and I’m quoting you, created a glaring loophole for rampant abuse by the government because now it has become commonplace for dissenters to be charged with sedition or criminal conspiracy under the UAPA. Is the Supreme Court aware of what it’s done? Or does it simply not care?

APS: You see, the decision in Watali, is now being abused by the government, police, prosecution liberally. Now all dissenters, as I said in The Hindu article, are routinely implicated under very wild and improbable charges of sedition and criminal conspiracy and thereafter UAPA. It no longer matters, whether the evidence is weak, the charges are improbable. Once UAPA is included, bail is refused outrightly. And what is worrying is that courts are lacking in humanity and concern for fundamental rights and liberty of the people.

Look at the plight of persons like Varavara Rao. He’s 81 years old, he’s suffering from COVID 19. Then the other accused, Stan Swamy, who has been now implicated in the Bhima Koregaon…the 14th accused. He’s 83 years old; he’s a missionary activist, did large work in tribal areas and he’s suffering from Parkinson’s disease. So, in custody…he’s put in custody, I mean, forget expeditious hearing of the bail…but he asked…made a very simple request: for a straw and a sipper. Because of Alzheimer’s condition he cannot hold the bottle properly. On this request, the NIA court gave two weeks to the prosecution to reply to his request. I mean are we also…I mean this is really…what is…and therefore Pratap Bhanu Mehta said the other day, that this is a…he called it judicial barbarism. I’m not going to go into that article. But I think this is what he meant by it.

KT: Absolutely! Most people would say that the decision whether an accused can have a straw, a paper straw, is one that you can make instantaneously. To require two weeks is a joke. But you know, I’m going to come back, Justice Shah, to your article written for ‘The Hindu’ on November 19 because your conclusion to that article seems damning. You say, ‘as a result of the Indian judiciary no longer standing at the pedestal of chief protector of freedoms, the government has now done so much damage to personal liberty. But the courts – and especially the Supreme Court – have watched this indiscriminate and often literally violent trampling of dissent like mute spectators. A court that should be on the qui vive, standing up and protecting the rights of Indian citizens is watching those rights being trampled like a mute spectator’. It seems to me, you’re very disillusioned with the Supreme Court.

APS: Mr. Thapar, in recent times, I find that that there has been a marked shift of the Supreme Court from rights-based court to an executive friendly court. There were some sparks occasionally, like the right to privacy, decriminalisation of homosexuality, rights of transgenders, cases of gender justice, like adultery or the triple talaq or the promotion in army and the, of course, Shreya Singhal case, Section 66A was struck down by the Supreme Court. The executive is not really concerned with these cases, except, I would say Shreya Singhal, which government took very badly. But whenever the executive has an active…is active in the interested party and wants to undermine the rights of the people, you will find the court is being pushed to the wall. We were recently told in Puttaswamy [v. Union of India] case – the privacy case – that the ghost of ADM Jabalpur has been buried deep, but I fear this ghost may have returned to haunt us in recent times.

KT: So, can I ask you specifically: are you disillusioned with the Supreme Court when you say that whenever the executive is an interested party, the court is pushed to the wall? That means it is pushed to the wall but fails to defend [the] individual. It comes down on the side of the government. So, are you disillusioned?

APS: No, I am clearly disheartened but there are some sparks as I said…I felt very happy, when [Justice] Chandrachud spoke about personal liberty or…I mean, I find some judges are thinking about this most important and fundamental right in the Constitution. So, barring that of course, I’m still waiting for the turn of the court, going to its glorious past.

KT: Justice Chandrachud’s comments about liberty and the duty of the court were heartening. But the interesting thing is that they were effectively contradicted by the Chief Justice a few days later when he said he wanted to discourage people petitioning under Article 32. So, what hope Justice Chandrachud gave you, the Chief Justice went some way in trying to extinguish [it].

APS: I’m keenly…I’m awaiting the judgement of Justice Chandrachud’s bench in Arnab Goswami’s case. Let us see how the things play out after his judgment is announced in court. Because we are still awaiting the reasons for the judgment.

KT: One more question, before I move to a matter that is of even greater importance, arguably. I’m now recalling the question I asked in the introduction: given what we’ve just discussed, is the Supreme Court letting down the people of India?

APS: I mean, to a large extent; I would say yes because it’s no longer that sentinel on qui vive as it’s supposed to be; as the role was described by the…by several previous judgements of the Supreme Court. It’s no longer…I don’t see the alert sentinel…in my The Hindu article, I said that I see that there is a hope of revival of the sentinel. And I’m an eternal optimist and I hope that in the near future the sentinel will be still revived and will be on alert.

KT: Justice Shah, let’s come to a second issue, this time once again raised by you in an article for The Hindu, but an earlier article written in September. On that occasion, you expressed great concern about the role of the Chief Justice as master of the roster. Because this system – as you pointed out in that article – gives the Chief Justice sweeping discretion which can be misused and you alleged that there are several instances where it has been misused to find rulings that support the government. Now, for the benefit of those who didn’t read that September article, can you briefly explain how the power of discretion that the Chief Justice has as master of the roster can be misused to find in favour of the government of the day?

APS: As I said earlier, the Supreme Court is turning into a sort of an executive friendly court. Now to keep such a Court going, you need judges who can be relied upon to issue orders which are favourable to the executive. One way of doing this is to pack the Supreme Court with pro-government judges, like what President Trump is doing in America. Their system is very different from ours. It is very difficult in our country to do this. But like the…you pack the court with your own nominees.

So all that you need, according to me, is to ensure that certain favourable conditions exist in the court. Now these include – a CJI who is on your side or who is weak, vulnerable or maybe indifferent. And there are few satellite judges. Now CJI is the master of the roster. He alone decides on the allocation of the work. He would assign the matters to the benches or to certain judges who are presiding over the benches who are…the matters which are politically sensitive to the executive. And those matters will be eventually decided in the favour of the executive. For example, the last three CJIs used this power to entrust sensitive and important matters to Justice Arun Mishra.

Now, many legal scholars – I am not the only one, there are many…Mr. Venkatesh of The Hindu and there are many professors…they have studied the judgements, the recent judgements of Justice Arun Mishra and they came to the conclusion that certain politically sensitive matters are entrusted to this bench. And how these decisions are ordinarily the type of decisions made by the judge. So you will recall, this is precisely the grievance raised in the four-judges press conference. And you will also recall that in that case, Chief Justice Gogoi almost hinted that the assignment of Loya matter to Justice Arun Mishra’s bench was the trigger point for the press conference. So, this is…

KT: Absolutely! He did more than hint, Justice Shah, he actually, explicitly said so. It was picked up by television channels and newspapers. But let me just briefly sum up what you said so that lay audiences can understand. What you’re saying is that the Chief Justice’s power as the master of the roster can easily be misused to find in favour of the government, provided you have two sorts of favourable conditions. First, a Chief Justice, as you say in your The Hindu article, who is on your side; and secondly, a handful of other judges who constitute the bench that the Chief Justice creates and these judges are considered reliable. And as you point out, several cases that the government considered politically sensitive were given to benches either with or presided by Justice Mishra and a series of studies have found that Justice Mishra would predictably find in favour of the executive.

So, very simply, a Chief Justice who is on the side of the government and a handful of reliable judges can actually end up completely undermining the independence of the judiciary, and secondly, they can also undermine the critical constitutional separation between the judiciary and the executive. That’s a terrible outcome for India, isn’t it?

APS: No, that’s absolutely true. See, my view is that this master of the roster system which we have borrowed from…it’s a colonial legacy and it is followed in some courts but their systems are very different and very transparent. So, this gives untrammelled and unrestricted power to the CJI. Now, this might have worked in the olden times but what we now need is a rule-based or a random-based system and such systems have been evolved in European Courts of Justice or European Court of Human Rights. I mean, these are very interesting systems.

For example, in the European Courts of Justice, the first judge on the benches is the seniormost; the second is the junior-most and on some random basis the bench is constituted. There are many elaborate rules for the formation of the bench. Because formation of the bench is a very important aspect of any judicial system. I mean, I must bring to your notice that the International Bar Association had published a paper on the judiciary in Russia – particularly they have quoted Russia – and they say that certain matters, I mean, of course they were referring to some commercial disputes, how these matters are being assigned to particular benches by the Chief Justice of that court…

KT: Absolutely.

APS: …So, we must evolve such systems. High courts in India have a rule-based system. We must evolve with the time. I’m not saying every Chief Justice is going to misuse this, but surely the time has come that we should have a different system than the master of the roster.

KT: Absolutely! What you’re saying is that the time has come to do away with the master of the roster system and adopt in its place a rule-based system, where there is no place for discretion, and you’re suggesting that the sort of system India could consider is implemented either by the European Court of Human Rights or the European Court of Justice. Because both of them have rule-based systems where there is no discretion and therefore no possibility of misuse.

Very quickly, I want to go back to that The Hindu article where you talk about misuse of the powers of the Chief Justice as master of the roster. One of the things you point out, is that truly independent and competent judges have been relegated to adjudicating private disputes and are considered inconsequential. In other words, what you’re saying is that in cases where the government is the party, independent and competent judges are not included in the bench for fear that they might find against the government. And to prevent that [from] happening they are excluded.

APS: No, the…one of the reasons for the press conference was, and one of the grievances of the judges who participated in the press conference was that the senior judges were completely excluded from the constitutional benches which decide the very vital matters concerning the rights of the citizens and the country. And the…and what happens in this system, I’m not saying that…but it has happened in the past and it will happen again, that the judges who are exceptionally competent and are independent minded – and there are many, I can tell you that I see many bright judges in the High Courts and the Supreme Court – but the problem is that they would be relegated to doing the routine work. Like a criminal roster or a civil roster. I’m not suggesting that these matters are unimportant but the outcome is this…justice must be…should be seen to be done, not only if justice is done. That principal would apply. So, I feel that it is also necessary that the constitutionally important matters are handed by your best judges.

KT: Absolutely! As you say, constitutionally important matters – matters where the government has a stake because the government is in court are not given to exceptionally competent, independent minded judges because there’s a fear that they might find against the government and to prevent the government losing, reliable judges are found instead. But there’s a second consequence, that you mentioned in your The Hindu article, of the Chief Justice’s misuse of the master of the roster power. You say, not only is this misuse to appoint reliable judges but it is also misused to ensure the pro-executive nature of the Court is sustained to protect the CJI himself. There are several CJIs who have personally faced problems and reliable benches that have been created, sometimes by them, themselves that have protected them.

APS: I can give you some examples. The case related to the medical admissions scam during CJI [Dipak] Mishra’s time, there was an application made before him that he should be recused for that case etc. Now that was assigned to Justice Arun Mishra’s bench. Then, CJI Gogoi’s case about sexual harassment also went to Justice Arun Mishra’s bench. Now, Justice Gogoi was also a party to that bench. In fact, he sat on his own case on that Saturday. But surprisingly, the order that was issued by the bench was signed only by Justice Arun Mishra and the third judge.

Now, there’s another case that I would recall, that according to me, the CJI shouldn’t have taken recourse to his own powers of master of roster. There was an alleged suicide note by the former Arunachal Pradesh chief minister, Kalikho Pul, in which he made certain allegations against politicians, judges [and] a lot of people. Now, the allegations were also against the then Chief Justice of India and the next senior judge. Now, Kalikho Pul’s wife approached the CJI for permission to file an FIR on the basis of this complaint. In Veeraswami [v. Union of India] case, the Supreme Court laid down that if a criminal complaint is filed against a sitting judge of a High court or a sitting judge of the Supreme Court, the person must approach the CJI and take his permission. Without that you cannot proceed against any of the sitting judges against the higher courts.

Now, her application was seeking permission. The then-CJI should have simply recused himself from that matter. He should’ve said the next person or the person thereafter or the judge thereafter should take up the matter. Instead, the CJI converted this letter into a PIL which Kalikho Pul’s wife never said this is a PIL, and assigned it to a relatively junior bench and the bench was against the petitioner and the petition was disposed off. I’m not for a moment suggesting that the allegations were true but the CJI had an opportunity to show that he…they are not perturbed by such allegations and every such case would be dealt in accordance with law and in an independent matter.

KT: To sum up, reliable judges can be used not only to find in favour of the government but also to protect the CJI whenever he faces a problem. Let me ask you this: have there ever been times when you suspected that there is collusion between the executive, the Chief Justice of India and the bench to which a case is assigned?

APS: This is…I can quote, I mean I was…I don’t know personally, but I can quote Justice Kurien Joseph, who said about the then CJI that he was remotely controlled. Now, when he says remotely controlled, I don’t know what else he is…except that he is controlled by some outside authorities which cannot be anyone other than the executive.

KT: So, you’re saying that you do believe that there have been instances of collusion between the executive, the CJI and the bench that has been created.

APS: There are instances where some CJIs have shown great courage and stood up to the mighty executive. Remember Justice H. R. Khanna during the…

KT: But that’s all in the past. There have also been instances where the CJIs have buckled under pressure, that’s what you’re saying?

APS: No, there are some instances. I can quote some instances.

KT: So, there are some instances of collusion between the executive, the CJI and the bench that has been created. That is what you’re saying?

APS: Collusion is a very strong word. I would say that there have been…that it might have worked in the assignments are made. They’ve become very questionable. I can say that.

KT: Collusion is a strong word, but there are instances where it looks like it is precisely what has happened. I want to come to the end of this interview by raising one more issue although I’ll only raise it briefly Justice Shah. That is in fact the Attorney-General’s decision to give permission for Kunal Kamra to be prosecuted for contempt of court for his tweets and his two-finger gesture. Let me quote two of those tweets to you. ‘Honour has left this building’ – he means the Supreme Court building – ‘a long time back’. And secondly, ‘the Supreme Court of this country is the most supreme joke of this country’. Is that really contempt of court or is that understood as humour and satire or perhaps a reflection of what a lot of people in this country actually think?

APS: See, I will tell you about an interesting cartoon which I saw in some newspaper about the Arnab Goswami controversy. There’s a long queue before the Court and you can make out the persons before the Court – Varavara Rao, Sudha Bharadwaj, Umar Khalid – you can see from their caricatures – and you can see that Arnab Goswami is the last person in the queue. The cartoon shows the long hands of the Court going… bypassing the queue and giving bail order to Arnab Goswami.

It’s a satirical way of expressing your views. I mean, the problem with Mr. Kamra is methods; he uses sometimes crude language and intemperate language. But I feel that…the Attorney-General might feel this is a case of contempt… but I feel that the Court should take a broader view. I’m sure that the Attorney-General is aware about the English judges, of the American judges. I mean, they would not bother being perturbed by these cartoons.

KT: Can I interrupt?

APS: Yes yes, please.

KT: Do you believe those tweets – the tweets I read out to you – are contempt of Court or do you believe they are humour and satire?

APS: No, I believe this is humour and satire, expressed in a way that the person might have crossed the boundaries but the court should be more concerned with the work before it, the challenges before it. Not this contempt law which we have really…it began with the majesty of the king because the king used to preside over the court and therefore this contempt law was brought that you cannot impair the majesty of the king. Now, this is abolished in the UK, in America. Nobody takes action on this. Satires…very harsh…

KT: You said and I’m quoting to you, these tweeted that I read out to you are humour and satire expressed in a way that may have crossed boundaries but, you added, the Court should not be concerned by it. In other words, even if this amounts to contempt the Court should not treat it as contempt.

APS: You see, I would give you just two examples and stop at that. The first is the Spycatcher’s case. Spycatcher was a novel written by some MI5 employee. So, this House of Lords granted injunction. Now, by the time the injunction was granted, the book was read by millions of people. So, the newspaper published a cartoon on the front page showing the seven law Lords, upside down. And below was the caption: ‘You old fools’. Now, after some time – one of them was Lord Templeton – it appeared that Mr. Fali Nariman went to meet him and met him sometime. And he asked that why you did not take contempt action against this newspaper.

So, he gave a very nice reply. He said, he’s old, that’s a fact; he cannot deny it. Whether he’s a fool or not is a matter of somebody’s opinion. So, he was not bothered about such comments. In the Brexit judgment, the same newspaper showed photographs… published photographs with the caption ‘enemies of the people’ but nobody thinks about that. And I’m sure, the Court’s majesty would not be brought down by some tweets here or comments there. Court should be more magnanimous.

KT: You’re making a very important point. You’re alluding to where the British judges have handled two instances which many would consider contemptuous of court and in fact not taken any action at all. So, I want to ask you a pointed question: should the Attorney-General, Mr. Venugopal have been similarly broad-minded? Should he have said, this may be contemptuous in the eyes of some people, it may not be in the eyes of others of others but I don’t think this matter should be taken any further? Should Mr. Venugopal have shown the same broad-mindedness that Lord Templeton showed in the Spycatcher case?

APS: I would draw a distinction between the role of the Attorney-General and the role of the Court. Ultimately, the power of punishing us with the Court and that’s a discretionary power. Attorney-General’s role is just to ascertain whether the tweets or the comments or any writings amount to contempt of court. He would look at that and he might have taken opinions – there are opinions and opinions – but my concern is more with the Court. Court is…

KT: Can I stop you? When the matter comes to court, your concern about the court will be paramount but at the moment we’re talking about the Attorney-General’s decision to grant permission for the prosecution of what is satire humour. You quoted examples in Britain where the authorities were much more broad-minded. Even when the instance was much more contemptuous. Now, in this case, should the Attorney-General have been more broad-minded?

APS: No, I don’t know whether this consideration of broad-mindedness would arise at the stage of the court proceedings or at the stage of granting consent. Perhaps, he might’ve taken the view that apparently this is contempt and let the court decide whether the contempt should be punished. But I feel that we are getting too much bogged down in this contempt business. This happened in Prashant Bhushan’s case. Very precious judicial time, days together, weeks together, are vested in these contempt matters. I think that the time has come that the cutter should move to the really hard issues that are pressing the courts and the country.

KT: We’re coming to the end of this interview, let me try one more time. I’ve already quoted the two Kunal Kamra tweets that were found contemptuous. Let me now quote what the Attorney-General said when he granted permission for Kunal Kamra to be prosecuted. These were the Attorney-General’s words – ‘This is gross insinuation against the entirety of the Supreme Court of India, that the Supreme Court of India is not an independent, impartial institution and so to it’s judges. But on the other hand, is a court of the ruling party, the BJP, existing only for the BJP’s benefit?’ Do you really believe those two tweets I read out to you, amount to this?

APS: It’s very difficult to make a comment on that. Now the question is whether, as I said, the crossing of boundaries…I mean, there are some limits to the criticism. It has to be fair and should be..so he might have thought. I still believe that the role of Attorney-General is slightly different. He might’ve taken a different view, if you ask me. If you were in his position, you would’ve taken a different position.

KT: You raised a very important issue. If you were Attorney-General today – and I’ll repeat that – if you, Justice Shah, were Attorney-General today, would you have granted permission for Kunal Kamra to be prosecuted for contempt?

APS: I have a very radically different views on the contempt law. I’m in favour of the abolition of contempt law. But anyway, these are different matters so…

KT: But what’s the answer to my question? If you were Attorney-General, would you have granted permission?

APS: I would’ve simply ignored it. I would have stayed. There’s a very nice phrase used by Justice Katju at one time. He said when there’s a question of contempt, you are beneath contempt, I won’t take any action against you. So, perhaps something of that sort. I believe that this power has outlived its utility. It should not be there, only civil contempt should be there. And civil contempt should be invoked only when the actions or words of any party or persons make the hearing of a case impossible. I mean, there’s a clear interference in the administration of justice.

KT: The lecture Justice Katju gave on the subject of contempt – and I believe he delivered it when he was a sitting judge of the Supreme Court – where he says, he would only consider a matter contempt when it physically stops him delivering justice. In other words, physically stops him from doing his job. But simply criticism, no matter how harsh or stern or objectionable, would not be contempt but he would rise above it.

You said a very important thing, I’m repeating it for the audience. You said, ‘if I was Attorney-General, I would’ve ignored it’ and ‘the power of contempt has outlived its utility’.

One last question and I’ll end the interview. Many people in India believe, what really emerges from the Kunal Kamra case is proof that the Attorney-General lacks a sense of humour; he lacks a sense of satire and his thinking is not in sync with the thinking of the people of India. Would you agree with that view?

APS: I have very high respect for Mr. Venugopal. From my days in the Bar, he was our idol. So, I would not like to comment.

KT: No, no. I’m not asking you to criticise him, sir. You can respect a man hugely, but one can still say that a person lacks a sense of humour. Does Mr. Venugopal lack a sense of humour?

APS: No, no. I wouldn’t say that. I mean, this is a… as I say, there are roles and views and in expect that the role of Attorney-General is different…

KT: Let me ask the last question: is the Attorney-General out of date in his thinking? I mean this only politely, but is he an old man, no longer in touch with the thinking of modern India?

APS: You are underestimating the strength of the age and the wisdom. I don’t agree with you. I think, he’s very much in line with our minds and lives…

KT: Alright. Let’s leave it at that. I would point out for the audience that you were extremely forthcoming and outspoken when we were talking about the Supreme Court; when we were talking about the manner in which Chief Justices have abused powers of master of the roster. But you were very circumspect when it comes to the Attorney-General. Understandable, I imagine he’s a colleague, a friend of yours and I won’t push you any further.

Thank you very much for this interview on a critical subject, because what we’ve talked about is the integrity of our judiciary and its ability to live up to its duty to defend the rights of the Indian people. And the sad fact is that quite often, is not doing it or not doing it adequately. Instead, it seems to be willing to protect transgressions of the government. I thank you for this interview, Justice Shah. Take care. Stay safe.

APS: Thank you. Thank you, Karan. Thank you very much.

(Karan Thapar is a journalist, television commentator and interviewer. Article courtesy: The Wire.)