Over the past one week, we have seen a concerted smear campaign against Tushar Mehta, the Solicitor General of India, through press conferences, editorials, and visual and print news reports. Politicians, journalists, fellow lawyers and even retired judges have used the opportunity to attack the central government’s most trusted lawyer before the Supreme Court, who has effectively assisted the Court in repelling many attempts of the opposition to use the Court as a political tool to destabilise the government. The role of Tushar Mehta in defending the institution of judiciary from the ‘institutional disruptors’ cannot be overstated.
The entire campaign against Tushar Mehta is based on lies and half-truths. It is alleged that his arguments before the Supreme Court during the hearing of the migrant workers’ case on May 28th was unbecoming of a Law Officer of the government.
Did Tushar Mehta say “journalists are vultures”?
It is alleged that Tushar Mehta criticised the media for highlighting the plight of migrant workers. Kapil Sibal was first to make the allegation. Kapil Sibal had written a letter to the Supreme Court seeking its intervention in the matter of migrant workers. He had then appeared as a Senior Advocate representing interveners in the matter, and thereafter conducted a press conference as a leader of the Congress party, alleging that the government called journalists vultures before the Court. Before that, he had tweeted that a Law Officer of the government in the Supreme Court said that journalists are vultures.
Retired Justice Markandey Katju wrote an article in The Week making the same allegation against the Solicitor General. Retired Justice Kurian Joseph gave an interview to a news channel criticising the Solicitor General for calling journalists vultures. The All India Working News Cameramen Association (WNCA) alleged that messengers are being targeted for doing their job and urged the Press Council of India to intervene in the matter. At least 15 articles have been written in English online media alone about the alleged remarks of Tushar Mehta.
Live Law, a left-leaning legal news portal reported the courtroom exchanges during the hearing that happened before the Supreme Court, through live tweets. They quoted Tushar Mehta as having said, "For these armchair intellectuals, Lordships are neutral only if they abuse the executive. If a handful of people want to control the institution, then it will become an ADM Jabalpur incident. All these people wanting to intervene need to apply the vulture and the child story.” As per Live Law, this comment was immediately after narrating the incident involving Kevin Carter and his Pulitzer Prize winning photograph of a vulture and a child. Right before that, Tushar Mehta is quoted to have said, “All these people writing on social media, giving interviews cannot even acknowledge what is being done. State governments and ministers are working overnight. They don’t even have the patriotism to acknowledge that. Human race is facing the most difficult challenge". It is clear from the report that Tushar Mehta was not referring to journalists, but to the activists or probably the politicians who had approached the Supreme Court. As per the available information, there was no journalist among those who tried to intervene in the matter before the Supreme Court.
As per Bar & Bench, another legal news portal, which also reported arguments through live tweets, before narrating the vulture and the child incident, Tushar Mehta said, “All these letters which have been addressed to the court to persuade SC to take suo motu cognizance of this issue have been written by people who are earning in crores”. And immediately after the narrating the incident, Tushar Mehta said, “If a handful of people want to control the situation then it will become an ADM Jabalpur moment. All these people wanting to intervene need to apply the vulture and child story. What have they contributed?”
Going by the live reports of both these websites, Tushar Mehta was clearly not accusing journalists of being vultures. However, despite his comments being available in the public domain, he was compelled to clarify in an interview that his ‘vulture’ remark was against “certain NGOs and so-called activists who filed a slew of PILs and intervention applications before the courts to look into migrant workers and other problems. These were the same people who contributed nothing to mitigate the problems of any section of society during this pandemic.”
It was even after this clarification that Justice Kurian Joseph protested against the alleged remarks against journalists. Incidentally, there are also articles published by some websites claiming that the ‘vulture’ remark was aimed at the eminent lawyers who had written the letter to Supreme Court.
Did Tushar Mehta ask Kapil Sibal what his contribution was?
Most articles attacking Tushar Mehta refer to an exchange of words between Mehta and Sibal where Mehta asks Sibal about his contribution to the fight against the pandemic. Almost all articles about the hearing quote Mehta as asking, “What have you done?” They also quote Sibal as replying, “Four crores. That’s my contribution”. However, what Mehta said next was conveniently ignored by everyone. Bar & Bench quotes Tushar Mehta to have responded by saying, “I am only speaking about your client”. Sibal is reported to have mentioned that he was appearing for Delhi Shramik Sangathan and others, who had filed an intervention application. It is clear from the order passed by the Supreme Court also that Sibal was appearing for some persons or groups seeking to intervene in the matter.
It is very common among lawyers to argue in first person by saying “I” or “me” instead of “my client”. Likewise, it is common to say “you” while speaking to a counsel on the opposite side instead of saying “your client”. Sibal may have misunderstood Mehta’s question and hence Mehta had to clarify. However, there is no excuse for journalists and activists who suppressed Mehta’s response.
Moreover, Mehta has also been reported to have argued that the intervention applicants should file an affidavit showing their contribution. Neither Sibal nor any of the signatories to the letter addressed to Supreme Court were themselves the intervention applicants.
Can’t a respondent government ever question the bonafides of a PIL petitioner?
Through a line of judgments, the Supreme Court has warned against the misuse of Public Interest Litigations. Supreme Court has observed on many occasions that if the avenue of PILs is misused for achieving political ends, the very purpose for which it was conceived will be defeated. A seven-judge bench of the Supreme Court in the landmark S. P. Gupta’s case of 1981 held, “We must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that political pressure groups who could not achieve their aims though the administrative process and we might add, thorough the political process, may try to use the courts to further their aims. These are some of the dangers in public interest litigation which the court has to be careful to avoid.”
Hence there is nothing unusual in the Solicitor General asking those who have approached the Court filing PILs or seeking intervention in the suo moto case registered by the Court to demonstrate their bonafides.
Interestingly, a division bench of headed by the Chief Justice of the Gujarat High Court warned of precisely what Tushar Mehta argued against. The High Court in its judgment passed on May 29thregarding the lockdown measures stated as follows:-
“We have gathered an impression that our orders passed time to time in the larger interest of the public are being misused for some oblique motive. In our opinion,the Public Interest Litigation is meant for the benefit of the lost and lonely and it is meant for the benefit of those whose social backwardness is the reason for no access to the Court. We also say that the PILs are not meant to advance the political gain and also to seek any political mileage. The Public Interest Litigation should never be made a political battle.” The Court observed that “The covid 19 crisis is a humanitarian crisis, not a political crisis. Hence, it is imperative that no one politicise this issue.” The Court also observed that “By politicising this issue one would in fact be downplaying the widespread suffering it has caused and further would be placing politics and political intent before the aim of helping and saving lives. While adversarial criticism may do no good, constructive criticism can help. Simply highlighting the flaws and gaps in the State’s handling of the situation only creates fear in the minds of people.” Most importantly, the Court held that “All those who cannot extend their helping hand in this difficult times and do anything good for the people at large have no right to criticize the functioning of the State Government.” and that “in times like this a helping hand would be more beneficial than a critical tongue.” (emphasis added)
Did Tushar Mehta quote a false WhatsApp forward in Supreme Court?
Alt News published a report that Tushar Mehta quoted from a false WhatsApp forward while narrating the incident involving Kevin Carter and his Pulitzer Prize-winning photograph of a vulture and a child. NDTV’s Ravish Kumar also focused on this in a one hour program about Tushar Mehta’s arguments.
Alt News quotes Live Law in its report. As per Live Law, Tushar Mehta narrated the incident as follows:-
“There was a photographer who went to Sudan in 1983. There was a panic stricken child. A vulture was waiting for the child to die. He photographed it and the photo was published in NYT and the photographer was awarded the Pulitzer Prize. He committed suicide after 4 months. A journalist had asked him - what happened to the child? He said I don’t know, I had to return home. Then the reporter asked him - how many vultures were there? He said one. The reporter said - no. There were two. One was holding the camera.”
Even as per the report of Bar & Bench, the above is all that the Solicitor General said.
However, Alt News published the report with a headline “Solicitor General Tushar Mehta quotes false WhatsApp forward in Supreme Court” with a screenshot of an alleged “WhatsApp forward”. However, Alt News report does not tell us which part of the narration is false. Instead, it sets out to verify the claims in the alleged “WhatsApp forward” that it published. This is a technique that Alt News often adopts. On a close reading of the report, is appears that the bit regarding the conversation between Kevin Carter and the journalist is not seen recorded in any sources that Alt News has referred to.
Solicitor General did not claim that the child died because the photographer did not intervene, as implied by the Alt News report. Solicitor General did not say that the photographer committed suicide because he could not help the child, as implied by the Alt News report. Whether a conversation between the photographer and a journalist happened or not is completely beside the point, given the point that Solicitor General was trying to make. Moreover, even as per the Alt News report, the actions of the photographer was widely criticised contemporaneously by a journalist commenting, “The man adjusting his lens to take just the right frame of her suffering. Might just as well be a predator, another vulture on the scene.”
The whole 'fact-checking’ exercise turns out to be much ado about nothing, intended just to create a negative perception about the centre’s stand on migrants’ issue.
Independent Bar is necessary for Independent Judiciary
Independence and autonomy of lawyers is a sine qua non for the independence of the judiciary. It is necessary to have an atmosphere where lawyers are able to assist the court to do justice in accordance with law and without fear. When the Law Officers are not permitted to express themselves without fear of being targeted by opposition parties and vested interest groups, independence of judiciary weakens. That is precisely why Tushar Mehta is now being targeted. With a strong Solicitor General like Tushar Mehta, a lobby of lawyers is not able to browbeat the judges into toeing their line. The opposition parties are not able to use the Supreme Court as a weapon to fight their political battle with the government. Hence all those who have an axe to grind against the present government, including unfortunately some retired judges, have chosen to make false allegations against Tushar Mehta.
(The writer is Advocate, High Court of Kerala)