Thank you very much for coming to suffer what I have to say. I’m afraid the heart of this session will lie not in my meagre presentation but in your questions which I hope to answer. Feel free not to confine yourself to questions, but to offer comments and observations.
Let me begin by noting that neither the Constitution nor the judiciary is what the Constitution framers expected it to be. Both have gone out of hand for various reasons. Jawaharlal Nehru, and to a certain extent Vallabhbhai Patel (though he didn’t show it),were disgruntled with the judiciary. Nehru especially was deeply distressed when he found the Supreme Court asserting itself. Something which also prompted Patanjali Shastri to say: ‘If we strike down orders, it is not because we take pleasure in it but because the Constitution makes us a centre.’
Jawaharlal Nehru respected the judiciary, though on one occasion when he disliked a judge and feared he was corrupt, he had no qualms about going to Allahabad and asking him to resign, which led to a bit of fracas between him and Chief Justice H. J. Kania. However, things settled down to an even keel between them, but something else cropped up. And that was the tendency of judges to curry favour with the ministers. The worst was Chief Justice P.B. Gajendragadkar. You can read all about it in the memoirs[i]of the Chief Justice himself—how he cozied up to Lal Bahadur Shastri, advised him on what would happen at Tashkent and all that . . . so there was that undercurrent also.
The real issue arose with Indira Gandhi. Not the post-Emergency Indira Gandhi, but the early Indira Gandhi, during her first tenure, beginning in 1967 when the opposition decided to stop her in her tracks. At the Faridabad Session (1969), the president of the Congress, S. Nijalingappa, tried to stall her and imposed on her a president she didn’t want, Neelam Sanjiva Reddy. At this point, the Supreme Court decided to deliver a blatantly political judgement on the Golaknath Case, in which it said that fundamental rights cannot be altered even by a constitutional amendment. This was obviously rubbish.The judgement was divided: Chief Justice Mohammad Hidayatullah said that a constitutional assembly can be convened by a residuary power. But this is bad law, because residuary power cannot be used to override the Constitution itself. Then came Nath Pai’s Bill to override this.Then the Congress split, and in the middle of that troubled moment the Supreme Court decided to strike down the Banks’ Nationalization Act (obviously a political judgement). As if this was not enough, then came the Princess’ Case—also known as the Privy Purse case in which the Indian Princes were deprived of their constitutionally guaranteed Privy Purses by an executive fiat. Nanabhoy Palkhivala even advised this be taken to the International Court of Justice. Only an ignoramus would have said such a thing, because the International Court of Justice has no jurisdiction in a matter like this—it’s there to intervene between states, and the Princely States were not independent states. As soon as the act was struck down, Indira Gandhi went on radio and announced that in reaction to the Supreme Court’s actions she was having the Lok Sabha dissolved. The Supreme Court dug its own grave through its act of over-exertion. When she returned to power, she decided to amend the Constitution to make it impossible for the Supreme Court to do such a thing again.
Then came the Kesavananda Bharati case. The Supreme Court gave a balanced judgement, saying that the Constitution can be amended but not its basic structure,and thus overruled the Golaknath case. This was a sound judgement, but was vindicated at the time of the Emergency when Indira Gandhi brought in a law by which you could not prosecute the PM for breaching the law. Now, in Indira Gandhi’s election case, the Supreme Court struck down those provisions of the Constitution which gave her immunity. This was a good judgement, even though she had the law amended retrospectively to put her own election beyond challenge. That could not be struck down, but it might have been. However this is where it remains.
Indira Gandhi lost in the elections of 1977. Now the Supreme Court has earned a bad reputation for its infamous judgement in the Habeas Corpus case, where it decided to go in the offensive.The Public Interest Litigation was a very welcome innovation and was even appreciated in England. But the Supreme Court had, no doubt, become an unruly horse.
Our legal system is built on the Western model. We are not slaves of British traditions, but for god’s sake,we should at least learn from their mistakes or their progressive moves. Look at the House of Lords—where once it was regarded as a bastion of conservatism, today it has become a bastion of liberalism. You know the Pinochet Case? To the fury of Margaret Thatcher, a judge had a small interest because his wife was there in the Bench and they declared that he had no right to be in the Bench. The English Courts of Law held that you can’t waste funds, that you can’t have motivated prosecutions, and they handed out a whole series of liberal judgements. Our Supreme Court however seems to have regressed. It has now launched on a career of personal aggrandizement. It has, for example, ruled that you cannot prosecute a judge of the High Court or the Supreme Court without the consent of the Chief Justice of India, and this was done via a judgement where the presiding judge said: ‘Where the constitution is silent, the law is silent, we will fill it in and we have the power to do it.’ Worse, of course, lay in store. There is no doubt that, during the Emergency, Indira Gandhi transferred the judges for mala fide reasons that were struck down later on.There is equally no doubt that this power has been abused. But the Supreme Court gave one halting judgement after another. The upshot of it all was that the Supreme Court arrogated to itself the power to appoint judges and invented a collegium.
Now, if you read the Constituent Assembly Debates, Dr Ambedkar said the Constitution strikes a balance—it does not give the power to the executive to appoint judges at its discretion, nor does it give judges the power to strike out this balance. But bench after bench of the Supreme Court flouted this notion. The Supreme Court itself has said that the debates of the Constituent Assembly can be referred to in order to understand the clear text of the law. The text of the law is explicit. Now, when the judgement came, two former Chief Justices, P. N. Bhagwati and D.Y. Chandrachud said they must have a collegium. But a collegium must be by constitutional amendment—not by the ipse dixit of the Supreme Court itself.The collegium began to expand and contract. Today, the collegium has gone haywire, it invites no respect. You have seen the miserable state of things with Justice Dipak Misra and now Chief Justice Ranjan Gogoi . . . .
Far worse happened with Article 14. H.M. Seervai has warned that ‘You are interpreting Article 14 to give yourself subjective power. From reasonableness of equality, you have gone to the reasonableness of statutes. ’The collegium was built by the ipse dixit of the Supreme Court—it has no constitutional sanction. There is also no provision in the Constitution that a Supreme Court judge cannot be prosecuted without the consent of the Chief Justice. And you know the kind of Chief Justices we’ve had. What are they doing—is this what the Constitution wanted? There is an excellent book on the independence of the judiciary[i] by Prof. Robert Stevens, a practising lawyer and academic. He says that judges appointing judges is a scandal. One of the finest judges in recent decades, Lord Bingham, has said, ‘When the government is weak, the Supreme Court steps in.’ And this is exactly what the judges of the Supreme Court have said: that when the parliament has left it vague or unenacted, they’ll step in.
The correct approach is that followed in a brilliant judgement by a judge in a divorce case. He said: ‘It is true the couple hate each other and are forced to live together. But we are not here to legislate.’ Such was the impact on public opinion that legislation was brought in and the Divorce Law amended.
This is where I find fault with our legal academics, and the Bar too—it’s a money-making proposition, so why would they disturb this machinery? There is not a single law journal of such prestige (I mean no disrespect to the existing ones) as the Law Quarterly Review in England. An adverse comment there would make the judges blush. On the contrary, senior lawyers and academics for example, Justice P. N. Bhagwati himself told me that he consults Upendra Baxi before passing a judgement. He was close to Baxi, Chinnappa Reddy . . . this is the scandalous state of affairs. The judges of the Supreme Court have no compunction about socializing, barring one or two. The result is that the prestige of the Supreme Court is not what it used to be. The government is digging in its heels on this so-called collegium. And then you have a law minister like Ravi Shankar Prasad who delights in picking fights with the judiciary. This is not what was expected.
Now, what is the state of public opinion? It has become politicized. The government today is a political animal and has no respect for the law or the Constitution. In England, there was a concordat between the Lord Chief Justice and the Lord Chancellor on the appointment of judges. There is a collegium appointed by law in which a person of Indian origin participated. This could have happened in India also. But the Bar showed no spirit of statesmanship. They scuttled it, the law was struck down. As a result, there is this scandal of one collegium after another. We have a government which has scant respect for the judiciary, the judiciary has become politicized and the politicians take a political view of the judiciary. This is not how we began—we were in much better shape. But for this I blame not only the politicians and the judges but also the Bar and the academics and, above all, the polarizing politics of our country. It is the same thing with the civil servants, with several other institutions.
The relationship between the judiciary and the government, the adherence of both to the Constitution depends a lot on the state of politics. Since 1969, when the Congress split, we’ve had a split polity. It was Indira Gandhi versus the rest, now it’s BJP versus the rest. There is a brilliant judgement by one of the greatest judges who never sat on the Supreme Court Bench of the United States, Learned Hand, who said in an address in 1942: ‘A society so riven, no court can save, a society which is not so riven no court need save, a society which thrusts upon the courts the solution of its political disputes, that society will in the end suffer.’
This is exactly what is happening today.
QUESTION AND ANSWER SESSION
Ranita Biswas. Good afternoon, I am Ranita from Kolkata. You said that the judiciary has been compromised in the current scenario a lot. My question to you is: How can we resolve this?
Noorani. The solution lies in people like you, disinterested but interested, objective, independent and studious. You have to say: This is the solution. Please don’t politicize the judiciary. There is a Judicial Appointment Commission under an amendment of the Constitution, made up of top lawyers and judges and some academics . . . there are any number of precedents. The US judiciary is fully politicized, its judges appear before politicians, they are asked questions and are appointed, the Chief Justice is a politician . . .
Revati Laul. Hi, I am Revati and I am a journalist. I wanted to ask: How do we reverse this cycle of legal tyranny that happens when our freedom of expression as journalists is challenged? The government slaps lawsuits worth hundreds of crores on journalists for doing our jobs—how can we reverse this? Do we pressure lawyers to not take these cases, or display the names of those who are taking these cases? There should be some steps of redressal? Most media organizations which have struck out against this government are going to the courts and struggling.
Noorani. This is a very legitimate question. But let me tell you that the curb on freedom of expression comes not only from the government but also from the Supreme Court. I will give you one instance: the Tipu Sultan film. The Supreme Court would not pass its judgement until the producers added a rider that everything depicted in the film was fictional. These judges were illiterates. The film was a historical fiction film, and historical fiction is by definition a fiction based on incidents of reality. Every educated person should know this. Second: on book banning. The Supreme Court asked publishers to delete some sentences. Do you know that it took years for the Supreme Court to say that truth can be a defence to an action of contempt? And it could only do this because it knew that an amendment was being made to the Contempt of Court Act. The Supreme Court has not been a bulwark of freedom except for occasional cases. And as for the government—every single one has tried to bridle the Press. This one is the worst.
Murshid Alam. Sir, I am from Malda. There are a huge number of undertrials, sometimes from Muslim communities and the lower castes, awaiting justice, sometimes acquitted after as long as 20 or 30 years. How should this be addressed? Secondly, these days we have media trials—something happens, the media names some Muslim organization and that in a way influences the verdict. The judges give the verdict in a way that satisfies popular consensus. How do we address these things?
Noorani. About those undertrials—the length of their suffering in prison is a gross violation of the fundamental right of personal liberty. Lawyers should act in concert with the Press, they should build a formidable body of case laws, present it to the court. Like the American humorist Finley Peter Dunne said: ‘Whether Noorani / Constitution and Judiciary the Constitution should follow the flag or not, the Supreme Court follows the election returns.’ The judges of the Supreme Court read newspapers too. I have no respect for those activists who delight in slogan-mongering or flamboyant activism. Rather, I respect people who are committed to scholarship and who build up a formidable body of case laws. Take the Yakub Memon case—I wrote about it after borrowing the case law from an American professor who had come to Delhi then (there’s a formidable existing body of case law on death sentence).A day after my article was released, a member of the Supreme Court Bar who was close to Justice Anil Dave, the judge in the case, wrote an article against mine. And his main point was that they heard the case at midnight, what else did we want? Now you put two and two together about the judge and the advocate, and you won’t be far wrong. The Bar is divided with regard to Bhagwati’s letter to Indira Gandhi congratulating her return to power. He was the Chief Justice. The Bar wanted to pass a resolution, it’s what Justice G. A. Desai himself told me. He said: ‘You know, we value Justice Bhagwati, he is a brilliant judicial craftsman, so we called up some members of the Bar to organize a campaign in support of him.’ This is the state of our judges . . .
Valerian Rodrigues. Noorani-sahib, the Pakistan Supreme Court has often displayed enormous courage in handling political cases coming before it. Where does this source of confidence or legal culture come from since we come from a common tradition?
Noorani. In my opinion, the judgement in Nawaz Sharif’s case is a political judgement and the fact that the Special Investigation Committee includes two members of the army and the judges’ body shows 61 where the source of confidence lies.
Gitali Thakur. I’m from Assam where, right now, the NRC is in process. It was implemented after a Supreme Court Judgement and has displaced and rendered stateless almost 30 lakh people, or 10 per cent of the population of Assam, many of whom are now in detention centres. So how constitutional is this judgement? Those citizens who have been living in this country for 30/40 years now have to prove their citizenship through a piece of paper. And all this without a solution for those who cannot produce the necessary documents. We know that this is targeted mostly at the Muslim minority community in Assam. I don’t understand how the Supreme Court could pass this judgement—are we not undermining the Constitution and the basic right to life?
Noorani. I completely agree with you. I’m sorry, I have not taken an active interest in this matter. My advice to you is: build up your case with the help of dicta,hold seminars and bring out well-documented pamphlets and circulate them, send them to the judges, build up public opinion. Our judges are very sensitive to public opinion, let me tell you that.
Vanchi Nathan. Sir, my question is: Is it possible to declare India a Hindu Nation through constitutional process?
Noorani.The answer is: No. Because in the S. R. Bommai case, the Supreme Court has held that secularism is a part of the basic, unalterable, unamendable structure of the Constitution. Incidentally, there were two judges who were silent on this and one of them was Justice J. S.Verma, a hero to some. He delivered some highly communal judgements in the Ayodhya case.
Nathan. In the present scenario, when BJP is in the majority, is it possible for them to form a separate Bench and interfere in the judiciary?
Noorani. It is not possible, unless the judiciary sheds its role. In my opinion, the judiciary is going haywire in the Ayodhya case. The case is not subject to judicial arbitrament. There’s a case in England with the Guildhall where the judge adjourned the case because he felt a fair trial was impossible in the kind of atmosphere that had been built up. The Supreme Court should do the same for the Ayodhya case. It should say that one of the parties have flatly declared that it will not be bound by the court’s judgement, namely, the Hindu side. So it will be a waste of time. Second, the Allahabad High Court flouted the Supreme Court judgement. The Supreme Court,in the major Ayodhya judgement, said that the Muslim side should not be deprived of the right to plead limitation. They struck down the Narasimha Rao government’s reference to the Supreme Court about whether a temple existed earlier. This is exactly the issue on which the Allahabad High Court proceeded.They should say: this is wrong, we return you the site strictly according to the law of limitation. In the thirties, the Muslims brought a case against the gurdwara at Shahidganj in Lahore. And the District Court held, very rightly, that the case was barred by the law of limitation. Now there can be two opinions on the existence of Ram as a historical personage. But, in the Lahore case, there was an admitted deed of waqf in the nineteenth century. It so happened that when the Sikhs acquired Punjab, they took over the mosque and used it for various purposes and ultimately converted it to a gurdwara. The Muslims woke up very late. Except for one judge, all the others agreed that this was barred by the law of limitation. The District Court, High Court and the Privy Council. And what was the attitude of the Prime Minister of the Punjab, Sikander Hyatt Khan? He said: ‘If you make this law overriding the court judgement in a Muslim majority case, the Hindus will do it in the Hindu majority cases.’ To this day, the gurdwara is standing tall in Lahore, undisturbed. But in secular India things are different.
Audience member 1.Why was the word secularism not put into the Constitution? Noorani. It was taken so much for granted—member after member said that India is ‘a secular state’.This is a ridiculous thing brought up by the BJP that Indira Gandhi put in the word ‘secular’. Look at the Constituent Assembly debates—it is taken for granted.They did not say, ‘We are a democracy’—it was taken for granted that we were one.They didn’t say, ‘We are a federation’—it was taken for granted that we were one.
Audience member 2. Is 10 per cent reservation for the economically weaker sections constitutionally valid?
Noorani. I am not competent to answer this.
Uma Sankari. My name is Uma, I come from Tamil Nadu and I have a question regarding the various interpretations that the verdicts provide us. For example, a lot of interpretations that many of the Supreme Court or High Court verdicts provide on the Constitution or on laws are largely based on personal opinions. The latest interpretation prevails for the cases that follow—so how do we understand these interpretations?
Noorani. Our judges are great copy cats. Some years ago, one judge quoted from a Supreme Court judgement of the United States—‘We are not final because we are infallible, we are infallible because we are final.’ What he meant is that we are the final court. Our Supreme Court has said the same things now in a different form. In Liversidge vs Anderson, one judge dissented, Justice Atkin. In the 1942 sitting, the place where they held it, the Palace of Westminster, they could see bombs falling on the city. Nonetheless, this judge said that, amid the clash of arms, the law is not silent—it speaks the same language in war that it speaks in peace. He added that he views with trepidation the prospect of judges who show ‘themselves to be more executive minded than the executive’. At lunch recess, none of the judges accompanied him, he was accompanied only by his daughter. The other judges would not speak to him. Justice Chandrachud, in his judgement of the infamous Habeas Corpus case, which the Supreme Court has reversed, said: ‘My faith in the government is diamond-bright and diamond-hard.’ He knew that people were being thrown into prison. I am not happy with the Supreme Court judgements. And as far as I am concerned, I stand by the opinion that the calibre of the judges has declined.
Sankari. I have a follow-up question. The lives of the public are affected as a result of these interpretations. For example, in Tamil Nadu, those convicted in the Rajiv Gandhi assassination case have been in prison for more than 25 years. There is a long-standing debate going on about this—the State government says that the Centre has to take a decision, and the Centre says that it cannot take any decision since the matter is still in court.There are continuous interpretations by different judges, and the case remains pending.
Noorani. The public should raise its voice.
Sankari. How?
Noorani. Look at Afzal Guru’s case. The public will not raise its voice because it regarded him as a traitor. When Guru appeared on TV, Vinod Mehta, editor of Outlook said: ‘Looking at him I can tell he’s been tutored. The police officer present was tutoring him. ’The Defence counsel, to her shame, ditched him. He was undefended. The case should have been dismissed on that count alone. But our great Supreme Court said: ‘This is a fitting case and the man’s life deserves to be extinct.’ Is this the kind of language a prosecutor should be using? It’s disgraceful for the Supreme Court to say his life should be extinguished. The facts are damning.
Achyut Chetan. I am Achyut Chetan, I come from a small town in Jharkhand. I wanted to share a small story from my classroom the day before yesterday. You have already shared the importance of public opinion. I teach in a place which is completely and overwhelmingly Hindu majoritarian, with all the students belonging to ABVP. Young boys and girls are part of the RSS, the parents send their children, including girls, to the RSS training camps. This is a class of first-year BA students, they had come up from Class 12 and joined the English class. I was chatting with them, asking them what their political opinions were, and one girl began to praise the RSS. Unfortunately, we are living in a time when we have to be aware of the religion of a particular student—something we did not have to be even five years ago. This girl was a Hindu girl. Suddenly, she was interrupted by a friend of hers, a classmate, who said: ‘Please go and read A. G. Noorani’s book on the RSS, and all your respect will go away.'That student, a boy, was also Hindu.
Noorani. Well, at the launch of that book in April, Professor Romila Thapar mentioned a seminar in Calcutta. I jumped at the idea, and that’s how I’m here. In his post-election victory speech, Narendra Modi said: ‘In these last five years, nobody spoke a word on secularism. ’And he was very right. The Congress, Sonia Gandhi, Rahul Gandhi, suddenly developed a passion for temples. In her last tenure, Indira Gandhi talked of Kurukshetra. Atal Bihari Vajpayee told James Markham of the New York Times that the prime minister of India should not be playing to the communal sentiments of the people. You will be shocked to hear what Neerja Chowdhury revealed in an article, in a report in The Statesman, quoting reliable Vishwa Hindu Parishad sources: around 1984, there was a pact between the VHP Parishad and Indira Gandhi to open the locks to the Babri Masjid. In 1984, she died, and Rajiv Gandhi took over. The VHP said they wanted it opened before Mahashivratri, in March. Rajiv Gandhi had the locks opened via a fraudulent judgement—a judge wrote in his memoir that he saw a bird in the sky, and that it was a message from the divine. Of course, the TV cameras were conveniently present. That was the beginning. Then we had the women’s bill. The judgement was bad, but the bill was correct. The ignorant Muslim leadership, led by Syed Shahabuddin and others, agitated against the judgement so that it could be overturned. And people grew more agitated, because a Supreme Court judgement was being overturned by a legislation. It is indeed part of the procedure, it can be done—but it was done for the wrong reasons and in a wrong instance. The Muslims required a bad name, the Hindus were gifted with this and the country was sent down the drain. I have quoted from both the reports in my books on the RSS and a collection of documents on the Muslims of India.
Krishna Kumar. Sir, your latest book is on the RSS. Is it true that the RSS participated in the Republic Day Parade of 1963?
Noorani. I am not sure of that detail, and if I am not sure of it I will not give my opinion one way or other. But this I know: the RSS never reconciled itself to the Constitution of India. Nor did the BJP initially—in fact, in its moment of triumph after the Babri Masjid episode, the RSS came out with a white paper, and the BJP members, including Rajnath Singh, began saying that we must have another constitution.
Kumar. Sir the question is whether Nehru really softened his position on the RSS.
Noorani. I don’t believe it for a moment.
Kumar. The late Lakshmi Chand Jain told me that, during the 1962 invasion by the Chinese, the RSS helped the city of Delhi in maintaining traffic. Seeing their efforts, even Nehru’s heart was somewhat softened. And that is why this idea persists, that the RSS was invited to take part in the 1963 Republic Day Parade, though it has not yet been proved through archival study.
Noorani. I hold my friend the late Lakshmi Jain in high regard, but to be honest with you—I mean no disrespect to him—this piece of information seems doubtful. Nehru hated the RSS, he would not have compromised. The man who yielded to the RSS was Lal Bahadur Shastri. M. S. Golwalkar had access to his home. Actually, the Congress was split—if you read Rajeshwar Dayal’s memoirs,[i]you’ll find the truth. Rajeshwar Dayal, ICS, was Chief Secretary, Uttar Pradesh, in 1947. One day, Jaitley, Inspector General, came to his house with a bagful of documents which showed that Golwalkar had planned an attack on Muslim houses.They took them to Pant, and he asked for a notice to be sent to Golwalkar. Golwalkar fled. Had Golwalkar been arrested, as Rajeshwar Dayal said, Gandhi’s life would have been spared. Do you know, in the trial Morarji Desai gave evidence that helped Savarkar. The judge too changed the law a bit. I am afraid the Congress was divided—there were the Patelites, Ravishankar Shukla, Morarji Desai, Govind Ballabh Panth, and several others, Vallabhai Patel foremost—he invited the RSS to join the Congress, Nehru was in the United States then, and on his return repealed this decision.
Audience member 3. I would like to know your opinion on judicial activism given the current political situation. Do you think the judiciary should continue to give seminal verdicts, or do you think the courts should practise restraint because judicial activism can be a threat to the parliamentary system?
Noorani. Judicial activism is necessary, but like all exertions—judicial, executive or legislative—should be subjected to restraint. As the Chief Justice of the US Supreme Court said, the only check on our excesses is our own sense of our fallibility.
Harshal Korhale. Good afternoon sir, I am Harshal, I work as a teacher in a school. Some recent circumstances have made me fearful about the judiciary, and I will share a couple of instances. First: the press conference of judges—something which had never happened in 70 years. Second: the Bombay High Court expressed its inability to preside over the case of Justice Brijgopal Harkishan Loya. Then: the Supreme Court’s position in the Spectrum Case versus the exposition of the Rafael Case. So my question is: How has the judicial discourse changed from the past?
Noorani. I don’t know how we can change it except by a sustained, reasoned, learned critique of Supreme Court judgements. I would like to see in this country a journal comparable in authenticity, learning and balance to Law Quarterly Review. There is none so far. There was a time when Calcutta Weekly Notes used to have editorials but it is gone. We had articles in Supreme Court Journal prefacing Supreme Court cases, published from Lucknow.There may be others. My friend Vrinda Grover could tell me more. But the greatest check on our judiciary would be our informedness.
Abhishek Chakraborty. Sir, I follow your articles in various newspapers. In one of your recent articles titled ‘The People’s Jinnah’ published in The Dawn (https://www.dawn.com/news/1459876), you have mentioned that ‘Pakistan is a monument of Jinnah’s tenacity and skill. India is a mute witness to his greatness, his dreams lie buried in India and Pakistan’. By dreams, do you mean the August speech—could you please elaborate?
Noorani. Both Indians and Pakistanis are agreed on one thing: that Jinnah was politically born on 20 March 1930—he didn’t exist before that. Jinnah was the man who fought for Vallabhai Patel, condemned his imprisonment, was a staunch defender of Bhagat Singh—so much so that the MLAs asked the chairman to extend the time and the tribune which opposed him. He said something praiseworthy. Looking at the Home Minister, he said: ‘A man who goes on a hunger strike is a man with a soul—he believes in something and he is prepared to die for it. I challenge the Home Minister to go on a hunger strike.’ He defended Bhagat Singh, he defended Annie Besant. And it is wrong to think that he parted with Gandhi after the Nagpur session. In a speech in Bombay, he said: ‘I know Gandhi is a great man, there are few people like him. ’Till the 30s they were friends . . . even at the Round Table Conference he didn’t attack Gandhi even though he was saddened by Gandhi’s attitude. The Jinnah Hall was built in admiration of his opposition to Governor Wellington . . . Jinnah fought the governors so ruthlessly and stringently that they said that he should be deported. In 1985, I wrote an article on Jinnah. I told the editor Pritish Nandy: ‘Send a man with a bucket, brush and soap, because I don’t know what is the state of the plaque [at the Jinnah Hall].’Pritish said that I was absolutely right, the plaque was laden with dirt. It required great effort to wash it clean. Now the plaque has been removed—showing our capacity for hatred and madness . . . Jinnah donated a large sum of money to Bombay University. There were two options: we could have rejected it, saying he partitioned India. Or we could have taken it and done a lectureship in his honour. His nephew Akbar Pir, a senior lawyer, said that his uncle was known for his uprightness which even M. C. Chagla mentions. But no, we did the cheap thing: we took the money but did not institute a memorial. You will find in the Nehru Memorial Library a bit of oral history narrated by some communist lawyer: once, Sarojini Naidu walked into Jinnah’s house and said, ‘What are you doing? These are people fighting for the country’s cause, and you want a fee from them?’ So he accepted the brief but without a fee—which he never did, he was a miser. And he fought tenaciously for a bail application, he fought for hours . . . and this is a tribute from the communists. So my point is: please have an objective understanding of history.
Audience member 4. Sir, I just want to know your take on the practice of ‘contempt of court’ notices. Is it not an infringement upon the right to expression?
Noorani. I believe the magistrates who accept these petitions and complaints are themselves not terribly well equipped in law or understanding—they get notices and frivolous complaints are filed.
Meera Bhuvanesh. When you began, I felt very disheartened because the judiciary is one thing that we tell the children—I teach political science—to look up to. We also tell them that the rigid parts of the Constitution cannot be changed. I was witness to the 1992 Bombay riots—they remain etched in memory. As a 12-year-old, I understood what happened—a bakery burnt in front of us, and things like that. And then— the mastermind of Godhra becomes Prime Minister. We were in Bombay University when the Godhra riots happened. We had all the evidence, everything. How do I deal with a 12- or 13-year-old expressing rightist views in class? We grew up with two channels and limited TV time, compared to the 300 channels now that each child has. It is very shocking. The Mughal period is considered Islamic, British rule is considered the era of Christian conversion, the tribals of Ooty or Ootacamund, there was an issue of them being converted to Christianity . . . I don’t know how to deal with this.
Noorani. You have two TV anchors as models of objectivity, Arnab Goswami and Rahul Shivshankar. Now you tell me this: Is there a single objective report on the Gujarat riots or pogrom? It was not a riot, it was an organized pogrom. Recently, Narendra Modi and Amit Shah have waxed eloquent on history. Every time Modi opens his mouth, he talks about ‘What did Nehru do?’ But I ask you: What is the citizens’ report? The citizens’ report was signed by activist Justice S. S. Hosbet Suresh,and Justice V.R Krishna Iyer who is also an activist. So you have a comprehensive report of the citizen’s tribunal but I ask you what credibility does that possess? In the days of the freedom movement there was a prominent tradition of citizens’ inquiries—Peshawar riots,Kanpur Riots.Gandhi himself presided over the Jallianwala Bagh riots. And M. R. Jayalar said that he was very particular about the accuracy of facts. I would like to see this done by citizens. Coming to Punjab, there was an objective report by a former Home Secretary.These people have little time, so it was a shoddy document. We want people to go there, go into minute details and make a report which has credibility. No one talks about the citizens’ report, I know one exception,a first-rate correspondent Manoj Mitta, whose book on Godhra, The Fiction of Fact-Finding: Modi and Godhra, is worth a read.
Sreemoyee Mukherjee. Sir, essentially most of your responses were about how we as citizens can help by making inquiries. But information is very difficult to get. For example, in the RTI Act, we see that the legislature is trying to control how much information we citizens get through fiscal policies. And we as citizens cannot really do much beyond filing an RTI. The only place where this can be contested is the court. Isn’t the judiciary the only place where we can address this?
Noorani. Apart from the RTI Act, the newspapers do a fairly good job of ferretting out information about the judges, for example, the Caravan article on Justice Mishra (https://caravanmagazine.in/law/dipak-misrashadow-supreme-court). Nobody mentions the fact that Narendra Modi is the only man that the Supreme Court had called a Nero. Why don’t our MPs mention that? What is the quality of debates in the Lok Sabha and Rajya Sabha?
[i] Gajendragadkar, P. B. To the Best of My Memory. Bombay: Bharatiya Vidya Bhavan, 1983. [i] Stevens, Robert. 1997. The independence of the judiciary: the view from the Lord Chancellor’s office. Oxford: Clarendon.
[i]Dayal, Rajeshwar. A Life of Our Times. Sangam, 1998. https://books.google.co.in/books/about/A_Life_of_Our_Times.html?id=VE6FPQAACAAJ&redir_esc=y
Abdul Ghafoor Abdul Majeed Noorani, known popularly as A.G.Noorani,is an Indian lawyer, constitutional expert and political commentator. He has practised as an advocate in the Supreme Court of India and in the Bombay High Court. His columns have appeared in various publications, including Hindustan Times,The Hindu, Dawn,The Statesman, Frontline, Economic and Political Weekly and Dainik Bhaskar. He is the author of a number of books including: The Kashmir Question, Ministers’ Misconduct, Brezhnev’s Plan for Asian Security,The Presidential System, The Trial of Bhagat Singh, Constitutional Questions in India and The RSS and the BJP: A Division of Labour. He has also authored the biographies of Badruddin Tyabji and Dr Zakir Hussain.
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