Sunday, March 15, 2020

The SC has not been fair to Harsh Mander

Few can fathom complex jurisprudential arguments, but all of us automatically recognise fairness — or unfairness — when we see it. This is why I’m disillusioned with the way the SC has treated Mander:Karan Thapar Mander asked people to protest in a peaceful manner Mander asked people to protest in a peaceful manner(Amal KS/HT PHOTO)

Karan Thapar

The Oxford English dictionary says one of the meanings of justice is fairness. It’s a quality we instinctively understand. Even children can sense when someone has not been fair. And, above all else, it’s what we expect from our Supreme Court (SC). Few can fathom complex jurisprudential arguments, but all of us automatically recognise fairness — or unfairness — when we see it.

This is why I’m disillusioned with the way the SC has treated Harsh Mander. On March 4, the Solicitor General told the Court that Mander had made a speech at Jamia Millia Islamia in December which “brings the Court into disrepute” and “instigates people”. Without hearing the speech — or even Mander’s lawyer — the Chief Justice of India (CJI) said: “If this is what you feel about the Court, then we will have to decide what to do about you.” He also decided to defer a hate speech petition presented by Mander. “Till we sort this out we will not hear you but will hear others.”

Two things were thus clear. First, the CJI was prepared to act on the Solicitor General’s version of Mander’s speech without hearing the actual speech or even Mander’s lawyer’s version of it. Second, the CJI gave greater priority to a comment he saw as a slur on the Court’s reputation than hate speech which could affect tens of millions.

The matter came up again on March 6, by when the Delhi Police had filed an affidavit accusing Mander of “bringing the judiciary, as an institution, and individual judges in disrepute”. On this occasion, Mander’s lawyer, Dushyant Dave, pleaded with the judges: “Please go through the entire speech … the filing of the application by Delhi Police against Mander is an attempt to browbeat him … He is being put in the dock for nothing.” But, again, the Court did not hear the full speech. It continued to rely on the Solicitor General’s version now, presumably, supported by the police. And it ordered Mander to respond to the allegations and fixed an April date for the next hearing.

However, if the judges had heard the speech, this is what they would have found Mander said of the Court. After saying the fight for our country and our Constitution cannot be won in Parliament, because our secular parties do not have the moral strength to take it up, he added: “This fight can also not be won in the Supreme Court because, as we have seen in the case of the NRC, Ayodhya and Kashmir, the Supreme Court has not been able to protect humanity, equality and secularism. We will definitely try as hard as we can in the Supreme Court, because it is our Supreme Court after all. However, the final decision will be given neither by the Parliament nor by the Supreme Court.”

This is, undoubtedly, criticism of the Court, but then who said you can’t criticise it? In fact, many would consider it deserved. And it certainly isn’t contempt.

The full speech would have also revealed in what manner Mander was instigating people. After asking where will the future of the country be decided, he said: “On the one hand, the decision can be taken on the streets. We are all out on the streets. However, there is one more space, bigger than the streets, where this decision can be taken. What is this space where the solution to this struggle can be found? It’s in our hearts — in your heart and in mine.”

If the phrase “on the streets” disturbed them, the judges would have discovered that in the very next breath, Mander made clear it did not mean violence. Protest, yes, but peaceful and lawful. “We have only one answer to their hatred and that is love,” he said. “Most importantly, we have to fight with non-violence. Anyone who incites you to violence and hatred is not a friend of yours.”

So, now, can you see why I began the way I did, and why I’m disillusioned with the Supreme Court? It hasn’t been fair to Mander. Ironically, that could hurt the Court more than Mander.

Karan Thapar is the author of Devil’s Advocate: The Untold Story-HT

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