Judges do make political choices, says Justice S. Muralidhar at the launch of Gautam Bhatia’s Unsealed Covers

Besides Justice S. Muralidhar, senior advocate Rebecca John and journalist Seema Chishti also spoke at the launch.

You will have performative lawyers and performative judges. That is inevitable,” said Justice S. Muralidhar, former Justice of the Orissa High Court, on live streaming of constitutional court proceedings.

Justice Muralidhar was speaking at the release of Unsealed Covers: A Decade of the Constitution, the Courts and the State (HarperCollins), the new book by advocate and constitutional scholar Gautam Bhatia.

He described Bhatia as a “modern-day legal chronicler”.

Senior advocate Rebecca John and journalist Seema Chishti were also on the panel.

Much of the dialogue does not translate into an Order of the court

Justice Muralidhar described Bhatia’s book as giving a “ringside” view of the goings-on at the Supreme Court.

He took an example of Justice K.S. Puttaswamy & Anr. versus Union of India (privacy and aadhaar judgments) hearings, where Bhatia started live tweeting court proceedings from inside the court.

To this, Justice Muralidhar said: “I remember, as a judge, I was very fascinated to read the real-time tweets… One literally got commentary from within the court.”

This was the first such instance of live tweeting before legal correspondents started covering court proceedings live regularly.

Justice Muralidhar gave another instance of the National Register for Citizens (NRC) hearings.

The NRC is a list purportedly prepared to identify Indian citizens as against those illegal migrants who entered Assam through the porous border it shares with Bangladesh.

He said: “In the NRC hearings, you will actually have him [Bhatia] narrate to you the dialogues that happened in the court.

Justice Muralidhar continued: “Much of what happens in the court is not reflected in the Order. Therefore, this is a very important book … in terms of [providing inside information] how an institution has shaped and reshaped itself with the changing times.”

Changing landscape: From via media to one’s own editor

Calling himself a “product of the print media”, Justice Muralidhar spoke of its limitations and how Bhatia is free of them.

This comment was made in the context of the dexterity of Bhatia’s blog, as a medium.

Legal correspondents [of the print media] who covered courts generally have to be very restrained,” Justice Muralidhar said.

You [journalists] could lose their accreditation if the court finds you are not reporting correctly what transpired in the court,” he continued.

Justice Muralidhar told the audience that many stories got killed at the editorial desk because of these limitations.

He said: “Gautam is free of that. He is his own editor.”

After reading Gautam’s book, it will be interesting if somebody brings out a volume of killed stories. That will tell us how much was kept out [of the court reportage in the print media],” Justice Muralidhar added.

Refreshing candour 

Justice Muralidhar spoke on the phenomenon of using information as currency and a tool to influence the media.

In particular, he spoke of the selective leaking of information to some print media channels to the prejudice of others so that a certain kind of favourable narrative could be curried as a return favour.

He added: “This distorts the way journalists are supposed to function. One person gets access, others do not. This lets bias creep into the writing.”

You will find journalists fiercely defending the court with their pieces. Then you begin to wonder how objective this news channel or that newspaper is.”

In this context, Justice Muralidhar said that Bhatia’s book offers a refreshingly different perspective of what is happening in the court.

Since middlemen have been removed and he reports from the court directly, he does not need to acquiesce to anybody’s requests to report in a certain manner.

Critical legal studies movement not taken seriously

Justice Muralidhar talked about how the critical legal studies (CLS) movement is not taken seriously in the country. 

The CLS talks about how the law is not an objective or neutral set of rules but is rather shaped by power dynamics and the interest of the dominant groups. 

He added: “The CLS examines the background of the choices judges make while deciding cases.”

He said that Bhatia’s book makes it very clear that politics and judicial functioning are not separate and are increasingly getting mixed up. 

He said: “All the issues of what we wear, what we eat and what we speak are becoming legal-constitutional issues.

These issues are increasingly coming before the court and judges are forced to make a choice in public, Justice Muralidhar clarified. 

Adding to this, he remarked that Bhatia’s book brings out the fact that judges do come from definitive positions.

He said: The book demonstrates how many political issues dressed up as legal issues also make their way into the courts.”

Justice Muralidhar gives the example of the Karnataka hijab ban judgment, which has been criticised by Bhatia in the book.

Last year, the Karnataka government banned the hijab in schools in the state in the name of ensuring uniformity.

The ban was challenged before the Karnataka High Court which upheld it. In an appeal at the Supreme Court, a two-judge Bench gave a split verdict. The matter has been referred to a larger Bench which is yet to be constituted.

In his book, Bhatia has criticised Justice Hemant Gupta’s judgment upholding the hijab ban for overemphasising on school uniforms rather than upholding the fundamental right to education.

Justice Muralidhar remarked: “Judges do make political choices.

They may think that they are being neutral. They may think that they do not have a [political] position. But when you either accept an argument or reject it, you are making a political choice,” Justice Muralidhar averred.

Basics of criminal jurisprudence forgotten

Rebecca John spoke on some of the Unlawful Activities (Prevention) Act, 1967, (UAPA) judgments covered by Bhatia in his book.

She briefly flagged three issues with the UAPA: Section 43 which allows extending the custody of an individual accused under the UAPA from 90 to 180 days before a chargesheet is filed.

Section 43D(5), which creates an embargo for anybody to get bail.

Zahoor Shah Watali judgment, in which a Delhi High Court Bench that featured Justice Muralidhar had granted bail to the accused.

However, in an appeal, the Supreme Court reversed the Order.

John termed Zahoor Shah Watali’s judgment as an “albatross” around the necks because the Order makes it impossible for a person accused under the UAPA to get bail.

John explained the two-fold rationale created by the Supreme Court in Zahoor Shah Watali.

First, the court said that once the prosecution places a charge sheet and material before the court, those materials are prima facie presumed to be true.

Second, the court said that the materials would be taken at face value. There will not be any probative examination of those materials.

John remarked: “The Supreme Court’s judgment criticised the Delhi High Court’s judgment for going into a mini-trial by itself going into a mini-trial.”

The Supreme Court judgment criticised the high court for examining the evidence and said that only a prima facie opinion has to be formed by the court while deciding the bail under Section 43D(5).

She added: “Watali effectively prohibited many accused persons from approaching the court for grant of bail because the threshold of ‘prima facie true’ was a very high one to cross.”

John talked about how Bhatia has criticised the trial court’s Order rejecting the bail of Safoora Zargar.

Zargar is one of the accused in the alleged larger conspiracy in the 2019 Delhi riots.

The trial court, while rejecting her bail, had said: “Even if no direct violence is attributable to the accused, she cannot shy away from her liability under the provisions of the said Act [the UAPA].”

In this context, John read an excerpt from Bhatia’s book where he said: “[A] reading of the Order makes it clear that in so far as the law and facts stood in favour of bail, the court got around the first barrier by replacing a legal doctrine with a metaphor.”

The metaphor was: “When you choose to play with embers, you cannot blame the wind for carrying the spark a bit too far and spreading the fire.”

She remarked: “This was a metaphor of its own invention.”

She further added that Bhatia mentions that the court got away with the second barrier by replacing a set of adjectives such as “unprecedented scale” and “inflammatory speeches”.

Zargar was eventually granted bail on medical grounds by the Delhi High Court.

John pointed out that Bhatia, in his book, also criticises the fact that the same judge of the Delhi High Court who was part of the Bench that granted bail to Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal in the Delhi riots case, did not grant bail to Umar Khalid

She also spoke about the “peculiar” Order of the Supreme Court against the bail Orders of Tanha, Kalita and Narwal.

When the bail Orders were challenged before the Supreme Court, it did not overturn them, but stated that they must not be cited as precedent.

John remarked: “This was done to protect the interest of the State.”

John told the audience that there has been a slight shift in the position of the Supreme Court after it granted bail to Vernon Gonsalves and Arun Ferreira, accused in the Bhima Koregaon–Elgar Parishad criminal conspiracy case.

The duo spent five years in prison without a trial under the UAPA.

John said: “The Supreme Court has essentially revisited the Watali proposition and has come to the conclusion that you cannot accept evidence at [only] face value. At least, a surface-level examination of the materials placed before the court [must be made] before granting or denying bail.”

She also pointed out that Gonsalves and Ferreira’s bail Orders upheld the Supreme Court’s K.A. Najeeb judgment.

In K.A. Najeeb, the court said that the grounds of prolonged incarceration and unlikelihood of trial are independent of the embargo under Section 43D(5) in granting bail.

John stated: “Had Vernon and Arun not spent five years in jail, I perhaps would not have got this Order from the Supreme Court… This brings us to this compromise that the judiciary has brought out. They ask what is the time spent [in prison].

If you have spent a minimum of four or five years, they are more inclined to grant bail. But you have to get through that period of incarceration before they are willing to look at the materials even if they have no probative value.”

John appeared in Vernon Gonsalves and Arun Ferreira’s matter. She spent more than a year arguing for the bail. 

She ended her discussion by saying that Bhatia’s book is a reminder of the fact that we have forgotten the basics of criminal jurisprudence.

An unconstitutional state of affairs

Seema Chishti told the audience that she found the doctrine of ‘unconstitutional state of affairs’ most interesting.

Bhatia refers to this doctrine in his book in the context of the demolition drives taking place in the court.

A Colombian constitutional court came up with this doctrine in 1998.

Bhatia has explained this doctrine in his book: “An unconstitutional state of affairs is a legal ruling that allows a constitutional court to acknowledge the failure of both the legislative and executive branch of the government to enforce public policies against widespread and systematic violations of fundamental rights.”

Chishti said she hopes the Supreme Court can come up with its own doctrine on the unconstitutional state of affairs and also that the judiciary can escape from itself being a part of it.

Manifesting truth

Bhatia is an advocate at the Supreme Court of India. He maintains a blog on Indian constitutional law and philosophy.

Bhatia’s new book is written from the perspective of a participant who approaches the court and constitutionalism from a critical lens and is sceptical of the structures of powers and authority.

The book’s title speaks to the ‘sealed cover’ jurisprudence increasingly practised by the State in high-profile and controversial matters.

The Supreme Court has come out against sealed cover jurisprudence because it goes against the principles of natural justice.

In this respect, Bhatia’s book offers a transparent and unsealed version of court proceedings and judgments that is usually away from the public’s eye.

In his book, he talks about this as: “A framework that is more critical, that centres the Supreme Court less and focuses more on the Constitution as a site of democracy and power relations as opposed to something that the Supreme Court purports to interpret from time to time.”

Bhatia briefly spoke about his book and said that, unlike other jurisdictions like the United States, the Indian judiciary hardly acknowledges that judging is a political act.

This leads to an unhealthy and dishonest discourse because politics and law can never be mutually exclusive.