HIS MASTER'S VOICE
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TUSHAR MEHTA STOOD before a bench of S Muralidhar and Talwant Singh in the Delhi High Court. It was half past noon on 26 February, and Mehta had just rushed in.
Two petitioners had approached the court the previous day, seeking orders for the Delhi Police to register first-information reports against several leaders of the Bharatiya Janata Party. For the last three days, Hindu mobs had been marauding through northeastern Delhi, attacking Muslims residents and their businesses and homes. Dozens had already been killed, and attacks continued even as the court convened that day. The BJP leaders had delivered hate-filled, communally charged speeches in the run-up to the violence, which had been recorded and circulated to the point of ubiquity. But the police had refused to act on complaints accusing the BJP leaders of incitement.
The petitioners had asked to be heard the previous day, as soon as they approached the court. DN Patel, the chief justice of the Delhi High Court, was on leave, and a bench led by GN Sistani, the judge second in rank to Patel, did not find the matter urgent enough, despite the continuing violence. Sistani scheduled the petition to be heard in Patel’s court on 26 February.
But Patel did not come to court the next day either, and Sistani was absent too. The petitioners’ lawyer went to Muralidhar, the top-ranking judge after Patel and Sistani, and he agreed to an urgent hearing. In a matter of minutes, Muralidhar scheduled the hearing for 12.30 pm and issued a notice to the Delhi Police.
The judicial establishment likes to say that it is the law that matters, not the judge. But be it the case of a road accident brought before a district court or the judicial review of a constitutional amendment in the Supreme Court, when a matter is listed, the first question asked by all concerned is, “Who’s the judge?”—or the equivalent, “Which bench?” Many attached significance to the fact that Muralidhar agreed to hear the petitioners: lawyers and reporters crowded into his courtroom. But no one knew what the solicitor general was doing there.
The audience was spilling out the courtroom door by the time the hearing began. Rahul Mehra, appointed by the Delhi government to be the standing counsel for the Delhi Police, was the first to object to Mehta’s presence. Mehra pointed out that the union government was not a party to the proceedings, and the solicitor general, as the union government’s second-highest law officer, had no business in the court. Mehta replied that the lieutenant governor of Delhi had asked him to appear on behalf of Delhi’s commissioner of police, and that the union government had a stake in the matter.
Muralidhar asked Mehta to show him the request he said he had received from the lieutenant governor. Mehta obfuscated, calling himself “illiterate with technology” and, later, dismissing the whole business of jurisdiction as “a petty issue.”
The solicitor general had a single-point agenda, and he was eager to get to it. All he wanted, Mehta said repeatedly, was for the hearing to be adjourned till the next day, when it could be taken up by Patel. “The arrest of BJP leaders for allegedly making hate speeches is not urgent enough so as to call the matter from chief’s court and hear it today,” he told the bench. Yet, evidently, the matter of postponing it until Muralidhar could have no say was urgent enough to make the solicitor general rush to court.
Muralidhar explained to Mehta the established procedure of mentioning cases before the top bench of the court to appeal for an urgent hearing, and asked him to help the court in assessing the plea as a law officer. In a second attempt to secure an adjournment, Mehta asked that the union home ministry—the ultimate authority in charge of the Delhi Police—be made a party to the matter, and be given time to get up to speed on the case.
Muralidhar would not have this either, so Mehta took a third shot. He said the speeches in question were made weeks ago—in fact, the last of them was made just days earlier, on 23 February, by the BJP leader Kapil Mishra—and so a delay of one more day would make no difference. Muralidhar replied that the time elapsed made the matter even more urgent.
“You are the foremost law officer here, Mr Mehta,” Muralidhar said. “We want you to assist us as a law officer.” Mehta responded that he needed to seek instructions.
“The petitioners’ prayer is based on three videos,” Muralidhar said. “The whole country has watched these videos not once but many times.” He asked if Mehta had seen the recordings, and the solicitor general replied that he had not. “Ask your officers,” Muralidhar shot back. Rajesh Deo, the deputy commissioner in charge of the crime branch of the Delhi Police, was called to the front.
“Have you watched these clips?” Muralidhar asked him. Deo said that he had seen two clips, but not the third, of Kapil Mishra.
“Not the Kapil Mishra one?” Muralidhar asked. “Are you saying that even the commissioner of police has not seen the video? I am appalled at the state of affairs of Delhi Police.” He called for the video to be played in court. “Let all of you watch it.”
The video showed Mishra speaking before a crowd in Jaffrabad, in northeastern Delhi, just hours before the violence began. Muslim residents of the area had been protesting against the Citizenship (Amendement) Act, and Mishra warned that if they did not clear out “we will have to come out on the street.” A uniformed police officer stood beside him as he spoke.
Muralidhar asked Deo to identify the officer. It was Ved Prakash Surya, the deputy commissioner of police for northeast Delhi. Muralidhar gave Mehta a transcript of Sharma’s speech, and the matter was adjourned until after lunch.
Walking out, Mehta looked tense, according to a lawyer who was at the court. When he got to the lift, Mehta turned to Deo, who was walking with him, and, according to two lawyers standing nearby, told the police officer, “You will pay for this.”
When I contacted Deo and Mehta, both denied that this incident ever happened. The two lawyers stood by their accounts. “It wasn’t really a surprise,” one of them told me. “I mean it is Tushar Mehta. What else do you expect from Tushar Mehta?” The other lawyer said, “You know, this is the SG threatening an officer in the court premises. You think this happens, you know this happens, but to see it for yourself, it is, it is like seeing somebody naked.”
After the lunch break, the bench gave the police until the following day to take a decision about whether they would register FIRs against the BJP leaders. By dinnertime, Muralidhar was transferred to the Punjab and Haryana High Court, after the law ministry accepted a two-week-old recommendation for his transfer from the Supreme Court collegium—the first authority on the composition of all the high courts. The timing of the action, just hours after the hearing, escaped nobody’s attention. Whether or not it was punitive, the government did not care if it looked punitive.
The lieutenant governor addressed the “petty issue” of jurisdiction the next day, when he issued a notification to say he had appointed a team led by Mehta to oversee cases arising from the Delhi violence. The chief justice, Patel, was back at court to hear the matter, and granted four weeks for the home ministry to respond to the petitioners, as Mehta had asked. The attacks were just abating, and corpses and burnt vehicles still littered northeastern Delhi, lying next to houses full of soot. The case was adjourned until mid April.
POLITICAL POWER HAS ALWAYS been exerted in the courts by proxy. During the Emergency, Indira Gandhi’s man was Niren De, the attorney general, whom many used to call the most powerful person in the Supreme Court. De argued, in 1976, that the Gandhi government was legally permitted to get away with murder. (Or, in legalese, that the right to life was at the “mercy of the state.”) The Supreme Court capitulated, agreed with De, and overturned rulings against preventive detention by 23 high courts, supplying elaborate judicial justification for the violation of fundamental rights.
The face of the Narendra Modi government in the courts—especially in the Supreme Court—is Tushar Mehta. KK Venugopal, the current attorney general, outranks Mehta as the highest law officer, but lately he has been noted for his absence from court in many of the most sensitive cases involving the Modi administration—something senior lawyers see as a sign of his unwillingness to argue certain government positions. (In a recent interview with Bar and Bench, Fali Nariman said that he resigned as the additional solicitor general during the Emergency because, when senior law officers passed briefs on to him, it would fall to him to argue things that were against his conscience. “I knew that all the dirty work would come to me,” he said.)
Mehta, appointed an additional solicitor general shortly
