Solicitor General Tushar Mehta's sway over the courts

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• 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?”

• 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.

• 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.“)

• Asked to order a probe into the Sahara-Birla diaries, which apparently detailed corporate kickbacks to Modi and other politicians, the court ruled that there was no need.

• After the sudden death of the judge BH Loya while he heard a murder case against Amit Shah, the court was content to take the government’s word that there had been no wrongdoing.

• On the issue of electoral bonds, which brought a flood of anonymous donations to the BJP, the court abdicated even the judicial responsibility of examining if they are constitutional.

• To indulge the executive, judges have bent established legal principles such as habeas corpus out of shape.

• In Indira Gandhi’s day, PN Bhagwati, as a judge of the Supreme Court and a CJI-in-waiting, gushed about her “iron will,” “dynamic vision” and “great administrative capacity.” This February, the Supreme Court judge Arun Mishra praised Modi as a “versatile genius” and an “internationally acclaimed visionary.”

• But Mehta can often be bombastic, prone to shouting out whatever happens to come to mind, including stuff he may just have read on WhatsApp.

• On 31 March, the Supreme Court heard a petition about the migrant crisis. Mehta, on behalf of the government, told the bench that, as of 11 am that day, there was “no migrant person walking on the road.”

• Mehta reached for his usual tactic when faced with difficult questions: he asked for an adjournment.

• Mehta’s rambling monologue included a dig at the high courts, some of which, he said, “are running a parallel government.” The bench did not ask him to explain such ire against constitutional courts that are supposed to keep a check on executive action.

• Yagnik told me that Mehta also identified as a Gandhian, but did not let that come in the way of persistent longings for a dictator. “I have always found him appreciating Hitler,” Yagnik said.

• Once, Yagnik remembered, Mehta said that if only India had a dictator, some good could be realised in the country.

• Mehta remained close to the family of Shrikant Shah. Shah’s daughter, Shweta, had married an Indian Police Service officer named Sanjiv Bhatt.

• “No political party has been able to achieve anything in Gujarat without first getting a grip over the cooperative units,” an academic from Ahmedabad told me.

• Modi was in Delhi at the time, serving out a period of political exile. Back in 1995, the BJP had moved him from Gujarat to the national capital after a storm of complaints against him from party elders in the state.

• A local journalist said that Mehta, Sanjiv Bhatt and Amit Shah were “a famous troika” in Ahmedabad.

• Sarabhai called a press conference in the wake of the affidavit and alleged that Modi had tried to bribe her lawyers. “Sanjiv Bhatt went and gave the money to Amit Shah, who in turn, I believe and am told by my sources, gave it to Tushar Mehta in Krishnakant Vakharia’s office,” Sarabhai said.

• In April 2002, Mallika Sarabhai, along with two other activists, filed a public-interest litigation in the Gujarat High Court contending that the state administration had been complicit in the riots. Sarabhai was represented by Vakharia.

• IN MARCH 2008, shortly after Mehta became additional advocate general of Gujarat, the Supreme Court formed a Special Investigation Team to reinvestigate some cases arising from the riots in 2002. Harish Salve, the amicus curiae in the case, was among the people who finalised the appointment of officers to the SIT. Salve’s role was to be a fair arbiter in guiding the investigation, but the petitioners in the riot cases complained that he was overlooking their suggestions.

• “One could argue,” the journalist Ashish Khetan wrote in Tehelka, “that Salve was lobbying with Modi’s office for a corporate company and the government would have been only too pleased to oblige Salve who holds the important office of amicus curiae in the riot cases where the Modi government stands accused.”

• Meanwhile, investigations into the extrajudicial killings of Sohrabuddin Sheikh, his wife and one of his associates were gathering pace. Sheikh, a known gangster, was reportedly involved in the death of Haren Pandya, a BJP leader in Gujarat. Pandya’s wife accused Modi of being behind her husband’s assassination.

• His call records showed that, in the lead-up to the killing, Shah was in constant touch with the police officers who killed Sheikh and the others.

• As his alliance with Shah was deepening, Mehta was falling out with Sanjiv Bhatt, who was becoming increasingly involved with activists fighting for the victims of the 2002 riots.

• In April 2011, Bhatt filed an affidavit before the GT Nanavati commission. In it, he said he was present at a meeting at the start of the riots where Modi instructed the police to let the rioters “vent out their anger.”

• In his submissions to the commission, Bhatt had accused the head of the SIT, the former CBI director RK Raghavan, of overlooking evidence against Modi’s government in Gujarat.

• In effect, the additional advocate general had drafted a petition to be filed by one of the accused, then drafted a reply to this petition on behalf of the state, all the while sharing information with others accused in the case.

• Gurumurthy had drafted a memorandum demanding an investigation against Teesta Setalvad, a civil-rights activist and a petitioner for the victims in the riots cases. Gurumurthy sent the memorandum to Shah, Modi and Mahesh Jethmalani.

• By then, Modi was the BJP’s candidate for prime minister, and little stood in the way of his ascent from Gujarat to Delhi. The SIT investigation into the riots had failed to find any wrongdoing on his part, and the courts had repeatedly refused to entertain fresh petitions against him. With the general election underway, the Ishrat Jahan case was dismissed after the CBI said that it did not have sufficient evidence to prosecute Shah—something that surprised the investigators who had worked on it. The election results were declared a week later. Modi won by a landslide.

• A former Congress man, even if one only loosely committed, gets only so far in the BJP. “The prime minister may not have words of high praise for him,” Yagnik said, “because he knows that this gentleman has switched sides, he does not share the ideology of the RSS.” Mehta himself once told him as much.

• Those anxieties came into full public view with the ninety-ninth constitutional amendment, passed by the Modi government with alarming swiftness in 2014. The amendment set up the National Judicial Appointments Commission, vested with the authority to nominate new entrants to the higher judiciary and dictate transfers within it. It was to supersede the collegium system, which secured this right exclusively for the five most senior judges of the Supreme Court.

• The NJAC was to comprise the court’s three most senior judges, but also the law minister and two “eminent persons” nominated by the prime minister, the leader of the opposition and the Chief Justice of India. This ingress of executive power did not sit well with the judges, who had invented the collegium system in 1993 specifically to rebuff it.

• The collegium, sequestered from outside interference, did not disclose its deliberations—or even what process, if any, it followed. Several former judges have spoken of nepotism and personal vendettas dictating many of its decisions, and when the beneficiaries of this system rose to the bench they did nothing to improve it.

• The collegium system allowed the law ministry to vet new nominees, and ask the collegium to reconsider any nomination it found objectionable.

• Meanwhile, BH Loya, the judge hearing the Sohrabuddin Sheikh case, was pressing Shah, as the prime accused, to be present in court for hearings. Loya died suddenly in November 2014, reportedly of a heart attack. The judge who replaced him, MB Gosavi, discharged Shah within a month.

• In Delhi’s circles of power, he was recognised less as a lawyer for the new government in the Supreme Court than as a member of the small coterie of personnel that Modi and Shah had brought with them to the national capital from Gujarat.

• The Supreme Court declared the NJAC unconstitutional in a judgment that invoked the Emergency—a period notorious for executive interference in the judiciary, and the prime cause for the formation of the collegium.

• Teesta Setalvad was charged with embezzling funds raised to create a memorial, and the Gujarat High Court ordered her arrest. The Supreme Court stayed Setalvad’s arrest twice, despite Mehta’s protests that the charges against her were “shocking”—according to one report, Mehta said, she had used the money for “exorbitant expenditure on branded clothes and shoes.”

• Sanjiv Bhatt was now facing charges of misconduct too. He approached the Supreme Court to ask for an investigation into two FIRs filed against him by the Gujarat police. The first accused Bhatt of making a subordinate police officer sign a false affidavit, and the second of hacking and tampering with Mehta’s email account.

• Now, through Mehta, the police told the court they had no footage of Kumar shouting anti-India slogans. All they had was a clip that established Kumar was present at the protest, and nothing more. The judge asked Mehta if he even knew what sedition means. All three students were eventually granted bail.

• It is a testament to Mehta’s extraordinary skill in securing adjournments that the matter of Modi’s degrees is still pending before the Delhi High Court.

• Vexed with the Supreme Court, especially after its ruling on the NJAC, the government dragged its feet on formalising the collegium’s recommended appointments. In 2016, with judicial vacancies piling up, the serving CJI, TS Thakur, broke down at a public event as he asked the government to clear the backlog. Modi, who shared the dais, sat unmoved.

• Barely more than a month earlier, Khehar had tangled with Mukul Rohatgi at a public event where the attorney general told judges not to breach the constitutional “lakshman rekha”—the line that must not be crossed—dividing the functions of the three branches of government. Khehar shot back that it was the executive that had crossed the line by trying to undermine judicial independence with the NJAC. But by the time of Khehar’s first public appearance as the new CJI, all hint of this enmity was gone. Khehar promised, with Modi in attendance, that “we will keep within our boundaries.” Nobody could say what had prompted the about-turn.

• When the Supreme Court was presented with a petition asking for the panel’s minutes to be released, Mehta argued against it on behalf of the union government. He said that the committee had already decided, and “their wisdom cannot be questioned.” The court agreed.

• Mehta appeared for the state of Uttar Pradesh to push for an early hearing in the title dispute over the site of the Babri Masjid in Ayodhya—a cause célèbre for the Hindutva flock.

• The following month, The Wire reported that the businesses of Jay Shah, Amit Shah’s son, had seen astronomical growth in profits since the arrival of the Modi government. Mehta announced at a press conference that he would represent Shah’s son in a defamation suit against the news portal.

• Loya’s relatives said he had been under pressure to discharge Amit Shah, and had been offered Rs 100 crore in return for doing so by Mohit Shah, then the chief justice of the Bombay High Court. They also said that RSS functionaries who had nothing to do with the family had been involved in handling Loya’s body after his death.

• Mehta’s ascent has proceeded in parallel with the fall of the Supreme Court in the public eye. More than once, they have helped impel each other along their opposite trajectories.

• The constitutional scholar AG Noorani wrote that “the Gogoi court has, at reckless speed, run a coach and four through the centuries-old established law on habeas corpus.”

• Gogoi also led the bench that dismissed calls for a review of the Modi government’s procurement of Rafale fighter jets from France. To counter allegations of massive irregularities and inflated prices, the government submitted details of the deal to the court. The bench allowed these submissions to be made under sealed covers, hidden from the petitioners or the public.

• Gogoi’s parting gift, just before retirement, was the verdict in the Ayodhya case, which handed the entire disputed site over for the construction of the Ram Mandir.

• But the judges, like Venugopal, seemed to want no part of the credit either. None of them put their names on the verdict. There is no way to know for sure who wrote it, although many lawyers, going by its style, supposed it to be the work of DY Chandrachud.

• He was appointed by the president, with the exclusive support of the ruling party, and his arrival in the house was greeted with jeers of “Shame!” from the opposition.

• The list of those named in the alleged conspiracy continues to grow, and they share only one common trait: a record of questioning the present government.

• THERE IS A STORY, perhaps apocryphal, about Niren De and the judges who sat on the Supreme Court during the Emergency. After Indira Gandhi was ejected from the prime minister’s office at the end of her rule by decree, what was earlier obvious but unspoken was finally said out loud: the court had surrendered before an authoritarian government. There was a lot of blame to be apportioned, but no takers for it. The judges wrung their hands and continued to sit on the bench until retirement. De started to float stories about how his arguments in court were actually designed to provoke the judges’ conscience. He did not take kindly to his former tag as the most powerful person in the Supreme Court. It was not that he was so powerful, De is supposed to have said, it was that the bench was full of cowards.