June 24, 2021
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As we discuss the Justice Sabharwal affair, we in the media should not lose sight of self-interest. Two grave and critical issues have got entangled: 1) The absence of any mechanism to judge the judges; 2) Freedom of speech.

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Order! Order!

Judge-bashing is not a pretty sport. I participate in it with much reluctance. Make no mistake, the principal enemies of the media in this country are the politicians. Politicians try and manipulate us, plant stories on us, bribe us with access or cash (alas, sometimes they succeed rather too easily), lead us up the garden path, entice us into camps and ensure we stay there, encourage us to make the transition from privileged spectators of the political theatre to active actors. Thus, they do everything in their power to subvert the media and obstruct it from performing its foremost task of attempting to keep Indian democracy safe and clean. Our fight, therefore, is against the ladies and gentlemen in khadi and not the men in black robes, who might look ridiculous and talk funny, but finally are our allies.

As we discuss the Justice Sabharwal affair, we in the media should not lose sight of self-interest. There are not many institutions in our 60-year-old republic which enjoy public confidence. Certainly, the executive and the legislature have sunk to depths in the perception of the aam admi from where it seems impossible to sink any lower. For all their faultlines and fatuities – and they are legion – the media and the judiciary are widely seen as the last bastions in a crumbling state. No amount of self-congratulation and celebration of the wonders of Indian democracy can obscure the rot at its core. If journalists and judges can no longer provide optimism that the crisis can be contained if not conquered, we might as well say bye-bye to creating a nation state which does not annually compete with Burma in the corruption stakes.

I strike a cautionary note not to condone the sensationally silly judgement of the High Court (silly because the "offence", allegedly undermining the dignity of the courts, which could have been amicably resolved, currently has both sides with swords drawn), but because if the media and the judiciary get into do-or-die hostilities, the only winners will be the politicians. Indeed, over the past couple of weeks all the politicos I have met have urged me to persist and intensify the media’s struggle against the judiciary. I am sure similar messages are being passed on to other editors.

If the famous four Estates are at war with each other, if everyone is tarred with the same brush, then India’s ugly politician will have plenty of company. Even as we in the media vigorously defend the cause of our Mid Day colleagues, we should be conscious of the dangers if this face-off gets out of hand.

I hope our lordships are aware that this altercation has gone beyond Judiciary vs Media battle, it has widened and broadened into a Judiciary vs Civil Society battle. Two grave and critical issues have got entangled: 1) The absence of any mechanism to judge the judges; 2) Freedom of speech. Each issue by itself has the potential to inflict permanent damage on the authority and the majesty of the higher courts. This is no more a question of whether four journalists should be sentenced to short-term imprisonment. We are now in new and extremely dangerous territory where the constitutional protectors and defenders of our cherished right to free speech are accused of killing it. I hope the irony is not lost in the lofty chambers of the Supreme Court.

The facts of the case need not detain us. Justice Sabharwal’s own defence, through prolix, skirts the allegations. His friends, and I can count only one, insist that the charges are vague and "lack specificity". I don’t think we should take this response too seriously since not one but seven direct, clear and unambiguous allegations have been levelled, backed by what appears to be credible documentation consisting of registration deeds, papers from the Union Ministry of Company Affairs, certificates of incorporation of various companies, notices from the Income Tax Department, published lists of shareholders and a CD of a recorded phone conversation between the investigating journalist and Justice Sabharwal. I cannot imagine a bunch of charges which have more detail and specificity. Prima facie, there seems to be copious and compelling material for the opening of an independent enquiry into the activities of Justice Sabharwal and his sons.

I readily concede that there is no killer email or video recording or signed letter from the judge implicating himself or his sons; no document in which Justice Sabharwal confesses to misusing his office to benefit him and his family. If that is the minimum requirement for the higher judiciary to take note of judicial impropriety, those of us demanding a fair, unhysterical, balanced enquiry might as well go home.

We now come to the mob. Justice Sabharwal and his friends argue that to give in to the demand of an enquiry against no less a person than the former Chief Justice of India on the basis of a "mere newspaper article" is to open the floodgates for trivial, tendentious and scurrilous attacks on judges and the judiciary. The barbarians at the gates of the higher judiciary must indeed be resisted and repulsed. Individual and institutional grievances against judges are not unknown and I am sympathetic to the argument that we must tread carefully here. However, it does not mean we should not tread at all. What our judicial establishment has to ensure is that the mob argument does not become an all-weather excuse to dismiss allegations against an honourable judge as motivated and prejudiced.

Assume for a moment that the allegations are false and fabricated, that the four Mid Day journalists are guilty of defamation and libel, that the enemies of Justice Sabharwal have, with the aid of the media, perpetrated an unforgivable slur on the integrity and reputation of an upright judge. I have been an editor for three decades and accept that these sort of things (however rare) have happened in the past and will happen in the future. The presence of some rotten apples among journalists should never be ruled out.

Precisely for this reason, an immediate, time-bound (say, three months) enquiry should help clear the air. If Justice Sabharwal is found innocent, if he has been grievously and unjustly maligned, what a Himalayan victory for Justice Sabharwal and the judiciary. You can then throw the book at the four Mid Day journalists, send them to prison for life! Justice Sabharwal will emerge triumphant and the media humiliated.

Another boon for the judiciary will be the precedent. The baying mob will be terminally silenced. Who will again raise a finger against the judges? And if anyone is foolish enough to try, the Sabharwal precedent can be forcefully cited against irresponsible and reckless attempts to destabilise an institution the nation respects and reveres.

I plead with the incumbent Chief Justice of India to help save two institutions: the media and the judiciary. Saving the honour of Justice Sabharwal is no doubt important, but saving the honour and the hitherto harmonious relationship between the judiciary and the press is even more important. As a journalist and an admirer of the judiciary, I hope better sense prevails.

Courtesy, the Hindustan Times, where this piece first appeared.

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