The statements made by solicitor general Tushar Mehta before the Supreme Court on Friday in the suo motu petition regarding the problems of migrant labourers evoke disbelief and horror.
The court’s earlier response to the unprecedented humanitarian crisis affecting millions of migrant workers, their basic right to life, dignity and survival, has been severely criticised by all sections of society. It was with hope and deep concern that the suo motu proceeding was being watched by citizens.
However, Mehta’s belligerence, disregard for facts and open hostility towards the intervenors and their counsel in a case involving public interest sullied the proceedings and was unwarranted and unbecoming of the office he holds.
Even as the bench expressed its willingness to hear the senior lawyers representing groups working with migrant workers, Mehta objected and called upon them to establish their credentials through an affidavit, accusing them of earning in crores and not stepping out of the comfort of their air conditioned offices.
If a lucrative income, a heavy bank balance and the comfort of an air conditioned office were to disqualify someone from espousing a public cause, perhaps Mehta himself may not pass the test.
Secondly, his sweeping, denigrating comments about “arm chair intellectuals” as “prophets of doom” spreading negativity and misinformation are obviously untrue and smack of rhetoric intended to please the ruling government.
Accusing former Supreme Court and high court judges, senior lawyers, historians, writers, activists – all women and men of integrity – of “not showing courtesy to the nation,” not recognising the “nation’s effort” and “not having the patriotism” to acknowledge the efforts of the government and its ministers is nothing but a ruse to deflect attention from the issues before the court.
Unlike a fascist state, a vibrant democracy demands fearless and outspoken criticism of the government and it would be a great disservice to the ideals of constitutional democracy if a citizen watched in mute silence the abdication of duties by an elected government.
Government is not nation
Elevating the status of an elected government whose tenure is limited and dependent on the will of the people to that of “the nation” and dubbing any criticism as an unpatriotic act has fascist connotations, even if unintended.
To use nation and government interchangeably is dangerous and does not bode well for a democracy. Patriotism and servitude to power never go hand in hand in a democracy. Today, what the rest of the world (The Guardian and Washington Post) sees when they look at India is the spectre of the “greatest exodus since partition”, of hundreds of thousands of migrant workers trudging through hundreds of miles in the scorching heat with their worldly possessions in a bag or two, with their gaze of hunger, hopelessness, despair and betrayal.
An image that has churned the guts and conscience of those “arm chair intellectuals,” who chose to at least speak out for these hapless workers.
These migrant workers have toiled relentlessly with miserable wages under inhumane working conditions to advance the country’s economy. Today, the employers are pleading with state governments to not let the migrant workers go, as otherwise their industries cannot operate.
They form the backbone of the country’s manufacturing, infrastructure and services sector and they are our nation.
Concerned citizens are not enemies of the state
There is really no justification for a law officer representing the interests of the government to view a citizen who exercises her democratic right with such antipathy and suspicion.
The role of every lawyer in a case of this nature is to serve one purpose – uphold the rights guaranteed by the constitution to those who have no means to even approach the court.
The solicitor general must adopt what is called the “independence approach” enunciated by Michael W. McConnell, constitutional law professor, former judge and assistant to the United States solicitor general, submitting arguments that he believes to be substantially valid even if the client’s interests would be better served by other plausible legal arguments.
The first attorney general of independent India, M.C. Setalvad appearing before the Justice Chagla Commission probing the Mundhra scandal, played a pivotal role in exposing the truth and that eventually led to the resignation of the finance minister, T.T. Krishnamachari. None dare say the then attorney general was unpatriotic.
It is this sort of dispassionate approach and adherence to the truth by the solicitor general that will benefit the nation and add lustre to the office.
In order to attack the media, Media cited the tragic incident of photographer Kevin Carter’s suicide just a few months after he was awarded the Pulitzer prize for his 1993 photo of a vulture sitting in wait near an emaciated Sudanese child.
He referred to (apocryphal) criticism of Carter as the “second vulture” for having abandoned humanity in pursuing an award-winning photo and sought to draw a parallel between Carter and the media’s role in reporting the migrant workers’ crisis.
The narration itself is an inaccurate rendition of facts. The child, Kong Nyong, who died a few years later due to fever, was not abandoned by Carter.
The latter’s suicide was caused by post traumatic disorders as revealed in his last note:
“I am haunted by the vivid memories of killings and corpses and anger and pain…of starving or wounded children, of trigger happy madmen, often police, of killer executioners”.
The photo drew worldwide attention to the famine in Sudan and Carter continues to be held in great esteem in his profession. The SG’s not so subtle insinuation of gleeful voyeurism, opportunism and lack of empathy by the media and the intervenors who have relied upon news reports is distasteful and ethically wrong.
A fearless and independent media is vital to the health of a democracy and it was their responsible reporting that brought to light the plight of the migrant workers.
Citizen is not equal to the state
When the solicitor general repeatedly asks “what have you done?”, “what is your contribution?” (to which Kapil Sibal replied ‘Rs 4 crores’), it baffles the ordinary citizen.
This is an attempt to place an individual citizen with limited resources on an equal footing with the state which has constitutional obligations and is backed by it’s huge infrastructure and demand from the former the performance of a task she or he is ill equipped to do.
A humanitarian crisis is not something well intentioned people or groups can handle and it is only the state that can and should step up to the meet the exigencies and discharge its duties. One would expect a meritorious argument and not scornful and fatuous contentions such as this from the solicitor general.
But then his statement made on March 30, before the Supreme Court that not a single migrant worker was on the road rankles. Even a lay person will ask, “Is it not the duty of a government law officer to state the truth and assist the justice delivery system?”
Role of a government lawyer
A lawyer representing the government, unlike one appearing for a private litigant, has a duty not just to his client, but also to the public in ensuring that the rule of law shall prevail, even if it conflicts with his client’s interests.
The SG as the second most senior law officer of the country has the additional burden of setting an example by his conduct to his colleagues at the Bar. Words of acrimony, personal attacks on opposing counsel, peevishness, distortion and suppression of facts – conduct prohibited by the Bar Council rules – compromises the dignity of the office Mehta holds.
Justice Reid, in Rondel v. Worsley (1969) reminds lawyers of their overriding duty not just to the court and standards of the profession, but to the public as well. Justice Brennan in Giannarelli v. Wraith (1988) observes that it is the counsel’s duty to assist the court in the doing of justice according to law.
Rules framed by the Bar Council of India under Section 49 (1) (c) of the Advocates Act, 1961, stipulate that an advocate shall not be the mere mouthpiece of a client, shall not use intemperate language in proceedings before the court, shall conduct himself with dignity and self-respect, shall uphold interests of the client through fair and honourable means without causing any unpleasantness to another and shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or do anything in relation to the court, opposing counsel or parties that the advocate himself ought not to do.
The Supreme Court in O.P. Sharma v. High Court of Punjab & Haryana (2011) said:
“An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system…Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.
As a rule, an Advocate being a member of the legal profession has a social duty to show the people a beacon of light by his conduct and actions rather than being adamant on an unwarranted and uncalled for issue.”
Sadly, the hearing bore witness to the breach of these rules by the solicitor general.
Court fails to rein in inappropriate behaviour
From media reports, it appears that the court did not admonish Mehta for vilifying senior members of the Bar, who wished to assist the court by placing relevant material and offering suggestions to resolve the crisis.
The credibility of the Supreme Court is at an all time low as pointed out by several jurists. Former Supreme Court judge, Justice Gopal Gowda write recently: “ADM Jabalpur will no longer be remembered as the darkest moment. That infamy now belongs to the Court’s response to the preventable migrant crisis.”
It was in the fitness of things that Mehta’s diatribe ought to have been stopped by the court at the very outset to prevent his attempts to reduce judicial proceedings addressing one of the most solemn issues facing the nation post-Independence to a travesty.
It is thus not a story of the vulture and journalists but a story of obfuscation of facts, intimidation, wrongful accusations and an assault on the dignity of the profession and the justice system.
R. Vaigai, Anna Mathew and S. Devika are advocates, Madras high court.