The Supreme Court order asking for an explanation from Rahul Gandhi regarding his comments about the April 10 order in the Rafale review petitions throws up some interesting possibilities. While the Congress president will no doubt give his explanation, it is clear that his was a political reading of the order.
Political readings of orders have become increasingly common in the last decade or so. Starting with the now infamous 2G case – where each and every order was debated upon by the opposition as to whether or not it implicated the government – Supreme Court orders are now often communicated to the general public through political personalities and spokespersons.
These interpretations and readings have not, to the best of my knowledge, come up for comment by the judiciary itself. Unlike the law of defamation, where the Supreme Court had observed in 2018 that the press ought not to be hauled up for criminal defamation for some ‘wrong reporting’, there doesn’t seem to be much of a similar precedent regarding the issue of contempt.
There is, of course, a clearly marked difference between a political and a journalistic comment. Politicians, unlike the press, present their commentaries on judicial decisions often in the spur of the moment and not necessarily after a thorough briefing. Accurate court reporting necessarily has to be bland and free of any and all interpolations or additions while political commentary, inevitably, has to focus on larger implications.
However, this one case could lead up to the consideration of a large number of such cases. Over the years, many erroneous claims have been made on the basis of judicial orders. When the Bombay high court and the Supreme Court declined to allow activist Harsh Mander to challenge Amit Shah’s discharge from the Sohrabuddin Sheikh fake encounter case, it was widely reported as being a clean-chit when neither court even dealt with Shah’s culpability or lack thereof.
Recently, when the Supreme Court had disallowed an early hearing application regarding the Ayodhya dispute, Times Now had run a programme accusing the Supreme Court of ignoring ‘Hindu sentiments’ and had run a ticker saying ‘Mandir not a priority stand’. Neither of these observations clearly came from the court order which was based on the heavy docket of the court and the pendency of many matters.
Around the same time, the Sabarimala issue had arisen where the Supreme Court judgment and the Supreme Court itself had been castigated by the BJP for their stand in allowing women of menstruating age to enter the temple premises. In fact, the Supreme Court’s decision to hear the review petition had been declared as a victory by the BJP itself.
This last comment is directly analogous to Rahul Gandhi’s comment regarding the Rafale order last week. As of now, as per reports, no ‘formal’ notice has been sent to Mr Gandhi on Ms Meenakshi Lekhi’s plea but an explanation has been sought. If such a notice is made formal or indeed, contempt action is initiated, it would lead to an epochal change in the nature of political discussion in India.
Court judgments would be out of bounds for laypersons and comments on these would likely have to be vetted legally before publication. Until now, the assumption has been that since court orders and judgments are publicly available, they can be freely used to confirm or contradict any commentator.
What the Supreme Court has been asked now is to decide the latitude available when commenting on its orders and judgments. Until now, this latitude has seemingly included tolerating erroneous readings and even insinuations against the court. Now, what is being tested is whether a political reading of a Supreme Court judgement can be grounds for contempt of court.
The April 10 order does state that when there are serious allegations of corruption there is an overriding effect to the provisions of the Right to Information Act. It does not state that allegations of corruption have been proven.
However, once the government has claimed politically that the December judgment in the Rafale case amounted to a ‘clean chit’, a political interpretation to the decision to hear the review petition becomes inevitable.
In the December judgment, the Supreme Court had declined to interfere in its jurisdiction under Article 32 of the constitution. The writ jurisdiction under Article 32 is very limited as per the court’s own interpretation of it and further, while hearing a case in its writ jurisdiction, the court did not indulge in fact-finding.
This is an accepted principle – the upshot of which is that dismissal of such a petition does not automatically bar further enquiry by a statutorily empowered authority. The government sought to ignore this nuance while the opposition attempted to highlight it.
Much like how the BJP declared the hearing of the review petition regarding Sabarimala to be a victory, the Congress and the opposition declared the hearing of the Rafale review petition to be a victory. The only difference is that the BJP sought to make an issue out of it. It’s quite likely that the party with the most voluble spokespersons might have scored a self-goal here.
Sarim Naved is a practising lawyer in Delhi.