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National Interest: Gently, Your Lordships

Surely, the eminent judges don’t want us to quake with fear. Then why such language?

Written by Shekhar Gupta | Updated: March 29, 2014 8:10 am
SUPREMECOURTM A humiliation in Bangladesh will be such a knock on our pride. Will the SC then move in the national interest and replace Dhoni as captain, the third most important job in the country?

One would have to be smoking something illegal to be even remotely seen to be defending Subrata Roy Sahara, N. Srinivasan and Akhilesh Yadav today. And at a time when the most profound thoughts are expressed in no more than 140 characters, I know the perils of being even halfway subtle. So let me say this up front, and in barely more than 140 characters: Neither I, nor any sane Indian can defend any of these three characters on issues in which they’ve been pilloried by the Supreme Court of India. They must be called to account now.

Having got that disclaimer, or maybe anticipatory bail application, out of the way, let me be reckless and raise a few questions. Can our Supreme Court get so deeply involved in cleaning up the muck in the BCCI? Can it simply tell its president, Srinivasan, off with your head, and appoint Sunil Gavaskar whom I so adore as a cricketer, and I presume the bench does too, as we are, generally, the same vintage. We know that BCCI president is the second most important job in the country, after the Congress vice president, today.

But what if our team does really badly in the ongoing T20 cricket world cup? A humiliation in Bangladesh will be such a knock on our pride. Will the SC then move in the national interest and replace Dhoni as captain, the third most important job in the country? And with whom, and on what basis? Ravi Shastri as the non-playing captain, since Gundappa Viswanath, being married to Sunny’s sister, may cause another conflict of interest? Or why not Arvind Kejriwal? Now that would be some real reform.

I know I risk being asked to get my head examined, so let me explain my confusion. My colleague and Indian Express legal affairs editor Maneesh Chhibber mentions to me an earlier Constitution bench judgment (Zee Telefilms Ltd and Anr vs Union of India and Ors, 2005), which ruled that the cricket board is a private body and even though it controls cricket in India, it is not “state”. To be fair, the bench had also ruled that while the BCCI is not “state”, a writ petition against it under Article 226 of the Constitution would still be maintainable.

But can that be stretched to the honourable court removing, even if temporarily, its elected president and appointing somebody else, howsoever illustrious? This paper, on its front page on Friday, had carried a story on some conflicts of interest that Gavaskar has with the BCCI. The judges have tried to address that by asking him to “get out of” his contracts. But I am not sure if Gavaskar has withdrawn his two letters to the BCCI demanding Rs 20 crore as compensation for his contribution to the same IPL. He will now be heading the BCCI and this year’s IPL in his new, court-mandated capacity. Whose side will he be on?

Maybe I exaggerate a bit. But I say this to highlight the perils of the most respected and trusted institution in India, the highest judiciary, getting caught up far too often in issues of governance that are necessarily messy, contentious, and need constant negotiation, even compromises. I will not be so insane as to question the honourable court’s wisdom, but I believe I will be granted the leeway to argue with Their Lordships on their zeal, priorities and, if I may push the envelope, impatience. Nobody can deny the brazenness with which Srinivasan and cronies were persisting with the most shameful conflicts of personal, family and corporate interest when it came to the IPL. His team, Chennai Super Kings, and Rajasthan Royals should have been suspended last year itself by the BCCI and his son-in-law investigated more thoroughly. But they all went on in the spirit of “saiyyan bhaye kotwal, ab dar kahe ka (my lover is the sheriff, so who do I fear)”.

This paper stood out, raising questions (“Indian Parivar League”, IE, May 10, 2008; National Interest: “Conflicts of Cricket”, IE, September 7, 2011, and “The Giant Fix”, IE, May 25, 2013). These were all ignored by a cricketing establishment drunk on its riches and the stellar performance of its team. Now that we haven’t done so well overseas lately, it has fewer sympathisers. But the way to deal with these is through established laws and processes, not the indignation of a bench, howsoever “nauseating” it may find Srinivasan’s continuation.

Unlike most of our institutions, and definitely our executive, our judges have been active, decisive, but also impatient. In the 2G case, the bench said “we are getting angry” at the laxity of the government’s response. Another learned bench has now said Subrata Roy Sahara not paying his dues was like telling the Supreme Court to “go to hell”, and sent him to jail until, as it now turns out, he deposits Rs 10,000 crore, approximately half of his alleged dues, with Sebi.

Now, if I won’t be seen dead defending Srinivasan and the BCCI, I will not be caught seen sympathising with Sahara even three days before All Fools’ Day. Once again, this paper has been at the forefront of questioning, and exposing what lies in the underbelly of his empire — and I exhibit great restraint in avoiding an adjective that could be an apt description for it, besides being alliterative. His group has routinely “punished” us by stopping advertising with us, which we celebrate as a great distinction, and which the owners of this paper have never complained about. In fact, it is an old belief at the Express that if someone hasn’t banned advertising with us at some point of time, we are not doing our jobs right.

Once, sometime ago as you can well calculate, Sahara even blacklisted us because we carried an item in some film gossip column that, we were told, “spoke derogatorily of Abhishek Bachchan who is like our own child”. More recently, Appu Esthose Suresh wrote a front-page story shredding Sahara’s claimed list of depositors (in the current case) by showing hundreds of persons by the same name and many in the unlikeliest of places, such as 5,984 Kalawatis across the country, with addresses like “187 Aurangabad Lucknow UP”.

You can draw your own conclusions from this, and our Supreme Court judges are enormously wiser than us. So they are perfectly right in weighing in on the case, as in some others, and ensuring that the old protection rackets that give Indian capitalism a bad name are destroyed. But deposit Rs 10,000 crore before you get bail? What kind of jurisprudence is that? Saharashri is unlikely to say so, I believe, because life in Tihar is not for his type, even if he calls himself a mere Managing Worker. But what if somebody said, ok, I am not paying, I will stay in jail. What will we do next? Flog him? Stone him to death?

The story with Akhilesh Yadav and his government’s incompetence in handling the Muzaffarnagar riots is very similar. Even his father finds it tough to defend him and his uncles compound his offence by alleging that most Muslims in the camps are not victims but squatters or gate-crashers. But without an inquiry, how does the court pronounce his government “guilty of negligence” and issue a directive to “arrest” all those accused in murder cases “irrespective of their political affiliation”, when there were some facts on record suggesting some of them were framed? More importantly, almost all of them had already been arrested and then released on bail. Can the lower courts read this as a directive to cancel their bail, or to not give bail in any more cases? Denial of bail has, in any case, become the default position in our courts.

Our judiciary, particularly the Supreme Court, has played a stellar role in maintaining stability and credibility in an extremely frustrating and chaotic decade, particularly in the last five years. At a time when Parliament didn’t function, the prime minister and many of his key ministers were missing in action, when a five-year president was a non-entity unless she hit the headlines for funny dealings, when no scam was worth less than several tens of thousands of crores, when furious TV anchors demanded nothing short of Tahrir Square, and when nobody trusted anybody in the evil establishment, the Supreme Court stood firm, providing us that vital centre of gravity. Now, whoever wins the election in May, the larger situation will change. There will be a new government or rather, hopefully, there will be a government. So there will be a new environment for the judiciary as well.

It doesn’t mean that our institutions’, particularly the SC’s, role will then diminish. In fact, we will need the apex court to be even more vigilant, forthright and sharp in enhancing our freedoms and constitutional principles and protecting us, if needed, against majoritarian excess. Besides wisdom and integrity, our topmost judges will also need patience and calm. Remember the old adage from our school sermon boards: one who wields the big stick must speak softly? Of course I love, respect and trust our judges, even hold them in awe for their brilliance and diligence, the sacrifice many of them have made by giving up lucrative practices to serve on the bench on a tiny government wage.

But I am disconcerted when they say they are getting angry, nauseated, being told to go to hell and so on. Or, fine, let me even admit that I am quaking in my Kolhapuris. But was that really your intention, My Lords? Since I speak with the greatest humility and respect, let me seek refuge in a bit of Urdu, the most polite language in the world: thoda thhande dimaag se bhi sochiye na huzoor?

Postscript: By the way, there is a special upside for the cricket lover in the SC’s activism. They have taken Sunil Gavaskar out of the commentary box. Can that reform be made permanent? We love his batting, but his commentary is as inexplicably dreary as his 36 not out in 174 balls against England in the 1975 World Cup at, where else, but Lord’s. Please also check with Srinivas Venkataraghavan, the unfortunate captain of that side.

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