As Supreme Court asks ‘why ED wants to be used for political battles’, Solicitor General says ‘concerted effort to create narrative against institution’

The observations came in three matters, first involving summons against Karnataka Chief Minister Siddaramiah’s wife B M Parvathi and Minister Byrathi Suresh in connection with alleged illegal allotment of sites by the Mysuru Urban Development Authority (MUDA), and the other over notices to some senior advocates for appearing before the agency in connection with cases allegedly involving their clients.

Karnataka MUDA case

Taking up ED’s appeal against the Karnataka High Court order quashing the summons to Parvathi and Suresh, CJI Gavai told Additional Solicitor General S V Raju, who appeared for the probe agency, “Mr Raju, please don’t ask us to open our mouth. Or we will have to pass very harsh comments. We have been saying since morning that we don’t use this court as a political platform… Otherwise, we will have to make some harsh comments about ED… Unfortunately, I have some experience with ED in Maharashtra.”

As Raju referred to a connected plea about the larger conspiracy involved, the bench expressed reluctance in entertaining that too and said, “You don’t percolate this virus throughout the country now. Let the political battles be fought before the electorate. Why are you being used as a…”.

“In the facts and circumstances of the case, we do not find any error in the reasoning as adopted by the learned single judge. In the peculiar facts and circumstances of the case, the petition is dismissed.”

The court agreed to Raju’s request that the order not be treated as a precedent. “Thank you for saving some harsh comments,” CJI told RAJU after dictating the order.

Summons to lawyers

A short while later, the bench took up petitions asking whether a lawyer who gives an opinion can be summoned in connection with a probe. The petitions came to be filed in the context of ED notices to Senior Advocates Arvind Datar and Pratap Venugopal over a probe involving their clients.

The notices were subsequently withdrawn. In a circular, ED said, “No summons shall be issued to any Advocate in violation of Section 132 of the Bharatiya Sakshya Adhiniyam, 2023…”. The agency also stated that, where necessary, it will do so with the prior approval of its director.

Appearing for the Supreme Court Bar Association, Senior Advocate Vikas Singh said, “ED has now come out with a circular which says lawyers will not be summoned now. But that will not apply to CBI, etc.

Senior Advocate Vijay Hansaria said that some guidelines are needed in this matter.

Pressing for direction, Singh said, “If a lawyer is not free in giving advice and he feels giving advice can also result in being summoned for probe…it will have a chilling effect on the complete justice delivery system.”

Senior Advocate Mukul Rohatgi said that such “advice can be right, advice can be wrong”. To which, CJI Gavai said, “Even if it’s wrong, it’s a privileged communication. How can you be summoned by the ED for that?”.

“Certainly not,” responded Attorney General R Venkataramani. “I think for all matters, we must lay down guidelines,” said CJI Gavai, and turning to the AG, he added, “Your officers are crossing all limits.”

The CJI recalled the matter that his bench had taken up earlier and said, “In two matters, we had to tell Raju, if you open your mouth, then we will have to say a lot about ED.”

Intervening, Solicitor General Tushar Mehta said, “So far as this issue is concerned, lawyers, as the AG said, cannot be summoned for giving an opinion. General observations are…sometimes misconstrued… What happens is, I am saying this, ED is not saying this, there is a concerted effort to create a narrative against an institution.”

Urging against generalising, he said that if in a given case, there is overstepping by the ED, the court would intervene. “We have been finding it in many cases …,” said the CJI.

Solicitor General Tushar Mehta said, “Please don’t carry that impression based upon interviews and YouTube shows. There is a narrative building simultaneously outside.”

The CJI said he was speaking from experience. “Not from interviews. My experience from family courts to…presiding over the bench…” He also recalled how earlier on Monday, he had to ask the petitioners in two cases not to politicise issues. “Unfortunately, on the very first day (of the week), I had two matters from two political parties, and we said don’t politicise,” said Justice Gavai.

‘Don’t try to politicise before the court’

Earlier in the day, the CJI bench took up two petitions. One of them sought the initiation of criminal contempt against West Bengal Chief Minister Mamata Banerjee over her remarks on the apex court’s ruling in the teachers’ recruitment scam case. The other was by the Karnataka Government challenging the quashing of a criminal case filed against BJP MP Tejasvi Surya for comments about the alleged suicide of a farmer.

In the first, CJI Gavai said, “Don’t try to politicise before the court; your political battle, you should fight somewhere else. List after 4 weeks.”

In the Tejasvi Surya case, while dismissing it, the court said, “What is this? Don’t politicise the matter. Fight your battles before the electorate.”

Pointing out that he was not referring to any political party in particular, Mehta said, “Sometimes, and I am not on any political party, if I am a politician, but if I am involved in a Rs 3000 crore scam, I can create a narrative in my favour by several interviews, etc.”

CJI Gavai said, “Unfortunately, we all know the ground reality also.”

Mehta said, “But ground reality will have to be seen from the facts presented, from the material available, from the evidence.”

“Therefore, we are not passing any observations without hearing…,” said the CJI.

“That’s what I am saying. Sometimes wider observations create a wrong impression…,” said Mehta.

The CJI said, “We are not passing any compliments for ED, which has been recorded in the judgement by one of the learned judges, in a concurring opinion for ED.”

“Your Lordships would neither comment nor criticise. It would be based on facts,” said SG Mehta.

Apparently agreeing, CJI Gavai said, “it all depends on facts”.

Narrative building

SG Mehta said that such narrative building “is happening before Your Lordships hear any matter, forget ED giving interviews etc.”

The CJI said, “We have seen in so many matters that ED even after the well-reasoned order by the HC is filing appeals after appeals, only for the sake of filing.”

Mehta said, “Forget ED, I am on a wider issue. Before any matter reaches Your Lordships of any significance…”

“We don’t read newspapers. And at least the YouTube interview, my brother and I don’t have the time to watch,” said CJI Gavai.

“There are other media, and the narrative building starts. This is going on very purposefully, very designedly,” said SG Mehta.

He urged the court to take cognisance of it and lay guidelines, saying the question is, “while representing a client, can I build a narrative outside the court in political matters?”. “It’s a question of law. I am not on ED.”

Justice Chandran asked whether it can be said that such narratives will influence the bench. “How do you think this narrative will influence if we don’t see it at all. Narratives will go on over there. People might be concerned. But you can’t say that we will be influenced by it.”

CJI Gavai asked, “Have you seen any of our judgements which are based on the narratives, and not on the facts of that case?. If there is one judgment, please show it to me.”

Mehta said, “I am before the first court, not only before two honourable judges. As a proposition, I am saying. Not that the Chief Justice would be influenced or Justice Chandran would be… But as a proposition, is it proper? And I am not on ED at all.”

He reiterated that “as far as lawyers are concerned, for giving a legal opinion, he cannot be summoned.”

Appearing for the Supreme Court Advocates on Record Association (SCORA), Advocate Vipin Nair said, “It’s not just Senior Advocates, it’s also normal lawyers who get affected by this. It’s lawyers as a class.”

Mehta recounted an incident from Ahmedabad where an accused, after committing murder, contacted his lawyer and discussed disposing of the body.

The CJI said that it will be an offence punishable under the Indian Penal Code (IPC).