At the risk of being booked for contempt — or oblivious, if not unafraid — several Twitter users recently expressed emphatic disapproval of Justice BR Gavai for granting regular bail to Activist Teesta Setalvad in an alleged fabrication of documents case.
Two days later when Justice Gavai felt it pertinent to inform both parties of his father and brother’s association with the Congress party — while offering to recuse himself from the Purnesh Modi defamation case against Congress leader Rahul Gandhi — the trolls of Twitter had a field day.
“Now we allknow the fate of the case,” one insisted. Another (quite bafflingly) wanted to know why the government was “not seeking impeachment of ALL SUCH SC AND HC JUDGES?”
All this hullabaloo despite there being no law that permits impeachment on grounds of your sibling's political associations. All this hue and cry despite Purnesh Modi’s own counsel having no issue with Justice Gavai hearing the case.
“We have no objection,” Indian Express quoted Senior Advocate Mahesh Jethmalani saying.
And why would he? Congress-links in the family or not, as pointed out by Advocate Gautam Bhatia on Twitter, Justice Gavai has “authored numerous judgments that have been *major* victories for the political executive.” The Congress party is, by no stretch of imagination, a part of the political executive in the centre.
But what are these judgments? Sample these:
The Demonetisation Verdict
In January this year, a judgment authored by Justice Gavai upheld the union government’s demonetisation notification from 2016, stating that it “does not suffer from any flaws in the decision making process”.
It further said:
“There has to be great restraint in matters of economic policy. Court cannot supplant the wisdom of executive with its wisdom.” (emphasis added)
With regard to the petitioners’ case about the hardships that emanated from the sudden demonetisation exercise, the bench went on to quote from a previous judgment which said: “If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.”
However, as noted by Gautam Bhatia (in his blog): “A martyr is someone who voluntarily suffers death because of their adherence to a faith or a belief.”
“The majority (4:1) now tells us that all these people who died – including infants – sacrificed themselves as martyrs in service of the great religion of demonetisation. They did not die because of State failure and governance failure, no, they sacrificed themselves instead,” Bhatia wrote.
The only dissenting voice on the five-judge-bench, Justice BV Nagarathna, on her part said:
"Demonetisation of all series of currency notes at the instance of the government is far more serious than that of a particular series by the bank. Thus, such an exercise ought to be carried out through a legislation (as opposed to an executive notification, which is what happened).”
On Hate Speech by Ministers
A day later, this same bench (of which Justice Gavai was a part, even though he did not author the judgment) held that the government cannot be made vicariously liable for hate speech or any problematic statements by ministers.
"A statement made by a minister even if traceable to any affairs of the state or for protection of the government cannot be attributed vicariously to the government by invoking the principle of collective responsibility.”
Further, noting that they are not suggesting that a minister can make an irresponsible statement and get away with it, the bench said that they are only on the question of collective responsibility and government’s vicarious liability.
It also said:
“The Prime Minister or the Chief Minister does not have disciplinary control over the members of the Council of Ministers",
This, however, comes at a time when hate speech related cases appear to be on an exponential rise, with government figures exhibiting a shocking lack of restraint in TV, Twitter and public meets.
For instance: The chanting of the first part of the inflammatory “Desh ke gaddaron ko” slogan by a certain union minister and the recent unrestrained blaming of muslim minority cultivators for rising vegetable prices which even led to a hate-speech related complaint against a Chief Minister of a BJP-ruled state. Among several others.
And on this view too (while agreeing with other conclusions of the judgment), Justice Nagarathna had dissented. According to her, if a minister indulges in hate speech in his “official capacity”, then such disparaging statements can be vicariously attributed to the government.
“Hate speech strikes at the foundational values of the Constitution by marking out a society as being unequal. It also violates the fraternity of citizens from diverse backgrounds, which is the sine qua non (an essential condition) of a cohesive society based on plurality and multiculturalism such as in India...”
The 'ED Chief' Judgment...
Earlier this month, in yet another judgment authored by Justice Gavai, the apex court quashed the two-year extensions given to the Director of Enforcement, S.K. Mishra. It also, however, upheld the validity of the 2021 amendments to the Central Vigilance Act and the Delhi Special Police Establishment Act which allow the government to grant multiple such extensions to heads of investigative agencies.
“While the part of the judgment quashing the two one-year extensions given to the Director of Enforcement, S.K. Mishra, may be welcomed, the rest of it is a free pass to the government to undermine the autonomy of these agencies,” The Hindu wrote in its editorial.
Union Home Minister Amit Shah, in a tweet, called the opposition ‘delusional’ for rejoicing over the mere fact that Mishra had been removed. He reiterated that “the amendments to the CVC Act, which were duly passed by the Parliament, have been upheld.”
And Justice Victoria Gowri's Appointment
Justices Sanjiv Khanna and BR Gavai also dismissed pleas challenging the appointment of Victoria Gowri as a Madras High Court judge. The challenge had emanated from her earlier role as an office bearer of the ruling party and her reported remarks against Muslims and Christians. "We can't go into the question of suitability," the bench, however, said.
The tumbling trolls of Twitterville can rest assured. When it comes to dispensation of justice, Justice Gavai is unlikely to be swayed by his brother's colleagues. When it comes to family, this future CJI has shown nothing but independence of mind.