THE SC HAS NOT BEEN FAIR TO HARSH MANDER

The Oxford English dictionary says one of the meanings of justice is fairness. It’s a quality we instinctively understand. Even children can sense when someone has not been fair. And, above all else, it’s what we expect from our Supreme Court (SC). Few can fathom complex jurisprudential arguments, but all of us automatically recognise fairness — or unfairness — when we see it.

This is why I’m disillusioned with the way the SC has treated Harsh Mander. On March 4, the Solicitor General told the Court that Mander had made a speech at Jamia Millia Islamia in December which “brings the Court into disrepute” and “instigates people”. Without hearing the speech — or even Mander’s lawyer — the Chief Justice of India (CJI) said: “If this is what you feel about the Court, then we will have to decide what to do about you.” He also decided to defer a hate speech petition presented by Mander. “Till we sort this out we will not hear you but will hear others.”

Two things were thus clear. First, the CJI was prepared to act on the Solicitor General’s version of Mander’s speech without hearing the actual speech or even Mander’s lawyer’s version of it. Second, the CJI gave greater priority to a comment he saw as a slur on the Court’s reputation than hate speech which could affect tens of millions.

The matter came up again on March 6, by when the Delhi Police had filed an affidavit accusing Mander of “bringing the judiciary, as an institution, and individual judges in disrepute”. On this occasion, Mander’s lawyer, Dushyant Dave, pleaded with the judges: “Please go through the entire speech … the filing of the application by Delhi Police against Mander is an attempt to browbeat him … He is being put in the dock for nothing.” But, again, the Court did not hear the full speech. It continued to rely on the Solicitor General’s version now, presumably, supported by the police. And it ordered Mander to respond to the allegations and fixed an April date for the next hearing.

However, if the judges had heard the speech, this is what they would have found Mander said of the Court. After saying the fight for our country and our Constitution cannot be won in Parliament, because our secular parties do not have the moral strength to take it up, he added: “This fight can also not be won in the Supreme Court because, as we have seen in the case of the NRC, Ayodhya and Kashmir, the Supreme Court has not been able to protect humanity, equality and secularism. We will definitely try as hard as we can in the Supreme Court, because it is our Supreme Court after all. However, the final decision will be given neither by the Parliament nor by the Supreme Court.”

This is, undoubtedly, criticism of the Court, but then who said you can’t criticise it? In fact, many would consider it deserved. And it certainly isn’t contempt.

The full speech would have also revealed in what manner Mander was instigating people. After asking where will the future of the country be decided, he said: “On the one hand, the decision can be taken on the streets. We are all out on the streets. However, there is one more space, bigger than the streets, where this decision can be taken. What is this space where the solution to this struggle can be found? It’s in our hearts — in your heart and in mine.”

If the phrase “on the streets” disturbed them, the judges would have discovered that in the very next breath, Mander made clear it did not mean violence. Protest, yes, but peaceful and lawful. “We have only one answer to their hatred and that is love,” he said. “Most importantly, we have to fight with non-violence. Anyone who incites you to violence and hatred is not a friend of yours.”

So, now, can you see why I began the way I did, and why I’m disillusioned with the Supreme Court? It hasn’t been fair to Mander. Ironically, that could hurt the Court more than Mander.

Last week, I heard a story about a minor impact of the coronavirus threat on India’s trade, which illustrates a major obstacle to the growth of the Indian economy. A garment exporter told me that the government has banned the export of masks for fear that the virus will spread in India. The exporter has a consignment of eye masks awaiting shipment, but try as hard as he would, he could not persuade the customs that eye masks are fashion garments, which don’t cover either the nose or the mouth, and have nothing to do with preventing the spread of the coronavirus. Mask means mask, according to the customs, and that’s the end of the matter. This year’s Economic Survey has warned of “the urgent need to remove red tape at ports to promote exports”. The need is indeed urgent. At present, the value of Bangladesh’s garment exports is nearly double the value of Indian garment exports, but the customs don’t seem aware of this need.

Ever since he came to power, Prime Minister (PM) Narendra Modi has been told by economists that the bureaucracy and the plethora of laws and regulations governing trade is an obstacle to growth. But when I told the eye mask story to an economist friend, he said the trouble is that the PM doesn’t listen to economists. There is one obvious reason why this could be true. Most economists thought the slowdown in the economy would have an impact on last year’s general election, but the PM knew better. He barely bothered to mention the economy. It seems he doesn’t buy the phrase coined by Bill Clinton’s campaign manager: It’s the economy stupid. For him, it’s the politics that matters. That is presumably why Amit Shah sat next to the PM in the crucial pre-budget meeting he held with economists, sector experts and successful young entrepreneurs. As home minister, Shah does not have an economic brief, but he is Modi’s closest political advisor. The finance minister, whose brief is the economy, did not attend this meeting, though it was later clarified that she was meeting party functionaries for inputs on the budget.

When he first came to power, the PM did appear to listen to his economic advisors. He chose some of the most highly-reputed economists from America to advise him, but then he didn’t listen to their advice. He fell out with Raghuram Rajan, the governor of the Reserve Bank of India (RBI), over the question of the bank’s autonomy and the Mudra Loans scheme. Urjit Patel, the next governor, resigned rather than agreeing to give the government a bigger share of the RBI’S dividend. So he was replaced by Shaktikanta Das, a career civil servant.

Arvind Panagariya was chosen to head the new Niti Aayog, but his commitment to free trade clashed with the Bharatiya Janata Party’s commitment to swadeshi protectionism. When he left, the economist, Rajiv Kumar, was chosen as his successor. Kumar had written a book arguing in favour of Modi’s record as chief minister of Gujarat. Bibek Debroy, who moved from the Niti Aayog to being the chairman of the Economic Advisory Council to the PM, was a prominent advocate of Modi’s Gujarat model of development.

As it has turned out, it would be good if Modi had listened to the advice of his choice for his first Chief Economic Advisor, Arvind Subramanian. Subramanian had recommended a far simpler structure for GST, with a maximum rate of 18%. His successor Krishnamurthy Subramanian is one of the economist who has supported demonetisation. So, it does seem that the PM now chooses his advisers because they have agreed with him in the past. Isn’t there, therefore, a danger that they will feel obliged to read his mind before giving advice now, and that rather than being independent-minded, they will become committed?