Solicitor General Tushar Mehta Should Be in Politics, Not in Court

Setting aside, as it were, the protocol of his office as the second highest law officer for the government of the day, the Solicitor General, on Thursday, May 28, made a passionate political speech in the apex court.

It was his contention that all those berating the executive – journalists, intellectuals, NGOs, opposition political parties, and sundry bleeding-heart busybodies – were “prophets of doom,” out to spread “negativity, negativity, negativity” on the back of the migrant workers issue.

His political invective did not stop there.

He went on to adduce the instance of a camera journalist who had in the Sudan of 1993 taken a picture of a child with a vulture hovering over, implying that those insisting on drawing the attention of the nation and its institutions to the misery – “so-called misery,” he might have meant – of the wretched of the earth were akin to the vulture hovering above the child..

It was his political view that the pleaders associated with the public interest litigation (PIL) on the issue thought the honourable court “neutral” only if it “abused the executive.”

In a flourish of personal snide, Mehta wondered what contribution they, sitting in their air-conditioned offices, had made to the cause, drawing from Kapil Sibal the embarrassingly factual riposte that the latter had contributed Rs 4 crore of his own money. Mehta, of course, did not indicate what his own contribution has been.

Sibal, returning to the legal and humanitarian aspect of the matter, pointed out that having invoked the National Disaster Management Act, the Centre needs to answer why it had failed to meet the stipulations inscribed in section 12 of that Act which lays guidelines for relieving the misery of affected populations at times of disaster, since the requirement of minimum standards under the stipulated national plan enjoined furnishing relief with respect to shelter, food, drinking water, medical cover, and sanitation.

He pointed out that no such stipulated national plan was in evidence – one that required to be approved by the NDMA.

That Mehta’s employers have thus far expressed no disapproval of his presentation to the Supreme Court supports the view that his political diatribe had their endorsement, insinuating a sort of Trumpian contagion which requires that the executive must only be lauded for the work they do (as a sort of noblesse oblige?), and never criticised.

Prophets of doom

At a moment when several times more people have been on the roads looking to return home, than had been during the Partition, doom seems an inappropriate metaphor to be used by the country’s second highest law officer — an attitude of mind that speaks to how inured the powers-that-be have become to the humanitarian nadir of “we, the people.”

Indeed, not even the proverbial “naked new-born babes” delivered by famished pregnant women en route seem to move the “pity,” not to mention the piety, of the rulers of the day.

Unable to make these ‘sans-culottes’ in their millions invisible either to fellow countrymen or to the world at large which has also been reporting the unprecedented plight of the migrant workers, “prophets of doom”, ostensibly, serve no good purpose, except to “distort” the image of the republic set to become a $ 5 trillion economy, and discredit the unsubstantiated merit of the government in meeting the suffering of the disowned millions.

It needs to be noted that, after having invoked the National Disaster Management Act, the onus, constitutionally, of redressing the suffering we are witness to shifts to the Central government; so this other ploy of passing on the buck to the states is rendered disingenuous. Which is not to say that the states, with the outstanding exception of Kerala and smaller states in the North East, have shown any greater sensitivity to the tragedy. It is another matter that vast amounts of moneys accruing to them from central coffers remain to be disbursed.

Meanwhile, all those who wish to see the hapless sansculottes treated not as just another swarm of locusts but as “we, the people” are to be dubbed “prophets of doom.”

Ostensibly, the pronouncement that the 21st century is to belong to an India that is self-sufficient is badly undermined by the “prophets of doom” who seek accountability from the government in the current crisis of herculean proportions. Yet again, the crude facts of objective reality are to be shamed and vanquished by smartly designed and relentlessly propagated slogans.

One must not ask why it was that the first lockdown was announced with just a four-hour notice to the nation without the least consultation with either knowledgeable experts or the states.

One must not ask why the inevitable conundrum that would confront migrant workers far away from their hinterland homes was not factored into the announcement. One must not ask why Mr. Mehta could say on March 31 to the apex court that there were no citizens trudging the highways of the nation, when in fact they already were.

One must not ask why, at a time when the total number of COVID-19 cases countrywide numbered only a few hundreds, public transport was not made available to migrant workers to return home, having lost what livelihood they had in the metropolises.

One must not ask, but only applaud that the lockdown was declared with a flourish, much like the good old demonetisation. And one must not ask as to who is responsible for the hundreds of deaths that have taken place among the sans-culottes while on the roads, just as nobody has thus far been found accountable for the hundred or more deaths that occurred among people who stood in lines before the banks at the time of demonetisation, begging for their own hard-earned money.

In short, one must not ask, period.

Only “prophets of doom” ask such questions, not dyed-in-the-wool nationalists. Patriots are those who in any circumstance applaud the executive of the day, not those who speak on behalf of the people in whom sovereignty rests.

In the Catholic faith, there is the doctrine of Infallibility, meaning the Pope can do no wrong, being, according to the other doctrine of Apostolic Succession, the reincarnation of the Apostle Peter. Well, what do you know: this principle of faith seems now to have traveled to the secular sphere in many parts of the “democratic “ world as well: the executive can do no wrong, only the sinners who question do so.

Negativity

“Positive” citizens are those who, like Sant Tulsi Das climb to their desired goals gripping a serpent for a rope.

Those that see the serpent are myopic carpers whose spirits are enslaved by adherence to facts. It matters not that no crises may be adequately addressed until the relevant facts are looked in the eye. The new breed of fact-checkers are simply deeply negative adversaries of lofty governmental pronouncements, and retarders of destinies of greatness foretold.

That Trump refuses to wear a mask, that he knows the virus to have been a conspiratorial agent, that he recommends medicines disavowed by the scientific community (and imported from India), that he lambasts governors of states for spreading negativity —this is to be our model of meeting the catastrophe we are faced with, it seems.

And, recalling Copernicus, the scientists of the day must fall in line, or be removed from office, since burning at the stake may not now be an option that even the most red-necked of conservatives might advocate.

To that extent, times have changed, although a white police officer may still sink his muscled knee into a black man’s neck on a street in Minneapolis and take his life while the corpse-to-be keeps muttering, “I cannot breathe.”

Events in the “oldest” democracy that parallel mob lynchings of comparably marginalised citizens in the “largest” one.

Vultures

Mehta, clearly, is not a literary giant, or else, he would not get his metaphor so wrong.

Vultures feed off the dead, but our “prophets of doom” have been bemoaning the fact that so many should die during the migrant peregrinations from pillar to post, from one reluctant and misdirected train to the other.

These are people who wish to see the migrants alive and well, sheltered, fed, treated for disease, and safely brought home. Vultures are those who do not much mind who and how many of the sans-culottes perish to the odyssey of a return home to their land and loved ones.

Indeed, their point is that the powers-that-be seem less disturbed by the locusts than by the swarms of dispossessed human beings who seek their right to life and liberty under Article 21.

Mehta might ponder the fact that whereas the virus has only obliged the haves to stay indoors, assured of essential supplies, it has robbed the crores of migrant labour of their fundamental right under Article 21 to a life with liberty and dignity.

But a law officer who chooses to descant primarily as a politician will indeed be closed to that constitutional fact and imperative.

Courts

Mehta is riled that, in his view, many high courts are “running a parallel government” (ibid.). It seems his view that the courts must not be taken in by the “prophets of doom” but only see and approve the work done by the executive.

The courts, however, may be applauded for now, at any rate, for holding that their primary constitutional writ is to protect the rights of citizens against the neglect, chicanery, or deflection by the executive.

This especially when the objects of concern are those who have no hope of access to the courts on their own. Which is of course where spirited “prophets of doom” — journalists, intellectuals, NGOs, sundry good Samaritans (and they have been hearteningly many during the current calamity) — must be seen to be performing a task fatally crucial to a lawful and constitutionally validated operation of the state.

Nor may a politically charged Solicitor General begrudge the organised political opposition their duty and obligation to stand with the people, or what is politics for.

Given that the grim dislocation of national life is set to continue in the foreseeable future, however money-spinners wish it away so that the “normalcy” of a prosperity foretold is quickly realised, the oppressed masses and the “prophets of doom” will continue to look to the country’s justice system to put matters in perspective.

And it is heartening that the courts now see that eventuality and are of a mind to deliver the lawful redress that the constitution enjoins upon them to deliver.

All those who wish the hard won rights of “we, the people” to be honoured and facilitated will be friends of the judicial system.

Badri Raina taught English literature at Delhi University.