By Inderjit Badhwar
Dear Dr Chandrachud,
First of all, a very happy and glorious New Year to you, Your Honour.
I address this missive to you not in the capacity of your justly-merited standing and exalted status, but as a necessary act of communication between two citizen-members of the Fourth and Third Estates.
Sadly, Your Honour, as 2024 dawns, my perception is that two organs of statecraft, the Press and the Judiciary, both of them the quintessential watchdogs of democracy, are now shrouded in a pall of gloom spiced with cynicism, cutting a swath of despair and uneasiness across our Republic. Unhappily, too, as this new year begins to unfold, an increasing number of the nation’s well-wishers share this alarming view.
We have watched with helpless horror the phenomenon of the judiciary being—for what appeared to be an interminable period—a mute spectator to the remission of life sentences and release of the savages who gang-raped Bilkis Bano and murdered members of her family and infant child in 2002. That was until your Court, with Justice BV Nagarathna, leading the charge wielded its sword. The judgment may have come later than it should have, but it did help restore and buttress a modicum of faith and confidence in our judiciary.
Sir, I used the word “restore” only in juxtaposition to a general opinion held and openly expressed by constitutional scholars and disinterested observers and analysts of India’s jurisprudential universe that the courts are increasingly shying away from politically sensitive issues and matters involving personal liberty, thereby allowing the pendulum of the checks and balances—the constitutional separation of powers—to swing dangerously into the corner of the Executive. They argue, within the context of recent judgments, and with fact-based legal verisimilitude, that the judiciary and the press, over the last decade, may be on the path to becoming the weakest slats in the bed of democracy.
Your Honour, I will explain a little later why I am speaking of the judiciary and the press in the same breath. But in case the tone or tenor of this letter so far offends you in any way, I hasten to add an apology in advance. It is not my intention to preach constitutional morality to you. I am in no position to do so. That would be rude and presumptuous and perhaps even insulting. But as a reporter and editor, the Inquisitive Greek Spirit that seeks answers and clarifications is part of my natural state. Just as the dispensation of justice bereft of political coloration is your expected calling so too is mine the dispensation of accurate information free from any prismatic distortions of government or bureaucracy.
This letter is addressed to you, Sir, partly because you have always been worthy of emulation and we are all waiting fingers crossed for you to leave behind a legacy of decisions and judgments that can be quoted to future generations of students, judges, and indeed, the citizenry as additional landmarks and milestones in the perpetually evolving quest for newer and more effective standards of liberty and freedom. Your academic background, your ancestral legacy, your erudition, your scholarship, your intellectual engagements with senior solicitors in the course of hearings are estimable.
You are doubly blessed that your children have inherited your endowments. I have met and interviewed your son, Dr. Chintan Chandrachud. I have read this young man’s works, including Balanced Constitutionalism. A fine mind, an idealist and a towering intellectual who is blazing his own trail of glory as a lawyer in the UK. He “offers a novel explanation for the superiority of the new model of constitutionalism over traditional models of judicial supremacy”, the critics say.
You have everything to be proud of—your illustrious father, your worthy progeny. You have everything going for you. In your public speeches your defense of liberty, of privacy, of human dignity, private choices, and dissent “as the safety valve of democracy” ring out as loud as any voice expressing similar concerns across the world. And I often proudly quote your utterances and ruminations to friends and colleagues.
So it saddens me when many of your enlightened critics aver that your pronouncements are merely tracts of academic correctness, and find no resonance on your benches or your judgments.
Juridically, you and your esteemed colleagues owe no public explanation—and nor should you be required to do so—for your judgments. A decision is either good in law or bad in law or constitutionally sustainable or invalid. While we can discuss its technical merits, its ethicality or morality and long term impact on the health and well-being of the Republic is probably a matter for future historians.
But the public conduct of judges, outside their courts, makes them more vulnerable when their judicial decisions, no matter how well they are grounded in law, come under attack. Most recently, Your Honour, according to media reports, you referred to the dhwaja (religious) flag atop the Dwarka and Somnath temples you visited in Gujarat, and said, “I was inspired this morning by the dhwaja at Dwarkadhishji, very similar to the dhwaja I saw at Jagannath Puri. But look at the universality of the tradition in our nation, which binds all of us together. This dhwaja has a special meaning for us. And that meaning which the dhwaja gives us is—there is some unifying force above all of us, as lawyers, as judges, as citizens. And that unifying force is our humanity, which is governed by the rule of law and by the Constitution of India.”
I say unflinchingly that these are stirring words. I also know they come from your heart. But as a journalist, I cannot ignore the attention you drew for “mixing religion with the Constitution.” Historian Ramachandra Guha’s observation has gone viral: “For the Chief Justice of India to claim a congruence between the flag that has traditionally flown above Hindu temples and the modern text that is the Constitution of India is tendentious and misleading (to say the least),” he wrote in a recent column.
Sir, you more than any other person sitting on our benches, are aware that the CJI is not a public person. Allowing this whole episode to be videographed with you in saffron robes plastered all over the newspapers, at a time when a political party is using the inauguration of the Ram Temple as a political platform, leads to charges of exhibitionism.
On this subject, I have pointed out to your detractors that your “exhibitionism” is of another kind—the exhibition of powerful dissent in the Bhima Koregaon and Aadhaar cases. It is a compulsion of human destiny that conscientious objectors of your standing will always be called to the task of walking the talk. Which leads me, Your Honour, through all these meanderings to the issue of why I spoke about the press and judiciary in the same breath.
This is by no means a critique or analysis of whether the Apex Court’s individual or collective judgments in the last decade have retarded or advanced the goal of liberal constitutional governance, even though that’s a valid subject for discourse and discussion. My interest, Sir, is in addressing a limited issue you raised in your recent judgement on the public interest litigation in Adani-Hindenberg case.
I neither address here, nor even second guess your overall judgement and decision. I cannot cast aspersions on the bona fides of the Court. My limited interest is in sorting out in my own head your real view on the role of the Fourth Estate in exposing waste, fraud and corruption. This stems from one of the reasons you cited while rejecting any further investigations by agencies into the alleged financial boondoggles and manipulations.
The petitioners had used the Organised Crime and Corruption Reporting Project (OCCRP)’s articles on alleged fraud against the Adani Group. Later, British dailies Financial Times and The Guardian had followed up on the OCCRP investigation.
Your Honour, your judgment noted: “The reliance on newspaper articles or reports by third-party organisations to question a comprehensive investigation by a specialised regulator does not inspire confidence. Such reports by ‘independent’ groups or investigative pieces by newspapers may act as inputs before SEBI or the Expert Committee [Justice A.M. Sapre Committee]. However, they cannot be relied on as conclusive proof of the inadequacy of the investigation by SEBI.”
In order for these reports to be treated as “credible evidence”, the Court said, the petitioners must demonstrate their veracity and sources to be unimpeachable.
“The petitioners cannot assert that an unsubstantiated report in the newspapers should have credence over an investigation by a statutory regulator whose investigation has not been cast into doubt on the basis of cogent material or evidence,” you laid down.
That’s why I’m confused, Your Honour. While I agree that media reports cannot be treated as “gospel truth”, as you aver, and media witch-hunts are condemnable and despicable, your observations appear to trash the role of investigative journalism in unmasking official cover-ups of criminal activity and exposing state-backed skullduggery. Surely, the credibility, credulity, record of accuracy and integrity of media organisations like the Financial Times and The Economist are significant factors that should be weighed against the outright rejection of “press reports” as plausible determinants for a deeper and perhaps tougher examination of their revelations.
Also, powerful and accurate reporting—as distinguishable from puffery, paid journalism, rumour-mongering and pre-meditated, malicious distortion of facts— is based on documents and other evidentiary material culled by reporters who value their ethics and professionalism and hold themselves up to the standards demanded from them in the interest of their own credibility. There are good and bad reporters just as there are good and bad judges and good and bad lawyers and doctors and politicians.
But if we were to be guided by your observations, Your Honour , then we will have to bow to a view that the press and investigative journalism have either no or only an insignificant role to play in monitoring the affairs of the State and strengthening the role of the judiciary as the constitutionally-mandated watchdog. Also, what flows from this is that we may as well receive all our information from the propagandists of the State apparatus and accept the Orwellian notions of war as peace, and freedom as slavery.
Sir, in this confusion, what stand out with clarity are your own public proclamations about the role of the Fourth Estate and protection of journalists from harassment. In 2020 when your vacation bench acted with lightning speed to grant bail to Arnab Goswami, you rightly observed : “If we don’t interfere in this case today, we will be travelling down a path of destruction. One may differ in ideology, I don’t even watch his channel, but constitutional courts have to protect freedom, or they will be walking on a path of destruction.” Goswami had argued that he was being targeted by the Uddhav Thackeray government for his criticism of it.
In the Media/One case in 2023, you pontificated with verve on the freedom of the press and its importance in a democracy: A free press present citizens with hard facts and shines a light on the functioning of the State.
It was reported: “Reflecting on the professions of both law and journalism in his speech, the CJI said journalists and lawyers or judges like him share some things in common. Of course, persons of both professions are fierce believers of the aphorism that the pen is mightier than the sword. But, they also share the occupational hazard of being disliked by virtue of their professions—no easy cross to bear.”
“But members of both the professions keep at their daily tasks and hope that one day, the reputations of their professions will receive a makeover,” he added. “Press must remain free if a country is to remain a democracy.”
Absolutely, Your Honour. So we return to the role that good journalists and “press reports” have played in galvanising public opinion and the judiciary to reject State-sponsored cover-ups and to open or re-open embarrassing investigations into the affairs of government or business interests.
A few compelling examples jump into my mind. In the mid-19th century, the Chartist movement in England relied on powerful pamphleteering—an earlier version of seeking reforms through the press—in fighting against political corruption and for democracy in an industrial society. They attracted support beyond the radical political groups for economic reasons, such as opposing wage cuts and unemployment.
During the Vietnam war, the My Lai massacre (1968)—a heinous war crime committed by United States Army personnel—involving the mass murder of unarmed civilians came to light only because journalist Seymour Hersh blew open the US government’s attempts to cover it up.
US President Richard Nixon’s secret “tilt” to Pakistan against India during the Bangladesh war preceded by the genocide was exposed by muckraker journalist Jack Anderson and forced huge international mid-course geopolitical corrections.
And speaking of “muckrakers”, American journalists and writers like Lincoln Steffens, Ida Tarbell, Upton Sinclair, Ray Stannard Baker during the Progressive Era of the late 19th century wrote exposes on municipal, political, business corruption (easily dismissible as “just press reports”). The work of muckrakers influenced the passage of key legislation that strengthened protections for workers and consumers.
What is muckraking in simple terms? According to one dictionary definition: “muckrake • \MUCK-rayk\ • verb. to search out and publicly expose real or apparent misconduct of a prominent individual or business. Examples: Arn is an aggressive reporter, never afraid to ask difficult questions, hound evasive sources, or muckrake when things appear suspect”
Surely, it was in this tradition, Sir, that The Washington Post and its reporters in the 1970s refused to accept the US Executive’s initial description of Watergate as no more than “a third rate burglary attempt”, and relentlessly kept on digging until their reporting forced the judiciary and investigation agencies into action that ultimately led to the implication and resignation of President Richard Nixon, the most powerful political leader on earth.
Surely, too it was in a similar tradition that in the 1950s Feroze Gandhi, MP and investigative journalist for The Indian Express hammered home through Parliament and the press India’s first financial scandal—the nexus between the bureaucracy, stock markets and rogue businessmen—and forced Jawaharlal Nehru to sack Finance Minster TT Krishnamachari.
The horror of the brutal blindings of undertrials in Bhagalpur in 1979-1980 came to light, thanks to the indefatigable reporting by The Indian Express. Sir, these press reports, leading to a parliamentary furore ultimately persuaded your father, Chief Justice of India YV Chandrachud to step in and direct two of its officers to visit the Bhagalpur jail in Bihar and give a first-hand report of the eye puncture incidents.
And how can we possibly fail to overlook that the Bofors scandal that led to the ultimate fall of Rajiv Gandhi, and later, the Commonwealth Games and 2G and coal block scams, as well as the Nirbhaya case were examples of the complementarity of the Third and Fourth Estates.
Your Honour, one of your predecessors, CJI Ranjan Gogoi, (now an MP) was probably in his judicial element when he stated: “We need independent journalists and noisy judges… They are democracy’s first line of defense. ”
Actually, Your Honour, I am left wondering now whether this is our Hammurabi Moment. All said and done, our Rule of Law, no matter how much later history we may learn from, stems from ancient wisdom. For all the examples I have cited may seem gratuitously commonplace when compared to what Babylonian King Hammurabi postulated thousands of years ago in about 1750 BC. His “Code” was possibly civilisation’s first attempt at creating a Rule of Law. Its central tenet as laid down in the prologue features Hammurabi stating that he wants to make justice visible so that “the strong might not injure the weak”.
Your Honour, in Hammurabi’s ancient intentions may well lie the formula of the symbiosis between the Third and Fourth Estates. In our century, when a prominent journalist was asked to define the role of the press in modern times, he answered : “To comfort the afflicted and afflict the comfortable.”
Touché, Your Honour.
With my deepest respect and regards,
Inderjit Badhwar