Since its founding in 2017, the Supreme Court Observer, which describes itself as a “living archive” of the Supreme Court, promised to be a breath of fresh air in a world of social media-driven legal journalism and commentary that is often polemical and partisan.
To quote from SCO’s own mission statement, “Legal journalism in today’s India is mired with issues of reliability, sensationalisation, overzealousness, verbose-technical writing and for-profit journalism.” In this backdrop, it promised to provide a higher quality of reporting and, as an occasional reader, I think it did succeed to a large extent.
Until, that is, its recent “hit job” on Justice Ravindra Bhat, who retired from the Supreme Court in October 2023 after a 19-year tenure as a judge that began at the Delhi High Court.
Judging a judge by his mentors
Typically, profiles of retired judges focus on their most celebrated or criticised judgements while on the bench. For example, I wrote a piece for Scroll celebrating Justice Bhat’s tenure on the bench, explaining how he demonstrated judicial courage and intellectual rigour through his judgements.
While SCO’s profile does discuss judgements rendered by Justice Bhat and cites the praise he received from practising lawyers and academics, including myself, it interweaves the discussion with the claim that his legacy has “been somewhat tinged by the political colour of his professional mentors”. Cumulatively, the profile of approximately 4,000 words expends approximately 450 words discussing the political affiliation of some of his mentors from his career as a lawyer before he became a judge in 2004.
So, what is this “political colour” that has “tinged” his legacy? And who apart from SCO are of the opinion that Justice Bhat’s reputation has been “somewhat tinged by the political colour of his professional mentors”?
To begin with, SCO does not specifically mention the “political colour” in the text, though it slipped “saffron” into one of the subheads. Instead, it identifies three lawyers – KN Bhatt, CS Vaidyanathan and Rama Jois – as Justice Bhat’s mentors. It then links the three lawyers to three Sangh Parivar outfits: the BJP, VHP and RSS.
The obvious question at this stage is, how exactly do the allegedly saffron links of a judge’s mentors from before 2004, when Justice Bhat was appointed to the Delhi High Court, “tinge” his legacy? This is a strange yardstick to measure anybody’s legacy, let alone a judge of the Supreme Court of India.
Of the three mentors identified by SCO, Justice Bhat identifies KN Bhatt and CS Vaidyanathan in his retirement speech [37.36 minute mark], thanking them for teaching him specific legal skills. The third mentor identified by SCO – Rama Jois – is not even mentioned by Justice Bhat in the same speech. But SCO has decided for Justice Bhat that Rama Jois was his mentor because an anonymous senior advocate from the Karnataka High Court told them so. The reader is not told the reason for providing the cloak of anonymity but more on that later.
But it gets even stranger.
To conclusively establish the “saffron-ness” of KN Bhatt and CS Vaidyanathan, the reader is told of events from 2010 and 2019, respectively – events that took place 15 and six years after Justice Bhat was elevated to the bench. These include professional engagements of both lawyers for persons and causes affiliated to the Sangh Parivar, including appearing for the Hindu parties in the Babri Masjid dispute and being honoured by Hindu parties for the legal victory in the case.
For example, the reader is told that KN Bhatt’s “allegiance to the Sangh remained deep” because he was engaged as a defence lawyer by an RSS leader accused of being involved in a bomb blast. By this logic, are all the lawyers who defended people accused of being terrorists also terrorists?
Similarly, the reader is told that KN Bhatt declined to oppose a specific archaeological survey order of the Allahabad High Court in the Babri Masjid dispute, without being reminded that KN Bhatt was the lawyer for the Hindu litigants before that high court. The survey was central to the legal strategy of the Hindu litigants.
Not satisfied with these already tenuous connections, SCO thought it relevant to tell the reader that Justice Bhat, in his retirement speech, praised senior advocate K Parasaran as one of the “giants of the legal world”. The report then whispered into the reader’s ear that Parasaran was the 92-year-old lawyer who “mentored” the “Ayodhya lawyers” and also received an award from the VHP after the Supreme Court ruling in the Babri Masjid judgement.
I fail to understand why the names of lawyers praised by a judge, or of clients of the said lawyer who was praised, have any relevance to a profile about the legacy of a judge. If these were relevant facts, perhaps SCO should also have mentioned that Parasaran was appointed attorney general by both Indira Gandhi and Rajiv Gandhi before being nominated as a member of the Rajya Sabha in 2012 during the UPA’s term.
Similarly, why did SCO not mention that Justice Bhat, in the same retirement speech – in fact, in the same sentence [at 38.56 minute mark] – where he praised Parasaran, also praised other “giants of the legal profession” like Ashok Sen, Fali Nariman, PR Rao, TR Andhyarujina and KK Venugopal? Why the cherry-picking?
Anonymous sources
The editorial lapses do not stop with these selective quotations and conscious omissions. After quoting some lawyers praising Justice Bhat, SCO’s profile retreats into the ethical minefield of anonymous quotations that were loaded with innuendo and conspiratorial whispers, to impute motives to Justice Bhat’s judgment in the case for same-sex marriage.
I am reproducing some of the quotations below:
But others could not brush away the feeling that the waters had been irreparably muddied…
Not everyone was as impressed. Some of the experts I spoke to said that in upholding economic reservations, Bhat showcased the “judicial conservativeness” that he has been known for.
While talking to some of Bhat’s critics, I got the sense that they felt his turn in the marriage equality judgement was the final flourish of a conservative strain that had been neatly obscured through the course of his career. “In his judgement, he has gone to great lengths to argue that the structure of Article 15 cannot accommodate marriage equality,” one of the petitioner lawyers in the matter told me, “But that is frankly not what the petitioners were asking for.”
The petitioner lawyer also opined that Bhat’s judgement makes a primary argument for rejecting marriage equality by relying on personal laws, particularly Hindu law, even though the petitioners skirted around the personal law issue. “There is a certain intellectual disingenuity, and one wonders where the pushback is coming from.”
The use of anonymous quotes from sources, especially when uncomplimentary or slanderous, are generally frowned upon in ethical newsrooms that believe in transparent journalism. The general rule of thumb is that readers have a right to know the identity of all sources in order to judge their credibility for themselves. The only exception to this rule is if the source is in a vulnerable position and likely to be the victim of retaliation by a powerful figure or institution.
Regrettably, anonymous quotations are widely used in legal journalism in India. Who can forget the episode when mainstream media eagerly furthered the government agenda by extensively quoting anonymous sources to tank Gopal Subramaniam’s appointment to the Supreme Court?
SCO is in similar territory today by using anonymous quotes that accuse Justice Bhat of “intellectual disingenuity” and of succumbing to extraneous “pushback” by unidentified powers. SCO does not even bother providing readers with an explanation for why it offered these critics the cloak of anonymity. Were these anonymous critics worried about retaliation from Justice Bhat, who is retired and does not hold any public office? Or did these critics simply lack the courage to speak on the record?
The same old partisan legal journalism
Between the attempt to paint Justice Bhat as a “saffron” judge on the basis of remarkably tenuous evidence and its reliance on uncomplimentary anonymous quotations from lawyers who have lost a landmark judgement before Justice Bhat’s bench, SCO has descended into the very same cesspool of unreliable and sensationalist legal journalism in India that it has criticised. This descent, in my opinion, is the larger tragedy.
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