The legal argument was about Vande Mataram; the flare-up was about a word. As the hearing went on, the Solicitor General remarked that law-making cannot be dictated by Naxalites. The petitioner’s senior counsel objected at once, asking that the remark be withdrawn and calling it unbecoming of a law officer; the Solicitor General said he could repeat it and was not sorry. He later clarified that his point was that legislation must be made within the constitutional framework and not through arms or violence, and that nothing was meant personally. The Bench recorded that it had not taken note of the remark.
New Delhi: A heated exchange took place in the Supreme Court during the hearing of Carnatic musician T.M. Krishna’s challenge to the Centre’s Vande Mataram circular, after Solicitor General Tushar Mehta remarked that law-making could not be dictated by Naxalites, drawing a strong objection from Senior Advocate Dr. S. Muralidhar, who appeared for the petitioner [T.M. Krishna v. Union of India].
The exchange took place before a Bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi.
The remark and the objection
In the course of the submissions, the Solicitor General made the remark that gave rise to the exchange:
“Law-making cannot be dictated by Naxalites.”
Dr. Muralidhar objected strongly, asking that the remark be withdrawn. He submitted that the observation was completely unnecessary, that the hearing was being heard live, and that some decorum had to be maintained, adding that such a statement was not expected from a law officer. Justice Bagchi observed that the Court had not taken note of the remark.
The Solicitor General responded that he could repeat what he had said, and that he was not sorry for it, prompting Dr. Muralidhar to register his strong protest again. Senior Advocate Sanjay Hegde interjected with the remark, “To think is not to be a Naxalite.”
The clarification
The Solicitor General thereafter clarified the scope of his remark, submitting that his point was that legislative decision-making must take place within the constitutional framework and could not be dictated through arms or violence, and that he did not know why the remark had been taken personally. His submission, as clarified, was that the comment was directed at those who do not respect the constitutional law-making process, and was not aimed at the petitioner or his counsel.
Justice Bagchi observed that the Court had continuously fought against extra-constitutional forces, and the Solicitor General submitted that the Court’s commitment to the Constitution required it to defeat such forces. The judge added a reflection on why litigants turn to the courts:
“Why do people come to constitutional courts instead of going to kangaroo courts? Constitutional courts and courts of law in India command respect and credibility because even a person accused of terrorism is tried according to law.”
The Court had tried terrorists according to law, Justice Bagchi observed, and until that process was followed, nobody could raise a finger.
The matter being heard
The exchange arose during the hearing of T.M. Krishna’s petition challenging the Centre’s circular on the singing of six stanzas of Vande Mataram and the extension of the Prevention of Insults to National Honour Act, 1971 to Vande Mataram. On the substantive question, the Bench indicated it would examine the challenge to the extent penal consequences were involved, observing that a person who believes that singing it infringes their rights under Articles 25 or 26 cannot be subjected to punishment, while making clear that it is not for the courts to declare what constitutes the National Song.
Why it matters
Sharp words between the bench, the bar and the government’s law officers are not unknown in high-profile constitutional cases, and the significance of such an exchange lies less in the heat of the moment than in how it is handled. Here, the objection was registered, the Solicitor General stood by his words while clarifying that they were aimed at law-making by arms or violence rather than at the petitioner, and the Bench expressly recorded that it had not taken note of the remark, an indication that the Court did not treat it as bearing on the legal issue before it.
The disagreement is a matter of courtroom decorum, distinct from the constitutional question the Court is examining. Nothing in the exchange decides, or bears upon, the merits of the Vande Mataram challenge, which the Bench indicated it would take up to the extent it involves penal consequences. The reported remark, the objection to it and the clarification are set out above as they occurred; the Court, having noted that it had not taken note of the remark, moved on to the issues in the petition.
Case Title: T.M. Krishna v. Union of India
Bench: Chief Justice of India Surya Kant and Justice Joymalya Bagchi, Supreme Court of India
Appearing: Senior Advocate Dr. S. Muralidhar for the petitioner; Solicitor General Tushar Mehta for the Union; Senior Advocate Sanjay Hegde also appeared
Status: Remark made during the hearing; objection registered and clarification offered. Court recorded that it had not taken note of the remark. Substantive challenge pending.