By Soumya Chatterjee

On May 4 evening, an apparently angry Tejasvi Surya, Bangalore South MP and president of the BJP Youth Morcha, held a press conference where he spoke about “widespread corruption” in the bed allocation system of BBMP amid this peak COVID-19 crisis. He was flanked by his uncle and Basavanagudi MLA Ravi Subramanya, Chickpet MLA Uday Garudachar and Bommanahalli MLA Satish Reddy on either side, as he spoke passionately against the faulty system. At first glance, this looked like a young MP who wanted to clean up the system. But in just a few minutes, it was clear that this was just another play from his communal playbook.

Tejasvi Surya and his associates were seemingly statesmen-like in the press conference. But immediately after, a video started doing the rounds, along with several WhatsApp forwards that were decidedly communal. In the video, Tejasvi Surya rattles off names of 16 Muslims to a BBMP South Zone official, asking on what basis they were hired. Ravi Subramanya thundered, “Is this a madrassa?”, as the official explained that people who applied were recruited. The WhatsApp forwards — timed to go out right after Tejasvi Surya’s press conference — naming the 16 names Tejasvi Surya mentioned, calling it a “List of terrorists working in BBMP WAR ROOM killing thousands of Bengalurians.” A different version said, “They are ensuring no Hindus get bed easily.”

In fact, similar WhatsApp forwards brought in some creativity to the communal agenda and swapped out the names of some Muslims with others — including Sarfaraz Khan, Joint Commissioner Solid Waste Management, who had to put up a Facebook post clarifying that he is no way involved with the War Room.

Amid all this — and unsurprisingly — the four horsemen of the apocalypse conveniently left out the fact that this particular war room has 205 employees across various shifts. Why did they pick out 16 names? Why were all of them Muslims? Are Muslims predisposed to corruption, according to Tejasvi Surya and his accomplices? Or is this just a part of their strategy to distract from the real issues (and people) plaguing Bengaluru — and the country — during the pandemic?

With his antics on Tuesday, Tejasvi Surya has deflected attention from the inaction and criminal negligence of the Prime Minister Narendra Modi-led Union government, and Chief Minister BS Yediyurappa-led state government — both of which are led by his party the BJP. If Surya really cared for the people of Bengaluru, if not the whole country, he could have asked why his leader Narendra Modi is not giving the state enough oxygen or vaccines. He could have asked why the Union government hasn’t given a single oxygen concentrator that has been received from foreign missions to Karnataka.

The Union government has been equally if not criminally callous with its vaccine policy which has allowed the crisis witnessed in all of Delhi, Mumbai and Bengaluru.

The idea is simple: when the BJP is responsible for (or irresponsible during) any disaster, pin the blame on the “other” —- be it Pakistan, or Bangladeshis, or fellow Indian Muslims, whoever suits the situation best.

Surya and his colleagues of this hate ecosystem have to be credited for the intricate planning and good homework in this engineering of hate. The original press conference had no communal references and he can be seen as an empathetic public representative pained by the widespread distress witnessed by all, and the many struggling to find beds. Further excerpts of the video where they made the madrassa reference were carefully edited to smaller bits and parts to leave out the communal tinge and shared with the media.

By appearing to be a messiah of sorts, Tejasvi Surya reaps political dividends not only personally, but also for the RSS-faction within the BJP. One can be curious about which is of more importance to Surya among the above.

Point to be noted in this particular context is, Tejasvi highlighted the faultlines of the existing bed allocation system which some of the South Zone War Room and Bommanahalli War Room officials apparently exploited. But the entire system is under his own party — the state and the union government, as the BBMP does not have an elected council in place currently. And incidentally, the South Zone War Room is under the observation of Revenue Minister R Ashoka.

And R Ashoka — like CM Yediyurappa — is not always keen to tow the RSS line.

As a BJP MP, if Surya was so keen on exposing corruption and malpractice, he could have fixed the system from within and taken R Ashoka into confidence. He’s not an opposition legislator in the state — he has access to the leadership in his own party surely. That he decided instead to make a public spectacle again points to a need to distract from other issues plaguing the system.

Importantly, the current problem of people dying on the streets and some people profiting by taking bribes is possibly due to scarce resources, and is just symptomatic of the real crisis. The two prime problems in the current time is the state does not have enough HDU, ICU and ventilator beds; and enough oxygen and drugs like Remdesivir.

While one must congratulate Tejasvi Surya in exposing the devious methods in which the current BBMP system has been gamed, it is not solving the crisis because corruption in this case is only a miniscule part of the problem.

It’s not that Surya is stupid or does not know the same. But he is relentless.

Does Prashant Kishor have a ‘magic touch’ that makes parties win elections? Or is he just a shrewd businessman who has a knack for hitching his cart to the winning horse?

The election strategist who once shot to fame for propelling Narendra Modi to Prime Ministerial victory, is now in the news for helping shape his party’s defeat in West Bengal. Prashant Kishor, a political consultant who is currently not a part of any political party, but is as much a part of political discourse in the country as any party leader, has won today along with the DMK and All India Trinamool Congress (AITC) in Tamil Nadu and West Bengal. His I-PAC (Indian Political Action Committee) — a political consultancy which has received appreciation and brickbats in equal measure — has been part of the two high profile campaigns in the two crucial states, and in this outing, Prashant Kishor and his company scored 2/2. However, does Prashant Kishor have a ‘magic touch’ that makes parties win elections, as proclaimed by several people? Or is he just a shrewd businessman who has a knack for hitching his cart to the winning horse?

Prashant Kishor, who has a background in Public Health, first shot to fame in 2014 when he managed the political campaign of Narendra Modi and helped the BJP leader to victory and the Prime Minister’s chair. Even before the 2014 BJP campaign though, Prashant has been associated with the BJP and Modi; he was part of Modi’s 2012 campaign in Gujarat when he became the Chief Minister for the third consecutive time. He created CAG — Citizens for Accountable Governance — the group that helped with the Modi campaign in 2014.

In 2015 however, Prashant Kishor — who was called one of Modi’s most trusted political strategists — broke away from the BJP to manage Nitish Kumar’s JD(U) for the Assembly elections in Bihar. He formed his new company I-PAC — Indian Political Action Committee — through which he offered his services to the JD(U) in Bihar. This was before Nitish Kumar and Narendra Modi were part of the same alliance; in fact, Nitish was considered one of Modi’s harshest critics back then. In fact, in 2018, Prashant Kishor also joined the JD(U) and was elevated to the party’s Vice President post, before being kicked out by party chief Nitish Kumar after a fallout.

Since 2015, Prashant Kishor has been a part of several winning election campaigns, including Amarinder Singh and Congress’s Punjab campaign in 2017; Jagan Mohan Reddy and YSRCP’s campaign in Andhra Pradesh in 2019; and Kejriwal and AAP’s Delhi campaign in 2020. In 2017, Prashant Kishor managed the Congress’s election campaign in Uttar Pradesh, however the party lost the race badly.

This time, Prashant Kishor and I-PAC were hired by the DMK in Tamil Nadu and the Trinamool Congress in West Bengal. Both states were won by the respective parties, adding to Prashant Kishor’s image of being a master strategist, and I-PAC has already been signed on by the Congress in Punjab for their upcoming Assembly elections.

The larger question however is — would these parties have lost if Prashant Kishor had not been hired? Did Prashant Kishor build their victory, or has the victory of these parties built his reputation?

Why Prashant Kishor matters to parties…

Prashant formed I-PAC during the 2015 outing, and the company employs young graduates to crunch numbers for the parties that buy the services of the company. I-PAC and Prashant have been credited with creating inspired campaigns — Prashant Kishor and his team are known for coming up with catchy slogans and campaign names, like ‘Chai pe charcha’, ‘Lage raho Kejriwal’, Nitish ke 7 nishchay’, ‘Vidiyalai Nokki: Stalinin Kural’ etc.

Prashant Kishor’s organised political operations as opposed to old style politicking have helped parties with campaigning in new ways. There’s a focus on data and number crunching — almost like a corporate company — that I-PAC brings to the table. They also focus on each candidate’s mandate, image and talking points. Further, they help parties with mainstream media management, including professional media buying, social media management, branding etc, with slick designs that we all expect from campaigns today. They bring in survey-led decision making to parties.

…and why he doesn’t

However, political parties don’t just win because of good poster designs and catchy phrases. For the larger, older parties — it’s their cadre and their legacy that helps them win or lose. It’s their ideology that people look at when they’re voting, and the work they’ve done for their constituents. What matters to voters isn’t just smart social media campaigning, but a connection with the ground level party workers, which a company like I-PAC or a strategist like Prashant Kishor cannot provide. If the DMK and Trinamool won this time around, it is in large part due to their cadre on the ground and their ideology.

If DMK’s decision to hire Prashant Kishor was to keep him out of opposition camps, then it has paid off in the election results, as DMK and its allies have won the election. However, unlike pre-poll and exit-poll predictions, the DMK+ did not make a clean sweep, managing to win only 153 constituencies (at the time of writing), and a sizable number of seats going to AIADMK and its allies. Critics within the party and DMK supporters have questioned the ‘Prashant Kishor magic’, adding that the DMK would have managed to win these many seats even without him. Further, some political observers pointed out that in the 2019 General Elections, the DMK had managed to win 38 out of 39 Lok Sabha seats without Prashant Kishor, and wondered whether the party would have had a better result without I-PAC this time around.

From the order on the electoral bonds scheme to the deportation of Rohingyas, advocate Swaroop Mami takes a look at former CJI SA Bobde’s judgments.

Former Chief Justice SA Bobde is perhaps not fond of the written word. What else can explain the fact that he has authored only 68 judgments in his seven years in the Supreme Court, seventeen months of those as the Chief Justice of India. Of course, while the bar and the bench addressed each other through screens for the better part of the last year, why he had so little to say even prior to that we’ll never know. Justices Ramana (157 judgments), Nariman (304), Lalit (262), Khanwilkar (208), Chandrachud (354), all junior to him in the Supreme Court, have already authored a far greater number of judgments. But for his tumultuous tenure as Chief Justice and master of the roster, mostly during the pandemic, his stay in the Supreme Court would have been unremarkable.

His judgments on Constitutional law, all four of them, are worth paying some attention to.

In Poojaya Sri Jagadguru Mate Mahadevi v State of Karnataka, Justice Bobde upheld the banning of a Kannada book called “Basava Vachana Deepthi”. The constitutional question at the heart of the matter was whether an individual’s interpretation of her own religion, even if found outrageous, could be banned. The High Court failed to engage with this question in any meaningful manner, looking at the entire matter as purely a criminal law issue. The Supreme Court should have dealt with Article 19(1)(a) [Freedom of speech and expression] and how it interacts with section 295A of the IPC [Deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs] and CrPC Sections 95 [Power to declare certain publications forfeited and to issue search warrants for the same] and 96 [Application to High Court to set aside declaration of forfeiture], especially when the matter was argued on this plank for four days before it. Justice Bobde’s bench (the order doesn’t identify the author) dismissed the matter in two laconic paragraphs, as if it were a routine department appeal in a tax case. To put simply, a book ban was upheld by Justice Bobde without a single reference to Article 19(1)(a).

Electoral bonds

The order rejecting the stay on the electoral bonds scheme was equally bizarre. This order too does not identify the author but was read out on the day of the pronouncement by Justice Bobde.

The first issue raised by the petitioners was that campaign funding should not be anonymous, since the public had the right to know who the persons behind a political party are, and the fact that anonymity could lead to kickbacks. This is a constitutional question, and should have been dealt with at that level. But Justice Bobde dismissed this with a laughable suggestion that persons could do a ‘match the following’ between accounts of a company and the accounts of a political party. The electoral bond being a bearer bond is freely transferable (even though the scheme officially prohibits trading, there is no way to check because the bond doesn’t carry the name of the purchaser); it could have changed hands many times between the company that purchased it and the party that encashed it. A company may buy many bonds and distribute them amongst many political parties. A party may deposit some bonds today and some tomorrow. One doesn’t even have to think too deeply to realise that it is impossible to ‘match the following’.

Did Justice Bobde really imply that a citizen who wants to know who funded which party has to download and pore over the accounts of every single company in India and match entries in each of their accounts with the accounts of a political party? The order does not even deal with the information asymmetry argument – that the party in power can find out all information on campaign funding, but the other parties cannot. It does not deal with decades of Supreme Court jurisprudence on the electorate’s right to know all relevant facts about candidates and parties before voting. Just as in the case of the book ban, Justice Bobde passed an order on a constitutional issue with no reference to the Constitution.

Rohingyas, Siddique Kappan and Arnab Goswami

Even in referring to the Constitution, Justice Bobde seemingly showed a lack of familiarity with the text that was disturbing for someone in the higher judiciary for over two decades. In the hearing concerning the deportation of Rohingyas, he was surprised that Article 21 on right to life applied to non-citizens. The final order shows a stunning lack of humanity, and has been widely criticised. His inconsistent stand on the Supreme Court’s jurisdiction to directly hear petitions concerning fundamental rights violations under Article 32 has been repeatedly written about. In certain cases, like journalist Siddique Kappan, who was arrested by the Uttar Pradesh police while on his way to Hathras, he said that the petitioners would have to approach the High Courts first, but entertained other petitions like television anchor and Republic TV Editor-in-Chief Arnab Goswami’s plea against his summons from the Maharashtra Speaker. He has also admitted mischievous petitions like the one challenging the Places of Worship Act, 1991, while he seemed disinclined to hear a challenge to the validity of criminal contempt.

Further, in Justice Bobde’s concurring opinion in Puttaswamy v Union of India, where the Supreme Court upheld the right to privacy as a fundamental right, he finds that Article 26 [Freedom to manage religious affairs] represents the right of a community to be left alone from State interference from the State. He reasons that this is also a facet of the right to privacy. In this sense, Justice Bobde conflates “liberty” and “privacy” – a distinction Justice Nariman brings out with some clarity in his concurring judgment. There is another distinction though. Privacy is, in every one of its conceptions, an individual right. By painting an individual right and one given to the community with the same brush, without even reasoning it out, Justice Bobde has, in his enigmatic style, opened a window to a world that no one asked to see.

Sabarimala

The last order is not really on constitutional law, although it is likely to have far reaching constitutional implications. Like much of Justice Bobde’s judicial work, it can hardly be called a judgment. While the Sabarimala review was opened up and then referred to a larger bench, the judgment had not been stayed. In fact, till date, the judgment stands. But when two women prayed that the Supreme Court may enforce the order, Justice Bobde refused, orally commenting that the issue was an ‘emotive’ one. When the top court refuses to enforce its own order, what sanctity is left of any of its orders? Isn’t this a bigger threat to the institution than all those alleged contempt petitions against advocates and comedians?

There is another tailpiece to this Sabarimala case. A probable conflict was pointed out between the seven-judge bench decision in Shirur Mutt and a five-judge bench decision in Durgah Committee. The way to resolve this conflict, if it does exist, is obvious – the seven-judge bench decision prevails. At best, the matter could have been referred to a seven-judge bench to resolve any conflict. Chief Justice Bobde, on his own, constituted a nine-judge bench to take up a staggeringly wide array of questions, many of which do not even concern the alleged conflict between the two judgments. This sets a dangerous precedent for future Chief Justices; on pet issues, they could use their master of the roster powers to constitute benches at will. But for the pandemic, this nine-judge bench decision would probably have been his grand contribution to constitutional law.

Ayodhya land dispute to Tata Sons Vs Cyrus Mistry

Outside of constitutional law, there are two judgments from benches he sat on that do not identify their author that deserve most attention. In the Ayodhya land dispute, the Supreme Court did not find evidence of a temple existing prior to the Babri Masjid being built. In any case, the court also observed that the existence of a temple underneath the mosque would not lead to the finding that the property belonged to the Hindu parties. The court also agreed that neither of the parties were able to show exclusive possession of the inner courtyard. Yet the court gave the entire property to the Hindu parties. The court held this way because, in its opinion, the property was a ‘composite whole’. The decision is questionable on many counts, most important of those being that the conclusions do not flow from the reasoning at all; if anything, the reasons seem to contradict the conclusions drawn.

A bulk of Justice Bobde’s judicial time as Chief Justice was devoted to resolving the Tata Sons dispute with its former Executive Chairman Cyrus Mistry. Should he have done this while the country was ravaged by COVID-19, important constitutional law issues on the validity of the electoral bonds, the RTI amendment, Article 370 and the Citizenship Amendment Act? That apart, the judgment in TCS v Cyrus Investments is itself on shaky ground on some points. The National Company Law Appellate Tribunal (NCLAT), in its order, had failed to render a finding on many issues that were considered by the National Company Law Tribunal (NCLT). The final order was in favour of Mistry’s reappointment. When the matter came before the Supreme Court, it held that since the NCLAT had not ruled on some factual findings of the NCLT, those findings had become final, especially because Mistry had not appealed on the aspect of NCLAT not rendering a finding on those issues. This is a wrong approach because a burden cannot be cast on a victorious party to file an appeal on issues that were not considered by the lower authority, and further, the party cannot be precluded from arguing these issues before the Supreme Court merely because it hadn’t filed such an appeal. Even on company law, the court seems to suggest that independent directors have a greater duty to put the company’s interests in the forefront than directors who represent certain shareholders or creditors. This turns almost 150 years of law on directors’ fiduciary duty to put the company’s interest first on its head.

COVID-19 second wave

I will end this analysis with the events of the last two days of Justice Bobde’s tenure. In the wake of the second wave of the pandemic, various High Courts across the country took up suo motu PILs, and even regular writ petitions by affected hospitals concerning the lack of oxygen, vital drugs, beds, and other measures. For reasons unstated, Justice Bobde’s bench took up a suo motu writ petition on these issues, and in the order observed that High Court decisions were creating inequalities by prioritising certain interests over others (presumably regional interests). The Supreme Court even issued notice to all parties appearing before the various High Courts in this suo motu petition. The law officers of the Central Government, on the same day, made representations before the High Courts of Madras, Bombay and Delhi that the Supreme Court was seized of the matter. While the High Courts went ahead to hear their respective petitions anyway, the Madras High Court observed that it did not want to create any confusion. It also observed that the matter may be posted for hearing again on April 26 “if it survives at all” in view of the submissions made about the Supreme Court proceeding.

In any case, emblematic of Justice Bobde’s tenure in the Supreme Court, after all that noise in that last hearing, the written word only records an adjournment.

This post first appeared on thenewsminute.com