It was widely reported that on April 30 the Supreme Court expressed regret over the 'regret' not 'apology' in the 28-page affidavit filed by the leader of the Congress party, Rahul Gandhi. The judges did not find any 'apology' in the averments, which his counsel was urging the Court to accept and close the criminal contempt petition filed by Meenakshi Lekhi, BJP MP, for Rahul's remark.
Just to recapitulate, on April 10, Rahul had said - Chowkidar Chor Hai. (Watchman is a thief). He had made the statement while interacting with reporters in Amethi, after filing his nomination. He said that Modi had claimed that the Supreme Court had given a 'clean chit to his government on the Rafale deal'. Then, said that orders of the top court on April 10, allowing the 'reopening of the review petition on the orders Dec. 14, 2018 has made it clear that Chowkidar Chor Hai” It is this attribution to the order of apex court which has landed him in a soup - as impacting the dignity of the Court.
In his affidavit Rahul had expressed his 'regret' in paranthesis, which is now the bone of contention. Abhishek Manu Singhvi, senior advocate, tried his best saying that 'regret' was a synonym for 'apology'. It did not cut ice with Chief Justice Ranjan Gogoi, and Justices Sanjay Kishan Kaul and K.M.Joseph. The judges have granted time till May 6 to Rahul Gandhi to file his additional affidavit, while reserving their opinion on dealing with the same.
The judges were quite privy to the legal position. “Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness. As was noted in Jaikwal (1984).
“We are sorry to say we cannot subscribe to the 'slap-say sorry-and-forget' school of thought in administration of contempt jurisprudence. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorry-it is another to 'feel' sorry. (TN Godavarman-2006). Apology should be unquestionable in sincerity. It should be tempered with a sense of genuine remorse and repentance, and not a calculated strategy to avoid punishment (Vishram Singh Raghubanshi-2011)
Let's tread cautiously from here as the matter is sub judice. One is not supposed to speculate on where the Judges may go or where they ought to go. That is for the judges to decide. They are wise men and know their remit. But, the proceedings offer scope for us to focus on the recent trend of commenting on not merely orders of the courts but even on the verbal exchanges and tweak them as is one's fancy or inclination. “It is undeniable that the court is a political institution no matter we claim to insulate it from politics for its continued health and well being”, said Oliver Wendell Holmes. The proceedings before courts are political and sensitive and during election time, the exchanges in courts, not necessarily final orders, are brought home to the commoner into his drawing rooms. It is now on your face material and add the viral social media, you have the makings of poisonous potions in large doses.
But truth to tell, it is singularly unfortunate that the cacophonous electronic media insists that the nation wants to know what was the meaning of what transpired in court that day. There is shrillness in the partisan views and the court proceedings are debated and discussed with not a care for legal nuances or niceties. Therein lies the tragedy and room for such proceedings as Madam Lekhi has initiated. Wait for the other side to pick up on political speak from the ruling dispensation. It does not augur well for the health of the polity, and the institutions involved, no matter 'it makes for entertaining interlude in the heated cauldron of hustings' - as a wag tweeted.
For a scholarly connect on apology - the reference to 'apology' in a legal context…inevitably raises questions about its meaning. What does an apology involve? What makes an apology meaningful? Is the law concerned whether an apology is given sincerely? Is an ordered apology an apology? These questions are the subject of theories and scholarship of writers from a range of disciplines, including ethics, psychology, sociology, philosophy and law. When seeking ways to give meaning to apologies within a legal context, we need to acknowledge that the law is simultaneously pragmatic, instrumental and aspirational. We know that law can guide, influence and direct behaviour, but it cannot compel emotions and heartfelt speech. It is in this context that the meaning of an apology as a legal remedy needs to be understood and it is why, from a legal viewpoint, it is helpful to understand “apology” sometimes made in the law and apology literature between full and partial apologies.”
“This is helpful to the extent that it recognises that there are components to an apology. There is consensus that a full 'apology' incorporates an expression of heartfelt regret and remorse for what has happened, sympathy for the victim, and acknowledges the wrongdoer's transgression. For some people, it must also offer some form of recompense and a commitment to change in the future. A 'partial apology' will consist of some, but not all of these components.” (Prof. Robyn Caroll in Apologies as a Legal remedy)
Recall China releasing 24 detained US air crew after the US President, George Bush, said in a letter dated April 11,2001 that his government was “very sorry” for the loss of a Chinese fighter pilot who collided with their spy plane. The 11-day-old deadlock ended after diplomats crafted a letter intended to satisfy China's demand for a formal 'apology' while also accommodating Mr Bush's refusal to offer one for what his government believed to be an accident. Closer home or away, British Prime Minister Theresa May on April 10 expressed “deep regret” for the 1919 Jallianwala Bagh massacre, carried out by British colonial troops in India.
May did not offer an 'apology', she told the British Parliament: “We deeply regret what happened and the suffering caused by the massacre”, on the centenary of mourning in our midst.
So it is singularly 'regrettable' that politicians of every hue use despicable language, even if in the rhetorical flourish of the heated moment, and even more 'regrettable' that they are not inclined to offer a full and complete 'apology' at the first instance.
(Author is practising advocate in the Madras High Court)