In a special interview for The Wire, Karan Thapar speaks to former Union minister Arun Shourie about the Supreme Court finding Prashant Bhushan guilty of contempt of court. The video interview was published by The Wire on August 19, one day before Bhushan’s sentencing hearing. Thapar and Shourie discuss the tweets and the wider ramifications of the position taken by the Supreme Court.
The following is a transcript of the video.
Arun Shourie, as I said in the introduction, two tweets by Prashant Bhushan have been found guilty of contempt by the Supreme Court and tomorrow, Thursday, August 20, he will be sentenced.
What do you make of the Supreme Court’s view that tweets comprising 560 characters — and I’m now quoting the Supreme Court — “can undermine the dignity and authority” of the Supreme Court and shake the very “foundation of constitutional democracy”? What do you make of that?
Yes, and not only that, Karan. They can shake the central pillar of democracy in India and they can frighten the lower judiciary because if they feel, “Look here. If the Supreme Court can’t protect itself, how can it protect us?” It can lower India’s image abroad. India’s image abroad depends upon it being a democracy. Now all this, this is not Prashant Bhushan’s view about India and the judiciary. It is the judiciary’s view about how weak that central pillar has become; how hollow it has become. That the puff of two tweets, which you said were 580 characters, can shake the central pillar. It is strange. It is this – not tweets – it is this kind of an affirmation by Supreme Court judges which will lower the faith of the people in the judiciary. They will say ki, “Arey yaar, tum Supreme Court ke paas bhaag rahe ho [You are running to the Supreme Court] to protect you. But they themselves are saying that they are so shaken and so powerless and so hollowed out.”
So, in a sense, you’re saying that this grandiloquent language; this exaggerated language actually exposes the weakness of the Supreme Court. The court no longer believes it is capable of standing up, which is why it fears any criticism, in case that marginal criticism erodes its standing.
I think, yes. There are two points to this. One, such hypersensitivity betrays a nervousness; an anxiety. After all, the Chief Justice of India (CJI) – if somebody talks about him, how can it be that the people will believe not the chief justice and his record but they will believe some tweet? So, it’s this nervousness which is betrayed by what the court has said. Please remember, as Arvind Datar has pointed out, in this 108-page judgment, 90 pages of the judgment are just a reproduction of cases, what they have said earlier on. Then in the last few pages, they just assert, “This is an assault on democracy! This is an assault on the judiciary! Therefore, it is contempt.” Arey bhaiya, give the reasons.
I remember, Arvind Datar has also pointed out that when Mr Shiv Shankar – he was a law minister in Mrs Indira Gandhi’s cabinet. When he said that the Supreme Court is a den of thieves, smugglers, dacoits; that it gives aashray (shelter) to them. The Supreme Court gave a judgment of contempt on him and for 35 pages, it reasoned why it is contempt. Here, you just reproduce something and say no, “This is contempt.”
Absolutely. I’ll come back and discuss in greater detail the ramifications of the position the Supreme Court has taken. First, for the audience who may not be aware of what exactly are the tweets about, let’s talk briefly about the two tweets. The first tweet is a comment on a photograph of the chief justice astride a Harley-Davidson motorbike. He himself is not wearing a mask, a couple of people around him are not wearing masks. One person seems to be just a foot away and clearly, there is no “do gaj doori (a distance of two yards)”. Prashant Bhushan’s comment is very picky. He says, at a time when the chief justice has locked down the Supreme Court for fear of COVID infection, it’s hypocrisy for the chief justice not to be observing COVID precautions himself. The Supreme Court has objected to the use of the word “lockdown” on the grounds that it is actually functioning virtually. The Supreme Court says, and I’m quoting, “This is patently false.” It calls it “malicious and scandalous”. Then it says, the tweet has the tendency to “shake the confidence of the public in the institution of the judiciary and the institution of the CJI.” All of that because of one solitary word they don’t like – lockdown. What do you make of that?
I think that’s a very important point. I feel, with respect for the three judges, they have completely misread whatever this word is. Now just see, look at us. You and me – we are talking. You are interviewing, I am answering your questions. So, in a sense, we are working. But we are doing it in a lockdown mode. You are a thousand miles away. There is a difference between lockdown and shutdown. Prashant Bhushan, as far as I can see, has not said that the court has been shut down by the chief justice. Not at all. As the three judges have rightly pointed out, Prashant has himself appeared virtually through video conferencing before the court in some public interest matter. He has sought relief from the court. He could not be oblivious of the fact that the court is functioning.
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This is a very important point you’re making. Even if one accepts the point the Supreme Court is arguing – that because they are functioning virtually, you can’t use the word “lockdown”. Although, you clearly suggest that there’s a difference between lockdown and shutdown. But even if one accepts the Supreme Court’s case, at worst, Prashant is guilty of inaccuracy not of contempt. Surely, there’s a huge difference between the two which the Supreme Court should have appreciated.
Yes, that is certainly the case but, Karan, I would go farther. They cannot assume; they cannot even imagine that anyone who is himself appearing before the court – who is himself coming to the court for relief – would be so amnesiac; would be so forgetful as to suddenly not remember that they are functioning. How can that be? That is an inference that just does not stand.
But on the motorcycle point, if I may mention one small point. I don’t want to say too much because actually the chief justice has been very kind to me in a previous incarnation when he was an advocate. There was a big case against me and he is the one to whom I had gone in Nagpur. He had settled a brief and therefore the case did not proceed. So, I don’t want to say much. I will make one point, which arises from such tweets. It’s not about the shutdown and the lockdown that’s an important point. You see, this whole idea, which is implicit in the judgment of the three judges, that, “There is a difference. People can pursue their private interests.” I don’t think there is any difference. When you hold a public office, there is no difference between your private life and your public life because you are a house set on a hill, as the Bible would say. People will go by your example. Forget this question of this business of shutdown and lockdown. If you are riding a motorcycle or even sitting, having yourself photographed on a motorcycle. If it costs Rs 50 lakh – I don’t know; I don’t know things costing Rs 50 lakh – and if it belongs to a political leader of the ruling party, that’s not a good signal to give. I would say this with great affection to the chief justice.
Okay, that is a very fair point. All I’ll add is that, for the sake of the audience, it’s important to say he didn’t actually drive the bike. He merely sat on the bike, which is why he’s not wearing a helmet. It’s perhaps not relevant. But what is relevant, is that at a time of COVID, he didn’t have a mask. Some people around him didn’t have a mask. One person was just a foot away and there was no “do gaj doori”. This, clearly, as Prashant points out, suggests hypocrisy. If your court can’t function properly, physically because of COVID fears, why is the judge himself not observing COVID precautions?
That’s a very important point. I was supplementing it by saying, please don’t sit on motorbikes costing Rs 50 lakh. That’s not a signal to give. You can’t afford it as the judge or the chief justice or secretary to the government or minister. When you are even just posing, even with a helmet and even with the mask, it is not a good signal to give to the people of India. They will judge you. They will judge the institution and probity. They will not have full facts about you. They will judge you by such signals that you give.
Okay, that’s perfectly clear. Let’s then come, at this point, to the second tweet. I am going to read out the second tweet. It says, “When historians in the future look back at the last six years to see how democracy has been destroyed in India, even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction. And more particularly, the role of the last four CJIs.” Now, this is Prashant’s opinion and it’s clearly protected by freedom of speech. There’s no doubt that it is critical, both of the Supreme Court and the last four chief justices. But if criticism is deemed to be contempt, then the message the Supreme Court is sending out is – we won’t tolerate any criticism whatsoever. That is, clearly, a very unfortunate message for the Supreme Court to send out.
I think that’s a very important point. They are sort of opening a Pandora’s box, in which case, they will be outlawing all comments and all analysis of their judgments. First, I want to come to this point about “eroding democracy”. I think there is no doubt on that at all. I say this as a person who has known and who knows Modi very well; better than the judges. I’ve watched and forecast this decline, this erosion of institutions, the assault on institutions including the judiciary. I’ve forecast it for six years. There has been an erosion of democracy. Now the question is, has the court assisted on it and have the chief justices assisted on it or not?
The first point, just please look in the mirror. That is my advice to the judges. If you have not assisted in this, then no tweet is going to persuade people that the Supreme Court has been a party to the destruction of democracy. If you have assisted on it – if you conclude that after looking at your record in the last six years – then please look upon a critic as your friend. He is alerting you to the pattern of behaviour and pattern of judgments. Therefore, please rectify your course of content.
You’re clearly suggesting, although you’re doing it rhetorically, that, in fact, the judges have assisted in the erosion of democracy. Are you worried that if they deem Prashant’s tweet to be contempt, they may deem your answer to be contempt as well? Tomorrow, they could turn around and say you too are guilty of contempt because you’ve said that we have assisted, not just the court but the judges also, in eroding democracy.
Yes. Actually, I’m not worried about it but that is certainly a case; that is certainly a possibility. They say they have taken up this nine-year-old interview [of Prashant Bhushan in which he alleged that many former CJIs were corrupt], they say they have disposed of 12,000 cases in this lockdown period. Okay, but what kinds of cases? What kinds of cases have you not taken up? Kashmir – not taken up. Eyes blinded – not taken up. The lies told to you in open court by the government. For instance, they say that my friend Saifuddin Soz is not in detention. The poor fellow, the police is restraining him from coming out of his house. It is an outright lie in your face and you don’t take action? So, are you not assisting? Habeas corpus cases were not taken up.
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You’re making a very powerful point. Can I point out that the Supreme Court seems to be inconsistent, or at least partial, in whose criticism it deems contempt and whose criticism it’s prepared to accept, tolerate, forget and do nothing about?
You remember, in January 2018, four sitting judges of the court held a public press conference where they said, publicly, that the chief justice was guilty of assigning cases in an irrational manner. They then issued a formal letter written to the chief justice but made public to every journalist at the press conference. I’m going to quote from that letter:
“There have been instances where cases having far-reaching consequences for the nation and the institution have been assigned by chief justices (in the plural) of the Supreme Court selectively to benches of their preference, without any rational basis for assigning.”
Now that casts aspersions not just on the Supreme Court as an institution but on the chief justice as well as on sitting fellow brother judges. By the Supreme Court’s logic, this is terrible contempt. Nothing was done. They continued to serve. Why pick on Prashant when your own brethren are excused for something much more brave?
Not only that. That’s a very important illustration which you have given, Karan, but if you see one of the most respected chief justices of a high court that we have had – Justice A.P. Shah. Just see what he has been saying about the judiciary. What Justice Lokur has said. What Justice Joseph has said. I was present at a meeting when they said these things. What Justice Lodha has said about the record of the Supreme Court and how they are worried about what it is doing and what it is not doing. Certainly, this is fair criticism. Now suppose I say, as I say today, that my analysis shows that they are taking up issues of trivial matters – national anthem. Karan Thapar must stand up in the movie hall. Everybody will have to stand up and there’ll be compulsory singing of the national anthem. And a person in a wheelchair was beaten up in Guwahati as a result of the Supreme Court judgment.
When I say and I show that they have shut their eyes to vital evidence in the Loya case. When I show and I say and I have said and written that they completely misrepresented what happened in open court in the Rafale case. This is an analysis – this is not my impression. I was present. I have analysed. When I say that they threw the administration of Assam into chaos by their epileptic orders in regard to the NRC – on the question of who is Assamese and who is an Indian citizen or not. That is an analysis. By what the Supreme Court has done, they can certainly deduce; they can certainly say, as you just now pointed out, that my analysis is destroying people’s faith in the institution and therefore it is contempt.
You’re making three very important points. First of all, you’re saying the Supreme Court is mistaking analysis for criticism. It is an error of judgement on its part because it hasn’t understood the difference. Secondly, you’re saying the Supreme Court is showing very strange priorities. Important cases to do with the Citizenship Amendment Act, habeas corpus, Kashmir are being ignored. Trivial matters are being taken up.
Thirdly, and very pointedly, you’re saying the Supreme Court is not being consistent. Justices Lokur, Shah, Joseph, Lodha – all of them have made critical comments about the functioning of the court. I mentioned four sitting judges of the court in January 2018. None of them were acted against. Although what they said is no better; arguably much worse than what Prashant said. But they have been not acted against. Prashant has been picked upon. You’re making three very important points.
Firstly, yes. Criticism and analysis are protected under Articles 19(1) and 19(2). Under 19(1), I have the freedom of speech and it has been the record of the Indian Supreme Court. Something for which we are grateful and of which we are proud. The Supreme Court has taken analysis, criticism and has tried to rectify and assess it. I’ve written three-four books – if I may be so presumptuous as to point out. Some sitting Supreme Court judges have asked me – those are very critical books, but they have been so gracious – they’ve asked me to autograph those copies and send it to them.
One more question, Arun Shourie, about Prashant’s tweets before I widen the discussion and talk about the wider ramifications of what the Supreme Court has done. The Supreme Court has said, and I’m quoting, “The publication by tweet reaches millions of people. Such a huge extent of publication would also be one of the factors that require to be taken into consideration.” In other words, what the court is suggesting is that because the reach of a tweet is greater than the reach of a newspaper article, a tweet is more liable to be contempt than something written in a paper. You’ve been one of the most illustrious editors India has had. How do you respond to this claim? That because a tweet goes further, it’s somehow more contemptuous.
I tell you, Karan, there can be no advertising executive who could have written a better advertisement for whichever company owns this Twitter business. “Look here, just the puff of two tweets on our platform can shake the fundamental pillar, the central pillar of India – of the largest democracy in the world. So, come and use and join our platform.” It is an advertisement. Very strange.
And pardon my saying so – it is not just the reach of the medium, it is the office that the person holds and the importance of that person in the public eye which will determine the effect of the message. Whether the judges’ judgments are read in thousands and the tweets are read in millions, when three judges say that so weak and so hollow has the central pillar become that it can be pushed aside by the puff of two tweets, then, my friend, that damages the reputation and faith in the Supreme Court, much more than this business, just because something reaches a few million people. They’ve used wrong tests for what the effect will be.
At this point, Arun Shourie, let’s widen the discussion and talk about the wider ramifications of what the Supreme Court has done and the position it’s taken. First of all, do you believe our judges are far too thin-skinned and, more importantly, they take themselves far too seriously? Surely, judges should always remember that the position they hold may be exalted but they as individuals are ordinary people; no better, no superior to you or me or anyone else. Is that something they should always bear in mind?
Of course. There’s a wonderful example and if we have time, I would love to read it out to your viewers. One of the greatest judges of the 20th century – his judgments used to be just a page or a page and a half long, not 108 pages long. He changed the course of law in the 20th century. It was Lord Denning. Lord Denning was called by as important a man – as you with your knowledge of the UK will remember – Michael Foot. Michael Foot called Lord Denning an “ass” and Lord Denning said, “No, no. Our reputation must stand on a firmer basis.” This is a judgment that anybody can see in this book called The Due Process of Law.
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For the sake of the audience, can I fill you in? It’s a judgment delivered by Lord Denning when he was Master of the Rolls in 1969 and he was speaking specifically in the section you’re referring to about contempt and he said, “We will never use this law to defend ourselves.” He said, “Our defence will be our behaviour, our judgements and our character.” He added, “The reason we will never use the law of contempt to defend ourselves because it impinges upon freedom of speech. Freedom of speech is the linchpin of democracy.” It’s a very famous quotation you’re referring to.
Yes, indeed. Therefore, these judges also should remember that precisely because you are holding a high office – I’m not saying you should be thick-skinned – but, you should have a sense of proportion. Both in the cases that you take up with the cases that you don’t take up and by your sensitivity to the type of – what you call – “criticism” or “analysis” or “abuse”. If I may draw your attention, I would have a suggestion for the judges, please, I have a suggestion for them in this regard, when we are talking of Lord Denning. Before you dictate a judgment on contempt, please read aloud – maybe collectively – Lord Denning’s judgment.
Let me give you an example. In 1987 in Britain, in the famous Spycatcher case, the British newspaper The Daily Mirror on its front page called the judges who delivered the judgment “you old fools”. In 2016, after the Brexit judgment, another British paper The Daily Mail on its front page called the judges who delivered the judgment “enemies of the people”. In neither case did the judges move contempt. They took it on the chin and they moved on. Lord Templeton, who was a judge in the first instance and was called an “old fool”, turned around and said, “There is no doubt about the fact I am old. I cannot deny it.” He added, “Whether I am a fool or not is for people to judge, not for me to opine about.” Do you think our judges need to behave similarly?
Yes, I think actually, I would request them to have more confidence in themselves. They are betraying an insecurity which is not warranted. The Indian public is much more mature in judging between tweets and judgments. The Indian people have great regard for judges. But if the judges themselves are saying, “Oh no no, we are being tarnished” and so on, then the people will also come to that conclusion.
Let me then, in that context, refer to something the Supreme Court said in its judgment finding Prashant’s true tweets guilty of contempt. They said, “If an attack on the port is not dealt with firmly, it can affect the confidence of litigants. It can affect the way other judges view the Supreme Court.” And as you yourself quoted earlier, “It can affect the national honour and the prestige in the commentary of nations.” How do you respond to that? Because to many, this is just grandiloquent ballooning.
This is, if I may say, insecurity bordering on paranoia. Things are just going – this will happen, then that will happen, then India’s prestige in the committee of nations will go down. How? From two tweets? But I would maybe make a constructive suggestion at this point. See, there is a test. Firstly, you must see what you regard as abuse. There’s a wonderful article, written almost 100 years ago, in 1921 by [Mahatma] Gandhiji. It’s called “What is abuse?” He says it is wrong use, pervert use, perverse use of a word. But to describe a thief as a thief, a rogue as a rogue is not abuse. You are describing it correctly.
In such circumstances, always look in the mirror. Does it apply to you or not? If it does not apply to you, forget it. If it applies to you, rectify your conduct. But, there is a more important point. The test must not be what a person says – Prashant Bhushan says, Karan Thapar says, small people like me say. That’s not the test. The test is whether what we are doing is actually interfering in the course of justice. If I were bribing or threatening a witness, if I was bribing or threatening a judge, then I am interfering in the course of justice. Then you are completely justified in calling me up for contempt. But if you take umbrage at some small little words that are used, I think you are… I mean we can only refer you to Denning.
You’re making a very important distinction and point there. You’re saying that the law of contempt can be applied if there is physical disruption of the working of the court. If judges are physically disrupted and not able to work, then you can use contempt. But if it is simply verbal criticism, no matter how harsh, no matter how stinging, it is not contempt.
And let me just add, this is a point made by Justice Markandey Katju, when I believe, he was a sitting judge of the Supreme Court – in a lecture he gave on the law of contempt, he said, “If someone calls me a fool, it might personally upset me but it doesn’t make any difference to the administration of justice. I will wave it aside. But if I am physically stopped from doing my work because someone jumps on the table, then it’s another matter.” You’re making the same distinction. That physical disruption of work can be contempt. Criticism, no matter how harsh, is not.
No, not only physical; not only jumping on the table. But if you are the judge and I am threatening you, if I am trying to bribe you, I’m interfering in the course of justice. If a witness has to appear to you and I’m threatening him or bribing him, I’m interfering in the course of justice. Then it is contempt of court. Not something that is said. But if I may just add one more point on that. Even if something is said, the law now is that truth is a defence. The court is obliged to provide me with the opportunity to justify what I have said. In this case, this nine-year-old interview, in which Prashant Bhushan has said they are corrupted, some chief justices were corrupt or something… the first obligation of the court is that you must give the person the chance to prove what they have said.
Can I stop you there, Arun Shourie? Because that is a separate case. It has now been postponed in its hearings to the August 24. We don’t know how it will pan out thereafter.
Forget the case, forget the case. There is the law. The law is that truth is a defence. And in the question of the defence, you have to give me the opportunity to justify. This law has been upheld in my own case when there was a contempt case against me. The Supreme Court, the Constitution bench consisting of five judges upheld it.
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Absolutely. And it’s possible, likely that they will be upheld in the case of the Tehelka issue when that hearing happens on August 24. So, let’s not go into that because we don’t know how it will pan out. Let me, before I end this interview, out of fairness, play devil’s advocate with you. I don’t want judges hearing this to say, “Our point of view wasn’t effectively put across to Mr Shourie.” Let me, deliberately, play devil’s advocate. There is a view that when someone says the Supreme Court and the last four chief justices have played a key role in destroying democracy, that this is more than just legitimate criticism. This is an attempt to denigrate the court. It is a personal attack on the last four chief justices. Therefore, it is contempt because it is consciously and deliberately undermining the credibility of the court in the eyes of the people. Those are very close to the arguments the Supreme Court had in mind not verbatim, not word for word. That is, I think, the heart of their case. How do you respond to it?
Firstly, I think that yes, democracy has been undermined and yes, if the court had been more vigilant then it could have arrested this decline, this erosion of democracy or this assault on democracy. I’ll give you an example. How many people have been killed in false encounters in Uttar Pradesh? Has the court taken any suo motu notice of it? Is that not an assault on democracy? Lynching was taking place. A new norm was being set that people can take law into their own hands. What has the court done on that?
When corruption in elections undermines the fundamental basis of democracy – elections – through that Bill about electoral bonds. What did the court do? Has the court not assisted in the erosion? Not the erosion, erosion is too simple, soft a word, in the assault on democracy. It was their duty to check all this. They didn’t do it. In Jammu and Kashmir, the alienation of the people. In Assam, the chaos and the alienation of the people. In this buying and selling of MLAs. In the past, the court has been very vigilant and has, therefore, saved democracy.
So, you’re saying to me, the answer to the devil’s advocate question I put you is a very simple one. It’s not just that the court has assisted in the erosion of democracy. You’re saying the court has actually assisted in an assault on democracy. Therefore, to accuse the court of assisting in erosion is a much lesser charge. The court is guilty of an assault. Therefore what I tried to suggest, being devil’s advocate, was that contempt is not contempt, it’s factual. It’s true. The truth is the defence.
Yes. What Prashant Bhushan and all have said is an understatement. I will tell you, the consequences… For six years, things have gone along the lines on which I said they will. I will now tell you the condition to which we have been reduced. This is what you call the design of a totalitarian regime. That there must be nothing between the absolutist state and the atomised citizenry. No institution, no value, no norm should come in between them. Then the citizen is helpless and those who control the state can proceed.
The Supreme Court has, in my view, not checked this landslide, which it was well in their power to do. I am a notary of the court. I have looked upon it as the last bastion. When we were at the Indian Express, Ramnathji and I, people like me – we used to go to the court for protection. But today, I frankly tell you, I go to the court, if I do, as on Rafale, as we did on questioning the constitutionality of a section of the Contempt Act. We do so not because we expect relief, but because we want to alert the people to the condition to which our institutions have gone. I said at the time of Rafale that we are not on trial, the court is on trial. And the proceedings proved me right.
Let me end by putting to you one more question on behalf of the court. Yet another devil’s advocate question. The court believes that Prashant Bhushan’s comments, his tweets have lowered the esteem of the court in the eyes of the Indian people. You disagree. But what happens if people turn around and say, “Main court ke baare mein bohot sochchta tha. Lekin Prashant ji ne meri aankhen khol di hai aur ab mujhe haqeeqat pata lag gayi hai. (I used to think highly of the court. But now, Prashant Bhushan has shown me the truth and I realise the reality of the situation.)” That may be a compliment to Prashant but hidden in that compliment is the realisation and acceptance that the court is not as good or great as I thought it was. Its esteem has been lowered. How do you respond to that?
Arre Prashant kaun hota hai. Sirf dost hi hai hamara. Judges yeh keh rahe hai ki ek chote se aadmi, Prashant Bhushan ke ek tweet. Log voh dekhenge, hamari judgment ko nahi dekhenge. Hamari conduct ko nahi dekhenge. (Who is Prashant? He is just a friend of ours. The judges are saying that people will only look at a small man like Prashant’s tweets. They won’t look at the court’s judements? Their conduct?)
One of the great poets of modern India from Bihar was a man called Kaleem Ajiz. He said, and you permit me to just quote two lines: “Main kuch nahi kehta. Koi kuch nahi kehta. Jo tum ho, tumhi sabse kahalvaaye chale ho. (I am not saying anything. No one is saying anything. Who you are, is what you have been saying to everyone.)”
The courts themselves are saying it. This judgment itself says. If you see just the last seven pages of this 108 pages, is the court thinking that nobody will read those seven pages? That will inform the people that in the eyes of the court itself, the court is now so hollow and weak. Then, how will people rush to the court for protection?
This is a very powerful moment to end. That quotation from the Bihari poet, I think, says it all. I won’t pretend to reply in poetry. I will simply repeat a word from Javed Akhtar’s famous song, “Ab kuch na kaho. (Now, don’t say anything.)” Arun Shourie, thank you very much for talking to me. Take care. Stay safe.
All the best to you. Thank you and to the judges.
Indeed, from me as well.
Thank you.