The second week of December has been a pivotal period for the Indian judiciary, a week in which it has both plumbed the depths of ignominy, AND simultaneously raised aloft the flag of our constitutional principles. This paradox has been persisting for some time with no corrective action being taken, but it has now come to a head and can no longer be ignored.
This was the week in which a superior court judge, Justice Shekhar Yadav of the Allahabad High Court, decided that the time was ripe for him to walk out of the closet in resplendent saffron robes, a kind of perverted Second Coming. We should not have been surprised, of course, for the general portents had been there for a long time among his fraternity, in judgments and obiter dicta: the tet-e-tete with deities for guidance, the call to declare the cow as the national animal, the expressed fear that if conversions are allowed Hindus would become a minority, the verbal defenestration of the Places of Worship Act, the indecent haste in ordering surveys and excavations in mosques, the confession by another judge that he had always been an RSS admirer, the admission of a judge into a political party just days after retiring. But we saw these as mere flirtations-till Justice Yadav decided to tell the whole world about his torrid and hitherto unspoken love affair with the religious right.
In brazenly attending a function of a strident Hindu organisation, by calling Muslims "kathmullahs", in asserting that this country would be governed by the wishes of the majority religion, by diagnosing Muslims as being devoid of any compassion because they slaughter goats, by expressing the view that their children have violence instilled in their pysche, and casting other abominable slurs on the practitioners of this religion, this judge crossed many red lines, lines which had started becoming blurred since 2014 but had not been entirely wiped away.
It is learnt that some Opposition parties have submitted an impeachment motion against him in Parliament; this will be symbolic at best since the government, as per usual practice, is not likely to support the motion and the former lack the numbers. The Supreme Court has asked the Allahabad High Court for a report and summoned the offending judge, and one hopes that it will take the strictest possible action if the report confirms that Justice Yadav violated his oath of office, the Constitution and the Restatement of Judicial values reiterated by the SC. Mere censure or withdrawal of judicial work is not punitive enough- Justice Yadav can no longer be trusted with the administration of justice, he has exposed unrepentently his biases and religious bigotry. The CJI should ask him to resign, and if he does not do so then the SC should recommend his impeachment to both the President and the Prime Minister. The moral imperative in such a message shall make it well nigh impossible for the government to oppose the impeachment motion brought by the opposition parties. This corrective action is essential to retrieve some of the ethical capital which the judiciary has lost in the last few years.
But all was not Cimmerian darkness this week, for, with the change of Chief Justice of India, a beacon which had gone out was switched on again.
A much awaited and much needed judicial high was achieved on the 12th of this month when another shameful legacy of the previous CJI was dismantled by the his successor, Justice Sanjeev Khanna. By injuncting all further petitions and surveys of places of places of worship (read "mosques and dargahs") and restraining all courts from passing any orders on pending cases, he has largely undone the horrific damage Chandrachud had done to our social fabric. CJI Khanna has done more to protect the integrity and plurality of our country and its Constitution in one day than what his predecessor could in two years. Equally important, he has now forced the Central government to file its response to the constitutional challenge to the Places of Worship Act, within four weeks.
It will be interesting to see how Mr. Modi's government reacts in both cases- the impeachment notice against Justice Yadav and the challenge to the POW Act. Will it stick to its unstated intention to suborn the judiciary and its stated aim of demolishing all mosques (I believe more than 1800 of them have been identified for this honour, but this is probably an underestimation), or will it bite the bullet and plump for upholding the law and the Constitution? Somehow, no matter how hard I try, I cannot visualise the latter denouement. But ripping the mask off the face of despotism and bigotry is in itself no mean achievement in these precarious times.
These two cases present a watershed moment for the country, and how our institutions respond to them will determine for the forseeable future the direction in which the history of this country shall flow.
The winter session of
ReplyDeleteParliament has ended in pandemonium over Ambedkar's name. The 2 days debate(?) on the Constitution provided no clue if any is needed to plug the holes but only yet another opportunity for both sides to shout down the other.
The ONOE bill is in limbo. And you wonder how our institutions will respond and determine the future direction in which the country's will flow.
Bravo Justice Khanna for undoing the kiss of Judas of his predecessor and to Mr Avay Shukla for his inimitable candour in championing the right cause at the right time. May our country and its polity rise like a phoenix from the depths it has descended to.
DeleteJustice Yadav has made his views public, but I shudder to think about those judges who may be harbouring similar views and ideology and deciding over judgements . Could the public expect a fair trial at the hands of such judges. Are they not more scary than likes of Justice Yadav?
DeleteWhat this country desperately needs is more Indian with spine and less of those who've locked their brains in a saffron bin.
ReplyDeleteThe ongoing tragedy of our democracy is that once elected or appointed to constitutional positions, there is no moral imperative to answer or explain whatever damage or derailment your decisions, omissions and commissions cause. So to expect the likes of justice Yadav to explain, leave alone apologise for his venomous views would be akin to ask the entrenched political class to commit collective harakiri.
ReplyDeleteI often wonder if there is any difference between the villains in our movies and the politicians who are supposed to represent us??
ReplyDeleteIs it any wonder that we are 120 position out of 129 countries in the Hunger Index? And the very same people shout the most against such indicies?
During his tenure as Chief Justice of India, Justice D.Y. Chandrachud had orally remarked that ascertaining the religious character of a place of worship is not barred under the PWAct. This observation was interpreted by some as permitting surveys to determine the historical religious nature of sites like the Gyanvapi mosque. It's important to note that Justice Chandrachud later clarified that his remarks were observations made during court proceedings and not a final verdict. Praising Justice Khanna for a single interim decision is premature. He has not given any binding verdict.
ReplyDeleteJustice D.Y. Chandrachud's oral observation during the Gyanvapi mosque hearings suggested that the Places of Worship (Special Provisions) Act, 1991, does not bar "ascertaining the religious character" of a place of worship. Since this is not part of any verdict, it is not permissible in law for any lower court to rely on such observation alone to pass any order.
ReplyDeleteVery pertinent and timely article. As usual excellently articulated the points.
ReplyDeleteCJI Khanna has - for the time being - put the lid back on a severely contentious issue that suited the palate and predilection of the extreme Hindu Wing. That lid, loosened by ex CJI Chandrachud and made propitious for the majoritarians to pry open.
ReplyDeleteOne wonders what it was that made him dive into the intricate interpretation of the POW Act in the manner that he did. The Act is clearly worded in its intent. To derive a backdoor implication by reading between its lines was perhaps portentous if not perverse. That so many lower court judges latched onto his observation and opened more non-Hindu places of worship to bear inspections, was testimony to the surety they derived from it and probably personal religious satisfaction too.
CJI Khanna has judged responsibly by staying petitions seeking to ascertain the origins of various non-Hindu structures, overturning the remarks of the ex CJI, whose penchant for diction and media attention may have encumbranced his rationality on that occasion.
Thankfully, those defending Chandrachud do not find a reason to bat for Justice Shekhar Yadav, whose speech was nothing short of a ferocious exhortation to the religious majoritarians that their time to act had arrived. It is ironic that Chandrachud himself had, in the past, rated Justice Yadav unworthy of the judge’s chair for his active affiliations with the RSS, but was later flaunting his own faith somewhat jarringly during his tenure as CJI. When the upholders of law become the Trojan horses of their faith, then their judgements risk reflecting intemperance.
Justice D.Y. Chandrachud had orally remarked that “ascertaining the religious character of a place of worship” is not barred under the PWAct. The Act's prohibition of altering religious identities of places of worship is intact.
ReplyDeleteAllowing a limited inquiry into specific features or claims (such as the alleged existence of a Shiva linga in the Gyanvapi mosque) does not automatically translate into altering the site’s status. The Court has sought to ensure that such inquiries remain confined to facts and do not undermine the Act’s general applicability.