When the Indian Judiciary has, faced with Authoritarian Leaders, Turned Unconstitutional



There have been moments in the past seventy years or so, when the most authoritarian governments have drawn out the most supine responses from India’s higher judiciary. Remember Justice Bhagwati’s actions during ADM Jabalpur when he not just ratified the suspension of fundamental rights by then prime minister, Indira Gandhi (Justice HR Khanna was the sole dissenter in this affair).

The New York Times wrote at that time: “If India ever finds its way back to freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week.” Justice Bhagwati who lavishly praised Indira Gandhi, on her return to power in 1980 apologised for his conduct some thirty years later; much after his active career graph had peaked.

Under the Modi regime we have seen, similar lavish and supine praise from the higher judiciary, tinged now, with the ideological hue of saffron. The most recent, and lampooned is a recent judgement of the Meghalaya high court (Justice SR Sen) (please add link) where, in granting the petitioner, the right to a domicile certificate, in accordance with guidelines as laid down by the Supreme Court in Rabbe Alam vrs. State of Meghalaya & Ors reported in (2017) 1 MJ 128 para 6 and 7 went several non-judicious steps further.

The ‘learned judge’ sent his judgement dated December 10, 2018  (70^th International Human Rights Day) by special emissary the Governor of Meghalaya and thereafter by special messenger to prime minister, home minister and chief minister of West Bengal.

The Judge in the first few paras of his judgement makes his ideological leanings explicit. Para Four reads,
 

Pakistan declared themselves as an Islamic country and India since was divided on the basis of religion should have also been declared as a Hindu country but it remained as a secular country. Even today, in Pakistan, Bangladesh and Afghanistan, the Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis, Jaintias and Garos are tortured and they have no place to go and those Hindus who entered India during partition are still considered as foreigners, which in my understanding is highly illogical, illegal and against the principle of natural justice.”

Therefore, the Judge pleads with the current dispensation to take “ necessary steps to bring a law to safeguard the interest of the Hindus, Sikhs, Jains, Buddhist, Christians, Parsis, Khasis, Jaintias and Garos who have already come to India and who are yet to come from Pakistan, Bangladesh and Afghanistan as well as persons of Indian origin who are residing abroad taking their historical background as discussed and quoted above. “ he is probably aware that the Citizenship Bill, 2016 sought to be pushed through by this majoritarian government in Delhi makes this precise, un-Constitutional distinction, between migrant of all faiths and those who are Muslim.

Article 1 and Article 5 of the Indian Constitution are both explicit and clear. The first declares India, that is Bharat to be a Union of States and the second speaks about citizenship at the commencement of the Constitution (November 26, 1949). It is under Article 11 that Indian Parliament is empowered to regulate the rights of citizenship and it is the 1955 Citizenship Act that does so, with some amendments creeping in. In essence however, the principles of Birth/  Descent,  Registration, Naturalization are the guiding principles. Add to this Articles 14 and 21 of the Constitution where the right to life and right to equality before the law are granted to all irrespective of caste, community, language, ethnicity or gender and the principles are clear. Indian citizenship is granted not on the basis of faith or religion but several other factors. That the Indian Citizenship Bill, an amendment to India’s Citizenship Act, 1955, under an ideology wedded to a Hindu Rashtra finds favour among a sitting judge of a high court is cause for worry. This means that inherently anti-Constitutional strains run through the men (and women possibly), appointed to high Constitutional posts, to uphold the Constitution.

Just months ago, in August 2018, a man who was then Chief Justice of the Patna High Court, and has since been elevated to the Supreme Court of India, has referred to Prime Minister Narendra Modi as a “model and hero”. Shah’s comments came in response to a question posed to him by a journalist from BBC Hindi, on his alleged proximity to the ruling BJP at the Centre. (Narendra Modi ek model hain. Vah ek hero hain. Jahan tak Modi ki baat hai to pichle ek mahine se yahi chal raha hai. Social Media par ese saikdo clippings hain. Roz paper mein bhi yahi chalata hai). Before his elevation there had been much speculation on how he had ‘resisted’ being transferred from Gujarat to Madhya Pradesh; this issue had caused a tussle between the government and the higher judiciary. Clearly in the latest batch of transfers the government has won this particular round. Recently at a book launch by former Congress law minister Veerappa Moily, Thakur reiterated the need for the independence of the judiciary, for its own survival. “A judiciary which succumbs to pressure will not be able to protect the Constitution or the rule of law,” Thakur said referring to the recent judicial crisis that has plagued the corridors of the apex court and the executive alike.

2014, it appears has brought out the best in some. Four months after this government was sworn in, another judge of India’s highest court, since retired, but then very much in office, Justice AR Dave spun out his own wish list. He wished that he were a dictator (in the world’s largest democracy) and then proceeded to go further, “If I were dictator, I would introduce ‘Bhagwad Gita’ in standard 1”. It is not insignificant that these words were uttered in the city of Ahmedabad, prominent in a state that sees itself as the already existent “ Hindu rashtra”. Justice Dave actually said, “Our old tradition such as ‘Guru Shish parampara’ is lost, if it had been there, we would not have had all these problems (violence and terrorism) in our country,” Justice Dave said, speaking at an international conference on ‘contemporary issues and challenges of human rights in the era of globalisation’ here.

“Now we see terrorism in countries. Most of the countries are democratic….If everybody in a democratic country is good then they would naturally elect somebody who is very good. And that person will never think of damaging anybody else,” he said.

The judge also proposed that Bhagwad Gita and Mahabharata should be introduced to students from the first standard.  “Somebody who is very secular… so called secular will not agree… Had I been the dictator of India, I would have introduced Gita and Mahabharata in class one.
That is the way you learn how to live life. I am sorry If somebody says I am secular or I am not secular. But if there is something good, we have to get it from anywhere,” Justice Dave said.

If that were not all, Justice Mahesh Chandra Sharma of the Rajasthan high court believes that peacock is India’s national bird because the bird does not have sex to reproduce. Justice Sharma said that the peahen gets pregnant drinking the tears of the peacock. Whether this is also the kind of bio-history-science dished out at the local RSS shakha we do not quite know but the fact that in 2017, a member of India’s senior judiciary, thinks thus rests the case.

Five years before this, in 2012, it was the high court of India’s urbs prima, Bombay, where two judges decreed how modern Indian 21^st century Indian women should live. ““A wife should be like Goddess Sita who followed her husband Lord Ram into the forest and stayed there for 14 years,” the Bombay high court said while hearing a plea filed by a Shipping Corporation of India employee seeking divorce on the ground of his wife’s unwillingness to shift to Port Blair with him. This was a division division bench of justices PB Majmudar and Anoop Mohta.

The appointments to India’s higher judiciary have been mired in deep controversy and one scrutiny that does not happen with rigour is whether or not verdicts from the men and women in high places enhance fundamental principles and Constitutional morality. These stark examples underline how critical it is for the media and academia to consistently subject judicial pronouncements to a thorough Constitutional lens, never mind the sword of the outdated Contempt of Courts Act, that hangs heavy on freedom of expression.


First published on https://cjp.org.in/

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Procedure not Privilege: Assigning cases in the SC Roster
When the Government tried to browbeat the Judiciary