Recently, Senior Advocate Indira Jaising expressed her views wherein she criticised vote bank politics and called for a robust mechanism in place in order to curb vote bank politics preserve the spirit of secularism, which in her view is declining. She further elucidated upon the role of the judiciary to protect constitutional values and called out the alleged majoritarian nature of bench composition at the Top Court. It is not out of place to mention that in the 70+ years of its existence, Supreme Court has seen only eight women judges and one Dalit Chief Justice.
The state has however, been taking active steps to mitigate the problem, with the elevation of Justice Bhushan Ramkrishna Gavai to the Supreme Court. Justice Gavai, a member of the Dalit community, is in line to be the Chief Justice of India in 2025.
According to Ms. Jaising, one way to ensure a secular spirit in the decision making of the judiciary is to prohibit the judges of the Supreme Court and High Courts from displaying their religion publicly and prevent them from publicising their faith. She acknowledged that while judges may have a right to visit temples, they shouldn’t be making it public.
To fully analyse this, its important to consider her reasoning in conjunction with the existing code of conduct, both professional and moral that a judge must adhere to.
Judges have a standing in society that is considered both powerful and influential as a result of which their profession of a religion or practice may have an impact on the general populace, said Ms. Jaising. By following and publicising a particular practice, judges would influence the common folk into giving it greater legitimacy and importance than others. In a follow up, she said that she believes politicians and especially the leader of the country ought to be held to the same standard as the bigger the leader the bigger an impact they have.
The importance of judges adhering to an ethical code of conduct has been iterated in several judgements, including Daya Shankar vs. High Court of Allahabad (1987) 3 SCC 1 where the Supreme Court said,
“Judicial officers cannot have two standards, one in the court and another outside the court. They must have only one standard of rectitude, honesty and integrity.”
They have also been summed up in K.P. Singh vs. High Court of Himachal Pradesh & Another (Letters Patent Appeal No. 163 Of 2009)
On 7th May 1997, the Supreme Court adopted a Charter called the ‘Restatement of Values of Judicial Life’, a 16-point code of judicial ethics and serves as a guide for an independent and fair judiciary, paving the way for the impartial administration of justice.
According to the code, the behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. The judge must also be, at all times, aware of the fact that he is under the public gaze and that there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
The Charter was ratified and adopted by in the Chief Justices’ Conference and subsequently all High Courts in the country adopted the same.
The Charter, though warns the judge from indulging in any behaviour that might be detrimental to his office and position, it doesn’t, in any way make any reference to their religious practices or impose any curbs on it whatsoever.
In Atheist Society of India v. Government of A.P., AIR 1992 AP 310, the Andhra Pradesh High Court dismissed a petition seeking to disallow religious practices, like breaking of the coconut on state premises which stated that doing so would would infringe upon the rights granted by the Constitution.
Religion has always been an important part of individual identity and along with it comes the right to practice and profess it the way one desires. While the adoption of this code implies that a judge is under a legal obligation to adhere to a certain code of professional conduct that deviates from a sense of freedom and liberty enjoyed by the common man (for example, the common man has a right to call a press conference and express his views while the same would have grave ramifications for a judge), it cannot dictate the nature of his or her religious practices and whether or not they should be public or private. Undoubtedly, this would directly infringe upon their right of freedom of religion under Article 25.
The ideals of secularism do not just dictate a separation of religion and state, but also the freedom to an individual to practice their faith the way they wish to, without state interference and thus a mandate on private worshipping by judges would in itself would contradict the principles of secularism, since the state would be interfering in the religious practices of an individual, downgrading the Indian Philosophy on secularism that is revered around the world.
In Ratilal Panachand Gandhi v. State of Bombay, the Supreme Court said that,
“… Every person has a fundamental right under our Constitution, not merely to entertain such religious belief as may be approved of by his judgment or conscience, but to exhibit his belief and ideas in such overt acts, as are enjoined or sanctioned by his religion and further to propagate his religious views for his edification of others. The free exercise of religion, by which is meant the performance of outward acts in pursuance of religious belief is, subject of course, to State regulation imposed to secure order, public health and morals of the people.”
“Such overt acts” clearly guarantee that an individual has a right to indulge in a public display of worship as he may deem necessary while practicing or professing his/her religion. In an attempt to correct an apparent or alleged infraction of secularism, one cannot conjure another.
Moreover, a prohibition on public worshipping by a judge would do little in terms of increasing representation or decreasing an apparent bias as the former can only be combated by focusing on amping up representation and strength of the bench.