The Judiciary plays a pivotal role today, especially in light of the highly polarised environments we are witnessing across the world. It often acts as a balancing apparatus between overzealous politicians, nefarious elements and the society by penalising deliberate designs which disrupt peace and harmony for political gains.
Undoubtedly, in recent times, the role of judiciary in reigning such elements cannot be overstated. Over the past decade alone, Indian judiciary decided highly political issues such as the Sabarimala verdict, the Hijab controversy, etc. As of now, the Supreme Court is seized of the cases concerning demolition drives against unauthorised constructions. This week, Senior Advocate Mr. Kapil Sibal had argued that the ruling government has “deliberately" targeted and bulldozed muslim homes”. Justice L. Nageswara Rao retorted to this and said that Hindu homes were being demolished as well. The Supreme Court of India is expected to deliberate and decide issues such as the constitutionality of the Citizenship Amendment Act, 2019 and reading down of Article 370 and Article 35A from the Constitution of India.
It is not out of place to say that these “politically charged” cases have divided the country on grounds of caste, religion, with political allegiances placed before courts to be adjudicated “neutrally”. It is worth pondering upon, is such a feat even possible? Especially, given that the judges who adjudicate such cases are also opinionated and fallible.
Like all human beings, they belong to different religious communities, possess opinions on political issues and have certain preconceived notions about the world, though, dare I say, they are indeed legally trained experts.
While Indian judges do not have the luxury of expressing opinions on political or religious affairs and can only express themselves through the judgements they author, they are certainly not bound by the shackles of their office upon retirement. Thus, it is not uncommon to see many retired judges writing biographies, expressing opinions on social media, delivering key note addresses or even starting Youtube channels. Perhaps, this is a way to gauge the mind and biases of a judge, other than through their judgements.
It would not be remiss to elucidate on this by studying the example of legal stalwart Former Supreme Court Judge, Mr. Rohinton Fali Nariman, who has been repeatedly criticised for his “anti-hindu views”.
For instance, in his speech on the 26th Justice Sunanda Bhandare Memorial Lecture, Mr. Rohinton Fali Nariman J. compared the teachings of the Bible and the Rig Veda towards women and claimed that the Rig Veda discourages men from befriending women, as women are like hyenas. Naturally, he received significant criticism from various Hindu scholars and organisations alike, asking to desist from interpreting Hindu scripture. One Hindu scholar also openly challenged Mr. Rohinton Fali Nariman J. to debate on hindu scripture and claimed that he was wounded by Mr. Rohinton Fali Nariman J.’s views on Hinduism.
On another occasion, during his keynote address on "Constitutional Underpinnings of the Rule of Law" at the inauguration of the D. M. Harish School of Law, Mumbai, Mr. Rohinton Fali Nariman J. slammed the ruling government for endorsing hate speech and inciting enmity between religious communities. He criticised the head of the ruling party for juxtaposing Aurangzeb, a Mughal emperor known for being a bigot, against Shivaji, who was known to be a secular leader. He claimed that, “If, as a matter of fact, fraternity is a cardinal value in our Constitution and you want to engage persons in becoming a brotherhood, I would have thought that you should have chosen Mogul emperors such as Babur or his grandson Akbar. Akbar was famous for being perhaps the most secular ruler that any nation has ever known at any point of time and he took after his grandfather Babur”.
To elucidate his premise, he read out a letter written by Babur to his son Humayun, a year before Babur died, telling Humayun how to rule “Hindustan”. The letter directed Humayun to rule with “a heart cleansed of all bigotry” and to “particularly refrain from sacrifice of cow”. The letter also advised Humayun to not damage temples or other abodes of worship, saying that the progress of Islam is better served by “the sword of kindness, not by oppression”.
To hear one of the most decorated judges of the Indian judiciary, glorify Mughal leaders as “secular” and respectful of Hindu culture is disturbing to say the least. Not only is the claim completely false, but it is also disputed by Babur himself, who has in his own memoirs, written about in how he attacked Chanderi in 1528 and converted the place which had been “Daru’l Harb” (a nation of non muslims) to “Daru’l Islam” (a muslim nation). In a translation of Baburnama by Wheeler M Thackston, Salman Rushdie, who wrote the ‘Introduction’ thereof, described Babur as finding Hindustan, “a place of little charm”. Rushdie writes how Babur found the indigenous population of Hindustan to have “no beauty in its people, no graceful social intercourse, no poetic talent or understanding, no etiquette, nobility or manliness”. Even indigenous arts and crafts did not appeal to Babur, who found them to have “no harmony or symmetry”. It is also a well known fact that Babur took on the title of “Ghazi” every time a Hindu ruler was slain.
One does not have to go into further investigation of Mughal history to conclude that their intentions towards Hindustan were of religious conquest and destruction of all indigenous religion and culture. Thus, any Members of Parliament, politicians, judicial officers or persons in position of governmental power cherishing the Mughals as “secular” examples for current leaders to follow, indicates not only a colonised sense of history, but also a colonised mind, which places the coloniser and/or oppressor at a pedestal.
Without meaning to single out the Honb’le Mr. Rohinton Fali Nariman J., (who has indeed otherwise proven himself to be a virtuous and principled member of the Indian judiciary), it is worth reflecting upon our education system(s) which harbours a false sense of history, almost entirely tilted in favour of the coloniser, whether they came from the West or the Middle East/Central Asia. It is unsurprising that various judicial officers, who have been the beneficiaries of some of the most reputed institutions of this system, have deeply entrenched colonised views.
However, this admittedly begs the question of how such judges, who are colonised in consciousness, who are educated in Oxford and Cambridge, who understand nothing of Hindu scripture, culture or practices (despite being Hindus in identity), would fair in adjudicating matters of religious significance to Hindus? Would they import ideals of secularism, feminism and homogenous equality to Hindus?
Are judges equipped to understand that a temple which restrains entry of women within a certain age bracket could not be deemed to be “socially discriminating”, given that the same deity, in a different avatar, worshipped in a different temple, allows men and women of all age groups to enter? Would all cultural diversity not be destroyed in the name of secularism, feminism and homogenous equality? Should the judiciary dictate whether every person ought to have access to every religious temple? What about temples meant only for women? Or only for the third sex?
Can such judges, who upheld Babur and Humayun as model leaders, see the beauty of Hindu institutions as culturally diverse? Or would they see Hindus as Babur did - as people of little beauty, no graceful social intercourse, no poetic talent or understanding, no etiquette, nobility or manliness?
The 2018 Sabarimala verdict of the court speaks for itself and no further comment is needed on that behalf.
The issue here is not that all members of Indian judiciary are biased against any community. The judiciary is indeed a “mixed bag” of different judges from diverse backgrounds. It is difficult predicting which judge a litigant may come before with their case or what biases they may hold. There is however, misnomers in justice are often evident.
Take the example of the Supreme Court refusing to hear a petition filed by “Roots in Kashmir”, seeking a probe into the killings of Kashmiri Pandits during the Kashmiri Pandit genocide in 1990s, on the ground of delay. It certainly cannot be the case of any Indian that the genocide, which has been well documented by various journalists and historians, never took place. It also cannot be the judiciary’s case that the victims of such genocide were in a position to approach the judiciary earlier, but were negligent in doing so. Such an onus would be harsh and unsympathetic to the plight of the victims. Yet the Supreme Court refused to entertain the plea on the ground that “No evidence will be available after 27 years.” When one juxtaposes the harsh ruling of the Apex Court towards the Kashmiri pandits against the case of Sajjan Kumar Vs CBI, which was an appeal from an order of the Delhi High Court, framing charges against the accused for offences committed during the 1984 Sikh riots, it becomes hard to justify the court’s refusal to probe into the Kashmiri Pandit genocide. The investigation into the 1984 riots had been reopened nearly 20 years after the riots had already taken place, i.e., in 2005 and the order of the Sessions Court was passed in 2010. What possible reason should the courts have to refuse Kashmiri Pandits the same treatment?
One might make the argument that the two cases may be distinguished on facts but should the judiciary be bogged down by semantics? Or should it rise to the occasion and take a proactive approach in the delivery of justice to a community that has languished for 32 years?
The Supreme Court in July 2021 took suo motu cognisance of the Kawar Yatra, set to be held in Uttar Pradesh in 2021. While I am neither supporting nor critiquing the decision of the Supreme Court to prevent the religious procession from taking place, it is peculiar to see that the Supreme Court did not take cognisance for similar processions by other religious communities across the country or even pass a blanket ban on all religious processions or gathering. The argument that Hindus form the majority of the country’s population and therefore a ban on Hindu processions is more incumbent, cannot hold if one wishes to preserve the secular fabric of this country. The argument also does not hold in states with a Muslim majority and a Hindu minority, where Muslims processions could have been the cause of a higher number of COVID-19 cases. However, while the Supreme Court certainly criticised the Kerala High Court for allowing relaxations of Covid norms for Bakrid, it neither cancelled the Kerala Government notification easing the COVID curbs, nor did it take Suo motu cognisance of the matter, as it did with Uttar Pradesh. Moreover, celebrations in other states such as West Bengal, for Christmas, went completely unheeded, despite of the large number of gatherings in violation of all COVID norms.
(Some have also made the case that the Kawar Yatra involved interstate travel throughout the northern belt and so, the Supreme Court was better placed to take cognisance thereof, as compared to leaving the matter to be adjudicated by the High Court or the state government. While the said argument seems well reasoned, can it be anyone's case that the festival of Eid in Kerala would not involve interstate travel? Do relaxed covid norms not also means interstate travel? Moreover, if interstate travel was the issue, why not allow the Kawar Yatra to be held within the state Uttar Pradesh and ban interstate travel during the said period? If the latter approach makes no sense for Uttar Pradesh, one can hardly argue for it to rightly apply to Kerala.)
To drive the point home, it is imperative to put out one more example, i.e., the case of State of Bombay v Narasu Appa Mali, which was adjudicated by a division bench of the Bombay High Court in 1951, comprising of two of the most decorated judges of the Indian judiciary, both of whom went onto become judges in the Supreme Court.
The question before the court was on the validity of Bombay Prevention of Hindu Bigamous Marriages Act, 1946. The act was challenged on the ground that it only penalised Hindus for bigamy, even though bigamy was already an offence under the Indian Penal Code, 1860. Moreover, the act also prescribed a higher punishment for Hindus than for any other religious community. Thus, the Petitioner contended that the act contravenes the fundamental rights guaranteed under Articles 14, 15 and 25 of the Constitution.The Bombay High Court while acknowledging the pervasive nature of the practice of polygamy across many religious communities in India, chose to uphold the act as it stood, on the ground that it was the state’s mandate to determine which community was ripe for reform. Thus, the court held, “There can be no doubt that the Muslims have been excluded from the operation of the Act in question. Even Section 491 of the Indian Penal Code, which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslims because polygamy is recognised as a valid institution when a Muslim male marries more than one wife….Whether it was expedient to make this Act applicable to the Mahomedans as well as to the Hindus would be a matter for the Legislature to consider……The State Legislature may have thought that the Hindu community was more ripe for the reform in question.”
Moreover, the court also held that should the state wish to bring about reform in stages, either by implementing it upon one religious community at a time or upon a certain territory at a time, it would be perfectly justified in doing so.
From the aforementioned judgements, does the reader gauge an occasional bias in the approach of the court? Can the existence of such a bias be denied?
If the answer to the above question is in the affirmative, the obvious question which would then arise is - if indeed such a bias exists, what does one do about it? One possible solution could be to correct the menace of judicial overreach in the domain of religion. The Indian judiciary cannot sit as a sharia or ecclesial court, interpreting religious laws, which are deeply contextual and which require a strong understanding of the “Lebenswelt” in they were conceived. The judiciary cannot and should not be expected to have an understanding of the same.
Moreover, perhaps it would be more prudent for the judiciary to limit its interference in religious practices to the extent that they violate criminal law. All practices which pass such threshold of criminal law, regardless of religion, should be allowed to remain. Those that don’t, ought to be discarded.
A long term solution, could be the reformation of our education system, in a way that ensures unlearning history from the point of view of the coloniser, which has, so far, been passed down to us as "facts". Our education system must ensure that its products do not idealise our oppressors.
[Tishya Saran is the Special Correspondent at Lawbeat. She is on Twitter at @tishya_saran]
[Views expressed by the Author are personal. Lawbeat does not endorse, agree or disagree]
Edits by Sanya Talwar
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