Some while ago, an employee of the Shipping Corporation of India had filed a divorce suit as his wife was not willing to move to the port where he had been transferred. While deciding the case, the division bench of the Bombay High court observed that a wife should be like Goddess Sita, who left everything and followed Lord Rama to the forest and stayed there for 14 years.
In another instance, the former Chief justice of India, SA Bobde, while granting bail to an accused on Janmashtami, jokingly remarked, “You want bail or jail? Today Lord Krishna was born in jail. Do you want to leave jail?”
These oral observations can either be overlooked as being part of the humorous exchange between the bar and the bench or can be seen as an alarming trend wherein judges depart from the idea of judicial secularism and meet out preferential treatment to a particular religion.
However, the reasons for not overlooking these expressions, which reek of religious biasedness, as being insignificant are far more compelling. This is because, of late, these purportedly insignificant opinions have been transcending the boundaries of judicial secularism and have been forming part of a few decisions as well.
For instance, Justice S.R. Sen, a Judge at the Meghalaya High court, observed in one of his judgements in 2018 that the National Register of Citizens’ process was defective because it left out “original Indians”. He further added that the Hindus who came to India during the partition had not been rehabilitated and were still considered foreigners. He also made some remarks about forced conversions by Muslims, and of Hindus being an innocent community.
Earlier in 1996, a three-judge bench of the Supreme Court culled out a distinction between Hindutva and Hinduism, thereby, holding that Hindutva was not necessarily Hinduism or religious Hindu fundamentalism and was rather a way of life.
In another instance, K.T. Sankaran of the Kerala High Court ordered an investigation into the project purportedly called the Romeo Jihad, wherein Muslims were converting non-Muslim girls to Islam. In another 2017 matter pertaining to the murder of a Muslim man, Justice Mridula Bhatkar of the Bombay High court granted bail to the three accused, who were also members of the Hindu Rashtra Sena, stating that they were provoked in the name of religion and the fact that the deceased was a Muslim was to be considered in favour of the accused.
The list of such instances wherein the judge’s sense of conventional morality eclipsed their sense of constitutional morality is rather exhaustive. This trend of judicial protectionism for a particular religion was also seen during the pandemic.
In June 2020, the Supreme Court allowed Lord Jagannath Yatra of Puri to be held with certain restrictions. The Court expressed its inability to micromanage the Yatra and left everything to the wisdom of the state and temple authorities. Similarly, the Supreme Court also gave a green signal to the Jain community to hold prayers at three temples in Mumbai for two days during the Paryushan festival. This order had reversed a previous order banning the Yatra on the grounds that Lord Jagannath would not forgive the Court if it did not intervene to safeguard public health during the pandemic.
Keeping with its pro-executive behaviour, the Supreme Court also refused to entertain a plea to restrict or cancel the Amarnath Yatra, in the backdrop of the pandemic. The bench led by Justice DY Chandrachud stressed the need to abide by the doctrine of separation of powers and categorically stated that the decision regarding the cancellation of the Yatra was within the domain of the executive wing of the government.
However, the Court chose to overlook the separation of powers doctrine when it disallowed Muharram processions amidst the health risks due to COVID-19. The Court also stated that permitting such a procession could lead to chaos and that they did not want a particular community to be blamed for the spread of Coronavirus.
The Gujarat High Court also expressed its anguish regarding the procession of Muharram taken out by residents of Khambat on 30th August. The Court also noted that the right to freedom of religion was subject to reasonable restrictions, which included public health and morality. However, whether the judiciary has been engaging in an objective application of this “reasonable restriction” in all the matters it hears is an empirical and, in fact, an uncomfortable question.
The overarching trend of judicial behaviour in the cases pertaining to religious affairs reflects selective adherence to the doctrine of separation of powers, unequal application of Article 25 restrictions and overt but subtle expression of religiosity in the courtroom conduct of judges.
The reflection of religious and majoritarian biases in judicial decision-making can be ascribed to three potential reasons, and each of these blatantly deviates from our constitutional traditions and judicial propriety.
Firstly, this religious biased can be a direct result of the judge’s personal beliefs. There are studies to show that cultural worldview and religious convictions a judge inevitably has an impact on their decision making. In the words of Charles Taylor, “true neutrality is a practical impossibility.”
Although, the judges have the freedom to profess, practice and propagate religion under Article 25 of the constitution, like any other individual would have, till the time they are not on the bench. However, when they sit to judge, they are supposed to adhere to the rules of judicial propriety.
As per the scriptures of the supreme Court in Rajendra Rajoriya v. Jagat Narain Thapak, judges are expected to judge in accordance with principles of procedural and substantive fairness when they are dealing with matters involving rights, interests and legitimate expectations.
The Supreme Court, in the case of SK Viswambaran vs E Koyakunju & Ors., had laid down the norms that are to be followed by the judges in the higher judiciary. The Court had opined that the judges, while expressing their opinions, must be guided by the cardinal principles of justice, fair play and restraint. The judicial decisions ought not to depart from sobriety, moderation and reserve.
Even though the judiciary does not fall within the definition of state under Article 12 and consequently Article 14 and Article 25 are not enforceable against it, it ought to abide by the principles of equality, non-discrimination and secularism. This is because the constitution interests the power and responsibility to armour part 3 of the constitution when it grants its citizens to approach the Court in the face of a fundamental right violation. Thus, it is fair to expect from the judiciary that it protects the values enshrined in the rulebook by playing by the incumbent rules of the rulebook.
Secondly, judges might adopt a protectionist attitude toward one religion over the other in line with the dominant political discourse in order to stay in the good books of the ruling government. This has positive incentives, like lucrative post-retirement jobs and corollary negative incentives like political pressure, untimely transfers and so on.
This collusion between the judiciary and the executive is violative of the basic edifices of the constitution, which directs an individual to approach the Court when the executive violates their right. If the judiciary itself becomes an interested party in the case and renders judgements that reek of judicial biases to please the ruling government, the fundamental purpose behind judicial review and rights will be rendered redundant.
Thirdly, the judges might depart from the idea of judicial secularism to align their decisions with the majority opinion. This can happen due to two reasons. One can be the judge’s populist tendency to be renowned amongst the masses and be remembered by them, and the other can be the judge’s need to secure the trust of the public. This is because the only source of power for the judiciary is the public trust. They are dependent on public trust to effectively discharge their functions as they do not have any other machinery or means to implement their decisions.
However, the constitution does not envisage a judiciary which has to appease the public to make it conceit to its legitimacy and supremacy. As posited in Navtej Singh Johar v. Union of India, the constitution envisages a judiciary which is committed to the cause of safeguarding minorities, despite the opposition from the majoritarian governments and majoritarian opinions.
All the potential internal and external threats to the efficacy of judicial secularism are frowned upon by the constitution. Thus, the judges ought to be self-conscious of their prior moral and religious positions that influence their decisions so that they can reflect upon these biases and consciously try to provide irreligious, legal and constitutional explanations for everything they say and do. They need to adhere to the principles of judicial secularism even if that is the hard choice in the face of insurmountable political and majoritarian pressure. For, if the courts refuse to act as anti-majoritarian institutions, they will fail to protect something that is the most sacred to them.
More than insulating the judiciary from external threats, it is for the judiciary itself to recall the expedition it set out for in 1950, which is that of upholding the sanctity of the constitution, and not of any religion; an expedition which is that of protecting “we the people of India”, and not any government or majority.
Featured image source: Opportunity Cell