God-Willed Justice?

There are a very few legal scholars or advocates who have perceptively looked at the dynamics of India’s judiciary and cautioned us about the dangers that can come our way through those routes only.

Dr Mohan Gopal, is an exception.

This noted scholar who has been very clear about the worldview and strategies of the Hindutva Supremacist forces to achieve the goal of establishing Hindu Rashtra, explains their strategy of executing it “not by overthrowing the Constitution but by interpretation by the SC as a Hindu Document”

Speaking in a programme organised by Live Law, Gopal had explained its dynamic as a two-step process:

One, appointing judges who are ready to look beyond the Constitution.

Two, how with an increase in the number of theocratic judges who find the source of law in religion rather than the Constitution, it will be easy to declare India as a Hindu theocracy under the same Constitution.

This important speech was interspersed with facts related to appointments of judges under the earlier Congress-led United Progressive Alliance regime and later the Narendra Modi-led dispensation and how the various appointees had tried to stick to the Constitution or had attempted to look beyond in their different judgements.

For Gopal, the Hijab judgement by the highest court, where it delivered a split verdict was a significant milestone in this direction.

No doubt, the noted scholar would never have had a premonition that a day would arise when the Chief Justice of India (CJI) would admit publicly that it was not the Constitution but his individual faith and his own deity that dominated or decided or overwhelmed his crucial legal decisions.

Much has been commented upon by scholars, advocates and analysts about these utterances by the CJI in his native village and the controversy it has generated.

There is an interesting side-effect of this admission by the CJI.

The controversial Babri Mosque judgment, which not only underlined the 1948 act by Right-wing elements who placed the idol of Ram Lalla inside the Babri Masjid as ‘illegal’ and maintained that its demolition was “an egregious violation of the rule of law,” -- which was delivered by a five-judge bench of the Supreme Court led by the then CJI Ranjan Gogoi -- had till date lacked authorship. Nobody had signed it.

One could be wrong but, perhaps, it was the first judgment in the post- Independence history of India, which was not signed by anyone.

No one knows the reason, but looking at this admission by the CJI about his ‘communion with God’, could it be said that like the Vedas, which are called ‘Apourushey’ (not created by human, meaning created by God), perhaps this judgment could also be included in that category?

What is rather striking is that till date, most of the facts associated with the Bari Masjid judgement -- barring its authorship -- which can be considered a ‘milestone’ as far as the future of our Republic is concerned in recent times, have been documented. We even know that the then CJI Gogoi had, after this unanimous verdict, taken his colleagues for dinner in a five-star hotel and had even ordered their best wine.

Critics of the ruling dispensation can even draw a parallel between having a ‘non-biological’ Prime Minister and a Chief Justice who also claims direct communion with God, and the synergy of sorts they displayed together on occasions, especially during the recent Ganesh Chaturthi celebrations. The ‘non biological’ PM’s own Twitter handle (now called ‘X’) had itself released photographs of the occasion when he visited the CJI’s house and they held Ganesh’s prayers together, which created enough political controversy.

Legal luminaries even underlined how with this invite the CJI had “[c]ompromised the separation of powers between the Executive and Judiciary.” or how it sent “[a] very bad signal to the judiciary which is tasked with the responsibility of protecting the fundamental rights of citizens from the executive and ensuring that the government acts within the bounds of the Constitution.”

It is said that a truly religious person loves to keep her/his communion with god as a private affair. The manner in which this private invite, which should have gone unannounced, was allowed to be publicised, also underlined one more commonality between PM Modi and the outgoing CJI.

Perhaps, both love to share their very private moments with the wider populace.

For example, one can recall how a few months ago, CJI DY Chandrachud had made a highly-publicised visit to Dwarkadhish Temple with his wife, where he was seen wearing saffron-tinged dress. This visit, too, had come under criticism because of the remarks he had shared while inaugurating the new court building at Rajkot, Gujarat.  What had irked even neutral people was that the CJI emphasised how he was inspired by the Dhwaja at Dwarkadhishji, which was similar to the Dhwaja at Jagannath Puri, and how these flags represented “universality of the tradition in our nation, which binds all of us together.”

It does not need great wisdom to comprehend that in a secular country like India, which believes and propagates Sarva Dharma Sambhav (all religions are same), where the Tiranga or the Tricolour is considered the only flag that binds all of us, this espousal of the flag of a particular religion by a Constitutional Authority does not sit well with the Constitutional mores.

The ‘frank’ confession by the honourable CJI about the Babri Mosque judgment and about its ‘authorship’ also raises few other queries that are related to his two-year plus reign at the helm of affairs of the judiciary. His ascent as CJI had initially raised a lot of hopes among the liberal fraternity. A CJI is seen not only as a master of the roster, but also as a leading light of the brother/sister judges in the highest courts as also the lower courts.

Close observers of the judiciary have noted how the Chief Justice has been very eloquent in his speeches, how he has always upheld the Constitution on public forums, time and again he has questioned the delay in granting bail by the courts, emphasising how ‘bail is a rule and not an exception’, but also how under his own eyes the ‘accused in say NE Delhi riots are rotting in jail’ for more than four years, which has come under scanner of the international human rights organisations.

The beginnings of this third decade of the 21st Century were also marked by what is called ‘bulldozer justice’, where much on the lines of Israel, various Bharatiya Janata Party-led governments, led by Uttar Pradesh Chief Minister Adityanath, have initiated a campaign of ‘instant justice’, where houses of the accused have been demolished without following any due process, under the pretext of ‘building violations’ immediately after group conflicts or community tensions.

The main targets in these “bulldozer” demolitions have been the religious and social minorities. According to national and international human rights organisations, most of such demolitions have been executed without following due procedures.

History is a cruel judge and it will definitely note that many such vindictive actions targeting particular communities continued unabated during a period when the honourable CJI led the country’s highest court. Impartial critics would also like to see whether it was possible for the ‘master of the roster’ to do anything significant. But when the court led by him suo motu intervened in the R G Kar Hospital Rape Case in Kolkata, it was the height of innocence to presume that nothing significant could be done. Perhaps, he could have come forward to provide the necessary healing touch to religious and social minorities who were feeling abandoned under the onslaught of State-sponsored vigilante justice and the ‘religious assemblies’ giving an open call for genocide.

One agrees that at the fag-end of Chandrachud’s term, there are a few fresh initiatives in the highest judiciary on this issue, but one expects that the court will put a stop to such illegal demolitions, once for all.

The CJI's term is coming to a close and there are reports that he is anxious to know “how history will remember him.”

This task can be left to legal scholars or future historians, but what every democracy-loving person knows and deeply comprehends is the key importance of  the ‘guardrails of democracy’ – namely, the executive, the legislature and the judiciary - and how the weakening or sabotaging or hijacking of such institutions from within can occur before our own eyes and play havoc with democracy.

We have before us the example of the judiciary of the 'Strongest Democracy in the World', namely the US. It is a fact that today Republicans are dominant there. Out of the strength of eight judges, five owe allegiance to the Republican camp.

A few months ago, the US top court ruled that even a former President was presumptively immune from criminal liability for his official acts, thus effectively providing immunity for life to Trump -- if he returns as President

It was as if the “strongest democracy” was on the path of rediscovering ‘rule by Kings’ instead of the rule of law.

Perhaps at this juncture, it is important to underline the old dictum --'Eternal Vigilance is the Price of Democracy''.

The writer is a veteran independent journalist. The views are personal.