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.
Gods Above the Constitution: A New Era For India’s Judiciary?
Chief Justice of India’s prayers before a deity for a solution to the Babri Masjid–Ram Mandir dispute underlines an awful deficit of constitutional morality.
In a rare confession, the Chief Justice of India (CJI) Dr D.Y. Chandrachud disclosed in a recent meeting in his village in Maharashtra that the Ayodhya (Ram Janmabhoomi–Babri Masjid) dispute was adjudicated in the Supreme Court and a solution was arrived at after he sat before a deity and prayed for it.
He said, “Very often we have cases (to adjudicate) but we do not arrive at a solution. Something similar happened during the Ayodhya dispute which was in front of me for three months. I sat before the deity and told him he needed to find a solution.”
Demolition of Babri Masjid an “egregious violation of rule of law”
It is worthwhile to recall that the judgment on the above dispute was delivered by a Supreme Court Bench consisting, among others, of the then CJI Ranjan Gogoi and Justice Chandrachud. It sharply described the placement of the idol of Lord Ram inside Babri Masjid as illegal and held that its demolition and “the obliteration of the Islamic structure was an egregious violation of the rule of law”.
So the operative part of the judgment that the site of Babri Masjid should be used for building a Ram temple flowed, according to Chandrachud, from a deity.
It also allotted the site of the demolished mosque to those who destroyed it for the purpose of constructing a Ram temple and ordered to provide some five acres of land somewhere else to build a mosque.
Prayer to a deity superseded the Constitution
So the operative part of the judgment that the site of Babri Masjid should be used for building a Ram temple flowed, according to Chandrachud, from a deity whom he prayed for finding a judicial resolution of the Ayodhya (Ram Janmabhoomi–Babri Masjid) dispute.
It means that the principles of the Constitution, law and jurisprudence did not determine the process of adjudication, and a faith-based approach was adopted to invoke a divine figure to find a way out.
The Supreme Court in the judgment, allowing the construction of a Ram temple in Ayodhya, clearly stated that the judiciary would not be guided by any theology to adjudicate the matter.
It is worthwhile to invoke that paragraph of the judgment: “This court, as a secular institution, set up under a constitutional regime, must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper.”
D.Y. Chandrachud, as the CJI, is integral to the secular institution of the Supreme Court wedded to secular ideals to find solutions to any matter being adjudicated by it. The deference to accept the faith and belief of worshippers as laid out in the aforementioned paragraph, obviously meant the faith of those who moved the court for justice.
Being the head of a secular institution that avoids theological doctrines, how did Chandrachud find a solution by praying to a deity for the egregious blunder of the destruction of Babri Masjid and allow those who caused that destruction to build a temple?
Did not CJI Chandrachud provide an opening for retrogression by allowing that survey of Gyanvapi mosque even as assurances have been made that there would not be alterations to the structure?
Does the Constitution permit any judge, including the CJI, to find a judicial remedy to a dispute by praying to a deity who was a party to the dispute?
Ambedkar flagged the prejudices of a Chief Justice
The public confessions of a vastly experienced and learned CJI are indeed perplexing and disturbing, particularly when the issue of saving the Constitution has become a people’s issue and next month on November 26, the 75th anniversary of its adoption and enactment would commence.
On May 24, 1949, B.R. Ambedkar, while replying to the discussion in the Constituent Assembly on the Article concerning the Supreme Court, said something which is applicable to all those who are part of the judiciary and adjudicate matters.
But he very specifically referred to the exalted position of the CJI and stated, “I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have.”
While flagging the point that like common people, a CJI would have failings and prejudices, Ambedkar would never have anticipated that in the backdrop of the celebration of the 75th anniversary of the Constitution, a CJI would justify remedy provided in a judgment on the basis of prayer he offered to a deity.
Mahatma Gandhi on the hallucination of law courts
The judgment of the Supreme Court in the Babri Masjid–Ram temple issue clearly was in favour of the powerful ruling party at the Union level and its affiliates.
By permitting the construction of the Ram temple in the place where Babri Masjid stood, it provided no ground based on the Constitution, law and jurisprudence.
In this context, one is reminded of M.K. Gandhi’s 1920 article “The Hallucination of Law Courts”. In that searing piece, he indicted the law courts functioning during British rule over our country and wrote, “The worst is that they support the authority of a government.
“They are supposed to dispense justice and are therefore called the palladile of a nation’s liberty. But when they support the authority of an unrighteous government they are no longer palladile of liberty, they are crushing houses to crush a nation’s spirit.”
Adding further, Gandhi very presciently observed, “Let no one suppose that these things would be changed when Indian judges and Indian prosecutors take the place of Englishmen.”
It is indeed extraordinary that CJI Chandrachud has been fascinated by Hindu images which he thinks can be juxtaposed with the idea of justice.
Those articulations made in the context of colonial rule in India sadly reaffirm the hallucination of law courts in the context of CJI Chandrachud’s prayer to a deity to find the solution to the Babri Masjid–Ram Mandir dispute.
CJI Chandrachud allowed a survey of Gyanvapi mosque
CJI Chandrachud permitted a survey of the Gyanvapi mosque and other similar Islamic structures on the ground that it would not violate the Places of Worship Act, 1991 prohibiting change in the character of a place of worship from what it was on August 15, 1947.
Very tragically, such permissions bolster those who aspire to convert the Gyanvapi mosque and other places of worship meant for Muslims to temples.
Places of Worship Act, 1991
It is instructive that the Supreme Court Bench, comprising among others Justice Chandrachud, which adjudicated the Ram Janmabhoomi–Babri Masjid dispute, observed in its judgment that the Places of Worship Act, which was enacted in 1991 by Parliament “protects and secures the fundamental values of the Constitution” and “furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered”.
It proceeded to outline the responsibility of people and all those mandated to govern the country to safeguard those shrines and stated, “The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level.”
“The Places of Worship Act,” it asserted, “imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution.” It further forcefully remarked, “The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.”
Did not CJI Chandrachud provide an opening for retrogression by allowing that survey of Gyanvapi mosque even as assurances have been made that there would not be alterations to the structure? We need to be mindful of the fact that the Babri Mosque was destroyed in spite of assurances not to cause any harm to it.
“Once a norm above the Constitution is created,” Indira Jaising remarked, “it is easy to see why there is no need to amend the Constitution.”
Siddharth Varadarajan, in his article published in The Wire, referred to CJI Chandrachud’s decision as CJI to allow a survey of the Gyanvapi mosque and wrote, “This is also a pointer to the kind of divinely-ordained solutions that will doubtless follow in our courtrooms as Hindutva groups mount claims on Muslim places of worship around the country.”
CJI Chandrachud equating temple flag with flag of Justice
It is indeed extraordinary that CJI Chandrachud has been fascinated by Hindu images which he thinks can be juxtaposed with the idea of justice.
For instance, on January 6 this year, after he visited several prominent temples in Gujarat in the full glare of the media, he told the district court judges in Rajkot that inspiration should be drawn from temple flags or dhwajas, binding “all of us together”, for flying high the “dhwaja of justice” on an enduring basis.
So his irresistible fascination to find a solution to a matter pending in court for judicial remedy by praying to a deity and his attempts to draw parallels between flags flying over Hindu temples with flags of justice are quite intriguing.
Ramachandra Guha, a well-acclaimed historian and author, sharply reacted by saying that CJI Chandrachud, in equating the temple dhwajas with flags of justice, deliberately disregards “a vast gap between the ideals of the orthodox Hindu tradition and the ideals that undergird our Constitution”.
Senior advocate Indira Jaisingh expressed her regret on the attempts to establish there is an “intrinsic dharma” of the people which is ancient and predates the Constitution. “Once a norm above the Constitution is created,” she remarked, “it is easy to see why there is no need to amend the Constitution.”
Cultivation of constitutional morality
CJI Chandrachud’s remark that he prayed to a deity to find a solution to an issue pending judicial remedy signals the pervasive deficit of constitutional morality so critically flagged by B.R. Ambedkar in his last speech in the Constituent Assembly.
He prescribed that the comprehensive cultivation of constitutional morality on a sustained basis is a sure step for the success of the Constitution at all levels. As we embark on celebrating the 75th anniversary of the Constitution, Babsaheb’s prescription assumes added significance.
The author was Press Secretary to President of India late KR Narayanan.
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