The Wire Staff 
New Delhi: Thirteen senior advocates have written to the Chief Justice of India Sanjiv Khanna on Justice Shekhar Kumar Yadav of the Allahabad high court, who on the back of severe criticism against his anti-Muslim remarks, has said that he stands by them.
Yadav was earlier called by the CJI over his speech at an event organised by the Hindutva group Vishwa Hindu Parishad.
While endorsing a uniform civil code, the judge used the derogatory term “kathmulla” and said that Muslim children could not be expected to be “tolerant” and “generous” as they are exposed to violence – “the slaughter of animals” – from an early stage.
“Justice Yadav’s comments raise serious concerns about the role of the court as the guardian of the Constitutional values of Equality and Fraternity for all Indians regardless of community or creed,” the lawyers note.
The full letter is being produced below.
§
Justice Sanjiv Khanna
The Hon’ble Chief Justice of India
Supreme Court of India
Tilak Marg, New Delhi – 110001
[Through Secretary General]
Respected Sir,
We wish to raise an issue that strikes at the heart of judicial impartiality and the constitutional values that all judges are sworn to uphold.
It has been brought to public notice and is widely reported that a sitting judge of the Allahabad High Court, namely Justice Shekhar Yadav, addressed a gathering on December 8, 2024. The said gathering was organized by the Vishva Hindu Parishad’s (VHP) legal cell within the library premises of the Allahabad High Court. The contents of his speech, recorded and widely disseminated, have been characterized as hate speech, containing remarks that appear unconstitutional and contrary to the oath of office taken by a judge.
As reported in The Leaflet, the proposal to appoint Justice Yadav to the Allahabad High Court was strongly opposed[1]by the former Chief Justice of India, Dr D.Y. Chandrachud, who had written a letter to the then Chief Justice of India , in his capacity as the consultee judge, citing Yadav’s inadequate work experience, his links with the Rashtriya Swayamsewak Sangh (RSS), the ideological parent of the Bharatiya Janata Party (BJP), and, most importantly, his closeness to a (then) BJP Rajya Sabha member of Parliament, who is currently a minister in the Union cabinet. Justice Chandrachud had summed up his note about Yadav with the strong recommendation that “he is not suitable for appointment as a judge of the High Court”.
Throughout his address, Justice Yadav drew a stark and inflammatory distinction between “ham” (us) and “aap” (them), speaking of “hamari Gita” (our Gita) and “aapki Koran” (your Koran). This blatantly divisive rhetoric disregards judicial impartiality, with the judge openly aligning himself with one religious community while painting the other in a deeply derogatory light. His use of the derogatory “kathmulla” to refer to a section of Muslims is deeply disturbing.
In his references to religious reform, Justice Yadav employed a tone of coercion and dominance. While acknowledging that Hindus have reformed traditional practices such as sati and Untouchability, he demanded that Muslims discard practices such as polygamy and triple talaq.
Ostensibly, Justice Yadav was commenting on the Uniform Civil Code, but the entire speech seemed like a cover for spreading hate speech on a public platform. There was nothing academic, legal, or juristic about the contents of the speech.
Further, Justice Yadav asserted a majoritarian view of governance in saying that India is run by the “bahusankhyak” (majority), whose writ must prevail. This is an affront to the constitutional promise of equality and justice for all, irrespective of religion and the rights of the minority.
Justice Yadav further invoked divisive imagery, speaking of the “liberation” of “Ram Lalla” and the construction of the temple in Ayodhya, while invoking unfounded fears of India turning into “Bangladesh” or the “Taliban”.
Justice Yadav characterized Muslims as lacking generosity (“udaar”) and tolerance (“sahishnu”), alleging that “their” children are raised with a propensity for violence (“hinsa ki pravritti”). Such remarks are not only factually baseless but also dangerously inflammatory. He went on to say that Hinduism had the seeds of tolerance which Islam didn’t.
“It is taught to us that … even an ant should not be killed. That is perhaps why we are tolerant and generous. Hame kisi ka kasht dekh karke kasht hota hai… Kisike peeda ko dekhke peeda hota hai… Par aapke andar nahin hoti hai… Why? Because when a child is born in our community, they are taught about God, the Vedas and Mantras right from childhood… They are told about non-violence… Lekin aap ke yahan to bachhpan se bachhe saamne rakh kar ke vadh kiya jaat hai pashuon ka (in your community, animals are slaughtered in the presence of children)… Toh aap kaise apeksha karte hain ki sahishnu hoga woh … udaar hoga woh (how do you expect the person to become tolerant, kind)?”
It is important to note that the Indian Express reported on January 17, 2024, that Justice Yadav stands by his remarks and justifies them.
Justice Yadav’s comments raise serious concerns about the role of the court as the guardian of the Constitutional values of Equality and Fraternity for all Indians regardless of community or creed. Justice Yadav’s speech has imprints of multiple offences described under Sections 196 and 302 of the Bharatiya Nyaya Sanhita (BNS). The speech not only wounds the religious feelings of Muslims, as defined under Section 302 of the Sanhita, but it also has the undertones of promoting enmity between different groups on grounds of religion. The relevant Sections have been reproduced hereinunder –
Section 196. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
(1) Whoever –
(a) by words, either spoken or written, or by signs or by visible representations or through electronic communication or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities;
…
Shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Section 302. Uttering words, etc., with deliberate intent to wound religious feelings of any person.
“Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”
The Hon’ble Supreme Court in Amish Devgan versus Union of India & Others (2021) 1 SCC 1, at para 72, has described the offences mentioned above as “hate speech” being words considered offensive to the community and the content would allow anger or alarm or resentment or alarm, based on colour or creed relation or gender.
The speech delivered by Justice Yadav falls within the parameter of the content-based element in the judgment of this court. It is divisive and has the tendency to impact the unity and integrity of India. [See also para 71 of the said judgement]
It is clear that Justice Yadav’s participation in the event and his inflammatory statements represent a severe violation of Articles 14, 21, 25, and 26, read alongside the Preamble of the Constitution. These actions are discriminatory and stand in direct contradiction to the fundamental principles of secularism and equality before the law, which are the bedrock of our Constitution. It is also in contravention to his oath to the office as a High Court judge and the Supreme Court’s Restatement of Judicial Values, which was adopted by the full court on May 7, 1997 and talks of reaffirming the impartiality of a judge. The relevant part is herewith reproduced:
“A judge must at all times be conscious that he is under the public gaze and 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 delivery of such communally charged statements by a sitting judge of the High Court at a public event not only undermines religious harmony but also erodes public confidence in the integrity and impartiality of the judiciary.
This court has had occasion to deal with similar situations when a sitting judge of the Supreme Court was accused of corruption and an enquiry was in progress .
When faced with widespread reported allegations of corruption against a sitting judge of the Supreme Court, Justice V. Ramaswami, the then Chief Justice of India and late Justice Sabyasachi Mukharji sat in open court and made the following statement to the Bar:
“Re: Ramaswami, J. Chief Justice’s Statement to the Bar
In the beginning of May 1990, some learned advocates of this Court drew my attention to certain newspapers about the audit report investigating the expenses incurred in furnishing the residence of a former Chief Justice of the Punjab and Haryana High Court, namely, Shri V. Ramaswami, who is now a sitting Judge of this Court. I was requested by the learned lawyers to take action suo motu. The matter was mentioned more than once. On 1-5-1990, I had received a communication from the editor of a magazine enclosing herewith a copy of the April 1990 issue of the magazine The Lawyers, stating that it contained the full text of the audit report of the Chandigarh Administration. Thereafter, after the learned Attorney General, Sir Soli Sorabjee, the former Attorney General, Shri Parasaran, Mr Venugopal, the President of the Supreme Court Bar Association, and Dr Y.S. Chitale, former President of the Supreme Court Bar Association, also met me and drew my attention to these reports and expressed concern on the contents of the publications. The Union Minister of Law and Justice called on me and expressed the concern of the Members of Parliament about the alleged extravagance by Justice Ramaswami and the contents of the report, while working as the Chief Justice of the Punjab and Haryana High Court. Sharing their concern, I had told the Law Minister and have since assured the learned Attorney General and other members of the Bar that I would look into the matter.
Legally and constitutionally the Chief Justice of India, as such, has no right or authority to inquire into the conduct of a sitting Judge of the Supreme Court. However, the Chief Justice of India, as the head of the Judicial Family has, I believe, the duty and the responsibility to maintain the judicial propriety and attempts to secure the confidence of the public in the working of the judicial process.
This was an unprecedented and an embarrassing situation. It called for caution and establishment of a salutary convention. I have obtained from the Chief Justice of Punjab and Haryana High Court the necessary papers.
There are three kinds of reports (i) reports submitted by the Internal Audit Cell of the High Court, (ii) fact-finding reports submitted by District and Sessions Judges (Vigilance) both of Punjab and Haryana; and (iii) reports and audit paras submitted by the official of the Accountant General’s office to the High Court for reply. The reports and audit paras last mentioned seek clarifications and justifications in respect of the transactions which prima facie appeared to be irregular.
I have looked into it and then arrived at a certain tentative impression that it is not necessary to recapitulate in detail, the alleged irregularities…
I understand that the High Court had directly sought Brother Ramaswami’s clarifications with regard to certain audit objections and he has written to the officers of the High Court on this behalf. The proceedings, as mentioned before, against some of the officers of the High Court on alleged irregularities are still pending. In respect of some of the irregularities which I have considered and the tendency of the departmental inquiries against the suspended officers, I am of the opinion that it would be appropriate to wait for a closer examination of the replies to the audit objections and the various queries submitted by the High Court to Brother Ramaswami before one can come to a final conclusion.
***
The Supreme Court must uphold the rule of law. It is, therefore, necessary that those who uphold the rule of law must live by law and Judges must, therefore, be obliged to live according to law. The law, procedure and the norms applicable in this case, enjoin that the expenses incurred by the Court for the Judges must be according to the rules, norms and the practice. No man is above law or the rules. The Judges either of the Supreme Court or of the High Courts and the Chief Justices are all subject to the rule of law and procedure like any other citizen of this country and must abide by the norms and regulation prescribed inasmuch as these and to the extent are applicable to them I always thought this was clear and needed no reiteration. We must, therefore, ensure that there is no conduct of the Judges, which affects the faith of the people that Judges do not live according to law. Judges cannot afford to be involved in disputes, which have to determine the question whether the Judges while functioning as Judges or Chief Justices have attempted to subvert the law either designedly or in utter negligence or recklessness…
Involvement in any investigation on the conduct of a sitting Supreme Court Judge on such matters as aforesaid is embarrassing in the circumstances and the background in which these questions have arisen in the instant case. For one who should attempt to uphold the rule of law, it is embarrassing to be involved in such a dispute. But no final decision on this aspect can be arrived at until the investigations and inquiries are completed. I have, on these aspects after looking into the matter and the points involved, no doubt that those who aspire to uphold the rule of law must strive to live according to law and they necessarily expose themselves to the danger of perishing by law. I am aware and deeply conscious that in certain circumstances somebody may be a victim of certain situation. I was constrained, in those circumstances, to advise Brother Ramaswami to desist from discharging judicial functions so long as the investigations continued and his name was cleared on this aspect.
I wrote to Brother Ramaswami on 18-7-1990 rendering my aforesaid advice. I have also conveyed to him my anguish in tendering this advice and I have requested him to please be on leave until the investigations on the aforesaid conduct are completed.
On 18-7-1990 after receipt of my letter, Brother Ramaswami applied for leave for six weeks in the first instance with effect from 23-7-1990. I have directed the office to process his application for leave.
Since I had assured the learned Attorney General, the Law Minister, the President of the Bar Association and others that I will look into it, I thought I must convey to you the result of my looking into it.” (Emphasis supplied)
For full text see Requoted from Para 29, Addl. District & Sessions Judge ‘X’ v. High Court of M.P., (2015) 4 SCC 91.
This letter is being written to you in your capacity as Chief Justice of India, that in light of the seriousness of the matter impacting the independence of the judiciary, and in light of the fact that an investigation is required to be impartial and independent of the State, to take suo moto note of the cognizable offences committed by the said judge and make a reference to the CBI to lodge an FIR to prosecute Justice Yadav in terms of the following ruling of the court:
K. Veeraswami v. Union of India, (1991) 3 SCC 655, the Hon’ble Supreme Court held:
“The Chief Justice of India is a participatory functionary in the matter of appointment of Judges of the Supreme Court and the High Courts. (Articles 124(2) and 2 17(1).) Even for trans- fer of a Judge from one High Court to another the Chief Justice should be consulted by the President of India (Article 222). If any question arises as to the age of a Judge of a High Court,the question shall be decided by the President after consultation with the Chief Justice of India (Article 217(3)). Secondly, the Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary. Hence it is necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a Judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the Government in coming to the right conclusion. We therefore direct that no criminal case shall be registered under Section 154, Cr. P. C. against Judge of the High Court, Chief Justice of the High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the Government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the Government shall consult any other Judge or Judges of the Supreme Court. There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India. Accordingly the directions shall go to the Government. These directions, in our opinion, would allay the apprehension of all concerned that the Act is likely to be misused by the Executive for collateral purpose.” (See: para 60)
In light of the above-quoted precedents, and consistent with the principles of transparency and accountability laid down, we, the undersigned, humbly request the following actions:
- Take suo motu notice of the aforesaid speech and in view of the seriousness of the issue, direct the CBI to lodge an FIR against Justice Shekhar Kumar Yadav in accordance with the law laid down in K. Veeraswami (supra).
We, the undersigned, would end this letter by quoting Justice Mukharji yet again, “Those who aspire to uphold the rule of law must strive to live according to law and they necessarily expose themselves to the danger of perishing by law.”
Thanking you in anticipation of your kind attention and action.
Yours sincerely,
- Indira Jaising, Senior Advocate
- Aspi Chinoy, Senior Advocate
- Navroz Seervai, Senior Advocate
- Anand Grover, Senior Advocate
- Chander Uday Singh, Senior Advocate
- Jaideep Gupta, Senior Advocate
- Mohan V. Katarki, Senior Advocate
- Shoeb Alam, Senior Advocate
- R. Vaigai, Senior Advocate
- Mihir Desai, Senior Advocate
- Jayant Bhushan, Senior Advocate
- Gayatri Singh, Senior Advocate
- Avi Singh, Senior Advocate
Copy to:
1) Hon’ble Mr. Justice Bhushan Ramkrishna Gavai, Judge, Supreme Court of India.
2) Hon’ble Mr. Justice Surya Kant, Judge, Supreme Court of India.
3) Hon’ble Mr. Justice Hrishikesh Roy, Judge, Supreme Court of India.
4) Hon’ble Mr. Justice Abhay S. Oka, Judge, Supreme Court of India.