Hindutva Jurisprudence and a Gauntlet Thrown Down at Chief Justice Khanna

It certainly cannot be a mere coincidence that two sitting judges of the Allahabad High Court should have allowed themselves to be persuaded to share a Vishwa Hindu Parishad platform. And judging from the tone and tenor of one of the two judge’s intemperate remarks on the VHP stage, not much persuasion was needed. To add insult to injury, the High Court’s premises were at the VHP’s disposal.

While Justice Dinesh Pathak inaugurated the VHP show, it was his colleague, Justice Shekhar Kumar Yadav who stole the show with his diatribe. According to The Hindu, the hon’ble High Court judge made the most sweeping and most definitive declaration: “I feel no hesitation in saying that this is India, and it will run as per the wishes of its majority.”

Justice Shekhar Kumar Yadav spoke of “we” (the Hindus) and “you” (the Muslims). He even used the derogatory expression “Kathmullah” for the members of the minority community. If any other civilian or politician had made the same utterances, he would have been held guilty of making a hate speech.

Some Constitutional purists had hoped that the Supreme Court would have taken Suo Motu cognisance of Justice Yadav’s injudicious observations. Perhaps the leadership at the apex court calculated that what Justice Yadav was propounding was the crux of the Hindutva jurisprudence and was meant to lay a trap for the Chief Justice Sanjiv Khanna-led Special Bench that is scheduled to start hearing, on December 12, the challenge to the Places of Worship Act of 1991.

It has, though, not gone without comment that the highest court had shown extraordinary urgency in listing the case.

Suddenly the judiciary finds itself being asked to redraw a red line that the politicians had drawn more than three decades ago. The 1991 Act was passed by the Parliament, and it was a piece of legislation that met (as does every act of Parliament) Justice Shekhar Kumar Yadav’s test: the majority vote, which could be only a majority consisting of the Hindu parliamentarians.

The 1991 Act was an essay in political accommodation and social agreement, within the framework of the Constitution of India.

It is the primary obligation of the political parties and leaders in a democracy to minimise social conflicts and religious strife and maximise the feeling of “fraternity” in the nation, as prescribed in the Constitution.

Also Read: Our Simple (and Low) Expectations from the New Chief Justice

Our entire republican order rests on political players observing the norms of constraint and restraint, undertaken in the original social compact that is envisaged in the Constitution. And it is the Supreme Court’s mandate to ensure that the values and principles of the social compact do not get mauled.

Indeed, since the inception, the higher judiciary has functioned as the bulwark of stability and consolidation and forward-lookingness as this perennially unsettled land worked its way to a just and fair order. By and large, the higher judiciary had not provided aid and comfort to those who traffic in religious bigotry and bitterness.

Now the Supreme Court is being nudged to abandon that critical role and let the affairs of the country “run as per the wishes of its majority.”  This is an argument for a license to the mobs to settle in the street the ownership of this or that place of worship. Most unfortunately, a former Chief Justice of India had encouraged the mobs when he permitted “surveys” to be undertaken at the Gyanvapi Mosque in Varanasi.

It can perhaps be argued that the balance of political forces today is vastly different than what it was in 1991, when the Places of Worship Act was passed. It is precisely against the ever-changing political vagaries and the resulting corrosive demands on constitutional values and principles that the 1991 law was enacted. Laws, statutes, and constitutions do not change with every change in the fortunes of this or that ruling party.

And, if the “Hindu side” is so convinced of fairness and correctness of its demand for the jettisoning of the 1991 law, then the most ideal course open to it would be to demand of the ruling party to use the Treasury Benches’ majority in Parliament to repeal the 1991 law. It is unreasonable to embroil the judiciary in essentially a politicians’ quarrel over the meaning and content of our secular nationalism.

Any perception of judicial indulgence for those who subscribe to the sum and substance of Justice Shekar Kumar Yadav’s formulations will be the surest recipe for disorder and confrontation in town after town.

Some political operatives may even find this religious discord over medieval monuments electorally rewarding, but it is not unreasonable to believe that by now those who adorn the high benches in the apex court are not totally unfamiliar with the politicians’ tricks and conceits.

Still, there is no getting away from the fact that when the Chief Justice Khanna-led Special Bench begins its labours on December 12th, it will be a moment full of grave consequences for our republic. Very large parts of South Asia are reaping the bitter harvest of the demands made by the religious counterparts of the likes of Justice Shekhar Kumar Yadav.

It can only be hoped that Chief Justice Khanna and his brother judges would find the wisdom to rebuff the voices and forces wanting to rearrange the terms of political and social control in a manner different than those laid down in the Constitution.

And, an old medieval adage holds: “ a wise man is not one who can tell good from evil, but is one who can tell the better of two good thing and the lesser of two evils.” Amen.