New Delhi: Justice Govind Mathur, who retired as chief justice of the Allahabad high court last month, said that many of the challenges that the Indian judiciary faces today are similar to those it encountered in the early 1970s in the face of a “majoritarian executive” in an interaction with the Indian Express.
He noted that after the end of the Emergency in 1977, the Supreme Court and a number of high courts passed a series of judgments which were very progressive. “Those judgments played a very vital role in ensuring civil liberties, personal liberty of a person and so many other fundamental issues. Maybe, the same sort of circumstances are prevailing now… The judiciary can’t be pressurised by a majoritarian executive… I am of the view that most of the judges in this country are working fearlessly,” he said.
Justice Mathur also spoke about the need for representation of women and minorities in the judiciary.
“The Bar Council of India, the state bar councils, and even judges must promote women lawyers. You will not find adequate representation from the SC, ST or other minority communities either. It is because there are not enough lawyers from the SC, ST communities or even women,” Justice Mathur said and further added that when it came to minorities “a different kind of mentality works that a young person from a minority will not be appointed. It is not in the mind of judges but at government level.”
When asked whether he was referring to the appointment of Muslim lawyers as judges, Justice Mathur said, “Yes, files are pending with the government.”
On the role of the judiciary during the COVID-19 pandemic, Justice Mathur said that it was the responsibility of courts to protect the law and citizens from any event not in accordance with the law. “When the government is working, the doctors and police are onboard, then how can the courts remain closed. So we decided to continue… The first suo motu cognizance was taken by a bench that I was also a part of,” he added.
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On cases related to civil rights, Justice Mathur said that it was necessary for courts to protect civil liberties and that in the last few years, “the state has been taking several actions or sometimes supporting the mob that is attacking civil liberties of individuals”.
“It is very easy to call any person anti-national… But I believe that 99.9% of the citizens of this country are committed to this nation. They are patriots. I can have a different view on a specific issue and you can have a different view… The government is required to protect this if it is not against the interest of country… What is sedition? If I am raising slogans against some person, if I am opposing some legislation, that doesn’t mean that I am waging war against the state,” he said.
“In Uttar Pradesh, I don’t know what has happened, but many people think that they can take law into their hands, they can punish people on roads and, unfortunately, to some extent, the government failed to protect such people. So it was necessary and it is necessary for courts to intervene,” he further added. Noting that the constitution was like the Gita, Justice Mathur said that when posters carrying photographs and details of people accused of violence during anti-CAA protests were erected in Lucknow, in March 2020, the Allahabad HC had taken suo motu cognizance.
On the misuse of the National Security Act, Justice Mathur said, “The NSA can’t be invoked in a circumstance which can be dealt with other criminal laws. For the Act to be invoked, first national security has to be at stake. Now, if I express my view, that is not causing any injury to national security. Recently, I read somewhere that if any person is opposing (Covid-19) protocols, he will be dealt with under the NSA. Our system, our constitution doesn’t permit for such liberal use of the NSA.”
On the case involving the rape and murder of a Dalit woman in Hathras, he said, “I am proud of the judges who took suo motu cognizance of the matter. An outstanding order was passed by them… I am of the view that honouring those directions would have enhanced the prestige of the state also.” He added, “But what happened ultimately? When you talk about the position of law and order in Uttar Pradesh, I don’t think it is up to the mark… I am not saying things like there is jungle raj etc… But it is no less than that.”
On whether the leadership’s commitment to the constitution needed to be addressed, Justice Mathur said, “There is no effort on the part of political parties as well as the executive to have constitutional values as our social values. Some political parties or NGOs must be doing something about it, but I have not seen any result because it is still about whether I am Hindu or Muslim or something else, but not a citizen who has to abide by constitutional provisions… It’s like whenever I get a chance to violate constitutional provisions for my personal gains, I will do that. It is a dangerous phenomenon. Our leaders have also not escaped it. They are also doing the same thing.”
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Justice Mathur also said that there was a different type of pressure on judges now and the possibility of post-retirement appointments was “dangerous”. “The pressure is of a different kind, when it is about future appointments. The allurement of being appointed as a presiding officer of, say, the Human Rights Commission or any tribunal is very dangerous. Judges should not accept it and parliament should not make any provision for retired judges to be appointed as heads of any tribunal… We must ensure that enactments for post-retirement employment must be abandoned… I am not going to accept any government assignment in the remaining part of life,” Justice Mathur said.
On how courts should deal with the increased number of cases linked to ideological issues like love jihad or cow slaughter, Justice Mathur said, “If an ideological issue or an ideology is in conflict with constitutional provisions, then it is not a simple ideological issue… Like in case of love jihad, the court can’t say that we will not examine the case because it is an ideological issue. If ideology is in conflict with law, we are required to protect the law.”
On the Madras high court’s remarks that the Election Commission was responsible for the second wave of COVID-19 in the country and should face ‘murder charges‘, Justice Mathur said that it was a simple observation.
“Please try to understand the circumstances in which courts work… It is a simple observation, not a hue and cry issue. The media should also understand that during heated arguments, this is quite common… It is not the lead news. Ultimately, it is the order that has been passed by the court that prevails. During these heated arguments, many things are uttered. If you are going to take cognizance of each and every statement, then it would be very difficult,” he said.
