I am 70 years old and have spent around 40 meaningful years in the judiciary, and am today anguished by the blurring of the ideals of the Constitution in public places, by people who matter.
This article is not intended as a personal attack on anyone, but merely an effort to place before a a reasonable person some observations on the subtle use of images and its effect on the general public in the backdrop of a majoritarian government which is constantly jostling for more space. And a government which, like the British Raj, has learnt and is methodically polishing the art of divide and rule.
I understand the claim of an elected government to being the voice of the people but that does not negate the legitimacy of the judiciary as the final arbiter of issues concerning the nation. Being at such a central place, its importance can neither be undermined nor compared with other organs of the state. Each organ has a role to play in its own space but in conflict situations it is the judiciary which under the scheme of the Constitution has the last say. There is no show of strength here, no flexing of muscles. This is the way of life put together by mature and learned minds after quality debates by way of a written Constitution. And it is because of this – when we have pledged ourselves a secular nation committed to the rule of law – that justice must be done and seen to have been done. This is precisely why images matter.
It is because of this that many find the picture of five Supreme Court judges ‘celebrating’ their Ayodhya judgment disturbing and ask whether it truly fits in with our constitutional values. For the first question which comes to mind when looking at that photograph is this — What was there to celebrate about? Was it a personal victory for the five judges as final arbiter of a long pending dispute? Surely for a judge, every order is a celebration of her or his judicial acumen. So the Ayodhya judgment – no matter how politically important for some – should have been seen as just another judgment.
A group photo of the five-judge bench of Chief Justice of India Ranjan Gogoi (C) flanked by (L-R) Justice Ashok Bhushan, Justice Sharad Arvind Bobde, Justice Dhananjaya Y Chandrachud, Justice S Abdul Nazeer after they delivered the verdict on Ayodhya land case.
Like other ordinary mortals, judges are averse to being examined by an external body and therefore from time to time, hold chief justices’ conferences and set down norms of behaviour for themselves. In April 2000, a meeting was held in Vienna at the invitation of the United Nations where judges – including participants from India – recognised the need for a code against which the conduct of judicial officers may be measured. In preparing a draft code of judicial conduct, several existing codes and international instruments were studied and then the Bangalore Draft Code of Judicial Conduct, 2001 was adopted by the judicial group on strengthening judicial integrity, at the Round Table meeting of Chief Justices held at the Peace Palace in The Hague on November 25-26, 2002. Thus, the Bangalore Principles of Judicial Conduct, 2002 came into existence.
The preamble noted that “public confidence in the judicial system and in the moral authority and integrity of the judiciary was of the utmost importance in a modern democratic society”.
It accepted that it was essential that “judges, individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system”.
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In all, six ethical principles were laid down.
Value 1 was the value of Independence, it being “a pre-requisite to the rule of law and a fundamental guarantee of a fair trial”. A judge was therefore to “uphold and exemplify judicial independence in both its individual and institutional aspects”.
On the Principle of Integrity, it said, “A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer and his behaviour and conduct must reaffirm the people’s faith in the integrity of the judiciary”. It clearly underlined the importance of imagery by saying, “Justice must not merely be done but must also be seen to be done.”
Under the Principle of the Propriety, it said while a judge, like any other citizen, is “entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary”.
In line with the above principles, judges – while making visits to all kinds of religious places – are obliged to keep their visits private and forbid any public display. This helps reaffirms the faith of the people in the secular character of a judge, especially when she or he is called upon to adjudicate on issues of faith. As a result, the semblance of impartiality and independence of the judiciary is maintained. This restraint is of paramount importance because of the image of justice not only being done but shown to have been done.
While stressing that optics are important, especially in this age of media penetration and its tendency to amplify issues, let us examine the recent visit of the chief justice of India to the Somnath Temple in Dwarka, Gujarat.
While offering prayers to the deity, he was seen in a yellow-orange kurta which many saw – wrongly or rightly – as a colour chosen to promote the interests of a dominant political party. There is plenty of scope for giving the CJI the benefit of doubt on this score. He may have chosen the colour of his liking deliberately or accidentally. Whatever was done was done in his personal capacity as D.Y. Chandrachud, not as the chief justice of India. As per judicial principles, a judge may be evaluated on the quality or slant of judgments he authors. In other matters, he is an ordinary citizen entitled to a private space and even as an occupant of public trust he is well protected.
However, as I said earlier, optics are important in this day and age and one must tread cautiously. It is easy for people to connect images together and form unhealthy opinions.
Watch: ‘Is the CJI Wrong About Mahatma Gandhi and to Visit Hindu Temples in Saffron Robes?’
Speaking for myself, what was disturbing to me was the speech the CJI gave later to Gujarat’s judicial officers in his official capacity. The exact quote of the speech goes like this:
“I was inspired this morning by the Dhwaja at Dwarakadishi temple, similar to the Dhwaja I saw at Jagannathpuri. But look at the universality of the tradition in our nation, which binds all of us together. But this Dhwaja has a special meaning for us. And that meaning which the Dhwaja gives us is that there is some unifying force above all of us as lawyers, as citizens and that unifying force is our humanity which is governed by the rule of law and by the Constitution.
“Let us be inspired by the ideals of these great temples which dot the landscape of Gujarat…the district court lawyers have the responsibility to ensure that the Dhwaja of Justice will keep flying in the generations to come.”
My concerns as a reasonable observer are as follows:
The first line of the speech emphasising one’s religion in a secular country by a person holding such a high office is bound to send an unsettling message to the people. By doing so, has the CJI as a repository of public trust, enhanced public confidence in the moral authority and integrity of the judiciary and its adherence to the Bangalore Principles?
When he says dhwaj has a special meaning for us, I wondered who this ‘us’ is? As the highest officer of the judiciary of a secular country, was he speaking just about the 79.8% who are Hindus? Or also about the 14.2% Muslims, 1.7% Sikhs, 2.3% Christians and other faiths and the 25.2% Dalits – most of whom are regularly barred entry in Hindu temples?
How could a pure Hindu Icon, a dhwaja at a temple, be an icon of universality and of the binding nature of tradition? For a pious Hindu believer, the words would sound very innocuous, but that can’t be the case for a non-Hindu or even for a Shaivite or an atheist among the Hindus.
I was further disconcerted and disappointed when the CJI went on to prod his listeners – comprising judicial officers who were undoubtedly of diverse religions – that they be inspired by the temples that dot Gujarat. Was this a result of the proverbial pushback of a majoritarian government? Did a constitutional authority blatantly disregard and disrespect the secular character of our sacrosanct Constitution? It is not understandable how a person of his rank, acting as caretaker of an institution, constitutionally tasked with being a beacon of hope for every citizen irrespective of religion, could have identified his personal religion with that of the institution of which he is only a part.
As a citizen of India, what I expected the CJI – a person of impeccable education and learning – to say after his temple visit was that the sole unifying dhwaj in our country is the tricolour and that it is our public duty not only to hoist it, but also keep it flying proudly over our heads. Thus, faith would have triumphed over rituals, the principles of our rule book reaffirmed – and the souls of the framers of our Constitution satisfied.
Anjana Prakash is a former judge of the Patna high court and practices in the Supreme Court.
