It has been nearly 70* days since Justice Shekar Yadav of the high court of Judicature at Allahabad made a speech to members of the legal cell of the Vishwa Hindu Parishad, a Hindu right wing organisation. In his speech on the Uniform Civil Code, which he delivered on court premises, Justice Yadav did not shy from using Islamophobic slurs, such as kathmulla. He then went on to say this:
“I have no hesitation in saying that this is Hindustan, this country would function as per the wishes of the bahusankhyak (majority) living in Hindustan. This is the law. You can’t say you are saying this being a high court Judge. The law works according to the majority. Look at it in the context of family or society…Only what benefits the welfare and happiness of the majority will be accepted [translation]”
Outrage followed from the usual places – the odd academic, the human rights lawyers, some members of the Opposition. But I cannot help but wonder, rather seriously, ‘Why is this man still on the Bench?’
He did what no judge is supposed to really do. As a citizen, he is obviously free to have his own views, having been constitutionally guaranteed that right. It’s there in the Constitution all the way up at Article 19.
But what a judge is not permitted to do, is to express a view that renders them unfit to adjudicate matters. Being a judge, if his views raise suspicion in the eyes of the litigant regarding his impartiality, or if he comments on pending litigations, including matters that might possibly come before him one day, he is unfit for that esteemed position for which he is compensated through the public treasury. After Justice Yadav’s speech, can a Muslim litigant expect a fair hearing before his bench? Can anyone, wishing to challenge certain actions, expect a fair and patient hearing, expect an adjudication that is based on facts, and geared towards delivering justice in accordance with the law?
A judiciary is only as good as how it is perceived. If people cannot expect fairness from a court, its ostensible objective withers. Just as how when a judge wades into issues that are not necessarily in his business, the integrity of the position he holds withers.
Yet, somehow, Justice Yadav remains on the bench.
They changed his assignment, of course. Now all he will hear are first appeals from orders of a civil court limited to appeals prior to the year 2010. This assignment clearly reflects that even the Chief Justice at Allahabad may have lost confidence in Justice Yadav’s ability to continue to be an adjudicator. The Chief Justice of India and other senior judges of the Supreme Court were also of the view that his comments were ‘avoidable’. But he is resolved to stand by his remarks.
Yet, somehow, Justice Yadav remains on the rolls as a judge of India’s largest high court.
Also read: The Case of Justice Shekhar Kumar Yadav Needs Firm and Transparent Handling
An abdication by the Bar
It occurred to me that the reason this man still holds his job is because the people charged with defending the integrity of the Bench have decided to not do theirs. We are often told that the Bar and the Bench at the end of the day are two sides of the same coin. This is true. We are both officers of the same institution and we both play complementary roles. The Bench exists to adjudicate legal issues, and the Bar exists to agitate those issues. Lawyers become judges and judges retire and go back to becoming lawyers. A fundamental qualification to be a judge is to be qualified to be a lawyer. The Bench exists to protect the law and adjudicate fairly. The Bar exists to protect its integrity.
This duty exists because at the end of the day the Bar is the biggest consumer of adjudication services. If our courts stop functioning fairly, we would not be able to convince a litigant that their cases are worth pursuing or be able to facilitate access to justice. If that happens, no litigant will ever engage us and all of us are out of a job. . We have a direct interest in defending our courts, because unlike others, courts are a part of our everyday life and business.
Yet, when it comes to Justice Yadav, the Bar has not done much. Apart from the usual human rights lawyers and cause lawyers, the majority of the Bar has let this slide. Lawyers in Allahabad and Uttar Pradesh in general have not gone on strike yet. Counsels appearing before Justice Yadav are not wearing black bands – a quintessential symbol of protest within the courtroom’s sanctity. There are no protests, no open letters. Quite frankly this silence is deafening.
On matters less grave than this, we have seen more action from the Bar. But here sits a judge whose conduct and words reek so seriously of partisanship, that one must think thrice before bringing a litigant before him to obtain justice. And there seems to be no cause for agitation.
The fear that overcomes me is that something has gone terribly wrong. I grew up reading about a glorious and independent bar, one that pushed back during the Emergency, one that reformed the law of evidence after the spurious judgement in Tukaram (1979), one that quite literally fought and won India’s independence, and one that I so desperately wished to join. This glorious Bar has decided that Mr. Justice Yadav is not a problem worth fighting against.
The Bar Council of India, which has in recent years portrayed itself as the voice of India’s legal profession, has been a mute spectator to all this. It felt the need to express its views on the Citizenship (Amendment) Act protests in 2021 and on the marriage equality litigation in 2023. Since the time I took up the gown, the BCI has expressed arbitrary, detailed, and charged comments over various sensitive political issues. Yet on this issue, it has chosen to look the other way. It is telling that the Chairman of the BCI has acted lesser and lesser as an independent guardian of the profession, and more as an executive functionary.
Also read: ‘Justice Yadav Had Agreed to Publicly Apologise But Didn’t’: Former SC Judge
And what of the executive’s most trusted advocate – the Attorney General for India? Is he not the primus inter pares of our profession? Surely, the Advocates Act of 1961 and the Constitution envisage his position as such. The Attorney General is the legal arm of the President of India, and the President has a duty to defend the independence of our courts. The Attorney is the person responsible for giving effect to this. Article 76(3) gives him an automatic right of audience before all courts in India. Yet the Attorney General is silent.
I was explaining to my juniors the other evening, what it means to be an Advocate. I explained to them that by simply completing their law degrees, they had received more education than most of the country. The mean years of education in India is about 7. To be a lawyer you must do 12 years of school and 5 to 6 years of undergraduate and graduate level education. In this country where so many have so little and so few have so much, being an advocate puts us in a position of certain power. Our voice carries across corridors where other voices may not ordinarily reach. We are obligated to use our voice for the citizens, and to say things that they cannot, on their own, say.
Unfortunately, my advise and counsel to them is of little value. They do not see these principles among their peers. Lawyers graduating today may not receive the inspiration lawyers of my generation benefited from when we started on our journeys. I read law at a private university. But at that time, the vision that law served, foremostly, a social purpose was infectious, inescapable. My colleagues at university actively debated political matters and some of them even went on to join professional politics. Today’s lawyers no longer seem to have a view. Even if they do, they prefer to not express it. I wonder if this is because the core aspects of the law have ceased to be important.
As a profession today, the brightest among us tend to focus on arbitration and corporate law, what I call the ‘law of air conditioned conference rooms’. The adjudication of disputes before courts has grown more myopic by the day. Civil matters today go before private judges who wear a hat and call themselves “Arbitrators”. Consequently, with the development of contract law, the law of damages has stalled. The most concerning aspect of this transformation has been this expanding commercial alienation of young lawyers from the court system.
Why, then, will they care if there is an unfit judge on the Bench? He is hearing First Appeals, not matters under Sections 9, 11, 34 and 37 of the Arbitration and Conciliation Act, 1996. Why would anyone care? We promote ourselves as an “arbitration friendly” nation so that we do not have to confront the egregious issues plaguing our courts. If everyone who can, may opt out, why would anyone bother fixing these systems at all?
A newer, more alienating legal language has taken over. Litigation is now “Dispute Resolution”, labour law has become “Employment Law”, conveyancing has become “Transaction Lawyering”. This new language reflects not only the changing character of the legal profession, but a fundamental disconnect from our core constituency – the average citizen who needs legal services.
When the Indian Bar decides to abdicate its duty, it is the ordinary litigant who loses most abjectly. A poor farmer who cannot afford an arbitration, a worker who will never see a tribunal order in time, and a common woman who would not be able to secure a protection order from a Magistrate in time – they are the true losers. The state of the system today is reflective of a Bar that no longer wishes to be connected or involved. The working of our Constitution depends significantly on whether or not the Bar cares. If it continues to remain as nonchalant, we risk full scale constitutional failure.
