On February 12, in a case concerning the adequacy of night shelters to house homeless people in New Delhi, Supreme Court Justice B.R. Gavai observed that state welfare programmes (which he derogatorily referred to as “freebies”) were creating a “class of parasites” who were unwilling to perform “work” (such as agricultural labour).
On February 17, while hearing a challenge to a mandatory registration requirement for live-in couples under the Uttarakhand Uniform Civil Code, high court Chief Justice G. Narender asked why couples who were “brazenly” living together without being married needed a right to privacy.
On February 18, in a case concerning the clubbing of various FIRs that had been filed against YouTuber Ranveer Allahbadia for recounting a crass joke on his channel, Supreme Court Justice Surya Kant lashed out at Allahbadia for being a “pervert” and having a “dirty mind,” and expressed a view that “mothers, sisters, and younger brothers” of society would be shamed to hear the joke.
In an oral-heavy legal culture such as ours (an inheritance of the common law and its adversarial argumentative structures), off-the-cuff, informal interactions between judges and lawyers are common enough. Judges often put their “first impressions” of a case to counsel, or even play devil’s advocate, in order to elicit a response and to test the strengths and weaknesses of the case. To a layperson, what may seem to be hostility might just be a rigorous process of questioning designed to help the judge arrive at a fair resolution of the case.
Also read: Live-in Relationships And the War Against Women’s Agency
I think, however, that it is quite obvious to everyone (lawyer or layperson) that in the examples I have cited above, that is not what is going on. Justices Gavai, Narender, and Surya Kant are hardly channeling their inner Socrates through these lines of questioning. Rather, they are articulating what are clearly deeply entrenched convictions about the subjects before them – convictions that have nothing to do with law and legality, and everything to do with embedded social prejudice. Thinking of welfare recipients as “parasites” instead of vulnerable or marginalised human beings reflects a very specific form of upper-class prejudice (indeed, it was telling that Gavai cited an example involving his “agricultural family” that could not find “labourers”).
Insinuating that live-in couples do not deserve privacy because of their “brazenness” equally reflects a form of conservative moral prejudice against the exercise of sexual autonomy and choice. And finally, notions of shame, perversion, and what constitutes a “dirty mind” are all reflective of deep-seated beliefs about how society should enforce sanctions against those who transgress what is considered to be “proper” moral behaviour.
To understand why this is a problem, we need to ask ourselves: what is it that we can expect from judges of our constitutional courts? Answers will no doubt vary, but I think if there is one bare minimum expectation, it is that judges of constitutional courts will pause for some thought before parroting prejudice from the bench – prejudice that takes exactly the same articulation that we hear in the streets, in drawing room dinner-time conversation, or on WhatsApp groups. We all have our biases and prejudices – that is human – but when you are a judge, I do not think it is an unfair expectation that you will take some time out to reflect and be aware of those prejudices, and then actively work to keep those prejudices away when you are hearing a hearing a case involving rights, the law, and the constitution. The remarks above are alarming because they indicate that judges – two of whom will be the next two chief justices of India – either do not think that this is a reasonable expectation to have, or do not care.
It may be argued that these oral remarks have no “binding force,” and what matters is the final judgment, where the judge has had the advantage of hearing all sides, applying their mind, and passing a reasoned judgment. That might be a fair argument if Indian constitutional courts were in the habit of actually hearing constitutional cases on merits and passing reasoned judgments. Such occurrences, however, are rare enough to be classified (in the words of a colleague) as “celestial events”.
As anyone with even a passing acquaintance with the way our courts function knows, in a vast majority of cases the most consequential outcomes occur through one or two-line interim orders, with no (or sparse) written reasoning, and where judges grant, deny, or mould relief at their absolute discretion, answerable to no tangible yardstick of public reason. Therefore, all we have to go by are these oral remarks.
In fact, consider the very muddled and unreasoned order that was passed today in Allahbadia’s case: while he was protected from arrest, his (rather basic) prayer for clubbing the FIRs against him was put off to another date, and he was banned from “airing any show on Youtube” or elsewhere until further orders. Are we to believe that Surya Kant’s “lashing out” at Allahbadia’s counsel through the prejudiced remarks noted above had nothing to do with the court deciding to censor the YouTuber “until further orders”? Similarly, constitutional challenges invariably have prayers for stay. So, when Justice Narender refers to couples who “brazenly” live together before marriage before even the State has made its defence of the law, one may be forgiven for wondering whether a judge who has already expressed such entrenched views can ever be persuaded, on reflection, to change them for the purposes of a stay.
As I have noted above, every human being has their biases and prejudices – many of them entrenched and deep-rooted, the result of upbringing, childhood traumas, our environment and early influences, and so on. This, therefore, is not a criticism of judges for having prejudices. It is, however, a request for a measure of reflection before those prejudices are publicly articulated in such definitive terms, especially given the highly discretionary nature of day-to-day constitutional adjudication in Indian courts. In such a situation, there is but the thinnest of lines between individual human prejudice and courts of law becoming courts of prejudice.
One hopes that, with due reflection, that line – thin as it is – will be maintained.
Gautam Bhatia is a lawyer.
This article was originally published on the author’s blog. It has been lightly edited for style.
