Efficiency over Secularism?

There are certain court proceedings, which, although not in the form of adversarial litigation, are entirely avoidable, especially because they tend to result in sharp polarisation between parties, with potential risk of detriment to larger interests. 

Such was the exchange between CJI Dattu and veteran lawyer Lily Thomas on 31 March in which he pointedly asked- is she challenging the three-day high court chief justices’ conference, slated to commence on Good Friday , on grounds of spirituality because he (a Hindu by faith) was at the helm of affairs ? Thomas did assuage him that there wasn’t anything remotely personal, that she was only entreating him on behalf of many Christians (and some judges who professed the same faith) who would want to spend the day in prayers.  However, he threw the gauntlet at her and asked her to file a petition which Thomas, as of now, hasn’t.  Mercifully.  

But then Justice Kurian Joseph’s 18 March letter, in which he guardedly suggested that the Good Friday meet wasn’t the best exemplar of secularism, earned him a rebuke, with the CJI’s lofty proclamation of institutional interest superseding individual interest. To be fair, the CJI has led by example, but that isn’t quite the point. The real issue, far away from the clash of personalities and personages, is this- is the Supreme Court, or the judiciary, really secular? Or, does it, sometimes at least, indicate something to the contrary? It would be worthwhile to examine these questions by revisiting Rajesh Solanki’s case of 2011. 

True secularism is “perverted” ideology

On 1 May 2010, a new auditorium was inaugurated on the premises of the Gujarat High Court, at Ahmedabad. The then Chief Justice, Justice S.J. Mukhopadhyaya , and the Governor Kamla Beniwal, participated in a bhoomi  pooja for the new complex, deigned to seek divine blessings for the new building, which, in the words of the court, was  conducted with the “noble intention“ to directly and indirectly benefit anyone who set foot there. Rajesh Solanki, a Dalit-rights activist believed it to be a violation of the constitution’s secular mandate, worsened by the fact that it was committed by the judiciary. 

When the PIL came up for hearing, Justice Mukhopadhyaya recused himself, and it was left to a bench of Justices Jayant Patel and JC Upadhyaya to rule on Solanki’s objections. A host of Supreme Court precedents were cited in the judgement, to assert the judiciary’s secular credentials and ethos. But the contents of paragraphs 19, 23 and 24 are quite disconcerting. In paragraph 19, the judges say that Solanki’s view was “perverted”, especially because there had been no discrimination on matters of faith, since people from all religious denominations were welcome to attend and take part in the worship.  Then in para 23 and 24, the judges observe that Solanki didn’t file the petition in his personal capacity, but was acting at someone else’s behest. Because it was an organisation by the name of Council for Social Justice (which, incidentally, works primarily with Dalits and other religious minorities) which seemed to be behind the petition, the judges held that Solanki’s actions were mala fide and imposed punitive costs upon him. 

Undeterred in his quest for true secularism as both philosophy and practice, by both ordinary citizens as well as state functionaries, Solanki moved the Supreme Court, which dismissed his appeal. A review petition met with the same fate. 

Religious judging?

In India, it would be deemed contumacious to even suggest that judicial decisions could be influenced, if not motivated, by judges’ faiths and belief. But the threat of criminal contempt cannot brush aside this question, which becomes more pertinent in cases which involve an interpretation of the meaning and scope of secularism. There aren’t any empirical studies in India, but a 2004 paper from the US could be of some guidance. 

Gregory Sisk and his co-researchers looked at 729 reported decisions on religious freedom cases, from 1986-1995. The religious demographies of both judges and parties to the cases were considered, and the results showed that judging was not always a dispassionate exercise based only on facts and legal precedent. Judges from non-mainstream Christian backgrounds- Mormons, Jehovah’s Witnesses and other sects, were seen to be more accommodating in matters of religious diversity, while Jewish judges were keener on a strict separation of Church and State. 

A dissenting opinion by Justice Elena Kagan, a Jewish judge on the US Supreme Court Bench, could be providing further vindication. In May last year, the court upheld Greece, N.Y.’S practice of starting Town Board meetings with a prayer usually and mostly led by a Christian clergyman. In her 25 page dissent, Justice Kagan was joined by Justice Ruth Ginsburg (a Jew), Justice Breyer (Jewish) and Justice Sotomayor (Catholic, but of Puerto Rican origin- an ethnic minority in the US). This statement stands out : “I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.” 

A couple of developments complicate matters further. One, as reported, Justice Joseph wasn’t alone; Justice Vikramjit Sen, united in judicial brotherhood but not in religious identity, had also put in a similar request.  The same report also states that Justice Joseph has been attended conferences of the Canon Law Society of India and preached the Gospel on a Christian television channel.  Two, he has written to the PM, requesting him to protect secularism. 

The ardent believers in judicial efficiency, who have been haughtily sneering at Justice Joseph’s request, have now got more ammo, and might as well turn the tables on him and doubt his secularism on the bench. To that, there is also a reply- that a judge’s ethnicity and religious practices, or active work to protect minorities rights, shouldn’t be a ground for recusal.  The most recent example would be from November 2014. Judge Paul Borman, who for decades had supported Israel’s claims over Palestine, reasoned why he wouldn’t recuse himself from trying a Palestinian charged with terror-related offences. Borman drew inspiration from Justice Leon Higginbotham’s opinion in Pennsylvania v. Local Union 542, Int’l Union of Operating Eng’rs (1974) which remains celebrated even today. Higginbotham, one of the first Black judges to be appointed to the Federal Courts, played a proactive role in the Civil Rights movement, and eloquently reasoned why he shouldn’t step down from the bench hearing a case of employment discrimination on the grounds of race.

As the Chief Justices Conference enters into its second day today, the air gets more acrimonious. One wishes that CJI Dattu had paused and remembered a 2013 speech of Sir James Munby, Britain’s top family court judge. On October 29, in his address titled “The Sacred and the Secular”, Sir Munby stressed upon the need of not weighing religious beliefs, and a “malevolent tolerance” of cultural and religious diversity.