India’s retiring chief justice teaches minorities a lesson

The Chief Justice of India Dr. Dhananjay Yashwant Chandrachud retired at the weekend, teaching civil society and religious minorities a valuable lesson — don’t pin your hopes too high on the pedigree of a judge, on his record in the high courts, and certainly not on what he says in seminars and articles.

When push comes to shove, judges will never hurt a majoritarian ruling dispensation and an authoritarian government. This is a valuable lesson for the next chief justice, Harish Khanna, who comes with an even better pedigree.

His uncle, Supreme Court Judge H R Khanna, defied the then prime minister, Indira Gandhi, and dissented with the majority which upheld her government’s right to imprison political opponents at will and without court hearings. He was in line to be the chief justice but was superseded.

Ironically, Chandrachud’s father, Yashwant Chandrachud, had ruled in favor of Gandhi and became the chief justice in time. It is another matter that all these eminent jurists are pointed out as prime examples of the subterranean nepotism fostered in the “collegium” system where judges of state high courts and of the Supreme Court are chosen by the five senior judges of the apex court.

The Supreme Court is the final hope for religious minorities that human rights and freedom of faith enshrined in the constitution are not eroded by parliament or state legislatures that are increasingly implementing an acrid agenda of demonizing and targeting Muslims — who are around 15 percent of the population — and Christians who number a mere 2.3 percent, according to the last census in 2011. The Christian population is not expected to show a higher number in the next census now scheduled for 2025.

High courts — each state has its own, barring small states that sometimes share a common court — have not always resisted laws enacted to target Christians and Muslims, such as the anti-conversion laws that now exist in 12 states.

And neither has the Supreme Court, while sonorously proclaiming that every citizen has the unalienable right to the faith she or he wants to profess, practice, and proclaim. The Supreme Court has also upheld anti-conversion laws in the past, as it has the notorious Article 341 Part 3 Amendment of the constitution.

This amendment effectively barred converts to Christianity and Islam benefiting from the protection of the law and reservations in jobs and legislatures originally provided in the statutes adopted by the Constituent Assembly after Independence.

This amendment, brought at the behest of conservative Hindu leaders in the then Congress government, also serves as a powerful anti-conversion law for the country’s 15 percent community of former untouchable castes which are now grouped as Scheduled Castes. They call themselves Dalits, the broken people.

The ruling Bharatiya Janata Party now wants to strip the indigenous peoples, known as Scheduled Tribes, of similar protection and reservations if they convert to Christianity.

These laws have again been challenged in the Supreme Court by Christians, including the Catholic Bishops Conference of India, the All India Catholic Union, and several Protestant groups.

Pasmanda Muslims, who belong to the disadvantaged castes, have also opposed the legislation. However, several Hindutva groups have joined the issue saying the law should be implemented with more vigor.

Every Supreme Court bench, whether a single judge or three judges, is independent in its thinking. But over time, lawyers get a fair idea of the judicial mindset of a particular judge on certain core issues of personal rights, morality, and of late, religious nationalism.

Christians, in particular, had set high hopes when a known “liberal,” the son of a former chief justice, with a good track record in the Bombay High Court, and a great media reputation, was first elevated to the Supreme Court in 2016.

They waited with bated breath for Chandrachud to ascend to the chief justice seat two years ago, to serve the longest term of any chief justice in the last 17 years or so.

His elevation was seen as a “window of opportunity” for the liberal class and minorities. The LGBT community, and the parents of many men and women from Jawaharlal Nehru University and other centers of learning, who had been jailed without trial for protesting or dissent, were anxious.

Even more anxious were victims of the obnoxious “bulldozer justice” in which governments order the demolition of houses of people charged with rioting or any other crime. Muslims were, again, the prime target, but residents of many slums also suffered.

At a more generic level on the health of the republic, among the few in the world of its size that was not communist, oligarchic, a police state, or an outright dictatorship, there was the issue of its electoral system.

Many were watching the court for its response to a bunch of applications on the electoral bonds that have served as a questionable mode of funding for political parties in India since 2018, the voting machines, and the independence of the Election Commission of India.

Monitoring this and shepherding some challenges in the court were highly respected associations such as the Constitutional Conduct Group of retired jurists, senior diplomats and bureaucrats, and activists.

Chandrachud taught all these supplicants that while liberal decisions such as enlarging the rights of citizens could be taken if they did not inconvenience the government too much, his court would tend to rule in favor of governments and the ruling power elite, especially if they invoked nationalism and patriotism.

Bail is the rule, jail is the exception, Chandrachud said on multiple occasions. Some people got bail despite the heinous crime for which they had been charged. Others are still in their cell after four years without a trial, their applications put off month after month, year after year.

Advocate, Gautam Bhatia, a noted legal scholar and commentator, in a searing analysis of bail issues, wrote this week on how the Supreme Court condoned the behavior of a high court that deliberately sat over such applications.

“We cannot mince words here: this is the grossest perversion of the most basic, the most fundamental principles of the rule of law, and as the head of the collegium, the responsibility lies with CJI Chandrachud. After all, was it not he who had famously and eloquently said, in the case of [Republic TV owner] Arnab Goswami, that ‘one day without personal liberty is one day too many?’ But not, it seems, for the individuals jailed in the Delhi riots cases, where the days may come, and the weeks, and the months, and the years, but it is still not ‘too much.’”

Many of those seeking bail are young Muslims. In other cases, they are tribals, and Christians, as in the Koregaon-Bhima conspiracy case, widely believed to be a concoction of government agencies. The most famous prisoner was the octogenarian Jesuit, Father Stan Swamy, who died while seeking bail on medical grounds.

Chandrachud held the arrests to be unlawful, but he was a dissenting voice. His court upheld the arrests. While Chandrachud articulated constitutional principles eloquently, this did not translate into impactful leadership as chief justice, Bhatia said.

The negatives of his term eventually outweighed the several rulings he made, including upholding the decriminalizing of homosexuality, known as Section 377; holding illegal donations made by the corporate sectors to political parties under the guise of electoral bonds; and upholding privacy, individual dignity, liberty, and autonomy. His court allowed women to enter the Sabarimala temple in southern Kerala and upheld the right of women to choose their marriage partners.

But he ruled for the government when there was a call for an inquiry into the death of a judge, Brijgopal Harkishan Loya, who was handling a case involving federal Home Minister Amit Shah.

Alas, he was also said to be the author, as a member of the bench, of the very controversial 2019 judgment on the Ayodhya land dispute following the demolition of the 500-year-old Babri mosque. The ruling, in effect, said that while the demolition of the mosque was a criminal act, the land should be handed over to Hindus so they could build a temple to Lord Rama, whose birthplace it was believed to be by his devotees.

Students of law will forever scratch their heads in bewilderment over this.

This article was originally published on https://www.ucanews.com/news/indias-retiring-chief-justice-teaches-minorities-a-lesson/106988