Justice, law and religion should be kept away from each other because they make a pernicious concoction. The state has to deliver justice according to the laws it makes. But religion is an individual choice. Justice is not.
Chief Justice of India H.L. Dattu apparently tried to ensure that the three did not mix. But he had mixed success in achieving this aim, which became apparent after the letter he wrote to his brother judge, Justice Kurien Joseph, that the interests of the (Supreme Court) institution had to override “individual interests,” was published in the media. Perhaps he meant “religious” by the word “individual.” Significantly, Justice Vikramjit Sen, 12th in the Supreme Court seniority list, also advised Justice Dattu of the inappropriate timing.
Justice Dattu’s letter was in response to an earlier letter written to him by Justice Joseph that it was not advisable to hold a conference of the chief justices on Good Friday and Easter Sunday because a wrong message could be sent to the country. Justice Joseph ranks 14th in seniority among the Supreme Court judges and will retire on November 22, 2018.
Earlier, a Supreme Court lawyer, Lily Thomas, who is a handicapped lawyer-activist, had also drawn the attention of Justice Dattu to this. He replied that such conferences were earlier held on Independence Day, and other state holidays.
Nobody is accusing Justice Dattu of being biased. But of perhaps not appreciating the fact that by holding the conference on three Christian holy days, it would be difficult to be a good judge and a good Christian at the same time. For Christians, Good Friday is the second holiest day after Easter when Jesus Christ was crucified and rose body and soul with the marks of crucifixion clearly visible, on Sunday. Hence, the very foundations of Christianity rest on Good Friday and Easter Sunday, which are more important than Christmas.
Ipso facto, a judge would either have to forego attending church service on Good Friday and Holy Mass on Easter Sunday or he would have to forego the chief justices’ conference which began on Good Friday and ended on Easter Sunday. Would he choose to be a good judge or a good Christian? An unenviable choice.
Justice Joseph chose to attend mass in Kerala because his presence at the meet was not vital. Christians throughout India will applaud him. But two other Christian chief justices attended the conference on Good Friday and Easter Sunday with 22 others.
They were Jammu and Kashmir chief justice N Paul Vasanthakumar and Uttarakhand Chief Justice K M Joseph. Their stature cannot be belittled because they perhaps felt, and rightly so, that justice dispensation is as Christian a virtue as attending Mass. The former is their duty, while the latter is only a religious obligation. It is possible that both chief justices somehow managed to reconcile their supposedly conflicting duties to the state as well as their conscience. Kudos to them as well.
However, the judiciary, like Caesar’s wife, has the unenviable task of publicly displaying itself to be secular, socialist and apolitical. The western model of secularism is that the state distances itself equally from all religions. The Hindutva concept is of sarva dharma samabhava or respect for all religions. Whether one chooses the western model or the Hindutva model of the Narendra Modi Government, respect for all religions would imply that vital judicial work is transacted on non-religious holidays.
The judiciary is the arm of the state which checks the excesses of the executive and the legislature, which like the Hindu holy trinity, Brahma, Vishnu and Shiva, are distinct and separate. There have been a few judges who have crossed from the judiciary to the executive, like Justice Vijay Bahuguna of the Bombay High Court, who resigned judgeship in 1995 after lawyers threatened a no-confidence resolution against him for alleged corruption. He also resigned as Congress chief minister of Uttarakhand in 2014 for incompetence in flood relief.
Former Chief Justice of India P Sathasivam also got the BJP nod for a gubernatorial post after retirement. But both judges are exceptions and not the rule. There is no doubt that the judiciary is secular, socialist and non-partisan. But it is insular and not directly responsible to the people for its judgments. Judges appoint themselves, unlike the legislature and the executive, which have to face elections after five years.
Coming in the wake of the BJP Government at the centre declaring Christmas in 2014 as Good Governance Day while the BJP government in Goa earlier cancelled Good Friday as a holiday in the state, the actions of all BJP governments have evoked fear among the minorities. After all, governments comprise political parties with their ideologies, such as Hindutva. So, the rise in attacks on churches after the BJP’s meteoric rise to power unnerves minorities.
And so, the minorities which form part of the Indian state, have their only saviour in the judiciary, which has to display secularism to a discerning public. Not merely be secular.
Views are personal. Olav Albuquerque holds a Ph.D in Media Law from the University of Mumbai and is a practising lawyer of the Bombay High Court. He was earlier a senior journalist of several newspapers, including The Free Press Journal.
