The right to free speech and the right to profess, practice and propagate the religion of your choice may prove to be mutually antagonistic as evidenced when the DMK MP, A. Raja, declared on Tuesday: “As long as you are a Hindu, you are a shudra, as long as you are a shudra, you are a prostitute’s son. As long as you are a Hindu, you are a panchaman (Dalit), as long as you are a Hindu, you are an untouchable.” If he was trying to convert Hindus to atheism, well, then, he could be charged with enticing Hindus away from Hinduism.
The right to propagate atheism is part of the right to propagate religion which is curtailed by morality, public health and public order. But Raja, who was an accused in the 2G spectrum scam, may have run afoul of the Constitution which legalises the penal law criminalising attempts to promote hatred between citizens of India on grounds of race, caste, religion, place of birth or language. The DMK propagates atheism ever since it came to power in 1967 in Tamil Nadu, making it the first regional political party to dethrone the Congress after the CPI did it in Kerala in 1957.
Again, the opposition to Hindi diwas by the southern states as a bid to impose Hindi on them runs afoul of the ruling party’s agenda of one nation, one religion, one language. “Learn Hindi and sell pani puri,” was the anti-Hindi slogan of those denigrating people from Uttar Pradesh. To add fuel to the fire, Yogi Adityanath’s survey of madrasas in UP has evoked outrage among some sections of Muslims just like TMC minister Udayan Guha’s threat of retaliation against BJP cadres for unleashing violence in West Bengal. “We are not wearing bangles. We will attack two of their cadres for every TMC worker whom they attack,” he declared, sparking off a war of words with Dilip Ghosh from the BJP.
Diversity is the antithesis of homogeneity. But there is no denying it is this diversity which is an integral facet of Indian democracy where language changes every 70 kilometres within every state. We cannot deny that Tamil is the oldest Indian classical language, going back to 2,000 years or more, with its script having nothing in common with Sanskrit from where the other north Indian languages have evolved.
The Supreme Court expounds the law passed by Parliament which is dominated by one party with a uniform agenda. Interestingly, the American Constitution has one preamble with seven Articles plus 33 amendments spread over 200 years, whereas its Indian counterpart has 470 verbose Articles which have been amended 105 times within 75 years, to make the law conform to the policy of the government. Something which the founding fathers never envisaged.
The inherent contradictions within some Articles of the Indian Constitution must be ironed out by our Supreme Court judges, who harmonise seemingly contradictory declarations to conform with the policies of the government. Former CJI AN Ray convened a 13-judge bench of the Supreme Court in 1975 to re-examine the basic structure doctrine of the Keshavananda Bharati case. But CJI Ray abruptly rose and dissolved the bench when it became obvious that he was the only one who agreed with the Indira Gandhi government. The Supreme Court registry has no record of this episode.
Governments may come and go but they have more often than not had the final say in who will be elevated to the Supreme Court. Chief Justice Surjit Singh Sandhawalla heard a corruption case in the Punjab and Haryana High Court during the late 1970s-80s against Gyani Zail Singh before Indira Gandhi made him the President of India. Sandhawalla sent Zail Singh to jail. Although the 16th CJI YV Chandrachud wanted to elevate Sandhawalla to the Supreme Court, President Gyani Zail Singh strongly opposed his elevation in the 1980s — reminiscent of Chief Justice Akil Kureshi who was overlooked to the Supreme Court because “the government had “a negative perception of his judgments,” according to Ranjan Gogoi.
That the apex court judges should not obstruct the government is evidenced by the fact that another judge, Justice P Subramaniam Poti directed the K Karunakaran government in Kerala to find out what had happened to an engineering student, Rajan, who disappeared during the Emergency. As a result, Karunakaran had to resign but had his revenge when he used his influence to transfer Chief Justice Poti from Kerala to Gujarat after he (Karunakaran) returned to power.
A lawyer has alleged that he was called to depose in a complaint against a former woman judge of the Mumbai city civil and sessions court during the hearing of a bail case for a rape accused. He says he does not know what happened to the complaint or his deposition but was surprised to see this woman judge among those recently elevated to the Bombay High Court.
And the decision of a Varanasi district judge upholding the maintainability of a plea by some Hindu women to offer prayers to the deity Shringar Gauri and other deities on the outer wall of the Gyanvapi mosque highlights the fact that the independence of the judiciary is synonymous with freedom of speech. As the publisher of The New York Times Arthur Ochs Sulzberger said, freedom of the press simply is the right of the people to know what the government wants to hide.
This right of the people to know extends to knowing the religious predilections of those appointed judges. How insulated are they from government pressure or religious outrage of the majority ? Does the executive really ensure only those judges who share their ideology are elevated to the Supreme Court ? The people have a right to know.
For that is the sum of our freedoms – when those charged with protecting our freedoms in the Constitution may not be totally free from their own religious predilections and government pressure.
Olav Albuquerque holds a PhD in law and is a senior journalist-cum-advocate at the Bombay High Court