Religious passions ignite communal hatred which results in a breakdown of the rule of law. And when Supreme Court judges like Justice D Y Chandrachud divulged on Tuesday there were vile threats and abuse on social media against him for his verdict in the Sabarimala case, we seem to be deluding ourselves that we are secular when that is a chimera.
Justice Chandrachud is well-known in Mumbai legal circles for belonging to a distinguished legal pedigree as his late father was a former Chief Justice of India (CJI) who was a signatory during the infamous habeas corpus case when the apex court declared that the right to life and liberty was suspended during the Emergency and it could not be challenged by filing writ petitions in the high courts.
Thankfully, Justice Dhananjaya Chandrachud struck down that judgment. His late wife, Rashmi Chandrachud was a solicitor and partner in Gagrat & Co., which later wound up due to disputes between the partners. His two sons are counsels in the Bombay High Court. Justice Chandrachud is slated to be the 48th CJI and will play a decisive role in selecting judges for the Supreme Court and the 24 high courts.
Given his background and standing in the judiciary, Justice Chandrachud could easily have summoned the Delhi police chief and lodged a complaint against those trolling and threatening him on social media. His law clerks and interns reportedly told him the threats and profanity on social media against him were so "scary" that they requested the judge to stay away from these platforms.
“After the judgment, my interns, my law clerks told me: Listen, I hope you are not on social media. I said I’m not–except the WhatsApp messages I get from family and friends. And they said, ‘Please don’t. It’s scary. The amount of vile threats, abuse which you have received, it is scary’. They said we haven’t slept because we fear for the safety of the judges."
Justice Chandrachud divulged this while speaking at a recent event in Mumbai when he disclosed the backlash for his judgment in the Sabarimala case when he struck down the age-old law prohibiting menstruating women from entering the sanctum sanctorum. His was part of the majority judgment while the lone dissenting voice was that of Justice Indu Malhotra who ruled the judiciary should not interfere in questions of religious belief–which means that even when fundamental rights are grossly violated as in the case of millions of Indian women who cannot pray to the deity—the judiciary can merely act as a passive spectator.
In his majority judgment, Justice Chandrachud observed that keeping women out of the temple was akin to untouchability and against their fundamental rights. He was part of the Constitution Bench which had struck down a law framed by the Kerala government prohibiting women between the ages of 10 to 50 from entering the Sabarimala temple in Kerala.
He, along with then Chief Justice of India Dipak Misra and Justices Rohinton Nariman and A M Khanwilkar, had delivered the majority judgment striking down the law and directing the temple be thrown open to all.
In a significant development, Justice Chandrachud defended the dissenting view of his colleague Justice Indu Malhotra—although her judgment was seen as retrogressive and diametrically opposite to the progressive view of the majority judges..
“In the Sabrimala case, one of my colleagues, Justice Indu Malhotra dissented, which means there was a contrary viewpoint, and I do respect that. My law clerks said the same thing to me after the judgment. They asked me how a woman could dissent in a case about women’s rights. I told them that why should there be a perception that women should think in one particular way and men in another. We are professionals.”
The judgment is an attempt at social engineering of Indian society because of its transcendental nature as it navigates multiple fundamental rights enshrined in the Constitution of India, mainly that of religious freedom. The four judges who comprised the majority tried to harmonize the principles of religious freedom without state interference versus gender equality or the fundamental rights of women.
By applying the concept of Constitutional morality, the four judges indirectly stated that the right to equality of women prevailed over archaic religious diktats steeped in ancient religious practices which stymie women’s right to equality. It was shocking that a woman judge like Justice Indu Malhotra seen as a scholar took a diametrically opposite view which went against equality of women.
Article 14 entails equality before the law and equal protection before the law whereas Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Hence, any law made by the state which places a man on a higher pedestal than women without any reasonable grounds fails the test of both these articles.
Emancipated jurists have written that anything men have written about women must be viewed with suspicion because they (men) are both judge and accuser. It is in this context that ancient customs and usages which are enshrined in the holy texts of most religions have a distinct male bias because the authors who claim divine inspiration have always been men.
The taboo that menstruating women are ritually unclean and should not be allowed within the sanctum sanctorum of temples is scientifically a myth. Hence, the term “morality” has been construed to mean morality as laid down by Articles 25 and 26 of the Constitution giving rise to the concept of “Constitutional morality”. This is an ever-changing concept which changes society unlike religious morality which remains unchanged down the ages.
By arguing that the deity within the Sabarimala temple is a “Naishtika Brahmachari” whose meditation gets disturbed by menstruating women is akin to placing the burden for a man’s celibacy on women..
The Sabarimala judgment has been practically rendered nugatory because of the riots which resulted after this progressive judgment and the 50 or more review petitions pending in the apex court upholding the obsolete and retrogressive viewpoint of Justice Indu Malhotra. But still, we continue to delude ourselves that India is a secular, socialist democracy.
The writer holds a Ph.D in Media law and is a journalist-cum-lawyer of the Bombay High Court.
-By Olav Albuquerque