An Act Of Judicial Indiscipline

The issue before the Commission was about the disclosure of information relating to honorarium (salary) payable to the Imams in Muslims mosques through the Delhi Waqf Board and the Commission felt that the Delhi government was not giving the information in that regard. While directing the Delhi Government to disclose the information, the Commissioner has completely misdirected himself by making un warranted observations about a 1993 Supreme Court judgement to say that it has 'set a wrong precedent in the country and has become a point of unnecessary slugfest and social harmony in the society' and has 'acted in violation of provision of the Constitution'. While dealing with an RTI application, there was no occasion for the Commissioner to write all this. The Commissioner's order is as an act of creating institutional disorder. The Commissioner forgets the fact that the Supreme Court is the competent institution to interpret the Constitution and not the statutory commissions and tribunals. The Commissioner flew with his flow forgetting the limits of that a presiding officer of a Tribunal should follow.

No doubt, at a public forum or in an academic discussion; a judgment of the Supreme Court can be criticised to be wrong or being incorrect. However the issue here is; whether a semi-judicial or judicial forum, subordinate to the Supreme Court, can make such comments about the correctness of a Supreme Court judgement in a manner as it has done here.

Even the High Courts, while noting a difference of opinion on a constitutional matter decided by the Supreme Court, shall be reluctant to make such observations. When a subsequent bench of the Supreme Court does not agree with its own judgement given earlier, while disagreeing, it will write to say that they doubted the correctness of the earlier view and thereafter they refers them to a larger bench for reconsideration.

A reading of this judgment of the Information Commissioner also gives a glimpse of his ideological perspective. He tries to wrongly convey a message that non-Muslims have been discriminated against and sought to create an impression that it is only the Muslim community which gets some state support in their religious practices. The Commissioner has missed the fact that, in 2012, the Supreme Court has directed the government to progressively reduce the subsidy on Haj and finally eliminate the entire subsidy. This is a clear reflection of bias.

One cannot ignore the fact that the very same Delhi Government offers free travel to residents of Delhi under the 'Teerth Yatra Yojana' to different places of religious significance like Puri, Rameshwaram, Kedarnath, Dwarka, Rishikesh, Mathura, Shirdi, Ayodhya etc. Likewise, every State has some or the other policy for spending tax payer's money on religious practices of different communities mainly from majority community. For organizing "Kumbh Mela" in Ujjain and Prayagraj, the States have allocated thousands of crores of Rupees. There is a Central Government guideline for financial assistance to the States and the Union Territories for Organizing Festivals. Even in the current financial year, the State of West Bengal allocated hundreds of crores towards Durga Puja celebrations. All this state support is probably to keep the flavour of spirituality going with the fast changing social order.

These allocations for enabling performance of the religious ceremonies depend on the requirement of religious practices prevalent in a particular religion. It is a wrong trend to compare diverse practices of different communities like the Commissioner has sought to draw. As per the tenets of the religion, the practices in different religions are bound to be different and the State is bound to consider this aspect if it decides to accommodate religious practices of communities. Hence drawing a casual comparative exercise by choosing one or two practices from different communities is not a healthy practice.

In the process of writing on such sensitive issues, the authors of the judgments must remember that there is a large section of media which remains in search of such materials to polarize the people on the ground by spreading the half truths. We have seen in the past, few judges writing openly and others by giving inferences; effectively try drawing a line between the Muslims on one side and all others on the other side. In 2018, a Judge of Meghalaya High Court wrote a judgement divided on religious lines of 'Hindus' and 'Muslims', reflecting a protectionist attitude towards one community. The judge conveyed a personal message to the 'Hindus' of 'Barak Valley and Assam Valley' saying that 'our culture, traditions and religions are same'. A judge certainly has a fundamental right to freedom of religion. But can a judge's 'personal religious belief' be channelised through the process of the court? Later, the Judge clarified that he was not a "religious fanatic."

Another Judge of Kerala High Court made remarks that 'there is a movement or project which is called "Romeo Jihad" or "Love Jihad' conceived by a section of Muslims. He also stated that the idea appeared to be to "convert girls belonging to other religions to Islam" and thereafter directed an investigation – which proved the concept of 'love jihad' was propaganda. The National Investigation Agency also could not find anything substantial when in Hadia case the Supreme Court referred the matter to them. All these contents of judgements gave legitimacy in the hands of large section of media to make colourable news items negatively impacting the social fabric.

Within the academic circle, there has always been a larger ambit of carefully worded criticism of Supreme Court Judgements. A healthy democracy will never stop it if it is done within the 'Lakshman Rekha'. However, this freedom must not be available to statutory tribunals within the institutional hierarchy.