Theocratic Judges Who Find Source Of Law In Religion Than Constitution Have Sharply Increased: Dr Mohan Gopal

Renowned legal academician Dr Mohan Gopal delivered a speech at a seminar organized by the Campaign for Judicial Accountability and Reforms (CJAR) on "Executive Interference in Judicial Appointments." In his speech, Dr. Gopal  raised concerns about the appointment of judges with political bias . He urged the collegium to protect the institution by consciously appointing judges committed to the Constitution alone. 

“I believe that what is going on is packing the judiciary to overthrow the Constitution”, he said.

He commenced his address by stating that–

"The word interference means having a role which you are not supposed to have and the role that is not wanted – that is the literal meaning of interference as per dictionary. So when we say interference, we think that the government is having a role in judicial appointments that it is not supposed to have, that is not welcome. It is also true as Mr Sondhi said that this happens in many ways and not just through formal communications between the collegium and the government. We need to look at interference in a much broader context of de facto interference."

I. Government's Strategy to Establish "Hindu Rashtra"

At the outset, Dr Gopal provided the audience with a set of facts. He stated that there had been 111 judges, according to the website of the Supreme Court, who had been appointed during the UPA and NDA period, from May 2004 till today, of which 56 judges were appointed during the UPA period and 55 during the NDA period which is now eight years and nine months, as of now. He added–

"Here, we come into interpretation which could be quite subjective. What we want to look for is– are there judges being appointed who are politically biased? Either in the 10 years of the UPA or in the 8 years and 9 months of the NDA… from my own perspective, and I'm not going to say names because there is no time to discuss all that, I found that during the UPA period, there were 6 judges who we could broadly call as constitutionalist judges, who believed in the supremacy of constitution. I would not say liberal or progressive, but constitutionalists, who firmly and deeply believed that all decisions have to be made exclusively on the touchstone of the Constitution and nothing else. I could find only six names that I could put a hand on my heart and say yes, I would absolutely have no doubt in my mind that this judge would decide it only on the basis of his or her best understanding of the Constitution and not influenced by any other source of law."

Continuing, he said–

"This number actually goes up to 9 under the NDA regime, in my view. It goes up and does not go down. Why? Not because the NDA government sponsored such people . That number went up but because of resistance from the collegium."

He then posed a question to the audience–

"How many judges are committed to outside the Constitution and look at Sanatan Dharma or Vedas or ancient Indian legal principles as the basis of their decisions? How many judges would look beyond genuinely, not because they're influenced by the government or because they're looking for an appointment after office, but they genuinely believe that the real source of justice must come from Vedas and religious texts?"

Answering his own question, Dr Gopal said–

"That number, I could not find anyone, appointed by the UPA, who from their work, their written work, we could say that they were in their judgements looking beyond the Constitution as a source of law. But this is nine after the NDA has come to power, nine judges of whom five are still on the bench. I won't name anyone but they have explicitly in their judgements indicated that we have to look beyond the Constitution. And that is what happened for example in Ayodhya case. Some of the judges went beyond the law to decide the case. This number of judges who are traditionalist, theocratic judges, who will find the source of law in religion, has sharply increased."

He claimed that this was the first phase of a two-part attempt strategy to achieve the goal of establishing a "Hindu Rashtra" by 2047. He predicted that this goal would be achieved by interpreting the constitution as a Hindu document by the Supreme Court, rather than overthrowing it. He said–

"To do that, the first phase is appointing judges who are open to looking to theological sources beyond constitution. The second phase, which will now begin, is to appoint judges who identify the source. That began, for example, in the Hijab judgement, where one of the two judges actually said- "panth nirapeksha" means religion and not Dharma and said that the constitution doesn't say "dharma nirapeksha", it says "panth nirapeksha". And he said that dharma applies to the constitution and actually says in the judgement that constitutional law is dharma. What he means by Dharma is Sanatana Dharma. So he's saying that our constitutional law is Sanatana Dharma. He is saying we need to take into account dharma in applying the law."

Using this analogy, there could be an argument that a “pooja” in a government school is permissible because it is part of “dharma”, but “hijab” is not permissible because it is “religion”, he speculated.

In furtherance of his argument, Dr Gopal also gave an example of a High Court judge who specifically referred to Vedic sources and said that the said Vedic source was the source of particular provision of law. He added–

"Once that step is completed in the next 24 years, we'll be able to safely say that India is a Hindu theocracy under the same constitution as reinterpreted by the Supreme Court. So the idea behind here is to hijack the judiciary and establish a Hindu theocracy. I certainly do not want a voice, I personally do not want a law minister sitting in the collegium making sure that this agenda is fulfilled."

II. Need for Judiciary to Align Its Views With Constitution

Dr Mohan Gopal added that the collegium was not blind to the dangers of this and were trying to build in some resistance. He then expressed his concern about the lack of diversity in the Supreme. He suggested that this lack of diversity leads to a lack of representation and creates vulnerability. He argued–

"Our constitutional project and vision is in conflict with the vision and the values of the oligarchy that runs this country. It is an oligarchy because most of the power is in the hands of only four communities. So there is no countervailing force except the Constitution. In many countries including Pakistan, the constitutional mission reflects the oligarchy. There is no real conflict between the oligarch in the Constitution. But here, the Constitution deliberately by introducing democracy, equality, liberty, dignity, socialism, secularism – is directly challenging the world view and the philosophy of the ruling oligarchy."

He stated that this conflict first drew a reaction in phase 1 of the Indian judicial independence where the judiciary stalled the Constitution programme by striking down progressive legislations which reflected the constitutional mission. That stalling, he stated, draw a reaction from people like Justice Krishna Iyer, Kumar Mangalam. He added–

"Krishna Iyer and the gang of four, as they're lovingly called- Justice Bhagwati, Justice Chinnappa Reddy and Justice Desai, they tried to align the vision of judiciary to the constitutional vision. Then came Mandal in 1991. It wasn't by accident that within one year collegium system was established in 1992 because it was a part of the reaction to Mandal– to remove the control of the policies of the country which we saw– a surge in OBCs coming into executive and the legislature and they had to be insulated from the judiciary. So the control by different social groups, not the oligarchy, had to be resisted. It was not by coincidence that the collegium system emerged. There was no resistance to the collegium system from political side - they worked together to ensure that judicial appointments were still controlled by the elite. And today when we look at the social composition of the Supreme Court, we see that– that it has been protected without any diversity."

While acknowledging that from a social and gender perspective, there had been progress in diversifying the judiciary, he stated that there still remained lack of representation. He cited an example of a picture of five women judges being circulated with the caption "They see five women and all I see is five Brahmins," which indicated a lack of diversity.

"The government is now taking it one step forward to use the judiciary to destroy the constitution and establish a theocracy. The oligarchy controls the bar, not just judiciary. My conclusion is that it would be very dangerous to give this government, whose mission is to overthrow the present republic and establish a Hindu rashtra, any role in judicial appointment," he said. 

While concluding his address, Dr Gopal said–

"We must protect the collegium system because it's our best hope for now. The collegium must consciously choose and put on the bench those who are committed to protect the constitutional mission against this subversive attack which is taking place. The collegium, to strengthen judiciary, must diversify. Religion, caste, gender, economic class- we want to have a rainbow judiciary, where everyone feels that this is our judiciary."

If Govt Is Interfering, Judiciary Has To Strike Back : Senior Advocate Dushyant Dave