Justice Justice Shekhar Kumar Yadav’s speech betrays his inclination towards religious majoritarianism. (FB)
Dec 13, 2024 11:52 IST First published on: Dec 13, 2024 at 07:08 IST
On December 8, Allahabad High Court judge Justice Shekhar Kumar Yadav spoke at a Vishwa Hindu Parishad event, where he issued a few controversial comments that betrayed his ideological tilt. The Supreme Court has taken notice of these comments and sought a report from the High Court. This is, however, not a case of impeachment on grounds of proven misbehaviour.
In the past, Justice Yadav has said that “scientists believe that cow exhales oxygen” and the protection of the animal should be a fundamental right of Hindus. He also demanded that Parliament bring in a law to honour Lord Ram, Lord Krishna, Ved Vyas, Valmiki, Ramayan and the Gita. Of course, as a citizen, Justice Yadav is entitled to an ideological position and can express his opinion on any subject. He has rightly pointed out that the Hindu Personal Law has problems. Justice Yadav’s assessment that the Muslim Personal Law needs urgent reforms is also correct. But he has made a few sweeping remarks which are neither factually correct nor legally tenable.
Justice Yadav reportedly used a slur to refer to Muslims. He used the “us” versus “them” vocabulary to assert that children of one community were “tolerant” while young people in “another community had grown up witnessing animal slaughter”. His diatribe seems ignorant of the initiatives to bring about reforms amongst Muslims. Syed Ahmad Khan, Shibli Nomani and Muhammad Iqbal were well-known votaries of reforms in Muslim law. The Muslim clergy led the reform process which led to the passing of the Dissolution of Muslim Marriages Act,1939.
In contrast, Hindu women had to wait till 1955 to get the right to dissolve marriage. Muslim women always had a right to inherit property not only as daughters (albeit in a 1:2 ratio with their brothers) but also as wives, mothers and sisters from the very inception of Islam. Hindu women got this right much later and the daughter became a co-parcener only in 2005.
Justice Yadav’s speech betrays his inclination towards religious majoritarianism. In a democracy, the electoral majority, and not the religious majority, has a right to choose a government. In a recent by-election to the UP assembly, the BJP candidate won by over one lakh votes in the Kundarki constituency where Muslims are in a numerical majority. Moreover, the Constitution does not allow even this electoral majority to turn majoritarian. Thus, a law unanimously passed in Parliament can be struck down by the courts if it violates the Fundamental Rights or is contrary to the Constitution.
While one may agree with some of Justice Yadav’s arguments about the uniform civil code, his position overlooks the nuances in the UCC debate. As a matter of fact, personal law is Entry No 5 in the Concurrent List. It’s clear that the framers of the Constitution did envisage legal pluralism.
Unlike the US, India does not have a tradition of describing judges as conservative and liberal. The links between the ideological position of judges and their decisions has not been minutely studied in the country but there are few pointers in that direction. The Sarla Mudgal case involved four Hindus who had embraced Islam to marry the second time. Instead of reprimanding these men, Justice Kuldip Singh observed that “till the time we achieve the goal of uniform civil code… there is an open inducement to Hindu husband …to become a Muslim.”
In Bal Patil (2005), Chief Justice R C Lahoti and D M Dharmadhikari, while refusing to recognise Jains as a minority, explained the role of the National Minority Commission. They said that “the Commission instead of encouraging claims from different communities for being added to a list of notified minorities under the Act should suggest ways and means to help create social conditions where the list of notified minorities is gradually reduced and done away with altogether.” In Anjuman Madarsa Uloom (2007), Justice S N Srivastava of the Allahabad High Court held that Muslims are no longer a minority in UP.
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In a 2018 verdict, which was later set aside by a divisional bench, Justice S R Sen of the Meghalaya High Court said that India ought to have been declared a Hindu nation. He asked for the conferment of Indian citizenship to all the Hindus of the world. In Mohammed Salim (2014), the Uttarakhand High Court held that the Ganga and Yamuna were living entities entitled to all fundamental rights. A Supreme Court bench led by the then Chief Justice J S Khehar bench stayed this verdict.
The Supreme Court’s Restatement of Judicial Values, which was adopted by the full court on May 7,1997, talks of reaffirming the impartiality of a judge. It underlines that judges should not, even in a personal capacity, undertake any activity that erodes their credibility and makes them appear partisan. “A judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held,” it notes. A judge is not supposed to express views on political matters. Let the law and not the ideological leanings of judges determine the outcome of cases.
The writer teaches constitutional law and is Vice-Chancellor of Chanakya National Law University, Patna. Views are personal
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