In a recent statement in Kolkata, Chief Justice of India D Y Chandrachud rightly said that courts should not be described as temples of justice and judges should not be treated as deities. Even though judges are addressed as “My Lord”, the CJI was frank enough to admit that they are not divine. There is an in fact great advantage to be human as humans can err.
Humans are “incurably religious,” Indians are more so. Indian society displays a “manifest tendency towards an outlook that is predominantly religious.” Sir Harcourt Butler had noted that “Indians are essentially religious as Europeans are essentially secular.” Prime Minister Narendra Modi has repeatedly said that the only holy book for him is the Constitution of India. “Holy” carries religious connotations. All kinds of accused say that they have full “faith” in the judiciary. “Faith” too is a loaded term with theological connotations. The big question is: Why are we all obsessed with religion?
Most of our Lok Sabha members and Union ministers recently took oath in the name of God rather than by saying “I solemnly affirm”. In 2019, the raising of the slogans, Jai Shri Ram and Allah, in the House demonstrated the place of religion in the Lok Sabha – which is also described as the “temple” of democracy. In fact, the Jai Samvidhan slogan does not seem to have wide acceptability. The debate in the Lok Sabha on the President’s address too had references to religions and arguments and counterarguments on what is the true meaning of religion in general and Hinduism in particular.
Indian society, it seems, is not at ease with the idea of secularism. Religion dominates the electoral campaigns despite its prohibition in law. Indira Gandhi was called Durga by Atal Bihari Bajpai. In 1989, Rajiv Gandhi launched his campaign for the Lok Sabha elections from Ayodhya. Prime Minister Narendra Modi was called the 11th incarnate of Vishnu by Avadhut Wagh, Kangana Ranaut and several others. There is a temple dedicated to Sonia Gandhi as well. However, the framers of the Constitution did not attach much importance to religion. While 66 constitutions around the world invoke the name of God, in our constituent assembly, H V Kamath’s proposal to start the Preamble with the name of God was voted out.
Our courts have a rightful claim to being “temples of justice”: The Supreme Court’s seal itself says, Yato Dharmasto Jayah (where there is Dharma, there is Justice). “Dharma” and “law” are used as synonyms in Hindu religion. It is, therefore, not surprising that in several judgments, we find references to scriptures. A few of our judges – being members of the larger society – are also deeply religious. One judge reportedly held Lord Ram to be the constitutional figure because of a drawing in the original Constitution without realising that by this logic, Akbar and Tipu Sultan would also get such a coveted status. Another Allahabad High Court judge in 2021 directed the government to bring a law to give legal status to Lord Ram, Lord Krishna, Ved Vyas, Ramayan and Gita. Idols of gods are indeed considered juristic or legal persons. It was Ram Lala who filed in 1989 a petition claiming ownership of the Babri mosque, in a case pending for decades and finally won the title from the apex court in 2019. In one otherwise pro-environment order, the Uttarakhand High Court had in 2017 held that the Ganga and its tributary Yamuna are legal persons entitled to fundamental rights. Subsequently, the apex court overruled this.
Many judges also use religion to justify their findings. In the process, they create unnecessary controversies as religious fanatics start blaming them for interpreting the sacred scriptures. This was seen post the Shah Bano (1985) and Sabarimala (2017) decisions. What is surprising is the judges’ over-indulgence in purely religious matters and their enthusiasm to reform religions. Reforms are a must, but top-down reforms are always counterproductive and allow fanatics to hijack the debate. In any case, reforms should happen by interpreting the Constitution and law, not religion. Judges are not trained in theology but in common law and are not suited to act as clergy.
This author has consistently maintained that there are practices that cannot be permitted even if they constitute part of “essential religious practices”.
Even in non-religious matters like the right to die in P Ratinam (1994), the jal samadhi of Lord Ram and seeking of death by Gautam Buddha and Mahavir were referred to. Shah Bano (1985) was a case under Sections 125 and 127 of the CrPC but Justice Y V Chandrachud referred to Quranic verse 2:241. Justice Bobde in the privacy judgment (2017) quoted Hindu and Islamic religious texts to underscore the importance of privacy. The Rigveda and Gita were cited in the judgment on euthanasia in Common Cause (2018). In Joseph Shine (2018), references were made to the Manusmriti and Quran and Christianity and Islam’s views on adultery.
Unfortunately, modern constitutions too are becoming similar to religions. Abraham Lincoln in 1838 urged Americans to consciously adhere to the “political religion of the nation”. The constitution is indeed the holy scripture of the modern civil religion. Like other organised religions, this civil religion has its hymns and its sacred ceremonies (swearing in), its prophets and its martyrs. Judges under this civil religion are like priests — they put on robes as well. Like priests, they have the authority to tell us the meaning of the sacred text. Disobeying them, like blasphemy, is punishable as contempt of court. Many a time, these judges like divine actors, have indeed saved our democracy from authoritarianism. And sometimes, they too decide on questions of life and death.
Should religions be subjected to constitutional morality and rationality? This author has consistently said that courts should not behave like clergy. It is not the judiciary’s job to reform religions. Constitutional morality is a laudable goal but we are not yet ready for it. Despite the Constitution’s text, in practice, neither does freedom of religion mean “freedom from religion” nor does it include — at least for women — “freedom within religion”. Religious congregations continue to attract huge masses, at times even leading to Hathras-like tragedies.
Reverence for the Constitution is necessary. But at the same time, this reverence for and supremacy of the Constitution need not be converted into a kind of idolatry of the law. Constitutions are called sacred to give them a superior status vis-a-vis the state. However, that does not make them divine texts. Therefore, whenever necessary, amendments can be made without destroying their core values.
The writer is vice-chancellor of Chanakya National Law University, Patna. Views are personal
