What a judge got terribly wrong about law by majority, UCC and Muslims

Is India governed by law which works “according to the majority”? Can a judge of a high court attend a public event where he makes disrespectful comments about a community’s personal laws, practices and even uses a slur against them? Justice Shekhar Kumar Yadav’s speech at an event organised at the Allahabad High Court on December 8 prompted 55 legislators in the Rajya Sabha from opposition parties to demand a public inquiry against him. The Supreme Court collegium, which picks judges for elevation to the higher judiciary, asked the judge to appear before it on December 17. However, irrespective of the outcome of these processes, multiple legal experts were united in telling TOI+ that it was inappropriate for a sitting judge of a Constitutional court to express the opinions Justice Yadav did. They also pointed out that he had got it horribly wrong in his interpretation that India is ruled by law that is dictated by the majority. What’s wrong with what the judge said on law and majorityJustice Yadav’s controversial speech came at an event organised by the Vishwa Hindu Parishad - a well-known right-wing organisation - on December 8 in the library hall of the Allahabad High Court. The topic of discussion was said to be the Uniform Civil Code (UCC), a poll promise of the BJP for decades. However, despite the event’s stated focus, Justice Yadav’s speech largely focused on the Muslim community and the community’s personal law. At one point in his speech, Justice Yadav claimed that India worked as per the will of the majority. “I have no qualms in saying that this is Hindustan, and the country works as per the bahusankhyak [majority] of Hindustan. This is the law…The law, in fact, works according to the majority. Look at it in the context of family or society...only what benefits the welfare and happiness of the majority is accepted,” he said. Watch the full speech: medium nocaptionhttp://youtu.be/klbPwA5fDaI=undefinedLegal experts that TOI+ spoke with said that the judge probably forgot the oath he took on the Constitution of India since it is the Constitution and rule of law that the country is supposed to follow, not the will of the majority.Senior Supreme Court advocate Sanjay Hegde said the judge should never have participated in such an event at all as it is in breach of the “principle of aloofness” mentioned in the Restatement of Values of Judicial Life, adopted by the entire Supreme Court in 1997.Hegde said the judge was also in breach of the clause which prohibits a judge from entering into public debate, expressing his views in public on political matters, or on matters that might be placed before a court. medium nocaption116406618“The speech of this judge exposes the fact that either he does not have faith in basic rights of citizens as guaranteed under fundamental rights and basic features of the Constitution against majoritarianism. Or, he is ignorant of such guarantees,” said senior Supreme Court advocate MR Shamshad.Supreme Court advocate Sanjoy Ghose pointed to a flaw in the judge’s argument that law is a creation of the community that is in the majority. He said that the apex court’s Kesvananda Bharati judgment clearly states there is a certain basic structure of the Constitution. Under this, constitutional courts (the high courts and the Supreme Court) can review laws passed by Parliament. “Even if a law is passed by the full Parliament unanimously, the court can still strike it down as affecting the basic structure of the Constitution,” he said. “We don't live in a majoritarian country. We live in a constitutional democracy.” medium nocaption116403529When judges start spewing venom, what hope do Indian Muslims have? medium nocaption116403548The problems with what Justice Yadav said about Muslim community In his speech, Justice Yadav said that despite having one Constitution, the law isn’t the same for everyone and there are different personal laws based on religion-specific customs. He referred to multiple practices related to marriage in the Muslim community to say the community shouldn’t disrespect women. “You can't disrespect a woman who has been recognised as a goddess in our Shastras and Vedas. You can't claim the right to have four wives, perform Halala, or practice Triple Talaq or not pay maintenance to women. This right will not work. UCC isn't something that VHP, RSS, or Hindu community advocates. The country's top court also talks about it,” Justice Yadav said.He also indirectly claimed that Hindus are taught not to harm even the smallest of animals, which he claimed is why the community is more tolerant and compassionate. “When children are born on ‘our’ side, they are guided towards God, taught vedic mantras, and told about non-violence. But in ‘your’ culture, from a young age, children are exposed to the slaughter of animals. How can you expect ‘them’ to be tolerant and compassionate?” he said.He then seemed to qualify some of his statements saying that not all the members of the community he was referring to were bad. “But the ‘kathmullahs’ – the word may be inappropriate – but there is no hesitation in saying it because they are harmful to the country. They are people who incite the public, and they are the ones who prevent the country from progressing. Such people we need to be cautious of,” he said. The high court judge also told his audience that they could work in different professions but they were “Hindu first”. Justice Yadav wrapped up his speech warning his audience not to let their spirit die, otherwise it wouldn’t “take too long for [the country] to turn into Taliban or Bangladesh”Former Member of Parliament and Polit Bureau member of the Communist Party of India (Marxist), Brinda Karat wrote to the Chief Justice of India Sanjiv Khanna terming the speech as “hate speech” and seeking action. Advocate Hegde said that the speech did seem to be “communal” in nature. “When you exalt one community and denigrate another it cannot be said to be anything other than communal,” he said. Senior Supreme Court advocate Shamshad said that the judicial process works because people show confidence in the persons in the judiciary as well as the institution. He pointed out that the commentary by the judge comes at a time when the present political establishment “has already excluded Muslims at large from the system and decision making process and permitted majoritarianism to target them in different ways.”“Many judicial decisions relating to Muslims’ issues are already seriously questionable. In that background, if a judge of a Constitutional court shows this kind of perversity and mindset, then it will seriously affect the confidence of people in judiciary and expose the hollow commitment of such a judge towards Constitutionalism,” he said.Shamshad said a judge is under an obligation to communicate his/her views through Constitutional principles and not through personal favour and prejudices, which glorify a section of society or a belief system.The judge also used the word “kathmullah” in his speech - which roughly translates to an excessively devout Muslim - but Supreme Court advocate Ghose said the usage and meaning of the word over time has changed. “Whatever an original word might mean, but if over time, it is used as a racist word then it acquires a racist character, even if originally that word has been something else,” he said. Did the judge have a right to speak as a citizen of India?In his speech Justice Yadav said that Article 44 of the Constitution of India talks about a uniform civil code and said that a majority of the nation’s people favoured it as well as by the current party in power. Justice Shekhar said it was a mistake to assume that a uniform civil code was against Islam. “You’re mistaken about it…..We have removed all the bad practices we had then why can’t you do the same?.....“You” cite Shariat to say that these things are not provided there. So, I don’t have qualms in saying – the media can publish whatever they want to – that Shariat talks about a lot of other things like you will be punished for anything wrong you do. Then why hesitate in removing this wrong. This won’t work,” he said. The high court judge said that he had been warned to be careful about what he would say in his speech. “I told them that I may be a high court judge, but I am also a citizen of this country and I will say everything that is in the best interest of a citizen of this country,” Justice Yadav told the gathering.Senior advocate Amit Desai pointed out that while the Constitution does talk of a uniform civil code, it also talks about secularism, upholding personal laws and customary laws of various different diverse religions in the country. “The courts don’t rule on the principles of the majority,” he said. Desai said that while Justice Yadav seemed to believe he had the freedom to speak as he pleased as a citizen of the country, he had been invited to the event as a sitting judge of a high court. As a result, the oath of allegiance to the Constitution and rule of law applied to the judge even while he made the speech.Desai said that some of the observations made by the judge reflected his strong biases against personal laws of a minority. These biases, he said, “suggest his inability to render justice on these issues when called upon to adjudicate.”What punishment could Justice Yadav face?While there is no provision to take action against the judge, the Chief Justice of the high court can withdraw work from his bench or transfer him to a different bench. The Supreme Court can also transfer the judge to a different high court.The legal experts TOI+ spoke with were divided on what action could be taken. Advocate Hegde believes that the Supreme Court could make some observations on the issue, while advocate Desai said an impeachment process by Parliament may be too extreme. Advocate Ghose suggested that the judge be sent to the National Judicial Academy for lessons on Constitutional law.Justice Yadav, however, isn’t the only judge to make remarks that could be termed communal. Just a couple of months ago, Justice V Srishananda of the Karnataka high court referred to a particular locality in Bengaluru as “Pakistan” during a hearing, in reference to its Muslim residents. The Supreme Court took cognisance of the issue and closed the case after accepting an apology from the judge. At the time, the apex court emphasised the importance of impartiality and fairness, and cautioned all the judges to avoid making casual misogynistic or communal comments. However, advocate Hegde says he isn’t very hopeful regardless of what happens.“The trend is that judges seem to have lost the discipline of their forebears. It possibly reflects a fall in judicial standards which reflects the fall in society itself. We are much looser in our thinking and our language than we were earlier,” he said.