When judges shame themselves

(Clockwise from left) Shekhar Kumar Yadav, of the Allahabad High Court; Arun Mishra and M R Shah, formerly of the Supreme Court; V Chitambaresh, formerly of the Kerala High Court; former CJI Sharad Bobde; M C Chagla, who was Chief Justice of the Bombay High Court in the 1950s; P N Bhagwati, who became the CJI in 1985; P V Kunhikrishnan, of Kerala High Court; Chitta Ranjan Dash and Partha Sarathi Sen, of the Calcutta High Court

Rarely has a judge offended sensibilities as Justice Shekhar Kumar Yadav, of the Allahabad High Court, has. In a speech delivered at a Vishwa Hindu Parishad function, he upheld the principle of majoritarianism, spoke in Hindu supremacist tones, and accused the "kathmullahs", or fanatical Muslim clerics, of being detrimental to the nation.

Yadav has been blasé about flaunting his ideological sympathies. In 2021, he wanted the Constitution to incorporate "cow protection as a fundamental right of Hindus." The same year, he lauded Prime Minister Narendra Modi during, of all matters, a bail hearing, for providing free anti-COVID vaccination to the country.

Yadav's presence in the judiciary should make all those who repose faith in its neutrality anxious. They can only hope that Yadav would be coaxed into seeking voluntary retirement or not be assigned judicial work, for the chances of his being impeached are remote. The process of impeachment entails, among other things, a resolution to this effect to be endorsed by both Houses of Parliament, where the Bharatiya Janata Party-led alliance is in majority. The BJP has not been critical of Yadav, presumably because his hate speech echoed the rhetoric of its leaders. The party will risk alienating its supporters by supporting the impeachment of a judge espousing Hindutva.

India's polarised polity and the BJP's domination of Parliament have emboldened judges to express their fondness for Modi. Former Supreme Court judge Arun Mishra hailed Modi for being a "versatile genius who thinks globally and acts locally." M R Shah, as the Chief Justice of the Patna High Court, scandalously said, "Modi is a model. He is a hero." Should a person so enamoured of Modi be elevated to the Supreme Court? Shah was.

Thereafter, at a public function, in Modi's presence, Shah cooed that the Prime Minister was the "most popular, loved, vibrant and visionary leader." Both Mishra and Shah were widely considered as pro-executive judges, who undermined individual liberty. Devotion to Modi pays, for Mishra, on his retirement, was appointed to head - believe it or not - the National Human Rights Commission of India.

Wonder whether the BJP has taken note of P V Kunhikrishnan, of the Kerala High Court. While hearing a petition demanding the removal of Modi's image from COVID-19 vaccination certificates - India is the only country to feature its leader on such documents - he remarked: "They are not proud of their PM, we are proud of ours."

The malaise of judges singing paeans to the prime minister enjoying a brute majority in Parliament is as old as India's post-Independence history. In 1953, Chief Justice of the Bombay High Court M C Chagla wrote a letter to Nehru, praising him for giving "our country international status, which even countries more seasoned in diplomacy may well envy." He became a member of Indira Gandhi's Cabinet in the 1960s. In 1980, after Indira Gandhi returned to power, Justice P N Bhagwati wrote a congratulatory letter to her, hailing her "iron will and firm determination, uncanny insight and dynamic vision." Five years later, Bhagwati became the Chief Justice of India.

Chagla and Bhagwati lived in an era when the executive had a preponderant say in the appointment of judges, which the judiciary appropriated through the Second Judges Case of 1993. Yet the judges are pulled to the executive as a moth to a flame - except that they don't get singed. Why they don't can be fathomed by these two contrasting examples: Advocate Victoria Gowri, as a BJP member, engaged in hate speech multiple times against Christians and Muslims-and was still appointed a judge; but not advocate John Sathyan, for he once shared an article critical of Modi on social media. The ruling party's ideology fireproofs judges.

Worryingly, social revisionism and regression continue to plague the judiciary in the post-2014 era. Kerala High Court judge V Chitambaresh, in 2019, said Brahmins should be at the helm of affairs, for all virtues are found in them. As Chief Justice of India, Sharad Bobde asked a rapist whether he was willing to marry the victim. "If you want to marry [her] we can help you," the lordship said.

India's sensibilities were hurt when Justice Pushpa Ganediwala, of the Bombay High Court, ruled that groping a child without "skin to skin" contact could not qualify as a sexual assault. Calcutta High Court judges Chitta Ranjan Dash and Partha Sarathi Sen, in 2023, advised adolescent girls to control their sexual urge as in the "eyes of the society she is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes."

Indian judges are neither exposed to moral pressure mounted by the public nor risk impeachment for egregious misconduct. Contrast their fate to that of Lord Alfred Denning, rated as Britain's greatest judge in modern times, who resigned following the fury over his claim that Blacks and coloured immigrants were not suitable to serve on juries. The future of Allahabad High Court's Yadav will become a measure of the depth to which the judiciary has fallen. Yet the debate over Yadav's misconduct could well turn him into a Hindutva icon. In that case, it can only be said, people deserve the judges they get.

The writer is a senior journalist and author of Bhima Koregaon: Challenging Caste.
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