One swallow does not make a summer, but a few can show us how welcome a change of weather can be.
It has been a bleak few winters of discontent on the Indian judicial weather report when it comes to standing firm against an overbearing and aggressive executive. It has been a long time since courts exercised the power of judicial review to strike down an Act of Parliament or a notable executive action. The last it happened was in 2016 when the National Judicial Commissions Act was struck down by the Supreme Court, a move that most observers saw as the judges’ attempt to protect their own turf, not the common weal. The electoral bonds judgment was a good fight for the right to information, but this swallow flew five years too late and that too with a clipped wing, inexplicably leaving out bond purchases in the first year with no sign of the doctrine of unjust enrichment.
In general, Indian courts are no longer seen as the bulwark against executive inroads into fundamental freedoms such as instances of communal discrimination and acts against life, liberty, and freedom of speech. When lynching, hate speech and bulldozer politics do not speedily invite the wrath of courts, then something is wrong with the third pillar of governance.
But law and justice have seen off many who thought they were invincible and all-powerful, and the twain have survived weak guardians. They are not so easy to confine; enforcers of law and deliverers of justice have a way of breaking through shackles to rear up and show that they can still hiss, sting, and flatten. Cobras must remain cobras; if they become snakes in the grass, differential treatment is to be accorded to them, as the great lawyer Fali Nariman memorably said.
Some cause for cheer
A few recent instances of judicial plainspeak and actions are cause for cheer. Much credit goes to Justice Abhay Oka of the Supreme Court who spoke at a foundation laying event of a new court building in Pune on 3 March and said that public faith in the judiciary has eroded considerably for various reasons. He pitched the tent in an area where judges fear to enter — observance of rituals of only one religion in courts and called it out by saying:
“This year, on November 26, we will complete 75 years of adopting the Constitution given by Babasaheb Ambedkar. I always feel that our Constitution has two important words in the Preamble, one is secular and second is democracy. Some may say secularism means (Dharmnirpekshta or Sarv Dharm Sambhav), but I always feel the core of the judicial system is Constitution.
Therefore, sometimes, judges have to say some unpleasant things, I want to say that now we have to stop doing pooja archana or lighting lamp kind of rituals during any events related to judiciary. Instead, we should keep the Preamble of the Constitution and bow down to it to start any event. We need to start this new thing to respect our constitution and its values…”
What had to be said was spoken out aloud, and that’s when there is a sigh of relief — that someone in power is taking up this cudgel, especially at this point when there is a collective move toward only one dominant narrative and ideology.
Oka J was at his best in dealing with a case from Mumbai involving freedom of speech in which the accused had criticised the abrogation of Article 370 on social media and offered good wishes to Pakistan on its independence day. The Bombay High Court denied him bail. Had this order come from some of our less-celebrated judicial centres (if in doubt, look to see where lynching and bulldozers are in vogue), it may not have occasioned surprise. But the Bombay High Court has an illustrious record of being at the forefront of protecting liberties and freedoms, most notably during the dark days of the Emergency. This case caused concern as to how deep the rot is. Oka stemmed it. He said: “As held by Vivian Bose, J, the effect of the words used by the appellant on his WhatsApp status will have to be judged from the standards of reasonable women and men. We cannot apply the standards of people with weak and vacillating minds. Our country has been a democratic republic for more than 75 years. The people of our country know the importance of democratic values. Therefore, it is not possible to conclude that the words will promote disharmony or feelings of enmity, hatred or ill-will between different religious groups. The test to be applied is not the effect of the words on some individuals with weak minds or who see a danger in every hostile point of view. The test is of the general impact of the utterances on reasonable people who are significant in numbers. Merely because a few individuals may develop hatred or ill will, it will not be sufficient to attract clause (a) of sub-section (1) of Section 153-A of the IPC.
As regards the picture containing “Chand” and below that the words “14th August-Happy Independence Day Pakistan”, we are of the view that it will not attract clause (a) of subsection (1) of Section 153-A of the IPC. Every citizen has the right to extend good wishes to the citizens of the other countries on their respective independence days. If a citizen of India extends good wishes to the citizens of Pakistan on 14th August, which is their Independence Day, there is nothing wrong with it. It’s a gesture of goodwill. In such a case, it cannot be said that such acts will tend to create disharmony or feelings of enmity, hatred or ill-will between different religious groups. Motives cannot be attributed to the appellant only because he belongs to a particular religion.
Now, the time has come to enlighten and educate our police machinery on the concept of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution and the extent of reasonable restraint on their free speech and expression. They must be sensitised about the democratic values enshrined in our Constitution.”
Oh, how splendid to see a judge of our times hearken to Vivian Bose — the most gifted Constitution expounder. Move over, prophets of disharmony. And police officers, please be sensitised that the Constitution is supreme, not your current masters. It will, however, need a few more judges to drum that last point in.
We breathe easier, thanks to Nagarathna
Another cause for cheer is Justice B V Nagarathna, worthy of celebration not just for being one of our few women judges (may the tribe increase, of her ilk preferably) but more for her independence of thought and judicial philosophy. Heedless of quiescent acceptance by four male peer judges of the demonetisation misdoings, she shone the spotlight on the abdication of statutory and high duty by the Board of the Reserve Bank of India while it caved in, post-haste, to the demands of the government. Recently, she dealt with the egregious case of the release of the 11 convicts in the Bilkis Bano case, a shameful act by the Gujarat government that thumbed its nose at all norms of legal propriety and guidelines for remitting life sentences. We may have forgotten the extent of the convicts’ depravity: They gangraped Bilkis, her mother, and her cousin, smashed her child’s head, and killed seven more minors and other family members. Nagarathna termed it grotesque and diabolical, driven by communal hatred.
She held that this was a case of usurpation of power since the authority to remit lay with the government of Maharashtra and not Gujarat. Nagarathna held that the orders of remission were laconically worded and repetitive, failing to take relevant considerations into account and authorities failed to play their proper role. She packed the convicts back to jail, saying:
“The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Justice is supreme and justice ought to be beneficial for the society. Law courts exist for the society and ought to rise to the occasion to do the needful in the matter. Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source to invigorate justice intertwined with the efficacy of law. Therefore, it is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law.
Further, we cannot be unmindful of the conduct of respondent Nos. 3 to 13, particularly respondent No.3 who has abused the process of law and the court in obtaining remission.
One cannot lose sight of the fact that the said respondents were all in prison for a little over 14 years (with liberal paroles and furloughs granted to them from time to time). They lost their right to liberty once they were convicted and imprisoned. But, they were released pursuant to the impugned remission orders, which have been quashed by us. Consequently, the status quo ante must be restored.”
There was a certain deft adroitness in the way she handled an obstacle which was created by the SC bench comprising Ajay Rastogi and Vikram Nath whose 2022 judgment opened the doors for the release of these men. Rastogi wrote that the decision on remission must be taken by the government of the state where the crime was committed, even if the trial was transferred to another state. In other words, just hand over the platter back to the Gujarat government, even if it was taken away from it for good reason. It could not have escaped these judges that this was a step in aid of remission of these men and that they were dealing with the same case and the same acts, none other. In fact, while hearing the challenge to the remission eventually granted by the Gujarat government, Justice Rastogi reportedly remarked in Court: “Merely because the act was horrific, is remission wrong?”
Being a part of a coordinate bench, Nagarathna would have had difficulty in plainly disagreeing with Rastogi. So, she deftly co-opted him by observing that Rastogi was misled by submissions since there was suppression of material. Of course, since Rastogi is not in the court now, it’s a little difficult for him to protest that he wasn’t misled one bit and intended to do exactly what he did. For good measure, Nagarathna tagged on the doctrine of per incuriam to Rastogi’s order. Settled law had it that the appropriate government to consider remission was the court that passed the order of conviction, but Rastogi shrugged that off to enable the Gujarat government to favour its favourites. Per incuriam virtually means acting in ignorance of law; it is a rather strong slap on the wrist, the equivalent of a severe admonition on the annual confidential report.
Net result — convicts back where they should be, remission excesses regulated. We breathe a little easier since at least one batch of our judges doesn’t take one of the worst cases of atrocity and depravity lightly.
What’s happening down South
Turn South, to its very own enfant terrible, Justice Anand Venkatesh of the Madras High Court who shuns claustrophobic conventions and judicial restraint born of convenience and takes up lance against powerful men charged with wrongdoing. No Don Quixote, this one — he has the law for the many Sancho Panzas and the saddle of the judge in cases against MPs and MLAs. Venkatesh has proved himself a fearsome knight, having reopened cases against a former CM and former minister of the AIADMK and for even measure, against four ministers of the DMK too.
A recent sparkler from him is the judgement that holds K Annamalai, Tamil Nadu BJP president, ought to face trial for hate speech. Venkatesh says: “From the speech of the petitioner (Annamalai), it is unmistakable that he was attempting to portray a calculated attempt made by a Christian Missionary NGO, which is funded internationally, to destroy Hindu culture. It also whips up a communal fervour when he says, ‘We are all running to the Supreme Court to counter this.’ The public was, therefore, led to believe that Christians are out to finish off Hindus and that ‘we’ (in this context Hindus) were running to the Supreme Court to defend it.
Hence, the psychological impact of a statement made by a popular leader must not be merely confined by testing it only to immediate physical harm and it is the duty of the Court to see if it has caused a silent harm in the psyche of the targeted group, which, at a later point of time, will have their desired effect in terms of violence or even resulting in genocide.”
Now, perhaps, Annamalai thought his statement was quite passé because a BJP women’s wing office-bearer and self-proclaimed chowkidar had said: “Christian groups are more dangerous than Islam groups. Both are equally dangerous in the context of love jihad”. This statement did not stand in the way of her being made a Madras High Court judge; the collegium didn’t take corrective action. Venkatesh, differently moulded, read Annamalai the Riot Act on hate speech and held that the BJP president must have been well aware of the consequences of his speech and should have exercised restraint while speaking in such a manner about minority religious communities. One waits to see if Annamalai has the sense to realise that communal firebranding, which is a successful political tactic in the heartland, will be counterproductive in the South. Apart, of course, from being absolutely anti-constitutional. He would profit immensely from reading this judgment carefully, as would the rest of us — it is a compressed treatise on the law dealing with hate speech, sets out the challenge communalism poses to secularism, goes on to touch the broadest possible subject, which is religion, and summarises it all with clearcut analysis.
A sample:
“If the purpose of religion is not understood, it can take away the sense of neutrality and ability to think in terms of rationality and individuality. That is the reason why Karl Marx sarcastically said that religion is the opium of people. This statement will prove to be true if the real purpose of religion is not understood and it is attempted to be used belligerently by blind adherence to the rightness or virtue as imposed by bare texts. If religion becomes a bellicose jingoism, it can prove to be fatal to the secular fabric of this country.”
Justice Venkatesh also relies upon a judgment (sadly, in dissent, but never mind, some of the best gems are in dissent) of Justice Nagarathna. She was dealing with ministers from two states accused of making derogatory statements against women. She said, “We are concerned with a more overarching area of derogatory, vitriolic and disparaging speech, which is actually not “hate speech” simpliciter as has been traditionally sought to be defined and understood. I am concerned with speech that may not be linked to systematic discrimination and eventual political marginalisation of a community, but which may nonetheless have insidious effects on the societal perception of human dignity, values of social cohesion, fraternity and equality cherished by we, the people of India.”
He ends by citing former Chief Justice of India P B Gajendragadkar in the case:
“When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more. The Hindu religion is a reflection of the composite character of the Hindus, who are not one people, but many. It is based on the idea of universal receptivity. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested and assimilated something from all creeds.”
Justice Venkatesh’s judgment has been carried in appeal and the Supreme Court has stayed the proceedings.
The case of GN Saibaba
Let us close with the redemption of the Bombay High Court in the case of GN Saibaba, the Delhi University professor who was incarcerated in 2014 under the Unlawful Activities (Prevention) Act. He was convicted on 7 March 2017 for allegedly being associated with banned Maoist organisations by a sessions court in Gadchiroli, Maharashtra, and was lodged in the Anda cell, a British-era oval-shaped torture chamber in Nagpur. What ought to have been of concern was his medical condition — the wheelchair-bound professor has several ailments, including a heart condition, kidney stones, cysts in the brain and kidneys, and pancreatitis, besides shooting pain in the left side of his body. “Now my heart is functioning at 55 per cent capacity due to hypertrophic cardiomyopathy. I am facing syncope attacks and fall unconscious,” he said. Only a perverse jailor would keep custodial closeness; what are we to say of courts that do not inject liberty?
The evidence against Saibaba was weak from the start. In October 2022, the Nagpur bench of the Bombay High Court acquitted him on the ground that there was no valid sanction order as required under Section 45 (1) of the UAPA, and thus, the case was invalid. This was so promptly challenged and moved in the Supreme Court, that lo and behold — to prevent a paraplegic exit from jail, the court assembled on a Saturday and Justice M R Shah (sitting with Justice Bela Trivedi) upended the practice of not staying verdicts of acquittals and banged the prison doors shut. How that case went to this judge who makes no bones about whom he admires is a story by itself. CJI UU Lalit was at pains to explain that it was not out of choice but randomly asking one judge after another at a function. Anyway, the case went back to Bombay and then came the answer — this time, a full-score victory for Saibaba. Consent is indeed flawed. And there is nothing on merits.
No doubt, the SC will be petitioned again, and the roster allotment may be relevant and perhaps crucial. But for now, the Bombay High Court judgment stays, and whatever happens, that court has come out of its corner, swinging for personal liberty and curbing investigation excesses and shoddiness.
Justices Oka, Nagarathna, Venkatesh, Vinay Joshi and Valmike Menezes of the Bombay High Court illustrate the power of the judge in the social, political and moral space of India. They picked the right case, laid down the law, sounded the clarion for higher constitutional
and human values, and reminded us that the Constitution embodying our highest laws is not just above us in terms of commanding obedience but shines in the galaxy illuminating our paths and guiding our actions, its parts resembling the pole stars, the great formations or, the brightly lit stars. All except the Black Hole.
Sriram Panchu is a senior advocate at Madras High Court. Views are personal.
(Edited by Humra Laeeq)