By Shaan Katari Libby
The important message from the chief justice by discussing the issue with the full Court is seen as an indication of the seriousness attached to the issue. Before the Collegium are options ranging from transfer of the judge to initiating an in-house inquiry. The process of an in-house inquiry under the Judges Inquiry Act is a precursor to recommending the judge’s removal to the President.
The role of a judge is so crucial that it cannot be overstated. A parent is meant to be the role model in a home, a teacher is a role model to her class, and a judge is a role model for all of society. A judge is the final arbiter interpreting the laws and meting out appropriate edicts. It is essential that a judge is practically perfect and goes by the book.
Justice Shekhar Kumar Yadav delivered a lecture on the Constitutional Necessity of Uniform Civil Code at an event organised by the Vishva Hindu Parishad (VHP) in Prayagraj. His reported words were: “I have no hesitation in saying that this is Hindustan, this country would function as per the wishes of the bahusankhyak, (majority) living in Hindustan. This is the Law… the law, in fact, works according to the majority… Only what benefits the welfare and happiness of the majority will be accepted.”
Previously in a 2021 judgment (Javed vs State of Uttar Pradesh, 2021) Justice Yadav denied bail to a man accused of cow slaughter, called for the cow to be India’s national animal and said: “Scientists believe cows are the only animals that inhale and exhale oxygen.” He attributed the cure of diseases and the nation’s prosperity to the cow.
The ability to separate your political views from your day job (meting out justice) cannot be easy. As humans we have deeply ingrained ideologies and to see beyond these, to be a completely neutral entity is a big ask. Still, when one takes the oath and dons the judge’s robes, one knows what is expected. There are of course carrots (and sticks). For instance, some judges have been offered and accepted high-profile political roles after retirement. While there ought not to be such a quid pro quo system, when the current retirement is 62 years, there is a road ahead to be travelled. Judges with political ties have had to compromise their impartiality.
Other instances of judges being controversial exist all across the world. Antonin Scalia, a prominent American jurist and Associate Justice of the US Supreme Court, served from 1986 to 2016. He passed away on February 13, 2016, aired his views on same-sex marriage when he dissented in the 2013 case United States vs Windsor.
He argued that the Court was overstepping its boundaries by making policy decisions, rather than interpreting the Constitution. The US judicial system operates with a high degree of independence, allowing justices to express their views without fear of official reprimand.
Judge Awn Shawkat Al-Khasawneh, a Jordanian judge at the International Court of Justice (ICJ), made a contentious statement during the 2004 Advisory Opinion on the Wall case, where the ICJ ruled that Israel’s construction of a security barrier in the West Bank violated international law.
Al-Khasawneh dissented in a way that some interpreted as softening the language on the nature of Israeli actions. Like all ICJ judges, Al-Khasawneh had the freedom to express his legal reasoning independently, and his dissent fell well within the norms of judicial conduct and the ICJ’s framework.
Judge Jean-Claude Antonetti (ICTY), Jean-Claude Antonetti, a French judge who served at the International Criminal Tribunal for the former Yugoslavia (ICTY), was at the centre of controversy during the trial of the Bosnian Serb leader Radovan Karadžić. Antonetti, in a 2014 ruling, described the genocide in Srebrenica as “tragic” but claimed it was not genocide in his assessment, a statement that contradicted the findings of the Court. He too faced no censure as ICTY are granted significant autonomy to evaluate evidence and express their views, even if controversial. The criticism he faced was primarily from survivors, advocacy groups, and legal commentators.
Justice Pushpa Ganediwala, a former Bombay High Court judge, wrote a controversial judgement on skin-to-skin contact with sexual intent being required for it to be considered sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. This was overturned (Satish Ragde vs State of Maharashtra). While there was no formal censure for the controversial judgment which was contradictory to the Act, the Supreme Court Collegium withheld her confirmation as a permanent judge.
Justice Pankaj Mithal and Justice Sandeep Mehta were hearing a petition (Sri. Haydharali Cm vs Sri Keerthan Kumar & ors) against the judgment of the Karnataka High Court quashing criminal proceedings against two persons accused of trespassing in Badriya Juma Masjid shouting “Jai Sriram”. The Court questioned how shouting a particular religious slogan could be an offence. The judgment has attracted public and legal criticism and is currently before the Supreme Court.
These controversies involving judges expressing political/religious views and not adhering to the secular nature of our Constitution and legal system have eroded public confidence in the judiciary as a fair and unbiased institution. Judges are under tremendous pressure by various stakeholders so the task is unenviable, but where possible if the wording is neutral and not singling out any community or religion then it is unlikely to cause the kind of controversies that we have been seeing.
In Justice Yadav’s case, several Opposition ministers were up in arms about the political/religious slant to his comments. Kapil Sibal gave a notice to the Rajya Sabha Secretary General to impeach the Allahabad High Court judge, due to the “inflammatory speech on 9 December at the High Court premises… that the judge has no right to hold that post and he should be removed.” Sibal further stressed that this is not a political issue, but an issue of protecting the Constitution and the independence of the judiciary.
In the Supreme Court Collegium meeting with Justice Yadav, the latter contended that the media had selectively quoted his speech. The Collegium has cautioned him to maintain the dignity of his office, emphasizing that a judge’s statements should align with the responsibilities of their position to uphold public faith in the judiciary. The status quo is that the impeachment motion is pending consideration in Parliament.
Some judges we appear before do display the ideal virtues including the ability to listen, go through the briefs with care, question, display integrity, neutrality and patience and give prompt well-reasoned orders. Other judges seem to allow any number of adjournments and justice is delayed to the point of it not being served. High ethical standards, empathy and the ability to communicate one’s reasoned decision are all qualities that are essential.
While the pressures on a judge must be formidable from all directions, and it is surely an unenviable role in that respect, on the other hand, it is an incredible opportunity to put right so much that is wrong with our society. If one is able to rise above the normal and embody the role firmly without buckling to pressures from unethical outsiders, and if one can stand firm and be truly extraordinary and live up to the Constitution of India ensuring the separation of powers—then our country will once again have faith in its judiciary and every lawyer will be able to truly look up to every single judge. It is possible—we just need our judges to believe it every single day and make it a reality.
—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With inputs from E Sangeethavani and Ismath Hajarah