Above: People at midnight mass on Christmas Eve at Santhome Church in Chennai/Photo: UNI
A Madras High Court judge was forced to delete a contentious portion of a judgment after protests were raised over his allegations against Christian missionaries
By MG Devasahayam
Judges are expected to be unbiased and non-partisan. However, in a surprising case, of a judge in the Madras High Court, fairness was found wanting. Justice S Vaidyanathan of the Madras High Court delivered a judgment on August 13, 2019 which concerned a writ petition filed under Article 226 of the Constitution. It prayed for the issuance of a writ of certiorarified mandamus (merger of two writs) against the Madras Christian College, Chennai. The petitioner, Samuel Tennyson, an assistant professor of the College, along with other faculty members had taken 42 zoology students on a study tour to Bengaluru, Mysore and Coorg. On return from the tour, the principal and secretary of the College initiated disciplinary proceedings against Tennyson on a complaint of sexual harassment from some students.
Stating that the procedure adopted by the Committee to look into the allegations was in violation of the principles of natural justice and contrary to Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Tennyson moved the High Court for quashing the fact-finding report and the inquiry resulting thereof.
The judge disposed of the matter, saying: “…this Court finds that there is no justifiable ground to interfere with the Fact-Finding Report as well as the second show cause notice, as the further action followed by the show cause notice will only bring the cat out of the bag. Hence, in the considered opinion of this Court, the Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed as devoid of merits.” So far so good.
But what the judge did after that was surprising. He wrote: “Before parting with the judgment, this Court feels it appropriate to point out that Christian missionaries are always on the source of attack in one way or the other and in the present era, there are several accusations against them for indulging in compulsory conversion of people of other religions into Christianity. Now there is a general feeling amongst the parents of students, especially female students that co-educational study in Christian institutions is highly unsafe for the future of their children and though they impart good education, the preach of morality will be a million-dollar question….” This was a bolt from the blue as none of these matters was before the judge nor did he have any evidence before saying this.
He added: “Certain laws, which are in existence for easy access to women, lend itself to easy misuse that women will find it hard to resist the temptation to ‘teach a lesson’ to the male members and will file frivolous and false cases. A similar trend is already being observed in the case of anti-dowry law (498-A), which is being misused to such an extent that the Supreme Court has termed it ‘Legal Terrorism’.”
He went on to advise the government to think of a suitable amendment in the concerned laws in order to prevent their misuse so as to safeguard the interest of innocent masculinity. To facilitate this, he directed the Registry to mark a copy of this order to the Ministry of Law and Justice, New Delhi.
Following this sweeping judgment, there was a lot of commotion in the Christian community. The Tamil Nadu Bishops’ Council, the Tamil Nadu Latin Bishops’ Council, the All India Democratic Women’s Association and the Indian Christian Association of Tamil Nadu expressed strong views. A delegation of Madras High Court advocates met the chief justice and submitted a representation. Faced with the protests, the judge recalled the order on August 20 and expunged his remarks by deleting the para on Christian institutions and conversion. But the para on women misusing laws and “Legal Terrorism” remained.
This partial deletion notwithstanding, the issue is a matter of concern. An order that defames a particular community and its institutions was passed by a High Court judge under Article 226 of the Constitution. This Article confers extraordinary powers to High Courts to issue directions, orders or writs within their territorial jurisdiction for the enforcement of any of the rights conferred by Part III and for any other purpose. This can be issued to any person or authority, including the government (in appropriate cases) and can include writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.
Habeas corpus is a writ requiring a person under arrest or illegal detention to be brought before a judge or into court, especially to secure his release unless lawful grounds are shown for detention. Mandamus is a writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty. Writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. Quo warranto writ is issued to inquire into the legality of the claim of a person or public office. The writ of certiorari can be issued for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority.
The High Court is conferred with this power basically to safeguard the fundamental rights provided by the Constitution—the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies— and ensure that the citizens enjoy them without hindrance.
Furthermore, the norms for judges in the higher judiciary have been laid down in many Supreme Court judgments, the most prominent being SK Viswambaran vs E Koyakunju & Ors. It reads: “One principle of cardinal importance in the administration of justice is that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”
The order of Justice Vaidyanathan regarding Christian institutions, conversion and women misusing anti-dowry law does not help in safeguarding fundamental rights. In today’s insecure atmosphere, this judgment is tantamount to scare-mongering. Such biases should be kept away from the higher echelons of the judiciary so that justice is dispensed in a fair and dispassionate manner.
—The writer is a former Army and IAS officer