By Sarthak Sahoo
Introduction
In 1518, Strasbourg shook its legs like never before. A ‘dancing plague’ had overtaken the city. For reasons ineffable, the people of the province had started dancing with no end in sight; they swirled and twirled, taking no food or water, reportedly leading to many deaths.[1]
Interpretations compete, but some claim that public authorities put out an order to ban dance and music, and eventually the crowds, otherwise fanatically dancing, simply dissipated. Today, some essay the strangeness of the events, but I am more confused by the solution. Is it not grounds for scepticism that what was otherwise unpersuadable for people to stop, the force of law could surpass their mania?
The force of law is often posited against social realities, but in such cases, the norm’s effectiveness must be characterised in light of its historical context. Should then law be employed when the historical record belies the desiderata of law? A similar question can be asked to Rohin Bhatt and Indira Jaising. The former, writing recently, argues that the ‘dance’ between the Chief Justice of India (hereinafter ‘CJI’) and the Prime Minister (hereinafter ‘PM’) at a Ganesh Chaturthi puja (worship) at the former’s home portends poorly for the future of the judiciary.[2]
He suggests that the event is symptomatic of a panoply of executive-judiciary separation issues, all of which come to affect judicial credibility. He is not alone either, for many a legal doyen, including Ms Jaising herself, have disapproved of the event on grounds of its breach of secularism.[3]
In this piece, I seek to engage with the observations made by Mr Bhatt and Ms Jaising, and deal with whether the events that occurred at the CJI’s house are of any concern or all just noise. For like Strasbourg, are we to intervene by law’s disapprobation on the CJI; or is it all fun and dance?
To this effect, this essay has the following parts. Firstly, it argues that the event does not impinge on judicial independence and the separation of powers. Secondly, it argues that the event does not jeopardise secularism. Thirdly, it argues against the contextual frame that the judiciary is undergoing a historically unique process of ‘saffronisation’. Lastly, it deals with the normative force behind the criticism directed – that a good judiciary must necessary be hostile to the executive, and attempts to dispel the same.
Seeing it Differently
The most vociferous claim against the puja has been that the public appearances affect the independence of judiciary, as well as the separation of powers between both organs of the State.[4] Mr Bhatt diagnoses that the event ‘has not gone down well’. But this outcry does compel one to wonder who exactly is shocked by such sundry sensibilities.
Who exactly claims that judicial integrity is compromised by the PM attending the house of another constitutional functionary, in an unofficial capacity? Contrary to popular belief, the presence of video cameras is not indicative of officiality, for even otherwise, private events are often documented by the media when concerned with the heads of two government branches.[5]
Here, ‘compromises’ of judicial independence only appear to the extent of public outcry caused by those opposing the puja; on the grounds that it creates an improper appearance. In other words, the only evidence for fear of bias, are those who complain of the appearances in the first place. Informant, jury, and aspiring executioner, there is scarcely any evidence that the public now believes the CJI’s judicial integrity is compromised by such a visit.
This is adduced to by the fact that the CJI has authored judgements, and even the occasional dissent, at great prolixity, that takes to task the executive branch, as well as the policy positions of the present dispensation. For instance, the majority verdicts in Navtej Singh Johar (decriminalising homosexual activity from Section 377),[6] Puttaswamy (I) (instituting the right to privacy),[7] Association for Democratic Reforms (declaring electoral bonds unconstitutional),[8] and Indian Young Lawyers Association (allowing the entry of menstruating women in the Sabarimala temple);[9] and the minority opinions in Puttaswamy (II) (the Aadhar scheme is unconstitutional),[10] Supriyo (same sex couples have the right to form unions),[11] and Romila Thapar (an SIT to investigate cases of human rights activists’ arrests).[12]
This tapestry is not to suggest that the CJI is anti-executive (although perhaps that bodes well for some), but rather that matters of perception are more bounded by concrete realities than fleeting images from festival celebrations.
Mr Bhatt cites the deteriorating confidence in the Supreme Court of the US (hereinafter ‘SCOTUS’) as an analogy for the impact of the puja. However, suggestions of polarisation based on the SCOTUS are misguided for manifold reasons. For one, appointments to the Court are explicitly political. But more importantly, the presidency of Donald Trump was surrounded with watershed moments of controversial avail. It began with the non-nomination of Merrick Garland just prior to the elections.[13] This was followed by the appointment of conservative Neil Gorsuch in his place. Exacerbating was the Brett Kavanaugh sexual assault controversy.[14] Last was the replacement of the liberal Ruth Bader Ginsburg with Amy Coney Barrett.[15] Never before has SCOTUS changed composition so radically and rapidly in recent memory. This largely concludes with all concerns that may arise with respect to the independence of judiciary, and we now broach another value-oriented objection raised with respect to the event.
From Fraternisation to Faith
Beyond concerns of being seen with each other, Mr Bhatt also makes a sleight of hand tapping into the subject of the event—a Ganesh puja— while addressing supposed independence concerns. These are ‘overt displays of faith’, he says, referring also to the CJI’s visits to other Hindu kshetras (holy grounds). This hints at the larger controversy of the puja breaching the principles of secularism, as provided for in the Constitution. How exactly is this problematic? It is, of course, to no preclusion of Dr Chandrachud, the citizen, to not practise his faith merely because he is CJI.[16]
Perhaps it’s the ‘politics of the visuals’, the fact that ‘similar pictures’ are present of the PM in those places, amounting to a ‘bonhomie’ between them revived. But this seems even more absurd. As mentioned above, the ‘glare of the media’ does not discriminate between official and unofficial roles. Indeed, their capacity to penetrate personal lives increases as and when a judge leaves his robes. This would imply a burden on judges who have retired to recede from public view even more than they had to when in office. Hence, there is nothing inherently objectionable in visually appearing together. The visuals, rather, have their politics ascribed to.
Even if one does jettison the independence question, the breach of secularism charge is also worth considering. To take Sr. Adv. Jaising’s concerns, how is it that one distinguishes between the freedom of religion exercised privately (which she approves of) and publicly (one she does not). Save for a laïcité reading of the Constitution,[17] this distinction is artificial, seeing as though the manifestation of religion can squarely fall into the exercise thereof.[18]
Ms Jaising cites the CJI’s use of the word ‘dhwaja’ apropos justice, as well as the event concerned, and asks if non-Hindu litigants can ‘expect impartial justice from the CJI’. She further cites SR Bommai to argue that the separation of religion is mandated by the Constitution.[19] To cite this case is ironic on two counts.
Firstly, as SR Bommai holds, the Constitution does not permit ‘mixing religion and state power’;[20] that is, state power cannot be employed to religious ends. This neither prohibits state officials from exercising their religion, in public or private. As long as the CJI does not engage in Vedic exegesis tomorrow in Court, we can expect secularism to be safe.
But secondly, and more interestingly, Ms Jaising’s point on religious symbols does compel one to think if the Biblical origins of the common law,[21] the Christian language used in constitutional court documents, and Urdu words used in court speak – an admixture of Persian and Arabic influences imported from West Asian Islamic empires, would trouble litigants of other faiths just as much, or even more, since they are found directly within the legal system. These symmetries establish the idea that just as secularism is not affected by the presence of religious symbols and by-products, it cannot especially be affected by the personal choices of a judge with respect to their life. With these objections dealt with, we may now deal with the larger schematic allegations raised with respect to the puja.
Judging Saffron
However, the issues surrounding judicial independence are further complicated by the political affiliations of judges, which brings us to another concern by Mr Bhatt: the alleged ‘saffronisation’ of the judiciary. This refers to the laudatory behaviour of judges in their personal capacity towards the BJP. While the CJI is saved from this characterisation as yet, he argues that this concern must be circumvented.
In 1967, Justice K Subba Rao, by no means weak-willed, as his decision in Golaknath would tell us, himself retired three months early to join party politics upon Minoo Masani’s solicitation.[22] Although he would end up losing to Congress nominee Zakir Hussain for the post of President, he remained an active opponent of the Emergency when it befell the country.[23]
Similarly, Justice KS Hegde, who retired after his supersession for the Chief Justice’s office by the INC incumbency, joined the Janata Party, was elected as an MP, and then the Speaker of the Lok Sabha for three years. He also later joined the BJP.[24]
While that makes for post-retirement politics, it has also been extremely normal for judges to have political affiliations at the time of their elevation.[25] In the recent Anna Matthew case,[26] one where political adversaries desired to prevent the elevation of a judge who was a member of the BJP, Justice BR Gavai himself quoted a litany of judges who had prior political credentials.[27]
This included Justice Krishna Iyer, who, within stints of independence candidature, stood for parliamentary elections for the Communist Party of India and served in the state cabinet of Kerala.[28] More recently, Justice Ferdino Rebello was an MLA for the Janata Party in Goa and has subsequently served as a judge at the High Courts at Allahabad (as Chief Justice, no less) and Bombay.[29]
These historical precedents, among numerous others, are significant for two reasons. First, they show that it is not conventionally abnormal for judges of constitutional courts to have been involved in politics and even join political outfits, either before or after their term in office. Second, they also secure the idea that public outcry to ostensible saffronisation of the judiciary does indicate bias, but not with the judges but rather the observers.
Principally, judges should be understood by their judicial philosophy and the consistency they exhibit in its restrained and proper exercise. This is what contributes to a social understanding of the law as a consistent force. That people are not subject to arbitrary whims.[30] To the contrary, to blame incidental (or even causative) affiliations as having substantive implications on their judicial functions, is to chaff up a mountain where there are no molehills.
Showing the Bull Red
While the particulars of this controversy are ultimately inconsequential, I also wish to catastrophise an aspect of this political churn. Mr Bhatt consistently makes the point that it is a normative requirement that the judiciary appear antagonistic to the executive. He calls this ‘necessary friction’ a ‘constitutional imperative’.[31]
Others, such as the extremely influential scholar Gautam Bhatia, have expressed similar views in different contexts, affirming the idea that ‘[t]he only tangible marker of judicial independence is the displeasure of the executive.’[32]
This view, now emerging amongst the law school class, is positively noxious for the health of the judiciary. Most cases on the court’s docket require them to balance competing interests impartially, especially if they deal with issues of critical mass of the state. For judges to take an antagonistic position would be indicative of partiality. This is not proper even in the limited judicial context, let alone events done extra-curially by the CJI.[33]
This framing of the judicial function confuses one of its specific and particular roles—one that usually emerges, with good reason, when the Court is in seisin of human rights cases with evidence of prolonged abuse—and generalises it as a necessary to all of the work of the judiciary.
There is further subtlety even in this classification. Cases of judicial review are foundationally distinct from those simply applying statutes. The ‘antagonism’, so to speak, tempers in the latter to the point of nullity. Alas, to those with a hammer, everything is a nail.
Ironically, it is positing such necessary hostility towards the executive that would violate the judicial oath, that of employing conduct without ‘ill-will’ and ‘favour’.[34] The fact that the government is the most frequent litigator in the courts indeed enhances the imperative of impartiality. As the Court has previously stated in Supreme Court Advocates-on-Record Assn. v. Union of India,[35] judicial independence requires freedom from ‘any external (or internal) pressure’ or fear thereof.[36]
Lest this relationship be unclear still, it may be wise to remember that when Sir Edward had to see the gaols, it was not evidence of necessary antagonism but rather a shocking breach of democratic conscience.[37] For us, it should not be the source of policy but the disease to prevent.
Conclusion
As Mr Bhatt’s essay’s title demonstrates, a close dance between the executive and judiciary may be dangerous.[38] However, as the CJI recently indicated, such dances are often choreographed to a capacity-building purpose.[39] As this essay has ably demonstrated, the puja in the house of the CJI with the PM visiting is perfectly compatible with judicial independence and secularism.
Broader allegations on a supposed change in judicial philosophy across the service are gainsaid by the historical record. The cumulative effect of such criticism has been the view that the judiciary operates best when it stands aloof with suspicion towards the executive. This essay has tried to quell that line of thought.
It is one matter to understand the political leverage exercised by the PM —donning a sartorial symbol and eyeing the then forthcoming Maharashtra elections. Perhaps the premier is to blame for his inability to exercise his political ambitions from a religious congregation, or alternatively, in appearance with the CJI. But to problematise this exercise as a matter of judicial independence or secularism is not just unwise but reeks of partisan calumny.
Sarthak Sahoo is an undergraduate law student at the Rajiv Gandhi National University of Law, Punjab. The author would like to thank Pranav Aggarwal for his comments on the original draft.
[1] N. Pennant-Rea, The Dancing Plague of 1518, Public Domain Review, https://publicdomainreview.org/essay/the-dancing-plague-of-1518/, last seen on 08/10/2024.
[2] R. Bhatt, A close dance of executive and judiciary is dangerous for democracy, The Leaflet, https://theleaflet.in/a-close-dance-of-executive-and-judiciary-is-dangerous-for-democracy/, last seen on 08/10/2024.
[3] I. Jaising, Why PM Modi and CJI Chandrachud’s public display of faith is troubling, The Indian Express (13/09/2024), available at https://indianexpress.com/article/opinion/columns/pm-modi-cji-chandrachud-ganesh-puja-9565154/, last seen on 08/10/2024.
[4] Supra 2; See also Anmol Kaur Bawa, PM’s Visit To CJI’s Residence Should Have Been Avoided :Senior Advocate Kapil Sibal, LiveLaw (12/09/2024), available at https://www.livelaw.in/top-stories/pms-visit-to-cjis-residence-should-have-been-avoided-senior-advocate-kapil-sibal-269424, last seen on 28/10/2024.
[5] PM hosts iftar party, IndiaToday (18/09/2009), available at https://www.indiatoday.in/india/photo/pm-hosts-iftar-party-362556-2009-09-18, last seen on 28/10/2024.
[6] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
[7] K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.
[8] Assn. for Democratic Reforms (Electoral Bond Scheme) v. Union of India, (2024) 5 SCC 1.
[9] Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1.
[10] K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1.
[11] Supriyo v. Union of India, 2023 SCC OnLine SC 1348.
[12] Romila Thapar v. Union of India, (2018) 10 SCC 753.
[13] R. Elving, What Happened With Merrick Garland In 2016 And Why It Matters Now, NPR, available at https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now, last seen on 08/10/2024.
[14] R. Farrow & J. Mayer, A Sexual-Misconduct Allegation Against the Supreme Court Nominee Brett Kavanaugh Stirs Tension Among Democrats in Congress, The Atlantic (14/09/2018), available at https://www.newyorker.com/news/news-desk/a-sexual-misconduct-allegation-against-the-supreme-court-nominee-brett-kavanaugh-stirs-tension-among-democrats-in-congress, last seen on 08/10/2024.
[15] Justice Ruth Bader Ginsburg Passes, Justice Amy Coney Barrett Seated as Replacement, American Bar Association, https://www.americanbar.org/groups/committees/death_penalty_representation/project_press/2020/year-end-2020/amy-coney-barrett-replaces-ginsburg-on-supreme-court/, last seen on 08/10/2024.
[16] Mohit Pilania v. State (NCT of Delhi), 2024 SCC OnLine Del 452, at ¶19.
[17] R. Donadio, Why Is France So Afraid of God?, The Atlantic (22/11/2021), available at https://www.theatlantic.com/magazine/archive/2021/12/france-god-religion-secularism/620528/, last seen on 08/10/2024.
[18] S. Gupta, ECtHR’s Veil of Ignorance: Intersectionality and Indirect Discrimination in the Belgian Headscarf Ban in School, EJIL:Talk!, available at https://www.ejiltalk.org/ecthrs-veil-of-ignorance-intersectionality-and-indirect-discrimination-in-the-belgian-headscarf-ban-in-school/, last seen on 08/10/2024.
[19] S.R. Bommai v. Union of India, (1994) 3 SCC 1.
[20]Ibid, at ¶310.
[21] J.M. Gest. The Influence of Biblical Texts Upon English Law, 59 University of Pennsylvania Law Review and American Law Register, 15 (1910) available at https://www.jstor.org/stable/3307668, last seen on 08/10/2024.
[22] Golak Nath v. State of Punjab, 1967 SCC OnLine SC 14.
[23] From HT Archives: Zakir Husain wins presidential contest with a big majority, Hindustan Times (11/03/2024), available at https://www.hindustantimes.com/india-news/from-ht-archives-zakir-husain-wins-presidential-contest-with-a-big-majority-101715366417711.html, last seen on 08/10/2024.
[24] See Lok Sabha Secretariat, K.S. Hegde, available at https://loksabhadocs.nic.in/Refinput/eprofiles/English/28042022_162956_1021206200.pdf, last seen on 08/10/2024.
[25] See Collegium Resolution (12/03/2024), available at https://images.assettype.com/barandbench/2024-03/8be4ac91-2a56-48ef-812b-5bc06592a6c4/Collegium_Resolution.pdf, last seen on 08/10/2024.
[26] Anna Mathews v. Supreme Court of India, (2023) 5 SCC 661.
[27] D. Mahapatra, Past political link no bar for becoming judge, says Supreme Court, Times of India (08/02/2023), available at https://timesofindia.indiatimes.com/india/past-political-link-no-bar-for-becoming-judge-says-supreme-court/articleshow/97708466.cms, last seen on 08/10/2024.
[28] V. R. Krishna Iyer, Communist Party of India (Marxist), https://cpim.org/v-r-krishna-iyer/, last seen on 08/10/2024.
[29] HC judge Ferdino Rebello retires, Times of India (31/07/2011), available at https://timesofindia.indiatimes.com/city/goa/hc-judge-ferdino-rebello-retires/articleshow/9426019.cms, last seen on 08/10/2024.
[30] A. Scalia, The Rule of Law as the Law of Rules, 56 The University of Chicago Law Review 1175, 1178 (1989) available at https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4632&context=uclrev, last seen on 28/10/2024.
[31] Supra 2.
[32] Available at https://x.com/gautambhatia88/status/1752305197919973778, last seen on 08/10/2024.
[33] See Supreme Court of India, Restatement of Values of Judicial Life, available at https://main.sci.gov.in/pdf/Notice/02112020_090821.pdf. last seen on 28/10/2024, last seen on 28/10/2024.
[34] Schedule 3, the Constitution of India.
[35] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.
[36] Ibid, at ¶318.
[37] C. D. Bowen, The Lion and the Throne: The Law Is the Safest Shield, The Atlantic (01/1957), available at https://www.theatlantic.com/magazine/archive/1957/01/the-lion-and-the-throne-the-law-is-the-safest-shield/641352/m, last seen on 08/10/2024.
[38] Supra 2.
[39] CJI Chandrachud says PM Modi’s Ganesh Puja visit controversy ‘unnecessary, unwarranted, and illogical’, The Economic Times (29/10/2024), available at https://economictimes.indiatimes.com/news/india/cji-d-y-chandrachud-defends-pms-visit-amid-judiciary-independence-concerns/articleshow/114676719.cms?from=mdr, last seen on 31/10/2024.
The Journal of Indian Law and Society 