Column | In Defense Of “Justice”

On 8th December 2024, Justice Shekhar Kumar Yadav of the Allahabad High Court attended an event organised by the Vishwa Hindu Parishad's legal cell on the topic - 'Uniform Civil Code'. During the event, a certain section derided him alleging that few of his remarks were not in good taste, which was later alleged to be “hate speech”, “unbecoming of a judge”. Following the selective uproar, the Supreme Court called for ‘details and particulars’ of the event from the Allahabad High Court on 10th December 2024. This was followed by the Collegium of the Supreme Court summoning Justice Yadav to Delhi for an interaction. Notably, on 13th December 2024, few opposition members went to the extent of moving an Impeachment/Removal motion in the Rajya Sabha against the Judge.

The primary objection was with respect to two of the statements made by Justice Yadav where a reference was made to “kathmullas” and where an assertion was claimed to have been made that “कानून तो भइया बहु संख्यक से ही चलता है”.

The Context

Having taken a glimpse of the controversy, it is pertinent to appreciate the remarks and the context in which these were made. The topic for the discussion was – Uniform Civil Code. Uniform Civil Code is a constitutional mandate to the state, and has been advocated by luminaries and founding fathers like Dr. B R Ambdekar. It has also found its place in the Directive Principles of State Policy under Article 44 of the Constitution. In the case of Minerva Mills vs. Union of India (1980) the Supreme Court rightly held that the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles. Not only this, a Constitutional amendment was brought in to introduce Article 31C {inserted by the Constitution (Twenty-fifth Amendment) Act, 1971, s. 3 (w.e.f. 20-4-1972)} to declare that any law made to give effect to the DPSP shall not be called into question/annulled before/by any court of law. The said provision is extracted hereunder:

“31C. Saving of laws giving effect to certain directive principles.—Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.”

Justice Yadav inter alia stated that being a Hindu does not require one to bathe in Ganga and apply sandal paste on the forehead. Hinduism as also held by the Hon’ble Supreme Court is a way of life, and anyone who follows the basic tenets of the religion is a Hindu. As Justice Yadav acknowledged in his address that there was opposition when reforms were brought in the Hindu Personal Laws there was resistance from the community, however, the Parliament un-dissuaded held on to the reforms and brought in the legislations. As also evident from the contents of the speech, the intent of the address was to enhance respect for women, not only by drawing parallels to gods but also by echoing what the Hon’ble Supreme Court held in a plethora of judgments advocating gender justice and restoring the dignity of women from Shah Bano to Shayara Bano. The response to these judgments was varied as per the respective governments during the relevant time. However, the constitutional promise must prevail. As rightly echoed by Justice Yadav, India as a civilised nation cannot permit the efforts made by Raja Rammohan Roy and Ishwar Chandra Vidyasagar to be reduced to naught, by denying women their rights.

Justice Yadav stated as under:

“Let me clarify it that not all the people we are talking about are bad. But the evils and malpractices which I am talking about are believed to be undesirable by them as well. They are not in favor of four wives, nor are they in favor of triple talaq. They are also not in favor of infanticide of the girl-child. But the (kathmullas) unqualified religious teachers/bigots, the word itself for it is unsavoury, however, there is no hesitation in saying that they are harmful for the country. They instigate people and create disharmony. These are the kind of people who do not want the country to progress. We need to be cautious of them because this Common Bill is not limited to only the evils present in the Personal Law. When these evils are abolished, our country shall move ahead on the path to progress. As a nation, we are moving ahead and will keep moving at a fast pace but there is a need that we make a Uniform Law and move ahead. No country can progress without a Uniform Law.”

When Justice Shekhar says that India will function as per will of the majority, what he is referring to is the nature of Indian polity which is a parliamentary democracy where the government is elected by vox populi, and as such public policy cannot be kept hostage to the tyranny of extremist elements and bigots.

The intention as is apparent from a perusal of the speech in its context while making the said reference in the speech was to deride and frown upon the extremist forces and hard-core elements who try to portray themselves as advocates of the communities and in the garb of religion, oppose any reforms in the personal laws, be it for the equal treatment of women to property and matrimonial rights. These words in the way they were put can be said to be sending a message that it is high time that there be a common civil code to ensure similar provisions of personal law to all persons irrespective of their religion.

Even otherwise, the Oxford Hindi-English Dictionary (1994) published by Oxford University Press defines Kathmulla as an ignorant mulla/school teacher or a bigot which in general connotation also refers to one who is ignorant and fanatic. When Justice Shekhar criticised “kathmullas”, what he was referring to was the lumpen elements and hard-liner bigots claiming themselves as messiahs of their faith and those who term every reform as an attack on their faith. In his own words, he clarified that not all the people of a particular community can be termed to be evil-minded, rather many amongst them oppose the evils and malpractices prevalent being that of having four wives, triple talaq, infanticide, etc. In this context Justice Yadav proceeded to remark that there are (kathmullas) unqualified religious teachers/bigots are harmful for the country - since they instigate people and create disharmony; and we need to be cautious of these elements who abrupt the progress of the country.

In India, the judicial conduct is supposed to be based in the “Restatement of Values of Judicial Life”, as adopted by the Supreme Court in 1997, which serve as a moral and ethical compass giving direction to the role of a judge. In the backdrop of these remarks, certain segments claimed that by referring to certain religious practices and communities, he had breached the line of impartiality. Such an argument is fallacious at its core. Advocating the right of women to receive maintenance irrespective of religion, cannot rationally be branded as being communal, more so when the Uniform Civil Code - the topic under discussion is in itself a constitutional mandate.

The judiciary collectively and Judges of the Constitutional courts individually, are “sentinel on the qui vive” - watchful guardians of democracy and of the fundamental rights of the people. What Justice Yadav expressed was in letter and spirit a manifestation of this principle. It vindicates the essence of what the Restatement of Values of Judicial Life and parallel codes in other jurisdictions seek to achieve—a judiciary that remains both above the political fray and attuned to the imperatives of justice, equality, and human dignity.

The Collegium Conundrum

The Supreme Court Collegium is a sui generis congregation of senior most judges of the highest court of the country, albeit on the administrative side. The function of the Collegium of the Supreme Court, comprising the Chief Justice of India and the four senior-most judges, is limited to recommending the appointment and transfer of judges. On the administrative side, the Supreme Court cannot prima facie be said to be exercising control over the judges of the High Court. The President of India has the constitutional authority to appoint, transfer, and determine the salary of High Court judges. While the power of appointment and transfer rests with the President, these actions are carried out based on the recommendations made by the Collegium of the Supreme Court.

Furthermore, in terms of Article 124(4) and (5) of the Constitution of India, a judge cannot be removed from his office except by an order of the president, passed in pursuance of the impeachment resolution passed by a special 2/3rd majority, after a thorough inquiry into the allegations against the judge. The only grounds for the removal of a judge are proven misconduct or incapacity. Misconduct refers to behaviour that undermines the integrity and independence of a judge or the judiciary, such as corruption, sexual harassment, or financial misconduct.

The Supreme Court Collegium is a recommendatory body and not the appointing authority of High Court judges, similarly it cannot transfer High Court judges, it has no powers to fix the salaries of High Court judges, and the Supreme Court has equally no role to play in the removal of High Court judges. Therefore, with respect to a permanent judge of the High Court, the only adverse action the Supreme Court Collegium can take is recommending their transfer to another High Court.

Article 222 of the Constitution provides that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court within the territory of India. The Judges of High Courts are transferred as per the said Article as interpreted by the Supreme Court and according to the procedure laid down in the Memorandum of Procedure prepared in 1998 pursuant to the Supreme Court Judgment of October 6, 1993 (Second Judges case) read with the advisory opinion of October 28, 1998 (Third Judges case). As per the existing MoP, the proposal for transfer of High Court Judges is initiated by the Chief Justice of India in consultation with four senior-most puisne Judges of the Supreme Court. The MoP further provides that the Chief Justice of India is also expected to take into account the views of the Chief Justice of High Court from which the judge is to be transferred, as also the Chief Justice of the High Court to which the transfer is to be effected, besides taking into account the views of one or more Supreme Court judges who are in a position to offer views. All transfers are to be made in public interest i.e. for promoting better administration of justice throughout the country.

Thus, it is evident that while the Supreme Court Collegium has the authority to recommend the transfer of a High Court judge, such a recommendation is only acted upon after due clearance by the Central Government. In conclusion, if the Supreme Court recommends the transfer of Justice Yadav anytime soon, it will be called a whimsical exercise in frivolity and is likely to have a chilling effect on judges speaking outside the Courtroom.

The Collegium’s decision to summon Justice Yadav appears to be guided by the sudden media uproar and objections raised by certain sections of the bar. A Judge of the High Court derives their authority from the Constitution of India, and it may well be unprecedented and outside the competence of the Supreme Court Collegium to call upon a High Court judge to explain their conduct. Even if hypothetically, it were assumed that it is proven that Justice Yadav engaged in misconduct, his transfer to another High Court would serve no purpose. The only course of action would be impeachment proceedings, that too would succeed only if 'proven incapacity' or 'misconduct' is established against him. This leaves one wondering, does Collegium have the mandate to undertake such a colorable exercise on the administrative side, since, as held by the Supreme Court on the judicial side - things that cannot be done directly should not be done indirectly.