It is simply naïve to dismiss Meghalaya High Court judge S.R. Sen’s judgment that says “India should have been declared a Hindu country” as a post-retirement job application to the Narendra Modi government.
The judge and his decision pose a larger question for the judiciary – What do we do with judges who rely on their inherent prejudices instead of the logic of law to arrive at judicial decisions? There is now a growing tribe of judges who cannot confine themselves to reason and logic.
Who can forget Justice Mahesh Chandra Sharma of the Rajasthan High Court who said that peacocks don’t have sex?
Justice J.B. Pardiwala of the Gujarat High Court who said in a reported judgement in 2015 that “it is very shameful for any citizen of this country to ask for reservation,” a right guaranteed by the Constitution, still has a decade-long tenure. Pardiwala later surreptitiously deleted his remarks in the judgment after 58 Rajya Sabha MPs signed on an impeachment motion.
Justice Devadass, who in 2015 directed ‘mediation’ between a rape survivor and the alleged rapist, only had to recall his order and continue working like nothing ever happened.
Justice Bhaktavatsala of the Karnataka High Court routinely made sexist remarks and asked women to ‘adjust’ and tolerate physical abuse by husbands while hearing divorce cases. After a huge public outcry in 2012, the judge was taken off the divorce roster but continued his role in a constitutional court. In 2014, he even got a fancy post-retirement gig from the government.
Yet, if you look at other judgments of such judges, they are fairly rational, which makes it easy for anyone to dismiss them as an aberration. But it is a dangerous culture that has settled deep in India’s judiciary.
It is also unsettling that Justices Sen and Sharma’s attitudes are ‘discovered’ only when their retirement is just round the corner. It is telling that their insecurities of a post-retirement life possibly manifested in such horrible judgments.
While Sharma spoke to television channels about his judgment to ensure the word spreads, Sen has asked the additional solicitor general to deliver a copy of the judgment to the Prime Minister’s office. Incidentally, Sen has also on 10 December taken up a case suo-motu and granted himself a number of post-retirement benefits including protocol and specific mobile phone allowance.
This desperation does not speak highly of the judiciary and demands urgent course-correction. The bright spot is the public announcement by two recently retired Supreme Court judges – Justices J. Chelameswar and Kurian Joseph – that they will not take up post-retirement jobs from the government.
While this is a small step in inspiring other judges, there is a need for more concrete steps. From increasing the age of retirement to bringing in a mandatory cooling off period, there are solutions that neither the government nor the judiciary seems interested in.
Public interest litigation is another tool that judges are making use of to send messages to the government. By taking populist stances devoid of any legality, judges are indirectly championing the cause of the government. Take for instance former CJI Dipak Misra’s orders on mandatorily playing the national anthem in cinema halls, which came at a time when Hindutva groups were upping the nationalism rhetoric ahead of the state elections.
While analysing the root cause of why so many judges are not hesitant to be seen pandering to the government, legal scholars lay the blame on the advent of public interest litigation that brought populism to the court.
It is then perhaps telling that Justice P.N. Bhagwati, the judge credited with cementing the PIL jurisprudence, wrote to Indira Gandhi congratulating her on returning to power.
For judges of high courts, a public outcry or attention to such mind-numbing orders can thwart their chances of being elevated to the Supreme Court.
The constitutional framework for dealing with errant judges is only impeachment, a complicated political process involving Parliament. While the judiciary has interpreted the Constitution to expand its role and draw more powers, it has done nothing to make itself accountable. The judiciary has simply looked away when judges have made sexist, casteist, xenophobic and sometimes even utter nonsensical remarks.
Between impeachment and doing nothing, there is a complete lack of accountability that is often encouragement for judges like Sen. In contrast, a Canadian Federal judge who made utterly sexist remarks in a rape trial was ultimately forced to resign after a massive protest from civil rights groups. He later stood trial for his jaw-dropping misogynistic conduct.
Bar Associations have to play a role in calling out such judges and must refuse to appear before them. More public scrutiny on what judges say and do also makes judges sit up and take notice.
There is a need for a better institutional framework to periodically gauge and evaluate the conduct of judges. Till then, calling them out in public, like it has happened in Sen’s case this week, seems to be the only solution till institutional solutions are brought in.