The project to rein in the judiciary

The recent denunciation of the Supreme Court and the judiciary by BJP member of Parliament Nishikant Dubey is, in fact, an attack on the Constitution and its fundamental principles and values. When Vice President Jagdeep Dhankhar and Nishikant Dubey reject judicial review of the actions of the highest authorities—the President and Parliament—they are, in effect, asking for the restoration of the pre-Constitutional principle that ‘the king can do no wrong’.

By rejecting the Supreme Court’s protection of the Constitutional rights of backward classes, minorities, SC, ST and women against exploitation, dehumanisation and oppression as ‘triggering civil war’, they are, in effect, lauding exploitation, dehumanisation and oppression as ‘social peace’.

Instead of being concerned that the President did not act with reasonable timeliness when a state legislature—of an opposition-ruled state— sought the President’s assent for laws adopted by the Legislature, the Hon’ble vice president is incensed that the Supreme Court protected the right of a state legislature to have a timely decision.

Why are the judiciary and the Supreme Court being attacked?

A century-old project led by the RSS has laboured to establish a theocratic, autocratic, hierarchical Hindu Rashtra in India. The adoption of a liberal democratic Constitution that enjoys the support of the masses presented a huge challenge to this project—and taking down the Constitution, in substance if not form, has been the foremost objective of the project ever since.

The Modi government has carried forward the Hindu Rashtra project with unprecedented speed, intensity and force over the past decade, especially since 2019. The project has moved forward in several BJP-ruled states to varying degrees starting in the first decade of this century.

As a result, in BJP-ruled states and in the Union government, the executive and legislative branches have been brought under the control of Hindu Rashtra forces and are by now considerably Hinduised— or are, from their point of view, ‘liberated’ from the secular, socialist, democratic content of the Constitution. This has happened to such an extent that it appears that a nascent Hindu Rashtra is already in place in India as far as the executive and legislative branches are concerned.

Controlling the judiciary as soon as possible is vital for the Hindu Rashtra project. This is because it may not be practicable to proclaim India a Hindu Rashtra via Parliament abrogating the present Constitution and adopting a new Hindu Constitution. Such an enterprise may face mass opposition from the people.

A more practicable way to proclaim a Hindu Rashtra may be through judicial (mis)interpretation by the Supreme Court of the current Constitution as a Hindu Constitution and the Republic as a Hindu Rashtra, accompanied by many other complementary (mis)interpretations of many aspects of the Constitution and the law from a Hindu Rashtra perspective.

However, the Hindu Rashtra project has been unable to make adequate inroads into the judiciary. Over a decade after the Modi government came to power, the selection and first appointment as a High Court or Supreme Court judge were vetted by the Modi regime with respect to only two out of 32 sitting judges of the Supreme Court (as of 24 April 2024).

The two judges vetted by the Modi government were directly appointed to the Supreme Court from the Bar in 2021 and 2023. Two other sitting judges were vetted by the Atal Bihari Vajpayee government when they were appointed as High Court judges in 2003.

While some decisions of the Supreme Court and some High Courts have embraced the Hindu Rashtra, and look to ‘sanatan dharma’ as ‘grundnorm’ (these may be called ‘theocratic’ rather than ‘constitutionalist’ judgements), the judiciary as a whole is, at present, the only branch of the State that is not under the total control of the votaries of Hindu Rashtra, and in which there is still a possibility of defending the Constitution and staving off the imposition of a theocratic, autocratic Hindu Rashtra.

Part of the reason the judiciary has managed to hold out may be that thanks to the collegium system, the BJP–RSS have not been able to directly influence judicial appointments as much as they would have in the absence of the collegium mechanism.

What if, hypothetically, the National Judicial Appointments Commission (NJAC) Act had not been struck down by the Supreme Court, and consequently the collegium was abolished and appointments were made by the NJAC?

Given that the NJAC was to have six members (the CJI; the two seniormost judges of the Supreme Court after the CJI; the Law Minister; and two eminent jurists selected by a three-member panel (consisting of the Chief Justice of India, the Prime Minister and the Leader of the Opposition), all it would have taken for the Government to gain full control over the appointment of Supreme Court judges would be to have a Chief Justice (there have been eleven since 26 May 2014) align with the Government on the selection of the two jurist members of the NJAC and, after that, for any one of the three judges who are on the NJAC (including the CJI) to align with the Law Minister and the two jurists on the actual selection of judges.

Without the collegium system, therefore, it is conceivable that by now many, if not all, of the 50-odd vacancies that have occurred in the Supreme Court after the Modi government came to power on 26 May 2014 would have been filled by judges aligned with the Hindu Rashtra project either by direct elevation from the Bar or the High Courts or from the ranks of jurists—and this bastion of the Republic too would have fallen. The same logic would broadly apply to the selection of high court judges.

This calamity has been prevented by the collegium system, which is, at least for now, a stumbling block for the Hindu Rashtra project of exercising full control over the judiciary. There is, therefore, intense frustration and anger with the judiciary amongst many of the supporters of the Hindu Rashtra project. They are unhappy that the Court is still asking for legal justification and evidence for Hindu Rashtra claims that there were temples where mosques stand now or for implementing new laws on Waqf that will, in effect, choke Muslim religious institutions.

For votaries of the Hindu Rashtra, a compliant judiciary is not good enough—they do not want a judiciary at all. Their plan is to revert to a system in which wise Brahmins will decide what is right or wrong in accordance with the ‘shastras’ and ‘sanatan dharma’.

To them, it is immaterial that the project does not have a popular mandate—in 2024, the BJP secured only some 36 per cent of the total votes cast (236 million), which is about 16.5 per cent of the population of India. The BJP does not currently have a single-party majority in the Lok Sabha.

What should be the response to these attacks?

The collegium system should be strengthened and maintained to ensure that only judges who will protect and defend the Constitution are selected. This is to ensure that those who seek to replace the Constitution with a Hindu Rashtra do not have the power to select and appoint Supreme Court and High Court judges.

The use of criminal contempt against these political leaders may only project an image of a judiciary that violates the ‘Nemo judex in causa sua’ principle (‘no one should be a judge in his own case’) by sitting in judgement over criticism against itself, deciding whether the impugned speech has ‘scandalised or lowered the court’s authority’ without any objective criteria or evidence to measure and prove that this has indeed happened.

The attacks provide an opportunity for the Supreme Court and High Courts and judicial academies to raise public awareness about the Constitution and what it means for the common people of India.

In today’s world of social media and mass communication, courts in India should move beyond the ancient principle that courts and judges only speak through their judgements. They should respond to such criticisms with reason and courtesy and explain the judgements concerned in simple lay person’s terms.

The oaths of office prescribed by the Constitution for Supreme Court judges, High Court judges and the Comptroller and Auditor General of India have five additional words not found in any other oath: ‘I will uphold the Constitution.’

In these perilous times, judges must take these five words with the utmost seriousness. Judges must proactively uphold the Constitution in letter and spirit. To better protect the Constitution from its gravest threat, it is time to confront and repudiate effectively the idea of a theocratic, autocratic Hindu Rashtra in India.

(Dr G. Mohan Gopal is a professor of law and a pro bono lawyer in the Supreme Court of India. He is a former Director of the National Judicial Academy of the Supreme Court of India and a former vice chancellor of NLSIU, Bangalore. A slightly modified version of this piece appeared simultaneously in The Leaflet)