Two cases, two judges — a watershed moment for India

The second week of December has been a pivotal period for the Indian judiciary, a week in which it has both plumbed the depths of  ignominy, and simultaneously raised aloft the flag of our Constitutional principles. This paradox has been persisting for some time, with no corrective action being taken, but it has now come to a head and can no longer be ignored. 

This was the week in which a superior court judge, justice Shekhar Yadav of Allahabad High Court, decided that the time was ripe for him to walk out of the closet in resplendent saffron robes, a kind of perverted Second Coming.

We should not have been surprised, of course, for the general portents were visible for a long time among his fraternity, in judgments and obiter dicta: the tête-à-tête with deities for guidance, the call to declare the cow as the national animal, the expressed fear that if conversions are allowed Hindus would become a minority, the verbal defenestration of the Places of Worship Act, the indecent haste in ordering surveys and excavations in mosques, the confession by another judge that he had always been an RSS admirer, the admission of a judge into a political party just days after retiring.

But we saw these as mere flirtations — until justice Yadav decided to tell the whole world about his torrid and hitherto unspoken love affair with the religious right.

In brazenly attending a function of a strident Hindu organisation, by calling Muslims 'kathmullahs', in asserting that this country would be governed by the wishes of the majority religion, by diagnosing Muslims as being devoid of any compassion because they slaughter goats, by expressing the view that their children have violence instilled in their pysche, and casting other abominable slurs on the practitioners of this religion, this judge crossed many red lines, lines which had started becoming blurred since 2014 but had not been entirely wiped away.

It is learned that some Opposition parties have submitted an impeachment motion against him in Parliament; this will be symbolic at best since the government, as per usual practice, is not likely to support the motion, and the former lack the numbers anyway.

The Supreme Court has asked Allahabad High Court for a report and summoned the offending judge, and one hopes that it will take the strictest possible action if the report confirms that justice Yadav violated his oath of office, the Constitution and the Restatement of Judicial values reiterated by the SC.

Mere censure or withdrawal of judicial work is not punitive enough — justice Yadav can no longer be trusted with the administration of justice, he has exposed unrepentantly his biases and religious bigotry. The CJI should ask him to resign, and if he does not do so, the SC should recommend his impeachment to both the President and the prime minister.

The moral imperative in such a message shall make it well nigh impossible for the government to oppose the impeachment motion brought by the Opposition parties. This corrective action is essential to retrieve some of the ethical capital which the judiciary has lost in the last few years.

But all was not Cimmerian darkness this week, for with the change of chief justice of India, a beacon which had gone out was switched on again. A much awaited and much needed judicial high was achieved on 12 December 2024, when another shameful legacy of the previous CJI was dismantled by his successor, Justice Sanjeev Khanna.

By injuncting all further petitions and surveys of places of worship (read mosques and dargahs) and restraining all courts from passing any orders on pending cases, he has largely undone the horrific damage Chandrachud had done to our social fabric.

CJI Khanna has done more to protect the integrity and plurality of our country and its Constitution in one day than his predecessor could in two years. Equally important, he has now forced the Central government to file its response to the Constitutional challenge to the Places of Worship Act, within four weeks.

It will be interesting to see how Mr Modi's government reacts in both cases — the impeachment notice against justice Yadav and the challenge to the POW Act. Will it stick to its unstated intention to suborn the judiciary and its stated aim of demolishing all mosques (I believe more than 1,800 of them have been identified for this honour, but this is probably an underestimation), or will it bite the bullet and plump for upholding the law and the Constitution?

Somehow, no matter how hard I try, I cannot visualise the latter dénouement. But ripping the mask off the face of despotism and bigotry is in itself no mean achievement in these precarious times.

These two cases present a watershed moment for the country, and how our institutions respond to them will determine for the foreseeable future the direction in which the history of this country shall flow.

Avay Shukla is a retired IAS officer and author of Disappearing Democracy: Dismantling of a Nation and other works. He blogs at avayshukla.blogspot.com