29, Sep 2007

September 2007

To

 Justice KG Balakrishnan

Chief Justice of India

Ref: When Judge Turns Partisan

We, citizens of India, committed to a secular and democratic state and polity, are shocked at the recent statements by Justice Srivastava of the Allahabad high court last week, a few days before his retirement from the judicial services. Five days before he was to be relived of his responsibilities, he passed yet another bizarre judgment, recommending that the Government of India declare the Bhagwad Gita as the country’s national ‘dharma shastra’ or religious book. He also made unwarranted comments about non-Hindus, particularly Muslims.

We believe that the Judge, occupying a sanctified and constitutional position, was guilty of grossly misusing it, and worse, actually giving credibility and sanction to forces that have over the past three decades made severe inroads into India’s tested secular democratic values.

Former Chief Justice of India V N Khare has already pointed out the unconstitutional nature of the remark. “It’s a personal view, which you (the judge) cannot impose in a judgment. What he (the judge) says is not constitutional,” says Khare.

In this petition, addressed to the HonÂ’ble Chief Justice of India, we wish to raise some fundamental issues. Issues related to the facts of this particular case and also to the wider issue of judicial accountability.

Justice S.N.Srivastava of the Allahabad High Court, who retired earlier this month, appears to revel not just in controversy, but in overstepping judicial limits. A few months ago, he had opined that Muslims in Uttar Pradesh were not a minority, although they form only around a fifth of the population of the state.

In the current controversy, too, he overstepped his brief. The case in hand did not require Srivastava to pontificate on the Gita, let alone recommend that it be thrust upon all Indians as the national ‘religious book’.  A scrutiny of the judgement shows that he has gone several steps further.

The case that Srivastava was hearing related to a dispute over religious endowment, a property dedicated to the Hindu deity Shri Shaligram Shila, a form of Krishna, in the Mohalla Til Bhandeshwar locality in Varanasi. The case involved two Bengali Brahmins, Shyamlal Ranjan Mukherjee and Nirmal Ranjan Mukherjee, both of whom claimed control over the said property. The former, the petitioner in the case, had shifted to Gujarat for work, and in the meanwhile the latter sold the said property to a fellow Hindu. In his complaint, the former questioned this sale deed, claiming that a person entrusted with the responsibility of taking care of a property dedicated to a Hindu deity could not sell or mortgage it. In his defence, the latter argued that he had sold the property because the locality in which it was located had been allegedly affected by ‘communal violence’ for many years, because of which he and his family had felt insecure, compelling them to shift to Allahabad, along with the deity he was meant to take care of. These were the bare facts of the case. Instead of restricting himself to the case, Srivastava proceeded to make uncalled for observations. Expanding on the defendant’s claims of his locality being affected by communal tension seems to have been taken at face value by Srivastava, who used it to create the distinct impression in his judgement that Hindu temples in particular were under attack in Uttar Pradesh and elsewhere. Not content to limit himself to the dispute on hand, the Judge thought it proper to use lengthy references to colonial and Hindutva writings on alleged temple destruction by Muslim rulers, which, of course, have no direct bearing on the case. These have but seem to have been consciously brought in
to propagate a clearly political agenda that has been used to justify attacks on the countryÂ’s minorities.

The lengthy judgement by Srivastava makes no reference to the wanton destruction of Muslim places of worship beginning with the destruction of the Babri Masjjid, and preceded by regular anti-Muslim pogroms, in Uttar Pradesh and elsewhere. The Judge has gone further to support the state amicus curaea, Sanjay Goswami’s case for state protection to Hindu temples in Uttar Pradesh by referring to his contention that if no such protection were provided a time might come when properties of temples or religious institutions will go in the hands to (sic.) anti-Hindu forces and communal forces will be encouraged to create communal tension who (sic.) would engineer atmosphere of communal violence to grab Hindu religious institutions’. (The conduct of Goswami, as friend of the court, is also questionable). No mention was made here of Muslim religious institutions grabbed or destroyed by Hindutva hordes, a major phenomenon in post-1947 north India. Nor did Srivastava appear to take serious note of the fact that the disputed religious property that the case he was hearing was sold to a Hindu, and not to a Muslim, a fact that might have greatly weakened his argument about ‘anti-Hindu’ forces allegedly seeking to capture Hindu shrines.

Not limiting his judegement to advocating special police protection for all Hindu religious institutions, Srivastava went on to refer in great detail to the contention of I.N. Singh, counsel for the Kashi Vidwat Parishad, Varanasi, who argued that the Hindu god Krishna, whose temple was at the centre of the present dispute, had a particular universal ‘importance’, because he had ‘given us Gita (sic.), which is a dharma shastra not only for the Hindus, but for the entire human being (sic.)’. Singh urged that the Gita be declared as the ‘national dharma shastra’, or holy code of duties, of India, claiming that it had ‘nothing to do with any particular religion’, but, rather, that it propounded a ‘theory of duties of human beings’. He insisted that the Gita’s message was ‘relevant for all religions of the world’. He further urged that the state of Uttar Pradesh be directed to protect all [Â…] religious institutions of all beliefs and thoughts (religions) (sic.) within the fold of Hinduism’. In his judgment, Srivastava broadly concurred with this argument, claiming that such protection was necessary if ‘a temple or any other religious institution belonging to (sic.) Hinduism are (sic.) affected by frequent violence/tension’, adding that this was necessary in order to protect the religious freedoms of the Hindus as guaranteed by the Indian Constitution. SrivastavaÂ’s judgement is nothing short of a fabrication of historical fact and worse, attempts judicial legitimacy to communal propaganda, a phenomenon that has been the route of escalating communal tension in this country for decades.

We urge you,.Sir, as Chief Justice of India to take serious note of this behaviour by a sitting judge of the Allahabad High Court, days away from retirement. Such judgements serious affect the non partisan character of the Indian judiciary, a non negotiable in Indian democracy. Such a judgement also raises issues of professional ethics of judges, who after retirements seek and get posts over which such remarks may exercise influence. For the Indian judiciary to retain its past reputation of impeccable integrity, a judgement of this kind must be condemned. As the person at the very top of the judicial pyramid, Sir, the Chief Justice of India, we appeal to you to ensure that such pronouncements are not made, unchecked.

Signatories