By Lokendra Malik and Yogesh Pratap Singh
It is vital for any country governed by the rule of law that its judges decide cases solely on the evidence presented by parties and law. Judicial accountability vanishes when a judge travels beyond the case and makes unnecessary remarks in his decisions. This would set a precarious precedent and is undesirable.
Justice Shekhar Kumar Yadav, a judge of the Allahabad High Court, once again made headlines in a bail order. He suggested to the Election Commission that it ban poll rallies and postpone the UP assembly elections for a few months given the rising Covid-19 cases in the state. In fact, in the last portion of his order, the judge praised the central government for its free Covid-19 vaccination drive and directed the Registrar of the High Court to send a copy of his order to the Election Commission and the Registrar-General of the High Court of Allahabad.
When the judge heard the case, his courtroom was packed with lawyers and this seems to have prompted him to make these remarks. His concerns may be genuine, but such remarks should not be included in the orders of the court.
This is not the first time that Justice Yadav has gone beyond the pleadings in his bail orders/judgments. In July last year, he made some remarks about inter-faith marriages and conversion that also made headlines.
“We come across news of the poor, disabled, and women getting converted after they are brainwashed by external sources. The worst thing is that these practices are funded by elements outside the country and solely done for the purpose of damaging the nation.”
In September last year, the judge observed in a bail order, written in Hindi, that the cow should be declared a national animal and cow protection must be made a fundamental right of the Hindus. He also stated that “scientists believe that the cow is the only animal that exhales oxygen”. These observations were also made while rejecting the bail of an accused, charged for theft and trafficking of cows under the UP Cow Slaughter Act. In the order, the judge wrote a detailed piece about the cow and its religious importance. The order was widely reported in the national and international media and several intellectuals, retired judges and constitutional pundits disagreed with the observations.
In October last year, Justice Yadav asked the centre to consider bringing a law to give national honour and heritage status to Lord Rama, Lord Krishna, Bhagwad Gita, Maharishi Valmiki and Maharishi Ved Vyas. In his order, he also mentioned that Lord Rama resides in the heart of every citizen and India is incomplete without him. These observations were also made in a bail matter in which the accused was charged for making obscene pictures of Hindu deities. Several legal scholars rightly believe that these kinds of remarks should have been avoided by the judge. There were more cases where he went beyond his brief.
These unnecessary remarks go against the well-established principles of criminal jurisprudence, judicial discipline and secular ethos. While deciding a bail application, a judge is not required to make these kinds of remarks that have nothing to do with the facts of the case. A judge is expected to decide the matter in the light of the factual background, case laws and legal principles.
Secularism is a basic feature of the Constitution and a judge is duty-bound to uphold it as per the mandate of his oath of office. No judge has absolute freedom to say anything in his verdicts and that too in a judicial order which is also followed by the district judiciary as a precedent. As a judge of the High Court, he has no need to tell the executive/legislature to enact laws of his choice. This would be violation of the well-settled principles of separation of powers that form part of the basic structure of the Constitution and overrides judicial restraint.
Also, by openly expressing his religious thoughts and beliefs in his judgments and orders, no judge can do justice to his constitutional position and judicial authority. This not only affects the credibility and integrity of a particular judge, but damages the collective dignity, integrity and independence of the entire judicial system. It also diminishes people’s trust in the institution of the judiciary. Such a judge cannot be considered fair-minded, especially when matters relating to religious freedom and minorities’ rights are brought before him. In a country governed by the rule of law, no person has the right to impose his religious views on others.
The Supreme Court collegium recently refused to confirm the appointment of an additional judge of the Bombay High Court as she had delivered a wrong judgment in a POCSO case. The remarks made by Justice Yadav cannot also be brushed aside lightly. Should not permanent judges bear responsibility for delivering wrong judgments? But unfortunately, we do not have any mechanism to deal with this kind of situation. Can the collegium take notice of his remarks? Can the chief justice of India or the chief justice of the High Court take suo motu cognizance of the matter?
It is high time that the Supreme Court takes suo motu notice of his remarks and expunge them as early as possible. It will set a precedent and judges will not lower the prestige, dignity, integrity and authority of the judiciary by making comments that weaken people’s faith in it. Judges write judgments to deliver justice to the people, not for expressing their own views, philosophy and vision. Thus, judges need to write their judgments carefully by following judicial discipline and constitutional principles.
Eminent jurist HM Seervai said:
“If a judge allows his judgment to be influenced by colour, race, religion, and caste, he is not only false to his oath but lacks the judicial approach which is an attitude of the mind, accompanied by a sense of duty and self-discipline.”
—Lokendra Malik is Advocate, Supreme Court and Yogesh Pratap Singh is Professor of Law & Registrar, National Law University, Odisha