Above: Justice SR Sen (left) of the Meghalaya HC promoted the idea of a Hindu nation; Allahabad HC’s Justice SP Kesharvani praised the Ayushman Bharat scheme

Increasing instances of open praise of politicians by sitting judges make judicial independence suspect in the eyes of the people

By Atul Chandra in Lucknow

It was Justice SR Sen of the Meghalaya High Court who started the trend when, in a judgment given on December 12 last year, he asked the central government to bring in laws to let people of religious and ethnic minority communities from Afghanistan, Bangladesh and Pakistan get Indian citizenship without any cut-off year or any questions asked. In the process, he found nothing wrong in heaping praise on Prime Minister Narendra Modi. “I make it clear that nobody should try to make India as another Islamic country, otherwise it will be a doomsday for India and the world….I am confident that only this government under Prime Minister Narendra Modi will understand the gravity, and will do the needful as requested above,” Justice Sen said.

The trend now seems to be catching on despite Justice Sen’s remarks inviting strong criticism from various quarters. Earlier this month, it was the Allahabad High Court’s Justice SP Kesharvani who followed Justice Sen’s path albeit with a slight difference. While delivering a judgment in a case pertaining to land acquisition on April 12, the judge observed, “…the life of farmers is being spent in continuous struggle for survival. They have to face fluctuation in prices due to drought, floods and input cost. They don’t have the right to determine the price of their produce like corporate houses. Middlemen take advantage of farmers’ hard labour.” Justice Kesharvani said that farmers should be given proper compensation for their land being acquired. He then praised the Ayushman Bharat scheme introduced by the Modi government, and said that the free healthcare scheme will be very useful for farmers passing through an adverse phase. “By providing free healthcare to farmers, the government has taken steps towards fulfilment of the dreams of Dr BR Ambedkar and Mahatma Gandhi,” Justice Kesharvani said.

The earliest instance of blatant admiration of politicians by judges was recorded on January 15, 1980, when Justice PN Bhagwati of the Supreme Court wrote a letter to then Prime Minister Indira Gandhi, saying: “May I offer you my heartiest congratulations on your resounding victory in the elections and your triumphant return as prime minister of India? It is a most remarkable achievement of which you, your friends and well-wishers can be justly proud. It is a great honour to be the prime minister of a country like India.”

Justice Bhagwati’s letter invited strong indirect criticism from Justice VD Tulzapurkar, also of the Supreme Court. He commented, “If judges start sending bouquets or congratulatory letters to a political leader on his political victory, eulogizing on assumption of high office in adulatory terms, the people’s confidence in the judiciary will be shaken.”

But the above seems tame compared to what Justice Sen wrote in his 37-page judgment, a substantial portion of which was reserved to promoting the Hindu cause. “Pakistan declared themselves an Islamic country and India since was divided on the basis of religion should have also been declared a Hindu country but it remained a secular country. Even today, in Pakistan, Bangladesh and Afghanistan, the Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis, Jaintias and Garos are tortured and they have no place to go and those Hindus who entered India during partition are still considered as foreigners, which in my understanding is highly illogical, illegal and against the principle of natural justice.” He added: “India achieved independence through bloodshed and the worst sufferers were Hindus and Sikhs who had to leave their forefathers’ property, birthplace with tear and fear and we will never forget that (sic).”

Justice Sen subsequently clarified his remarks and said that “he was not a religious fanatic”. On his mentioning Modi, Justice Sen’s clarification said, “I would like to make it clear that when I mentioned the government under Shri Narendra Modiji, it is inclusive of the Hon’ble ministers and Hon’ble members of both the Lok Sabha and Rajya Sabha. I also mentioned the chief minister of West Bengal, which did not mean that chief ministers of other states were not included. My request was to the policymakers and lawmakers of the country.”

Justice MR Shah of the Supreme Court was also not shy of praising Modi. He once remarked that “Modi is a model and a hero”. Justice Shah made this remark when he was chief justice of the Patna High Court. He was subsequently elevated to the Supreme Court. In January 2015, then Chief Justice of India HL Dattu had also commented on Modi, saying: “I rate him as a good leader, good human being and a man with foresight and one who wants good governance.”

Writing in this magazine in mid-2018, Prof Upendra Baxi had said “episodes of ideological or political party affiliation of appellate justices have sent eddies and whirlpools across the calm still waters of adjudicative process. Only triumphant confidence and serenity have met this occasional disquiet.” He had written this when Justice Abhay Thipsay, a retired judge of the Bombay and Allahabad High Courts, joined the Congress. “Many a brethren have publically hailed Justice Thipsay for having a just reputation of being an honest and upright judge, and he himself has stated that throughout his judicial career, he decided cases without fear and favour, according to the law and the Constitution regardless of the impact on political parties. There is no constitutional or legal prohibition on former judges joining a political party. In fact, illustrious retired justices have joined leading political parties (or become nominated members of the Rajya Sabha) and this includes two chief justices of India. This list includes former chief justices of India Ranganath Misra and P Sathasivam (current governor of Kerala) and Justices Baharul Islam, KS Hegde (who adorned the office of Speaker of the Lok Sabha), Vijay Bahuguna (who accepted the chief ministership of Uttarakhand) and M Rama Jois (who joined the RSS/BJP after retiring as chief justice of the Karnataka High Court). Two retired justices of the Supreme Court even displayed presidential ambitions and one occupied the high position of vice-president of India. And our jurisprudence was immeasurably enriched by Justice VR Krishna Iyer who served once as law minister of Kerala.”

Justice Sen has since clarified that he had no political ambition nor was he eyeing any political berth after retirement. Yet what critics found detestable about Justice Sen’s judgment was that it was perhaps the first time that a judge had made polarising observations as part of his judgment. But it is still a matter of debate if such open praise of politicians by sitting judges makes judicial independence suspect in the eyes of the people who start looking for political bias in their judgments.