The Supreme Court of India in a 1987 judgment paid rich tributes to our high courts by observing, “Our High Courts are High Courts. Each High Court has its own high traditions. They have judges of eminence who have initiative, necessary skills and enthusiasm. Their capacity should be harnessed to deal with every type of case arising from their respective areas, which they are competent to dispose of.” This author is in complete agreement with this statement of the apex court about the general quality of our high courts and has repeatedly criticised the collegium system for making no room for consultation with the high court judges as required by the Constitution.
But hold your breath and compare the above observation with this 2010 assessment of the apex court: “Something is rotten in the state of Denmark, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court.” The court was shocked to see that the matter was decided when the Allahabad Bench did not have even the jurisdiction to decide it as the jurisdiction in that case was of the Lucknow Bench. The apex court was unable to understand how a writ could be issued against a private party when this is the first thing that is taught in law schools in the very first class of constitutional law.
The Bombay High Court has recently ordered that breaking the promise of marriage is neither cheating nor rape but just a failed love affair. The man, accused of rape by his former partner, was given bail. A few days back, the Madras High Court made singing of the national anthem compulsory without even referring to the Supreme Court decision on this subject, which did permit followers of the Jehovah’s Witness sect not to sing national anthem; their silence at the time the national anthem was being sung was held as a lawful exercise of freedom of speech.
The bail order of the Delhi High Court in Kanhaiya Kumar’s case is also strange, not only for its length of 23 pages but also for treatment of the sedition law and the so-called anti-national slogans. The Supreme Court has clearly laid down that mere slogans without accompanying violence do not amount to sedition. Recently, the Nagpur Bench of the Bombay High Court, in a strange ruling, ordered that the sentence of a ‘rape convict could be cut if he agreed to pay `1 lakh to the victim’. Of course, the poor victim accepted the offer. Is India going to adopt the Islamic concept of blood money? The Uphaar tragedy order also substantiated the implied acceptance of the outdated blood money concept.
Similarly, a few days back, the Madras High Court gave a strange judgment by directing that “divorcees too should maintain sexual purity to claim alimony”. This decision not only takes away freedom of choice of the divorcee but also treats her as just a sex object by observing that the man with whom she had such a relationship will have to maintain her. The divorcee must maintain the same discipline which she is supposed to maintain during subsistence of marriage. A few weeks ago, the same High Court had given bail to a rape accused so that he could mediate with the victim. The Supreme Court had to intervene to get the bail cancelled. Two years ago, the Madras High Court had observed that if any unmarried couple of right age ‘indulge in sexual gratification’, it will be considered a valid marriage and they could be termed ‘husband and wife’, with all the rights and duties of matrimonial contract. The 2013 judgment equated adult sex and live-in relationships with marriage. According to court, marriage was just a formality to be complied with for the religious customs of the spouses.
The Allahabad High Court recently went a step further by making it mandatory for all civil servants and their government officials to send their children to only government primary schools. This was done with the noble objective of improving the pathetic condition of government schools in UP. But, here again, there was an attempt to restrict the freedom of choice of parents and children in selecting schools.
A few years ago, the Allahabad High Court had refused to recognise Muslims as a minority even though the Supreme Court has consistently held that any community which is less than 50 per cent in a state is a minority in that state. Sikhs, who constitute a majority, were, however, held as a minority by the Punjab and Haryana High Court. Sometime back, the Punjab & Haryana High Court also held that killing of a cow should be punishable as culpable homicide with an imprisonment which may extend to life imprisonment. We can hardly forget the shocking decision of the Rajasthan High Court where the learned judge refused to accept that a Brahmin boy could rape a Dalit girl, as the former would not even touch the latter or the order of the same high court ordering public execution of a convict who had been awarded death sentence.
Even the highest court of the land recently, orally, asked a convict who had molested a girl about 10 years ago to fall at her feet and if she forgave him, the court would limit the sentence of imprisonment to the period already undergone.
Indeed, our judges probably believe in a sort of secular theology which makes them priests of a modern Delphic Oracle vested with the authority under the holy scripture called Constitution of India to put meaning to rights and liabilities. They are indeed law-givers in the true sense of the term. We continue to address them as “My Lords”. Our judges not only pronounce on legal issues but they also decide even purely religious questions.
The Rajasthan High Court recently refused to accept the well known Jain practice of santhara or sallekhana as an essential practice of Jainism which involves withdrawal from taking food under some very special circumstances and treated it as a criminal offence of attempt to suicide. The apex court subsequently stayed the order.
It’s true that most judges of the superior courts are excellent and highly knowledgeable. Our judges have huge work pressure due to the poor judge-population ratio. But then, the faith of the common man in the country is shaken to the very core by these strange and shocking decisions by a small minority of judges. In fact, there are decisions which are also contrary to law. Thus the old saying of the English law, ignorentia juris non excusat (ignorance of law), applies to everybody except Her Majesty’s judges may sound true when it comes to a few judges of the present generation.
As a senior teacher of law, this author treats it as a collective failure of professors of law, as we are the ones who liberally award law degrees. If we have bad judges or ignorant judges, we are to be blamed for this mess, as we have failed in our primary duty of giving them a high quality legal education and inculcating in them much-needed values of judicial restraint and discipline. I admit the fault is entirely ours.
Prof. Faizan Musthafa is the Vice-Chancellor, NALSAR University of Law, Hyderabad.
This Article is first published in The New Indian Express. LiveLaw republishing it with the permission of the Author. Views are personal of the author and does not reflect Live Law’s views.