Theocratic Judges Who Find Source Of Law In Religion Than Constitution Have Sharply Increased: Dr Mohan Gopal

Renowned legal academician Dr Mohan Gopal delivered a speech at a seminar organized by the Campaign for Judicial Accountability and Reforms (CJAR) on "Executive Interference in Judicial Appointments." In his speech, Dr. Gopal raised concerns about the appointment of judges with political bias . He urged the collegium to protect the institution by consciously appointing judges committed to the Constitution alone. “I believe that what is going on is packing the judiciary to overthrow the Constitution”, he said.He commenced his address by stating that–"The word interference means having a role which you are not supposed to have and the role that is not wanted – that is the literal meaning of interference as per dictionary. So when we say interference, we think that the government is having a role in judicial appointments that it is not supposed to have, that is not welcome. It is also true as Mr Sondhi said that this happens in many ways and not just through formal communications between the collegium and the government. We need to look at interference in a much broader context of de facto interference."I. Government's Strategy to Establish "Hindu Rashtra"At the outset, Dr Gopal provided the audience with a set of facts. He stated that there had been 111 judges, according to the website of the Supreme Court, who had been appointed during the UPA and NDA period, from May 2004 till today, of which 56 judges were appointed during the UPA period and 55 during the NDA period which is now eight years and nine months, as of now. He added–"Here, we come into interpretation which could be quite subjective. What we want to look for is– are there judges being appointed who are politically biased? Either in the 10 years of the UPA or in the 8 years and 9 months of the NDA… from my own perspective, and I'm not going to say names because there is no time to discuss all that, I found that during the UPA period, there were 6 judges who we could broadly call as constitutionalist judges, who believed in the supremacy of constitution. I would not say liberal or progressive, but constitutionalists, who firmly and deeply believed that all decisions have to be made exclusively on the touchstone of the Constitution and nothing else. I could find only six names that I could put a hand on my heart and say yes, I would absolutely have no doubt in my mind that this judge would decide it only on the basis of his or her best understanding of the Constitution and not influenced by any other source of law."Continuing, he said–"This number actually goes up to 9 under the NDA regime, in my view. It goes up and does not go down. Why? Not because the NDA government sponsored such people . That number went up but because of resistance from the collegium."He then posed a question to the audience–"How many judges are committed to outside the Constitution and look at Sanatan Dharma or Vedas or ancient Indian legal principles as the basis of their decisions? How many judges would look beyond genuinely, not because they're influenced by the government or because they're looking for an appointment after office, but they genuinely believe that the real source of justice must come from Vedas and religious texts?"Answering his own question, Dr Gopal said–"That number, I could not find anyone, appointed by the UPA, who from their work, their written work, we could say that they were in their judgements looking beyond the Constitution as a source of law. But this is nine after the NDA has come to power, nine judges of whom five are still on the bench. I won't name anyone but they have explicitly in their judgements indicated that we have to look beyond the Constitution. And that is what happened for example in Ayodhya case. Some of the judges went beyond the law to decide the case. This number of judges who are traditionalist, theocratic judges, who will find the source of law in religion, has sharply increased."He claimed that this was the first phase of a two-part attempt strategy to achieve the goal of establishing a "Hindu Rashtra" by 2047. He predicted that this goal would be achieved by interpreting the constitution as a Hindu document by the Supreme Court, rather than overthrowing it. He said–"To do that, the first phase is appointing judges who are open to looking to theological sources beyond constitution. The second phase, which will now begin, is to appoint judges who identify the source. That began, for example, in the Hijab judgement, where one of the two judges actually said- "panth nirapeksha" means religion and not Dharma and said that the constitution doesn't say "dharma nirapeksha", it says "panth nirapeksha". And he said that dharma applies to the constitution and actually says in the judgement that constitutional law is dharma. What he means by Dharma is Sanatana Dharma. So he's saying that our constitutional law is Sanatana Dharma. He is saying we need to take into account dharma in applying the law."Using this analogy, there could be ...

Theocratic Judges Who Find Source Of Law In Religion Than Constitution Have Sharply Increased: Dr Mohan Gopal

Padmakshi Sharma

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