CJI HL Dattu, minorities need protecting in these Sangh Parivar times

On March 30, 2015, Lily Thomas told the chief justice of India (CJI) in court that the meeting summoning chief justices from all high courts, which was slated for the Easter weekend, should not take place on Good Friday. For her more than a holiday, it was a spiritual day.

Perhaps, anticipating the question (perhaps not), the CJI HL Dattu seemed half composed, half irritated. His characteristic smile disappeared. Ready to reject Lily’s mentioning, he responded strongly to say such meetings took place in the past on Good Friday and other holidays and no one had complained. Why now? For Lily, a committed Christian, these precedents were meaningless. I was in court. She looked at me. I should have supported her. But the court handles "mentioning" briskly and there was no occasion for intervention.

"Holy" committments

However, this matter has been taken further by justice Kurian Joseph of the Supreme Court, a devout Christian and a judge of great depth who remonstrated to the chief justice that on Good Friday some judges were “committed on account of holy days when we have religious ceremonies and family get togethers as well”. Apart from the “holy” day and “holiday” argument, justice Kurian added the charge of discrimination that such a meeting would not have taken place on Diwali, Dussehra, Holi or Eid. The CJI’s reply was untidily Benthamite: The individual interest must give way to institutional interest.

CJI Dattu’s reply does not square up with the jurisprudence of the SC. In 1954 in the Srirur Math Case, justice BK Mukherjee’s scholarly and perceptive judgement laid down that while other features of faith can be subjected to reasonable restrictions, the “essential features of a religion are inviolate. Years later justices Gajendra Gadkar and K Ramaswamy took a more reformist view, but the “essential features” formula remained unscathed.

There is little doubt that Easter and Christmas are part of the “essential features” of the Christian faith. CJI Dattu’s stance disturbed the Catholic bishops. The CJI’s response that “such conferences have been held on Valmiki Day in 2002 and 2004, Good Friday on 2009 and even on Independence day” ducks the issue. Mistakes of the past cannot justify those of the present. Nor do they answer Justice Kurian’s query whether such an event would take place on Diwali, Holi, Dussehra, Eid. Mind you, for me the delicious thought of chief justices of all high courts and Supreme Court judges throwing colour on each other at Holi, letting off fire crackers on Diwali or closing Eid with sumptuous food seems piquantly endearing. A sitting judge of the SC who calls pundits to his house on navratris is surely entitled to withhold his presence for the greater good of chief justice meetings.

No doubt the world goes on during festivals. The stock markets buzz, emails arrive. Lawyers and doctors do their work. Journalists look for stories but do not publish newspapers for the day after Diwali. Judges relax, may be write judgements. But CJI Dattu seems to have missed the essential features of Indian secularism.

French secularism

Unlike French secularism which goes to extreme limits of total dissociation of religion from the state and public domain, Indian secularism is a multireligious and multicultural secularism, celebrating all faiths equally. The French compromised with the Catholic church and have to address issues related to multiple faiths.

This CJ’s meeting on Good Friday had a varied agenda including judicial appointments and the financial autonomy of the judiciary. The latter is a subject chief justices are somewhat vaguely familiar. In 1979 and 1984, I wrote two books which linked the court’s overall budgets to staffing, infrastructure and other expenditure longitudinally with disposal of cases and arrears, joking the Indian judiciary was the “lease expensive branch”.

Thus, the projected Good Friday meeting was important as a learning exercise with prognostic elements. In the times of Middle Earth (around the Emergency), some chief justices complained that they were made to wait in the ante-chamber of chief ministers to secure funds for their courts. Before he joined the SC, justice Kurian was chief justice Himachal — undoubtedly one of the best. Suppose he was asked to attend the chief justices meeting and refused, he would be well within his rights to do — as he has now. Would the conference go on, if other judges also placed the same difficulty?

Loving festivals 

Chief justice Dattu’s Benthamism short changes too much of our constitutional understandings which animate our nation’s spirit. I do not go to temples. I celebrate all festivals and love them all.

We live in times when the Sangh Parivar is all set to convert by ghar wapsi and crush the spirit of the minorities. The minorities need protection and to be treated discerningly on things that matter to them. They matter to India. I am not just saying don’t do on Easter what you will not do at Diwali. I am saying don’t do this at Diwali either. Is this a small point de minimis? No.