“Judging is self-expression of what you consider to be a just society…nothing in the religious sphere is private”: SC Justice DY Chandrachud

Did you think that a judge’s role in a Constitutional democracy was to adjudicate the laws enshrined in the Constitution and as added/amended by elected representatives from time to time? Well, think again.

Supreme Court Justice DY Chandrachud, speaking in a virtual seminar organized by Harvard Law School Women’s Alliance (HLSWA) and hosted by legal news site Bar & Bench, made a stunning comment revealing his personal philosophy while giving judgements –

“In the common law tradition which we follow, I think the heart of judging, the core of judging, is that it’s an expression of yourself. I think if you really ask me what I have learnt from the last 20 years is that it’s a form of self-expression of what you consider to be a just society,” said Justice Chandrachud who is considered a rock-star by Bharat’s left-liberal establishment.

Calling the freedom struggle for independence from the British as a ‘Constitutional movement’ for freedom, Chandrachud said that it was not just a movement for political freedom but also a movement for ‘transformation of society.

We can only wonder what stalwarts of the freedom struggle like Tilak, Aurobindo, Savarkar, Lala Lajpat Rai, Gandhi, Patel, Rajender Prasad etc. would have to say about the learned judge’s views. Can any freedom struggle be motivated by the abstract lure of having one’s own Constitution, or is it driven by the raw, emotional energy which comes from ancient civilizational roots that nourish a nation?

While many of our founding fathers indeed wanted society to shed ossified practises that had accumulated over 800 years of a desperate struggle for survival from brutal foreign rule, it’s safe to say that they wanted the change to come from within, rather than be enforced from above by an alien, apathetic state which is what Hindus have faced in post-Independence Bharat.

Moreover, as many liberals credit the colonial British for ‘modernizing’ Bharat and banning ‘regressive’ social practises, we wonder if they would have been happier with continuation of the British Raj? After all, isn’t the original ‘civilising force’ better than imitation by brown sahibs?

Explaining his rationale behind the two-year old Sabarimala judgment of the Supreme Court, Justice Chandrachud said:

“The reason why menstruating women were not allowed was that the deity was considered celibate and presence of women would affect the celibate nature of deity. We respect that belief as human beings and judges. We (the majority on Sabarimala Bench) said there is nothing in the religious sphere which is private. Religion essentially has a position in the public space of the nation. So, we said even a religious custom is amenable to Constitutional control.

Justice Chandrachud also claimed the Constitution was not merely a tool for transfer of political power, but reflected the ‘deep-seated aspiration for transformation in Indian society’, giving an example of temple entry movements in Bharat when Dalits were excluded.

But here again, we must question – what are the boundaries of this ‘transformation’ that the judge speaks about? Why is it that Constitutional provisions to ensure that State has right to temporarily administer Hindu temples to rectify perceived flaws have been allowed to become an instrument for perennial control and fleecing of Hindu temples by the State? Other provisions to ensure that minorities have freedom to manage their educational institutions have been amended and legally interpreted in such a way that today the majority (read Hindus) stand at a distinct disadvantage compared to minorities in terms of running educational institutions with freedom.

Did the framers of our Constitution really envisage a scenario where almost every Hindu festival – Diwali, Krishna Janmashtami, Holi, Baisakhi etc – would be subject to endless litigation every year, till the much-desired ‘transformation’ is complete? What is the end state of this ‘transformation’ that liberals desperately speak? Is it similar to the ‘post-Hindu India’ imagined by Hindu-hating academics like Kancha Ilaiah?

Does the desire to ‘transform’ extend to minorities who refuse to give up their own, medieval civil code or routinely flout the law of the land, or those who consider another sovereign power as the supreme authority?

Who decides what is a just society? Ex-PM Manmohan Singh’s idea of justice was to state that ‘Muslims have the first right on this country’s resources.’ His boss Sonia Gandhi’s idea of justice was to introduce a bill that would make Hindus the default aggressors in any communal clash.

Hasn’t this minorityism become the default idea of justice in secular Bharat today? Even hostile illegal immigrants are claiming rights to this land and are entertained by courts, whereas genuinely persecuted Hindu refugees are treated with apathy at best.

Don’t Hindus deserve a just society? One where they are free to practise and preserve their religion and traditions without constantly being assaulted, shamed or ‘transformed’, where they are allowed to decide the pace and intensity of change within their society?

Justice Chandrachud also made it clear that he is opposed to the Essential Religious Practice test which is used to determine validity of religious customs of Hindus in Bharat. As per this test evolved by Supreme Court through various judgments, the court decides whether or not a particular religious custom/ belief is essential to the religion. If the answer is in affirmative, then the courts refuse to interfere with the same by applying Constitutional benchmarks to its validity.

Diverse Hindu sampradayas often struggle to pass this ‘Essential Religious Practise’ test, as unlike Abrahamic religions, Hindus don’t have one exclusive scripture or established religious hierarchy that can be used to pass the test (that such tests have never been applied to question Muslim or Christian religious practises is another matter).

So is Justice Chandrachud saying that courts must get rid of this unreasonable expectation from Hindus? No! He is saying that even if a Hindu sect passes the ‘Essential Religious Practise’ when its traditions are questioned in a court of law (as they inevitably are these days), he will still disallow the practise if it does not conform to his idea of a ‘just society’!

“I have suggested we must have a different which is the anti-exclusion principle. It means that even if a practice is essential to a religion, if it perpetrates exclusion of a certain class of society, then it must be amenable to Constitutional standards.”

We leave the reader with a few reactions which best sum up our feelings on the views expressed by Justice Chandrachud:

Nothing short of a mass movement will end this assault by the Secular State and its Institutions on Hindus. A good start would be to read and sign the Equal Rights for Hindus petition.

One more important topic of discussion is to evaluate whether moving from a common law system like we currently have to a civil law system is one way of stopping the judicial overreach and adventurism which has reached epidemic levels. But that is for another day.


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