Last week, a court in Gujarat’s Gandhinagar district in imposed the punishment of imprisonment for life term to three persons accused of cow slaughter. It was done under the Gujarat Animal Preservation Act. In the judgement, the court cited Manusmriti and certain Vedic ideas, opining that if the accused are not punished, eventually there will be extinction of ‘Gau Mata’.
This is not an isolated case. The Allahabad High Court, in a 2023 judgement, spoke more or less in the same voice. The Lucknow Bench of the court refused to quash a chargesheet prepared under the Uttar Pradesh Prevention of Cow Slaughter Act. The court stated, “In Hinduism, the belief and faith is that cow is a representative of divine and natural beneficence and should therefore be protected and venerated.”
In 2017, the Rajasthan High Court issued directives for declaring cow the national animal of India. Justice Mahesh Chandra Sharma issued the direction just one day before his retirement. In 2021, Justice Shekhar Kumar Yadav of the Allahabad High Court also said that the cow must be declared the national animal and its protection must be declared a fundamental right of Hindus. According to the judge, there are scientists who believe that the cow is the only animal that inhales and exhales oxygen!
In yet another episode, in a maintenance case, Justice Praveen Kumar Giri of the Allahabad High Court cited Manusmriti to underline the husband’s “pious obligation” to support his wife.
Any court in India is entitled to rely on constitutional or statutory text to justify its conclusion in a case. But often, the judges rely on Puranas and other religious texts, creating a sort of judicial populism that tends to support religious majoritarianism. This is not a healthy development for a secular democracy. While dealing with cases of gender equality or caste, if a constitutional court relies on ancient religious texts instead of constitutional principles, serious problems could arise.
Indian secularism, as explained by the Supreme Court in S R Bommai (1994), is not against religion. Yet, when our courts try to decide cases based on religious text or beliefs, there is an inevitable element of subjectivity and uncertainty in adjudication. For the process to remain constitutional—and not ecclesiastical—the judges need to follow adjudicative discipline.
In a multi-religious society, it is the Constitution that unites various faiths, ideas, languages and cultures. It is the document by which we resolved to constitute India as a democracy. It is the document that promises and gives liberty of thought, expression, belief, faith and worship. It is the home that offers dignity to every individual and assures equality before the law and equal protection of the laws. The judges of the higher judiciary take oath under this Constitution while assuming charge, and are bound to be faithful to it.
Let it not be, however, misunderstood that such inclinations towards Hindu religious texts is only a recent judicial trend. Scholar Saumya Saxena in a 2018 paper has shown that the Supreme Court’s judgements have tried to legitimise the politics of Hindutva right from the 1990s. She has referred to judgements like Ramesh Yeshwant Prabhoo vs Prabhakar Kashinath Kunte (1995) and Manohar Joshi vs Nitin Bhaurao Patil (1995). Yeshwant Prabhoo projected Hindutva as “a way of life of the people in the subcontinent”. In Manohar Joshi, the Supreme Court said that a call for establishing a Hindu state in Maharashtra in itself did not amount to appealing for votes on the ground of religion.
It is after the publication of Saumya’s paper that the five-judge Bench of the Supreme Court decided the Babri Masjid demolition case (M Siddiq vs Mahant Suresh Das, 2019). In this, the court directed to convey the disputed land for construction of a temple by a trust to be created by a ‘secular’ government. It showed the fusion of the State with religion through a process of the court. The rest is history.
What happened in Indian courts along with the rise of Hindutva would indicate an ideological shift, often abetted by the pragmaticism of individual judges. Generally, judges do not go against the tide. The affinity towards Manusmriti and the Puranas indicates an embarrassing extension of such judicial gesture. It is not an issue of language. It is a question of attitude.
But then, the political situation outside the court is radically altered. The country now witnesses a political praxis that tries to regain her constitutionalism. Secularism finds its own organic revival, as was evident in some recent protests. With the people’s understanding about the damage done to the nation’s Constitution, particularly by way of electoral manipulation, India has started to regain her constitutional vocabulary—one which the courts can no longer ignore.
Let it also be noted that the massive expulsion of voters was not unconnected with religion. Minorities and women were the primary victims of the so-called special revision of electoral rolls in several states. This means that secularism, as an idea, was attacked at the very fundamental level of one-person-one-vote.
This takes us to the foundational question that goes well beyond the judicial language in verdicts. In his 1921 classic, The Nature of the Judicial Process, Benjamin N Cardozo, an associate judge of the US Supreme Court, asked: “What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result?” In his answer, after noting the importance of the Constitution, statutes and precedents, he wrote: “The great generalities of the Constitution have a content and a significance that vary from age to age. The method of free decision sees through the transitory particulars and reaches what is permanent behind them.”
It is, therefore, essential to keep the serenity of the judicial process by placing it above the cultural, ethnic, religious or personal notions of individual judges. Every judge is accountable to the Constitution and her judgements should reflect this commitment. History reminds us that many judgements by the German courts during the Nazi regime lost their legitimacy after Hitler’s debacle in the Second World War.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)