An unequal equivalence: Justice Nazeer’s retirement from the Supreme Court

Nazeer means 'example' or 'precedent' in Arabic. Justice S.A. Nazeer's retirement, leaving behind a chequered legacy, might be a perfect example of the times we live in and a prescient precedent for things to come

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ON Tuesday, Justice S. Abdul Nazeer retired as the third senior-most judge of the Supreme Court and a member of the Supreme Court Collegium, after a tenure of nearly six years at the Supreme Court.

He was a part of the Constitution bench which declared the right to privacy to be a fundamental right in 2017; a three-judge bench which held that the probability of reformation has to be considered before awarding the death sentence; and part of a four-judge majority that gave judicial sanction to the Union Government's 2016 demonetisation exercise. Perhaps he will be best remembered for his partaking in the unanimous verdict given by a Constitution bench of the Supreme Court in the 2019 Ayodhya-Ram Janam Bhoomi case, in which the court gave faith precedence over reason. The Ayodhya verdict was a chilling reminder for all minorities that, in practice, 'secularism' and 'equality' might have travelled far from their traditionally understood meanings.

Also read: Dissecting the majority and minority opinions in the demonetisation judgment

Exemplar of a new secularism

On Tuesday evening, speaking at a farewell event for Justice Nazeer, senior advocate and President of the Supreme Court Bar Association, Vikas Singh said that many expected Justice Nazeer to write a separate judgment, but instead he sided with the majority in giving a unanimous verdict in the Ayodhya case. For this, Singh described Justice Nazeer as the "true embodiment of secularism in this country."

Singh's statement is a sign of the times not only for casting an expectation on a Supreme Court judge to take a particular view because of his religious identity, but also for being in line with the Hindu right-wing inclination to consider only those persons from the minority communities 'secular' who ally themselves with the majoritarian view, in the interest of 'communal harmony'.

It is true that even if Justice Nazeer had written a separate dissenting judgment in the Ayodhya case, the eventual outcome of the case would not have differed. Yet, a dissenting judgment is a glimpse of an alternate resolution, an "appeal to the brooding spirit of the law, to the intelligence of a future day", as a United States Supreme Court judge said almost a century ago.

Also read: A Crisis of Resistance: Aftermath of the Ayodhya Judgement

However, a dissenting judgment may not always be in protest. Justice Nazeer had dissented from the majority view in the Triple Talaq case of 2017, in which the Supreme Court, by a 3:2 majority, held the practice unconstitutional. The minority judgment, authored by then Chief Justice J.S. Khehar and supported by Justice Nazeer, while disclosing the judges' opposition to the practice, did not hold it as unconstitutional, even as it noted that the Union Government was in support of the petitioners' cause. Instead, the two dissenting judges used their power under Article 142 of the Constitution to direct the Union Government to consider a legislation with regard to the practice, while also placing a temporary injunction on Muslim husbands from pronouncing triple talaq till the time the Parliament enacts a law.

It may even be argued that the Union Government might have been encouraged more by the minority judgment, which, rather than the majority judgment, gave a boost to parliamentary supremacy to enact the Muslim Women (Protection of Rights on Marriage) Act, 2019. This Act went a step beyond what the three-judge majority held, making the pronouncement of triple talaq an offence punishable by imprisonment of up to three years.

And a nod to Manu

On Tuesday, Justice Nazeer ended his farewell speech by quoting a shloka from Manusmriti that reads "Dharmo rakshati rakshitah" and can be loosely translated as "Dharma protects those who protect it".

This serves as a reminder of what Justice Nazeer spoke in December 2021 while addressing a meeting organised by the Akhil Bharatiya Adhivakta Parishad in Hyderabad on the topic 'Decolonisation of the Indian Legal System'. In that speech, Justice Nazeer declared that the Indian legal system was colonial, and therefore "not suitable for the Indian population. The need of the hour is the Indianisation of the legal system."

Also read: Call for Indianisation is a fallacy, if not a fraud on the Constitution

He lamented that the Indian legal system has continued to neglect the knowledge of the legal tradition laid down by Manu, Kautilya, Katyayana "and other legal giants of ancient India", resulting in "adherence to [the] colonial legal system".

He believed that this has proved "detrimental to the goals of our Constitution and against our national interest".

The logic of Justice Nazeer's speech might be attuned to the times. Nevertheless, this does not take away the fact that the legal traditions he supposedly seeks to restore are antithetical to the values of our Constitution. It is also an unwarranted transition from the rationale and role of the freedom struggle in the creation of our Constitution, and especially from Dr. Babaseb Ambedkar's invaluable contribution.