The Chief Justice of the Jammu & Kashmir and Ladakh High Court appears to have expressed his personal view at a public forum, without understanding that it is inconsistent with the ethos of our Constitution, argues V.VENKATESAN.
THE Preamble to the Indian Constitution is in the news again for the wrong reasons. Last week, the Bharatiya Janata Party’s member of Parliament, K.J. Alphons’s Private Member Bill in the Rajya Sabha sought to amend the Preamble to insert what appeared to be innocuous words in place of certain existing expressions. The Deputy Chairman of the Rajya Sabha has reserved his ruling whether he can introduce the Bill without the prior recommendation of the President, as sought by some Opposition members.
On Sunday, the Chief Justice of the High Court of Jammu & Kashmir and Ladakh, Justice Pankaj Mittal, reportedly favoured a new label for the country – the Spiritual Republic of India – while expressing his disagreement with the inclusion of the terms “SOCIALIST” AND “SECULAR” before the term “DEMOCRATIC REPUBLIC” in the Preamble to the Indian Constitution.
Like the Chief Justice of India, N.V. Ramana, who had earlier deplored the non-Indianisation of Indian legal system, Chief Justice Mittal has regretted that the country had imported laws from the West while ignoring its own circumstances and culture. Like many critics of the 1976 amendment to the Constitution which inserted the words “socialist” and “secular” into the Preamble, Chief Justice Mittal too believes that the addition of these words had not made much difference since India had adopted secularism as the guiding principle of the Constitution right from the beginning of the Republic. Again, Chief Justice Mittal echoed the view that as India is inherently “socialist”, there was no need to expressly state this either in the Preamble.
Chief Justice Mittal believes that India was always a “spiritual country” rather than a “Hindu country”, and that the terms “secular” and “socialist” had reduced its “cosmos of pure spirituality” to religion. “This is what you call a narrow-minded approach. Otherwise, India was always a secular country. Its name should have been Spiritual Republic of India”, he reportedly said.
The Supreme Court, in its landmark Minerva Mills judgment in 1980, described these amendments as furnishing the most eloquent example of how the amending power could be exercised consistently with the creed of the Constitution.
Chief Justice Mittal’s view is in sync with what the late Justice J.S. Verma held in the Supreme Court’s judgment in the case of Dr.Ramesh Yashwant Prabhoo vs. Shri Prabhakar Kashinath Kunte & Ors. (1995), wrongly equating Hindutva with Hinduism, thereby excluding appeals for votes on the basis of Hindutva, from the prohibition contained in Section 123 of the Representation of the People Act, 1951. In retrospect, one would be inclined to agree with the critics of Justice Verma’s judgment that it gave a carte blanche to the forces of Hindu communalism to pursue their anti-secular agenda.
Chief Justice Mittal believes that India’s cultural milieu was a “cosmos of pure spirituality which discourages distinguishing humans on the basis of religion”. According to him, “India was never a Muslim country, Christian country or Hindu country. Why? Because in every period, it was believed that India is beyond – very, very ahead – of being religious or a dev bhoomi (holy land). It was always a spiritual country. People came here in search of spirituality and still come.” Also read: Why India’s public discourse needs a constitutionalist perspective
Should Judges reveal personal opinions in the public domain?
There can be no dispute that Chief Justice Mittal is entitled to his views on the country’s spiritual heritage. But as the Chief Justice of a high court, should he be expressing his views in the public domain, especially when the benches presided by him might be hearing cases which impinge on these very issues?
As the Chief Justice of a high court, should he be expressing his views in the public domain, especially when the benches presided by him might be hearing cases which impinge on these very issues?
Justice R.V. Raveendran, in his recent book, Some Anomalies in Law and Justice, says as follows: “It is inevitable that a Judge’s personal philosophies and ideologies will influence the “decision-making” by him. The views and perceptions of Judges will also vary depending upon their social, economic and political philosophies. Therefore, anomalies arising from personal convictions and philosophies of Judges will always be an inherent part of justice delivery as they are based on human traits and human philosophies, and it will be difficult to find a clear-cut solution to such anomalies. It is easy to say that if a Judge is predisposed towards a particular view, he should withdraw himself from acting as a Judge in that case. But it is next to impossible to achieve a state of absolute impartiality and neutrality …”
The jurist Professor G. Mohan Gopal, in an interview to me in 2012, asked: “How long will we stick to the legal fiction that the personal background and the social, economic and political philosophies of judges do not enter their judicial decision-making?” Judges, he said, should be firmly committed to the values and philosophy of our Constitution (not to the government or party of the day) because they have assumed for themselves the role of guardians of the Constitution.
Citing Prof. Mohan Gopal’s above interview, Justice Raveendran asks in his book, “Is there a remedy?”
He answers thus himself: “Yes, partially. By appropriate training and self-discipline, there should be a constant endeavour to reduce such predispositions and predilections to ensure that the Judges follow a middle path to achieve uniformity, consistency and objectivity. Adherence to the doctrine of “precedents” would, to a large extent, ensure consistency in decision-making. In civil and criminal law where precedents abound and facts play a crucial role, the impact of personal philosophies and ideologies of the Judge may be limited. But in areas of public law, particularly those which are not governed by precedents, where the decision depends on developing principles and concepts, Judges’ philosophies and ideologies come to the fore and the decision may depend upon the ideologies of the Judges constituting the Bench. It can be said that with different combination of Judges, there are possibilities of the decisions being different. Luckily, anomalies arising from personal philosophies are kept at a minimum by reason of Judges having to follow the well-trodden path carved out by law and the precedents. Anomalies also occur due to erroneous interpretation of laws by Judges either due to lack of knowledge and capacity to understand, or due to their predisposition arising from their personal philosophies and convictions.” Also read: It is time to reclaim our Republic
Objective of 1976 Constitutional amendment
In 1976, H.R. Gokhale, the then Union Minister of Law, Justice and Company Affairs, moving the Bill to amend the Preamble to the Constitution, said: “This is not a play of words. Because, everyone realizes, at any rate a large portion of the thinking people realize, that the Preamble is the key to the whole Constitution when we interpret the Constitution, its letter, its provision. It is the most fundamental part of the constitutional structure which gives direction to the whole Constitution, a direction to all that we do by law or otherwise … Therefore, the objectives which we had always in view, namely, socialism and secularism, which we have tried to implement, will be more and more implemented and will be more accurately and correctly reflected in a basic part of our Constitution, namely, the Preamble”.
The notes on clauses of the Bill stated that the concept of secularism, socialism and integrity of the nation are implicit in the Constitution, and these have been clearly spelt out in the amendments to the Preamble.
Chief Justice Mittal believes that India was always a “spiritual country” rather than a “Hindu country”, and that the terms “secular” and “socialist” had reduced its “cosmos of pure spirituality” to religion.
The Supreme Court, in its landmark Minerva Mills judgment in 1980, described these amendments as furnishing the most eloquent example of how the amending power could be exercised consistently with the creed of the Constitution. “They offer promise of more, they do not scuttle a precious heritage”, the court observed in that case.
The 45th Constitutional Amendment Bill proposed an amendment of Article 366 by inserting definitions of the words “secular” and “socialist”. However, this amendment was not accepted by the Rajya Sabha. Consequently, the words “secular” and “socialist” remained undefined.
The doyen of the Constitution, lawyer and jurist H.M. Seervai, in his treatise ‘Constitutional Law of India, (Vol. 1, 3rd Edition)’ was critical of the 1976 amendment, saying that the two words are ambiguous, and therefore, should not have been inserted into the Preamble.
It is doubtful whether Chief Justice Mittal was aware of the history of this amendment, before he expressed his disagreement with it for reasons other than what Seervai had suggested.
(V. Venkatesan is the editor of The Leaflet. He has more than three decades of experience in journalism, and has extensively reported and commented on legal issues. The views expressed are personal.)