Why the Modi years have been the most shameful period in the history of the Indian Supreme Court

The anniversary of Babri Masjid's demolition should make the Supreme Court introspect why the period since 2014 has been the most embarrassing to its credibility. The Leaflet publishes excerpts from AAKAR PATEL's recent book, PRICE OF THE MODI YEARS, which throws light on the role of the Supreme Court in this period.

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A Justice of Double Standards

As my previous work Our Hindu Rashtra has examined at length, the judiciary, particularly in the Modi era, often holds Hindu concerns in higher regard than the concerns of other faiths. In the 2 May 2018 judgement on the preservation of the Mahakaleshwar temple in Ujjain (in his home state of Madhya Pradesh), a bench comprising of Justice Mishra said that the temple's lingam 'has so much importance for spiritual and other gains, there is a constitutional duty to protect it as envisaged in Article 25, Article 26 read with Article 49, at the same time there is a fundamental duty under Article 51A of the Constitution to promote harmony and the spirit of common brotherhood'.

But the deterioration of the 'lingam'—caused by the daily pouring of thousands of litres of water and milk—had not created any communal tension or disturbed this spirit of common brotherhood. It was unclear what the role of the Supreme Court was in any of this, but just before leaving in 2020, Mishra ordered the Union government to give Rs 41.3 lakh towards the maintenance of the lingam. He observed that 'unfortunately the performance of necessary rituals is the most neglected aspect in the temples, and new Poojaris do not understand them; the same should not be the state of affairs. There is no scope for commercialisation. The myriad religious rituals and ceremonies are to be performed regularly'. He also instructed the temple committee to use only the purest pooja material and directed it to improve its gaushala (cattle shed) so that unadulterated cow milk products could be prepared in the temple.

Justifying his order for the State to bear a religion's expenses, a bench comprising of Justice Mishra said: 'There is a constitutional obligation to preserve the religious practices of all religions, culture and there is also a corresponding duty to act in that direction. Similarly, such acts which are necessary for the preservation of such historical monuments/deities. State is duty bound to spend the amount so that not only the archaeological, historical and ancient monuments are preserved but sanctum sanctorum, as well as the deity.'

In saying this, he ignored Article 27 of the Constitution which says: 'No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.'

In a 2017 judgement delivered by Chief Justice Dipak Misra, the Supreme Court specifically rejected this same argument Arun Mishra was putting forth, on the matter of Muslim religious places deliberately defiled and destroyed by Hindu mobs. The court then overturned a Gujarat High Court judgement, which directed the state government to reimburse the cost of rebuilding the destroyed mosques and dargahs. Misra, in that judgement, accepted the BJP government's plea that such a payment by the state would violate Article 27. This gave us the bizarre situation of the Supreme Court, in the matter of a few months, delivering a judgement for Hindus that was the opposite of what it had ordered for Muslims.

Similar hypocrisy is to be found in the Supreme Court's judgements on Ayodhya and Sabarimala. In the first, the court reversed burden of proof on Muslims, who were asked to demonstrate the fact that they had been praying in and had been in possession of their mosque through the centuries, while the claim of the Hindus that they had been praying there was taken at face value. The court also refused to hear the appeals on Ayodhya, closing the book on it forever. However, in the Sabarimala case, in which the court had first ordered that women of all ages should be allowed to access the temple from which they had been prohibited, it sent the case to a larger bench, in violation of settled law. There was no new fact that had been presented or any error pointed out in the judgement which would allow the court to send the matter to a larger bench; this was apparently purely on whim.

'The Majesty of the Law'

As chief justice, Bobde snapped at a young advocate, a student, who addressed the bench with the words 'your honour'. This offended Bobde who said: 'When you say Your Honour, you either have the Supreme Court of the United States or the Magistrate in mind.' Apologising, the petitioner said he would use 'my lords'. To which Bobde responded: 'Whatever. But don't use incorrect terms.' Bobde then refused to hear the matter further.

Bizarrely, Bobde himself had been on a bench that had said it was not necessary to call Supreme Court justices 'my lord', and that 'your honour' was fine: 'You call us sir, it is accepted. You call your honour, it is accepted. You call lordship, it is accepted.'

But this had been said in January 2014, before the Modi years had infected India's judiciary and its Supreme Court.

The list of quids and of pro quos is long and it is embarrassing. The Supreme Court tried to skewer the activism of high courts when they determined, correctly, that the government was incompetent during the second Covid wave. As the government came under pressure and faced withering criticism from the high courts, the Supreme Court under Bobde stepped in suo moto. This was seen as the taking away of the cases from the high courts into safer and more obliging hands. But it came under such heavy and open fire that Bobde retreated, tail tucked.

It was only when thousands of citizens were dying every day, not from disease but from lack of oxygen and medicine and hospital care that a bungling government had not cared to put in place, that the justice system decided it would hold Modi to account. But this was too little too late and the record will show that the Modi years have been one of the most shameful periods in the history of the Indian judiciary.

This is an excerpt from Price of the Modi Years by Aakar Patel, published by Westland Publications (Imprint: Westland Non-Fiction), extracted with permission.