Obiter is the name of off-the-cuff or casual observations expressed by a court during the course of proceedings and, even though they sometimes can form part of the written order, are not considered part of “precedent” to be later followed by subordinate courts or courts of coordinate jurisdiction.
There are three parts to any judgement: a) the facts and the law applied to them, b) the reasoning which leads to the decision, and c) the decision itself. Only the second part, the ratio decidendi or reasoning that the court relied on to arrive at its conclusion, is considered precedent or the guidance which binds courts, subordinate as well as of coordinate jurisdiction, which are required to follow it in subsequent matters to be decided consistent with that precedent (until it is overruled, dissented from or distinguished, in later proceedings in the interregnum).
One such obiter remark from the Supreme Court has opened the floodgates of judicial license towards admitting cases and passing alarming orders inviting the opening of floodgates of motivated legal proceedings calling in question the religious character and origins of minority places of worship in derogation of the constitutionally guaranteed position statutorily encapsulated in the “Places of Worship Act”.
Places of Worship Act
That that Act is being repeatedly misinterpreted, misapplied and abused is manifest and clear to any thinking mind which can claim a lack of bias. There are still any number of people who choose to believe that a very large number of mosques if not all, should be dug up to ascertain whether they were temples that were destroyed and mosques built on the site of the possibly destroyed temples. There are also some segments that are “more inclusive” (in an acutely literal but deliberately warped sense), which hold that all places of worship belonging to minorities should be done away with and all signs of their existence erased. Some, given to thinking big, extrapolate that to a larger more expansive canvas, extending this thought to cover Mughal monuments as well in order to remove all traces, especially of Muslim presence, from the nation.
Why not Pakistan and Bangladesh?
Thinking again, why even stop there? These worthies would do well to remember that at one point what are now Pakistan and Bangladesh were also parts of the same nation which stood colonised by the British and whatever came to happen within what is today Bharat would have also happened in what is today Pakistan and Bangladesh, and therefore it would be appropriate for them to include, in their grand scheme, the survey and demolition of all Muslim and Christian places of worship not just in India but in Pakistan and Bangladesh as well. Come to think of it, perhaps they should include Buddhist and Parsi places of worship as well. More inclusive, you see.
However, these are just brazen in-your-face matters, and, away from the light focused on these breaking news events, there are much more “interesting”, much more volatile, much more ominous things happening. More and more learned judges including of the high courts are coming out in open publicly stated support of a partisan and biased view which is violative of their constitutional oath of office and their duty as citizens to uphold the constitution, its principles, ideals, and values. It is of course good to think that such judges ought to be shown the door so that others of similar inclination think again before going ahead with such unacceptable utterances.
“Casual utterance” gaining legitimacy
It is, however, perhaps not without significance that these utterances find expression not infrequently in events sponsored or conducted by one specific group that subscribes to a line of thinking that again falls foul of constitutional expectations. On one hand, sitting judges’ participation in these events can sow in their minds the seeds of partisan thinking that compromise their ability to steer clear of bias in their decisions; on the other hand, sitting judges’ participation in these events sees the legitimisation of these events, however hostile to inclusive pluralism in national life they may be. Both consequences are unacceptable from a patriot’s point of view.
As a general proposition we can say that judges ought not to attend such events nor should they make such statements. That would be a very superficial ineffective and pointless platitude. I say this because if a few judges of high courts have deemed it safe to come forward and express such views, earlier confined to the shadows, it can only indicate that a much larger number of judges hold such views, only some of whom have given expression to them. Could the expressions be a testing of the waters and an invitation to a judicial fifth column to stand up and be counted?
Miscarriage of justice
There are two aspects to this: one is that this shows that the malaise of shockingly anti-constitutional thinking, which completely derogates from the requirement of judicious disposal of legal disputes, has taken root among a large number of judges but is as yet very openly manifested in their statements; two, that where there are disputes which involve competing claims between members of minority and majority groups, it is almost certain that judges who subscribe to such regrettable and even offensive thinking are extremely likely to deliver judgments which are inconsistent with the law and result in serious miscarriages of justice.
This causes sections of the people who are at the receiving end of such unjust decisions to start believing that the system as such has become hostile to their interests and they are not likely to get justice within the system. If this happens the logical extension of that thought is for people constrained to believe thus, to look for ways to redress their grievances outside the system perceived as “hostile”, and the dangers of that leading to alienation and worse, cannot be overemphasised.
There is no method by which the minds of judges can be read and just as there are moles in the spying scene there can be elements within the judiciary that are presently “asleep” but will “wake up” when the time comes to deliver results: decisions which are consistent with a certain worldview which does not conform to or uphold Indian constitutional principles that “nevertheless ought to inform every organ of governance” as the Directive Principles of State Policy say, but actively operates to destroy those.
Persons with ideological slant
I have long stated that people with an ideological slant that is likely to compete with the requirements of constitutionality and constitutional values and principles ought not to be elevated to judicial office. They ought to be filtered out of every office. Be that as it may, it is obvious that a person need not always wear his heart on his sleeve and there can be any number of judicial officers who subscribe to minority-hostile, communal, exclusivist views but keep them under wraps to project political correctness and to acquire, and be able to resort to, plausible deniability, as and when occasion could arise.
Of a recent case which caught national headlines the Supreme Court is reported to have called for a report from the concerned high court and possibly some steps will follow. Will that suffice? If towards solving the problem, clearly no.
If towards driving the manifestation of this line of objectionable, unconstitutional thinking, violative of the judicial oath of office, and suggestive of a degraded and despicable human spirit as it is, underground, or into the shadows, very emphatically yes.
The risk then is that hidden there, it will be nurtured, nursed, allowed to come of age, and acquire strength when it can burst forth in all its malignant power. Any intelligent judge can harbour such views, not reveal them, project propriety, and only allow them to rear their heads in so subtle a manner as to ensure that he or she cannot be called to account. After all, judges can and do make mistakes, and there is a law conferring immunity on judges.
I desperately hope there is no truth in the rumour that more and more people elevated to judicial office must first pass a certain quiet, unstated, unofficial “test of allegiance”, and only thereafter is their candidature for judicial office considered. If that rumour has some basis, however tenuous, we can be excused for worrying that we may find more and more courts packed with judges pliant towards a certain ideological stance, and therefore not free agents at all, unable to adjudicate matters according to the dictates of their consciences, or conforming to the Constitution and the law.
Drastic steps required
There is a call therefore to appreciate that very drastic steps have to be taken if the message is to percolate to judicial officers right down the line, from the highest up to the lowest, that every judgement delivered, every order made, every bail application denied and allowed, shall be vetted by a panel of retired Supreme Court judges constituted into a Judicial Accountability Commission which can be addressed by those who believe that they are a victim of a biased decision which is violated of these constitutional guarantees; if that judicial accountability committee comes to the conclusion that such is in fact the case the judges who passed the objectionable orders shall be removed from judicial office once an inquiry finds them culpable; till such time as the inquiry is concluded they should not be assigned any judicial work.
This too is not an effective mechanism because the reality “out there” is that more and more we find that people who have been convicted of offences are, despite their conviction, or even because of the conviction being for offences against minority groups, treated to receptions with sweets and garlands and fanfare on display counting them as heroes among the populace, whatever the law might have said about them. It is extremely likely that these honourable gentlemen thereafter soon find themselves participating in elections and then holding high political office.
In cases like Manzar Sayeed Khan v. State of Maharashtra, where communication is by ordinary persons, the SC said the effect of the words must be judged from the standards of reasonable, strong-minded, firm, and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
‘Pro-active officials’
Absolutely, but when words pregnant with meaning, intended or incidental, fall from the mouths of “reasonable, strong-minded, firm and courageous men” themselves, others holding judicial office lower down, of weak and vacillating minds, who scent danger in every minority point of view, eager to misinterpret law and gloat at miscarriages of justice, ably supported by trigger-happy “pro-active” officials in administration waiting for opportunities to strike, can and do play havoc.
It is thus of great significance for those holding high judicial office to realise that their letting their guard down while pontificating from the bench and making unnecessary statements that can be misconstrued by judges lower down, or are so often eagerly and deliberately misinterpreted by administrations hostile to minorities, is actively eroding national cohesion, actively destroying a potentially powerful India.
One wonders whether these persons are not liable to be charged, to be tried and punished for not only committing, but also actively instigating, abetting and encouraging regrettable acts, violative of law and destructive of the constitutional fabric, the judicial fabric and, in fact, the very fabric of our nation’s pluralistic, inclusive and secular credentials. Of these it can be said that they are the real fifth column, the traitors.
That it was the Supreme Court that opened Pandora’s box with its casual observation makes one wonder whether people who reach that level of judicial authority should not be more circumspect in their speech, more careful in their choice of words, more reticent about what need not be said, more aware of the likely consequences and fall-out of unnecessary observations and advisory statements, more responsible towards the Constitutional accountability that their office carries, and less prone to seek contrived glory from the publicity that follows every scandalous or sensationalist statement covertly aimed at pleasing the powers that be in search of post-retirement security and official frills.
Maybe it is too late already.
Jai Hind!
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