Wounding the spirit of the Constitution of India Premium

Justice Yadav’s speech is an act of wounding and is a speech that inflicts deep harms on all of us

We, the people of India, having solemnly resolved to constitute India into a sovereign, socialist, secular, democratic, republic, and to secure to all its citizens justice, liberty, and equality and promote fraternity among all, have been witness to a mockery being made of our constitutional compact, in full public view, at an event organised within the precincts of a constitutional court, the Allahabad High Court.

We have witnessed a sitting judge brazenly challenge the spirit and letter of the Constitution of India, in a speech that is nothing but a dog whistle that guarantees impunity to the mobs that will act on his words and views — and have been acting on words such as his emanating from the seats of power. The venom that Justice Shekhar Kumar Yadav, judge of the Allahabad High Court, spewed on the precincts of the court, has been widely reported in the media. Members of Parliament in the Opposition have initiated an impeachment motion against the judge, the Supreme Court of India has called for a report, and concerned citizens have written to the Chief Justice of India.

None of this, however, captures the sense of collective shock, dismay and grief that it is even possible for this level of public humiliation, violent, incendiary, genocidal street-talk to emerge from a seat of justice under the Constitution. For that is what it is. And it is really time to seek remedies against an incitement to violence of this nature as a part of our solemn affirmation as citizens who gave to ourselves this Constitution. The ‘sludge’ that was passed as learned judicial speech is an assault on the citizens of India and not an attack on Muslims or minorities or urban naxals or protesters or just any particular group that has become the latest target of mob violence/public incitement. This is not Justice Yadav’s views on Muslims, nor is this a case of just one rotten apple. In distancing ourselves from his comments, we do profound disservice to our autonomous and independent determination of the terms on which the collective ‘we’ is constituted in this country called India that is Bharat.

Justice Yadav’s speech is an act of wounding. It is a speech that inflicts deep harms on all of us: in terms of how we experience the life of the mind, knowledge, convivial living and spiritual fulfilment in a shared space, the boundaries of which are not determined by narrow walls and fences of bigotry. and in terms of the injuries that religious bigotry inflicts on shifting targets — on people, our lived lives, our dwellings, our worksites, our neighbourhoods and our places of worship. We have also seen the disastrous effects of soft bigotry as a trigger to mob/state violence, especially in the case of places of worship.

Let us not read down Justice Yadav’s speech and allow it to pass as something that is inconsequential. It is not something that can be adequately answered by the High Court that offered the space and the possibility for this — a High Court that did not rise in one voice to condemn and censure a member of the Bench for speaking genocide and atrocity. This is a court that ought to have written to the Chief Justice of India condemning Justice Yadav’s speech long before the Supreme Court demanded a report in response to the petitioning and the protests by citizens who took note of the speech and mobilised action given the exceedingly slow wheel of the law.

It calls for a different order of collective judicial accountability. Nor can this act be adequately redressed by subjecting it to the low, anodyne chiding that is whispered by the judicial fraternity alone within court halls that allow restricted entry. We have seen the consequences of dog whistles of this kind over the past decade and the irreparable harms they bring in their wake. We also know that mobilising around the Constitution and its core values together as ordinary citizens, elected citizens and judicial citizens, speaking a shared language across vernaculars and faiths, is the only way of effectively affirming our collective and individual human dignity and the unity and integrity of this country — India that is Bharat.

This writer has long argued that the Constitution of India, and our rights and responsibilities as citizens, take shape through a deep connection between the intellectual history of constitutionalism and a grounding of that history in our evolving present-futures. Neither constitutional interpretation nor the delineation of our rights need be shackled by narrow reference to precedents and prior judicial wisdom alone, since the spirit of the Constitution (and indeed the Constitution itself) is not judicial property, but is a commons. It is urgent that we think of the Constitution-as-commons — that a shared ownership and shared understanding govern its use to further the common good which is set out in the Preamble and in the philosophy of civil disobedience of various hues. Satyagraha is our collective inheritance — Gandhi, B.R. Ambedkar, Maulana Azad, Jaipal Munda, Dakshayani Velayudhan, Anis Kidwai, A.K. Gopalan….