Supreme Court has More Theocratic Judges Today, Says Mohan Gopal

There are two directions in which our present enthusiasm for majoritarian politics can go. I have long thought that there is only one place we can land up in, and we will come to that briefly at the end, but there is another view that we should consider. It was put forward a few weeks ago through a speech on the judiciary by Prof. Mohan Gopal, former head of the National Law School. 

His speech was reported by Live Law under the headline ‘Theocratic Judges Who Find Source of Law in Religion than Constitution Increased’. His basis for saying this was an examination of the record of all judges appointed to the Supreme Court from 2004 to the present time (the speech was made on 21 February 2023).  

Of the 111 judges appointed, 56 came in the UPA's decade and 55 under the present BJP government, so the number is even. Next, he looked at the impact the judges made, and whether the judges were biased. Not biased in their outlook, which Prof. Gopal accepts can only be determined through subjective interpretation, and therefore difficult if not impossible to arrive at.  

But looking at bias only through their judgments. His finding was that during the UPA period there were six judges who were constitutionalist, meaning that they believed in the primacy of the constitution alone and no other source of law. This number had gone up to nine under NDA. 

Next, again going only by their judgments, he identified those individuals who looked beyond the Constitution to find sources of law in Hindu religious texts. He could find none from the UPA set and nine from those appointed by the NDA, of whom five were still on the bench.  

These individuals have sent down judgments that have found sources of law outside the Constitution and in religion. The Ayodhya judgment went beyond the law to adjudicate the case, and the Supreme Court’s hijab judgment also finds authority in religious text. 

Prof. Gopal’s thesis is that he sees a Hindu Rashtra coming to fruition by 2047 in two steps. The first phase is appointing judges who are open to looking at religious sources beyond the Constitution.  

The second phase is appointing judges who will identify the sources of religious law. Thus, Hindu Rashtra will come not by overthrowing the constitution but reinterpretation of the constitution as a Hindu document. The hijab judgment, Prof. Gopal says, was one such instance. That judgment says that dharma applies to the Constitution because the Hindi phrase used for secularism in the preamble is not dharma-nirpeksh but panth-nirpeksh, referring to sect.  

The Constitution was thus not dharma-nirpeksh but dharma itself, meaning Sanatan dharma. 

The judgment says: ‘The use of word “panthnirpeksh” in the Constitution brings out the difference in the terms "Dharmanirpeksh" and "Panthnirpeksh". Panth, or sect, symbolises devotion towards any specific belief, way of worship or form of God, but dharma symbolises absolute and eternal values which can never change, like the laws of nature. Dharma is what upholds, sustains and results in the well-being and upliftment of the praja (citizens) and the society as a whole.’ 

Constitutional law is thus dharma. In Karnataka schools homa is allowed but hijab is not and the reason is hijab is religion but homa is dharma, for the benefit of all mankind. 

Prof. Gopal explains the rise in the number of judges who are constitutionalists under the NDA by saying that the collegium is not blind to the direction the BJP is taking the country. That resistance is playing out in the present tussle between the collegium and the government in the appointment of judges.  

Two other important points he makes can be taken up briefly. First, that the oligarchy that rules India finds opposition in the Constitution which stresses values like equality, secularism, dignity and so on. Unlike Pakistan, where the oligarchy and constitution are aligned, the primary resistance to capture of the State by India’s oligarchy comes from its Constitution. And so, the energy of the BJP is focussed there. 

Lastly, that the judiciary has become amenable to capture because it is itself lacking in diversity whether of religion, caste, gender or region. Being composed essentially of upper caste Hindu males, it has in some ways helped to further the project. 

That said, Prof. Gopal believes that the immediate goal should be to protect the Collegium from government interference in judicial appointments. 

My view of what the end-state of the present majoritarianism focus of India is I have written about here and in my books. It is that Hindutva is minority-focussed and plays itself out in persecution alone rather than internal reform. Both judgments that Prof. Gopal has used to illustrate his case—Ayodhya and Hijab, also go after minority rights.  

It will be interesting to see if, assuming he is correct, the Hindu Rashtra produced through judicial reinterpretation also addresses things like caste and chaturvarna, which will result in a seismic shift. 

To be clear, Prof. Gopal does not exclude minority persecution from his thesis. He adds a second element which I had not considered. His speech is clear, precise and direct and available on YouTube. It requires being listened to, understood and debated.