Supreme Courts Secularism

                            SUPREME COURT”S SECULARISM

                     The Fundamental Rights called as the Magna Carta of India, comes for its citizens in order to provide them rights and protect them from any kind of discrimination. The judicial fraternity standing on the British setup comes as the protector of these rights for its citizens. Justice Gajendragadkar described them as the “very foundation and cornerstone of the democratic way of life ushered in this country by the Constitution.” These Fundamental Rights were taken in the Constitution as form a basic structure of the Constitution by the American Constitution.

                    The Supreme Court of India since independence has proved to be the paterfamilias in order to protect the rights of the common masses at large. The Supreme Court in Kesavnanda Bharti v/s State of Kerala, where the rights of fisherman was protected under article 21 of the Constitution. The court held article 21 of the Constitution as the base and soul of the rights of the citizens. Where all other provisions come under a watertight compartment under “protection of rights and personal liberty” (article 21) as ruled by Justice Das. In another important case of S.R.Bommai v/s Union of India, where the bench was headed by Justice Ahmadi and freedom, protection and liberty was considered to be the basic feature as secularism under the Constitution.

                    Since independence, the Indian Judicial fraternity has worked for the protection of freedom of the citizens and there rights. It has been more than six decades of independence and the judiciary has always been vigilant enough in protecting the rights of the common citizens of the country. The Supreme Court is the apex court and is considered as the male head of the system. And has followed the multi-tier judicial system of Britain, were the Indian Courts have always followed the foot-steps of the British Judiciary and taken its precedents as ratio decidendi.

                   Recently, a judge of the Supreme Court came before a writ petition and collapsed the ladder of reputation attained by several judges in the past 62 years of independence. This judge called himself to be “secular to the core” and did not allow a boy to keep beard in a convent school and held that “Talibanisation of the country shall not be allowed at any cost.” Such a statement and judgment came from the pen of Justice Markandey Katju who went unconstitutional because of his own personal anti-secular opinion. And anyone who is anti-secular shall be treated as anti-national, where such a person shall be charged with Sedition under section 124-A of the Indian Penal Code, 1860. A person who remained in the field of law and was elevated from an advocate to the High Court as a judge and then later to the Supreme Court of India, the apex court of the land did not even bothered to turn the pages of a simple Bare Act of the Constitution of India and see the chapter on Right to freedom of Religion embodied in between article 25 to 28.

                    The makers of the Constitution embodied provisions of religious freedom to every common citizen. Where the Indian Constitution embodies every single provision without any ambiguity and permits the citizen of India, to do whatever he or she likes to do in order for professing, protecting and propagating his or her religious faith or institution. And it was Justice Markendey Katju, who called himself secular were he gave such an anti-secular and unconstitutional judgment. The approach of this judge of the Supreme Court shows that he has gone through the chapters not even the bold headings of the chapters of the Indian Constitution.

                    The Indian Judiciary comes over the British Judicial pattern. The laws prevailing in India are all framed by the Britishers. The Indian Judicial system still takes the judgments of the British Courts as precedents and follows them as ratio decidendi under the law of the land. Recently the British Court allowed a Sikh (Punjabi) girl to wear bangles in collage, as it comes under the freedom to profess religious obligations. The learned judge did not even thought to take that into consideration. Where on the other hand, the judges of the Delhi High Court considered gay community as legal and any discrimination to them shall be treated as unconstitutional and violative of articles 14.19 and 21. Such a community was legalized which was prohibited and was considered as an offence under section 377 of Indian Penal Code. The Delhi High Court bench took the reference of judgments and laws other countries and ruled section 377 as illegal, unconstitutional and violates the rights and freedom of the common man. The court did not even thought of its after effects and the obscenity so propagated and promoted by this judgment.

                    The real issue behind it is that, where a judge of a High Court considers other countries judgment as relevant to be referred, and a judge of the apex court of the land did not took the judgment of a British Court as relevant to be referred as precedent. It was well said by Justice Krishna Iyer, that “a judge should remain like a Hindu widow.” A judge should debar himself from the societal thoughts and affairs, so that the changed in the society should not have even a tangent impression over his or her mind and pen. A pen of a judge which delivers justice shall not have any image of the society which may alter the order of the court in any manner.

                   Going long back in 1986, we see that the Supreme Court of India in Bijoe Emmanuel v/s State of Kerala, allowed the Jehovah’s ( a Christian Sect) to not to sing the National Anthem. As these people in religious faith does not sing in anyone’s praise except there Lord. The Supreme Court dismissed the earlier High Courts order in this matter, and allowed them to be silent and respect the National Anthem, where there remains no specific need to sing the Anthem. The court did not considered it to be a violation of the National Anthem under article 51-A (a). Where no disrespect was seen to be done by them to the Anthem. The constitution provides under article 21 freedom to personal liberty of every kind, until anyone infringes the freedom or right of anyone else or break any law of the land. The apex court has passed such an order in 1986; the judge of 21st century has tainted the image so maintained by the apex body.

                   Later on, the so learned judge because of mass public agitation and critics apologized for such remark, called as “Talibanisation of the country”, and said “sorry”. The judge after the apology withdrew his decision passed on 30th April. And sent it to the table of Chief Justice of India. Now the question arises in the minds of almost everyone whether such a judge should remain on the seat of the apex court, who withdraws his judgment because of agitation. Is justice dependant on agitation or public’s sweet will, or whether his judgment had a flaw which he later accepted?

                    A judge of the Supreme Court, the apex body, who cannot deliver justice from his pen, which is his job, should such a person in the apex court. Shall not such a person be impeached, on incompetency and on being unconstitutional in his order? Such a judge has demolished and destroyed the established building of a secular democratic setup of the country, so maintained by the orders of the most respectful secular judges who remained in the court for so many years and fully maintained its decorum. Such a man who has broken the pillars of justice should be considered as incompetent and an incapable man on the chair of justice. Where such a person shall not be impeached in order to maintain the national integrity, peace, socialism, secularism and the long more than six decade republican democratic setup of the nation? Which are the main basic features of the Preamble of the Indian Constitution, which is considered as the soul and base of the constitution, as per the judgments of the court in 62 years of Indian Democracy?