By- Brinda Karat
When belief in mythology replaces logic in judicial pronouncements, and when resultant judgments contain the most outlandish, unscientific assertions, the very credibility of the system of justice-delivery is threatened. When this happens, it exposes the weakness of the process that that put such individuals in positions of judicial power. Does a higher court not have the responsibility of taking suo moto notice and rejecting such illogic to prevent it from becoming a quotable judicial precedent?
These questions arise because of a judgement of the Rajasthan High Court which decreed that the cow should be recognized as a legal entity because of its miraculous powers which stretch from protection against radio activity to age rejuvenation and, indeed, roles in curing every ailment humankind faces. According to the reportedly 193-page judgement, the cow is akin to a doctor and a surgeon. It should be recognized as the national animal. The judgement directed the state government of Rajasthan to coordinate with the centre to ensure that this is done.
It mattered little to the judge that the petition he was dealing with was about corruption which had led to the deaths of a large number of cows in a gaushala in Jaipur. It also mattered little to him that decisions regarding the choice of a national animal are in the jurisdiction of the executive, not the judiciary. For the judge concerned, Mahesh Chand Sharma, it was “the call of his soul and that of every Indian” that determined his judgement.
Outside the court-room, he made some even more outrageous statements. He declared that the peacock, India’s national bird, is the most chaste of all living beings because it does not have sex – in his words, it is a “brahmachari”. The peacock’s tears are drunk by the peahen and it is the tears that impregnate her.
It is known that this is one of the narratives in Hindu mythology to explain why depictions of the Hindu god Lord Krishna show him adorned with a peacock feather. It is said that he chose it because it symbolized chastity. Why he should choose a symbol of chastity is not explained in the narrative, but in any case, a myth is just that: a myth. In the real world, of course, peacocks have sex, they have sex with several partners, a harem of peahens, who get pregnant, lay eggs and then get left to fend for their peachicks on their own.
Myths do have an important place in public imagination and even belief, quite unrelated to science and logic. But for a person who has reached the status of a High Court judge to spout such obscurantist nonsense hardly brings any credit to the judiciary. In any case, personal belief can and should have no place in judicial pronouncements. Of course there are many examples where personal belief of judges do imbue judgements. The shocking case of Bhanwari Devi in Rajasthan is one such example – the judge ruled that “upper caste men could never have raped her” as alleged. In the view of the judge, this is not what upper caste men do. In other judicial pronouncements, Hindu gods have been considered living entities entitled to hold property and wealth and against whom land ceiling laws do not apply as in several land dispute cases in Bihar.
But surely there must be a Lakshman-rekha between personal (in this case, religious) belief of judges and the judicial pronouncements they make. But whatever the reason, there is a growing apprehension that in the general political atmosphere prevailing today, when threats, intimidation, bullying of all those who hold a different view from those in power are common, the autonomy and credibility of the most important institutions of the state are getting compromised. It is increasingly the case that persons in high office are appointed not on merit, but on their ability to take forward the ideology of those in power.
The judgement is contrary to the spirit of the Constitution. Article 51 A of the Constitution of India sets out fundamental duties for every citizen of India. Among them, in sub- clause (h) it is stated that a fundamental duty is “to develop a scientific temper, humanism and the spirit of inquiry and reform.” One would expect judges to fulfill this fundamental duty. But those who shirk this duty are in the company of more famous public figures.
The Prime Minister set the pace in 2014 just a few months after assuming office in his speech at the opening of a new wing of the Reliance Hospital in Mumbai. He had said “We all read about Karna in the Mahabharata. If we think a little more, we realise that the Mahabharata says Karna was not born from his mother’s womb. This means that genetic science was present at that time. That is why Karna could be born outside his mother’s womb. We worship Lord Ganesha. There must have been some plastic surgeon at that time who got an elephant’s head on the body of a human being and began the practice of plastic surgery.”
Someone tweeted at the time asking whether the PM was body-shaming a God, saying he needed plastic surgery, but jokes apart, why should the Prime Minister have to embarrass the country with such statements? There is enough evidence to show the tremendous achievements made in ancient India in a range of fields without having to resort to painful interpretations of mythical stories. For example, the major advances in astronomy, mathematics, logic, medicine, linguistics, in metallurgy, to name a few.
As many pointed out at the time, the PM seemed to belong to the “Batra School of Science” founded by Dinanath Batra, whose writings were compulsory textbooks in all Gujarat schools when Modi-ji was Chief Minister and who had floated the theory of plastic surgery on Ganesh and stem cell research being referenced in the Mahabharata.
Irrational judgements and pronouncements such as those made by former Justice Sharma (since he retired today), are taken as license by those gau rakshaks who roam around cattle markets waiting to pounce on innocent traders in the name of protecting the cow. In times of national stress, citizens turn to the courts for solace and justice. If the courts succumb to the threats and bullying of those in power, or if individual judges permit political ambition and superstitious beliefs to override all else, there will be little choice left for citizens than recourse to their own strength to resist injustice.
Brinda Karat is a Politburo member of the CPI(M) and a former Member of the Rajya Sabha.