What are judges like as people?

A day before he retired on October 1, fighting ill health and fever, Justice Dharam Veer Sharma of the Allahabad High Court delivered a judgment of great consequence. In it, he said that Ayodhya’s Babri Masjid could not be considered a mosque at all because it failed to qualify as one under sharia law. (What disqualified it was a finding by the Archaeological Survey of India that it was built on the site of a razed Hindu temple.)

Justice Sharma himself described the judgement as “historic”. This was the crowning achievement of a legal career spent in Uttar Pradesh, where he was promoted to the higher judicial services in 1985, and took oath as a permanent judge in 2007. Justice Sharma’s other important contribution to the debate on Ayodhya is his assertion that the temple is indeed the birthplace of Lord Ram because this is a widely held belief among Hindus. In other words, a belief that is perceived as strong must be a fact. A news report on Justice Sharma said that he was a “deeply religious person and was very helpful to poor petitioners.” This painted for me a much better picture of the man than the mugshot on the Allahabad High Court website. What are judges like as people? And can they step outside of who they are when they sit in judgment?

If we look at religion in Indian courts, let’s consider Prahlad Balacharya Gajendragadkar, former chief justice of India (1964-66), a man who “authored several leading judgments on religion,” as Ronojoy Sen’s excellent book Articles’ of Faith points out. Gajendragadkar “belonged to a Brahmin family that for several generations had produced Sanskrit scholars,” says Sen. His father, who ran a pathshala, was one, and so was the judge himself.

But Gajendragadkar was more than that. He was a rationalist and a social reformer, who believed in an inclusive Hindusim. He also attempted to define ‘Hindusim’ — for the first time — in an Indian court, in the Satsangi case (1966). Hinduism, he said, “may be broadly described as a way of life and nothing more”. But Gajendragadkar was also reflecting the half-baked ideals of his time: a semi-understood concept of inclusiveness and a benevolent socialism. These would become themes in his judgments.

In mirroring zeitgeist, he is not alone. One of Gajendragadkar’s idols was the legendary jurist Oliver Wendell Holmes. In Buck vs Bell (US Supreme Court, 1927) Holmes sanctioned the forced sterilisation of a “feeble minded” woman, justifying this on the grounds that this was for the “protection and health of the State”. And that “three generations of imbeciles” were enough.

This is the precise argument that the defence used in the Nuremberg trials when the same charge was levelled against the Nazis. In fact, Holmes was quoted. The defence argued that the Germans had done what was acceptable at the time they were doing it, just like their accusers.

Let’s cut to the Hindutva Judgements of 1996 (seven decisions in all), in which the Supreme Court ruled on the legality of using religion to get votes. Justice J S Verma’s intentions were never in doubt, but the text of his judgment on ‘Hindutva’ was used in the exact opposite way that it was intended: Hindu nationalists saw it as a sanction from the Supreme Court, not a censure.

Justice Verma, who comes from the small town of Satna in the heartland of India, had drawn from Gajendragadkar while attempting to explain Hinduism and ‘Hindutva’: “these terms are indicative of a way of life of the Indian people and are not confined merely to describing persons practicing the Hindu religion.” The proponents of Hindutva could not have written it better themselves. Justice Verma’s secular credentials have never been doubted. On the other hand, the definition of secular (a word that came into the Indian Constitution only in 1976 along with the word ‘socialist’) remains unclear. According to A M Ahmadi, Verma’s predecessor as Supreme Court chief justice, the term was “not capable of precise definition and perhaps best left undefined”. This is one of the most sensible statements I have heard on religion or secularism from the Indian judicial system.

So what are judges like as people? Like the rest of us, they are products of their environment — and they are flawed.

Published in The Express Tribune, October 14^th, 2010.