Thiruvananthapuram, Feb 17 When the judiciary adopts the language and symbols of the majority, it undermines the confidence of minorities, betrays the promise of non-discrimination, and emboldens the State to go beyond the rule of law, former Chief Justice of the Delhi High Court, Justice A P Shah, said here on Tuesday.
In a speech at the concluding session of Vision-2031, an international seminar on development and democracy organized by the State Planning Commission here, Justice Shah raised serious concerns about the need for the judiciary to adhere to constitutional morality.
"On some occasions, the State's narrative of national integrity becomes a truth that needs no evidence," he said.
"At other times, the court treats the faith and belief of the majority as a valid basis for legal title by aligning with majoritarian sentiments. When that happens, the judiciary is no longer a counter-majoritarian check and instead begins to mirror the executive's will. So who bears the cost? The minority, the dissenter, the outlier," he added.
The retired High Court Chief Justice said the 2019 Ayodhya temple judgment illustrates India's judicial temperament today.
"In one sense, the judgment was an attempt to end a 135-year-old legal saga. However, beneath the surface, there were many inconsistencies," he pointed out.
"The court admitted that the installation of idols in 1949 was a desecration and that the 1992 demolition was a violation of the rule of law, but the remedy did not follow these findings," Justice Shah said.
"The entire disputed site was awarded to the parties whose ideology fuelled the destruction. In effect, the court prioritized the faith and belief of the majority over the rights of the minority," he added.
He said the only silver lining in the Ayodhya verdict was the affirmation of the sanctity of the Places of Worship Act, 1991—an Act enacted as a legislative freeze to preserve the religious character of all shrines as they stood on August 15, 1947.
"The goal of this law was to prohibit courts from entertaining claims based on historical grievances. However, the Supreme Court fundamentally altered this protection soon after by allowing a survey of the Gyanvapi mosque in Varanasi," he observed.
"It is believed that Justice D Y Chandrachud, who wrote the majority judgment in the Ayodhya case, opened this window by stating that ascertaining the religious character of a place of worship was not barred by the 1991 Act," he added.
He said this judgment created a "procedural loophole", enabling parties to seek excavations and surveys to trace alleged original structures.
"Civil suits have targeted the Shahi Jama Masjid in Sambhal and the Ajmer Sharif dargah, for example, as seen in the deadly 2024 violence in Sambhal. Court-ordered surveys frequently create social flashpoints. Currently, the matter is precariously poised," he said.
"The Supreme Court has stayed further survey-related suits and is now hearing a challenge to the constitutionality of the Act and the implications of such observations,” Justice Shah added.
"This willingness of the judiciary to thaw the legislative freeze marks a significant change in temperament. It effectively signals to both the State and the public that constitutional boundaries are negotiable," he further said.
Justice Shah also highlighted the Hindutva cases authored by Justice J S Verma in the 1990s.
"These cases dealt with election laws that forbid appealing to voters based on their religion. Controversially, Justice Verma equated Hindutva with Indianness and described it as a way of life rather than a political ideology. Please remember, Hindutva and Hinduism are completely different ideas," Justice Shah said, quoting nationalist ideologue V D Savarkar.
He claimed that although Justice Verma later regretted that his observations had been misconstrued, the damage had already been done.
Justice Shah also referred to the judgments in two sensational cases—the hijab case and the women’s entry case at the Sabarimala temple—to indicate the changing judicial temperament in the country.
"Take, for instance, the hijab case. The question concerned the right of young women to access education without sacrificing a part of their identity. It should have been a simple issue of the right to education and dignity, but the court examined questions of discipline and uniformity and upheld the State’s position," he said.
"This is no marker of true secularism. In a secular democracy, a classroom should be a place where a child learns to live with diversity. The court treated differences as a problem to be addressed through uniformity. It must be noted that the Supreme Court is split on this decision, and a final verdict is awaited," Justice Shah said.
He said that similarly, in the Sabarimala women’s entry case, after a historic verdict, the order was effectively put in cold storage within four months of its pronouncement.
"In both cases—hijab and Sabarimala—the court hesitated to enforce progressive rulings because they clashed with mainstream religious sentiments. It is a sobering moment for constitutional morality, as these cases effectively signal that fundamental constitutional values are becoming secondary to majoritarian impulses," he said.
He further claimed that such "majoritarian tendencies are evident in the language used by individual judges as well."
Justice Shah was also critical of the Ganapati puja held at the residence of the then Chief Justice of India, in which the prime minister participated.