Reading Justice Mahesh Chandra Sharma's recent judgment, one knows not whether to laugh or cry. It is certainly a first in judicial history.
Justice Sharma's order in the Hingonia Gaushala (cow shelter) Case, where the honourable judge of the Rajasthan High Court has requested that cow be made India's national animal, sadly goes against the principle of judicial neutrality.
A judge on his appointment takes an oath:
“I, AB, having been appointed Chief Justice (or a Judge) of the High Court at (or of) ........................... do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established [that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”
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This obligation is a non-negotiable one.
We, as a society, place a very high value on the independence of the judiciary. But independence from whom and for what? Independence from the executive and the political program and ideology of all political parties, including the ruling party.
This independence is required in order to maintain the rule of law and equality before law, implicit in Article 14, which reads thus:
“14. Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
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The State here includes the judiciary. It is argued that he has breached his oath of office.
Indeed if they do, why are cows being abandoned to eat plastic. I have just seen a video of a bull, bloated in the stomach, being surgically operated to save its life, and reams of plastic coming out of this stomach. Despite the valiant efforts of the veterinary surgeon, the bull died. So much for the gods and goddesses.
The judge in question forgot one of the basic features of the Constitution – secularism. This Constitution was written for us all, agnostics and those who belong to different religions alike. That is the true meaning of maintaining independence.
Justice Sharma, however, has retired, and with this a possible opportunity to impeach him for breach of his Oath is lost. But perhaps in the style of Justice Karnan, he could be convicted of contempt of his own court, and his pension withheld.
This sad episode in judicial history also brings to the forefront the issue of appointment of judges. The time has come to demand transparency in the matter of appointments, with every MP being given an opportunity to question the judge on all aspects of his life before his appointment.
There is no point in closing the stable doors after the horse has bolted. Or shall I end by saying after the cow has bolted?
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At times like this, the Chief Justice of India, who is the ‘head' of the judicial family, must issue a policy statement on the manner and method of writing judgments, to make judicial policy clear. Nothing but the Constitution can be used to render judgments. The judiciary too must bear responsibility for its own.
They can also direct the Attorney General to file an appeal. After all, let us not forget that the recently concluded triple talaq case was initiated suo moto by the judiciary, if women need to be protected, so do cows and peacocks from judges.
(The writer is a former Additional Solicitor General of India. She can be reached at @IJaising)
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