‘University is meant for dissent’: Former Supreme Court judge Sudhanshu Dhulia

The Allahabad High Court recently rejected a student’s plea to wear a hijab in school, relying on several verdicts, including the Karnataka High Court’s full bench verdict that upheld the state government ban on hijab in educational institutions. You had set aside the high court decision in a split verdict of the Supreme Court. What is your view on balancing fundamental rights and institutional rules?

Sudhanshu Dhulia: The hijab judgment is primarily based on a fundamental constitutional value called tolerance. The Supreme Court verdict in 1986 by Justice O Chinnappa Reddy in the famous Bijoy Emmanuel v State of Kerala dealt with the action against three girls belonging to the Jehovah’s Witnesses community. They were expelled from school for not singing the national anthem, though they stood up respectfully when the anthem was sung. While penning the verdict, Justice Reddy had famously said that our religion preaches tolerance, our culture teaches tolerance, our Constitution practices tolerance; let us not dilute it.

The hijab judgment was written with that spirit. I am not in favour of the hijab per se, because I would not like my daughter to wear it. But if she wants to wear a hijab, I’ll be the last person to stop her. The emphasis here is on the choice of women whether to wear or reject a hijab. I was defending the choice of women, not hijab per se.

As far as the Allahabad judgment is concerned, technically you may not find fault with the judgment because it says that we only have a view of the full bench of the Karnataka High Court, which was challenged in the Supreme Court, and there is no authoritative opinion of the Supreme Court on this because the verdict was split.

The Allahabad High Court is persuaded by what was said by the Karnataka High Court. But I respectfully disagree with the view taken by the Allahabad High Court.

We saw the recent language row in Maharashtra involving non-Marathi-speaking taxi and auto drivers. A year ago, a bench headed by you upheld the use of Urdu on the signboard of a municipal council building in the state, saying language must not cause division, and Urdu “is the finest specimen of Ganga-Jamuni tehzeeb”. How do you view the assertion of a particular language in our pluralistic society?

Sudhanshu Dhulia: Language is a very big and sensitive question. If you have read historian Granville Austin’s Indian Constitution: A Cornerstone of the Nation, the Constituent Assembly was almost at a breaking point. There was no unanimity as to what should be the language of the new nation. Had India not been divided, they were absolutely sure that Hindustani would have been the language, which means both Hindi and Urdu – a mix of both languages.

But then the country got divided, and Urdu became the language of Pakistan and it was wrongly perceived that Urdu was the language of the enemy country. So Urdu was out, and any trace of Urdu in Hindi was also to be out. That became very difficult. The Hindi wallas, as Austin calls them, were pushing for Hindi as a national language, whereas there were other states also. Many linguists and scholars were pushing for their languages. I can immediately think of Ganesh Devi, for example. He beautifully says that India is a linguistic civilisation.

Imagine the number of languages we have. There are 22 languages in the Eighth Schedule, but apart from that, there are hundreds, maybe thousands, of languages that we have. I presided over the Chief Justice’s bench at the Gauhati High Court and Nagaland was also a part of it. Nagaland has about 23 major tribes, and each tribe has a different language.

I come from Uttarakhand, where Garhwali and Kumaoni are spoken, and where Hindi and Punjabi are also spoken. People speak five or six different languages there. Therefore, for a language to bring unanimity among Indians, it was indeed a very difficult task.

There is no conflict between Marathi and all other languages. Marathi is a great language. Many linguists say it can be a bridge between the Dravidian and North Indian languages because it has a rich history of its own. Even in our judgment, we said people should fall in love with all languages, why just Marathi or Urdu or any other language? But you cannot stop somebody from using that language if they want to.

The issue before us related to a particular area or the municipality, where the majority were only familiar with Urdu. They could only read a signboard if it was in Urdu. That had continued for 50-60 years. There was Marathi and Urdu on the signboard but then someone said that only Marathi should remain. This was challenged in the commissioner’s court and other courts, including the high court. And every court ruled that Urdu language must be there.

We could have simply dismissed the petition, but my brother judge said, “You know, something has to be written on it.” It is actually not a question of language, it is a question of the Constitution. My brother judge, who had given very important inputs in that judgment, doesn’t understand much Hindi or Urdu. His mother tongue is Malayalam, but he understands the Constitution very well.

He said that this has to be the one. How can you stop somebody? And particularly Eighth Schedule language, you can’t do it. So it was written in that spirit.

113 countries have abolished the death penalty. A trial court judge in Uttar Pradesh recently awarded 22 death sentences in four months, leading to nearly 100 murder cases being recalled from him. You were on the Supreme Court bench that referred the question of framing strict guidelines for mitigating circumstances in death penalty cases to a Constitution Bench. Is there a disconnect between constitutional courts and trial courts on the ‘rarest of rare’ doctrine?

Sudhanshu Dhulia: The death penalty is there in only about 50 countries, such as China, Saudi Arabia, Afghanistan and Pakistan. But as long as we have the death penalty as a punishment in our laws, you can’t say that it cannot be given. I have never given a death penalty or upheld a death sentence. If we are talking about this Muzaffarnagar incident, I don’t know its facts. Of course, it sounds a bit odd. That’s why there is a judgment.

In the Supreme Court, however, we referred a matter to a larger bench. I think I was sitting with Justices Lalit and Bhatt. In a criminal case, there are two aspects – conviction and sentencing. The question before us was whether on the day of conviction, the sentencing could be handed out. I was of the view that a separate hearing has to be given on sentencing and the aggravating and mitigating circumstances have to be considered.

There is no grey area about what is the rarest of rare case. It is well chalked out. No judge has any confusion about it. Now, it may be different, it may differ from judge to judge. Sentencing is of absolute importance in a criminal court. When you sentence a person, that takes the entire experience, the judicial acumen of a judge. You can’t fix a rule for that, otherwise the judicial discretion will go away.

Is death penalty sentencing more judge-centric in trial courts?

Sudhanshu Dhulia: You can’t say ‘judge-centric’, because judges don’t decide cases as per their whims and fancies. They decide it as per the settled law, the settled norm. Even the sentencing part. A judge would know what the mitigating circumstances and aggravating circumstances are. Anybody would understand it.

A lot of things are spoken inside the courtroom, things said in passing. Often, these turn into political and newsroom debates. Should a judge stick to the brief and exhibit judicial restraint?

Sudhanshu Dhulia: What troubles me, not just as a former judge, but as a citizen also, is the journalism of the past and  the journalism of the present. I was never in favour of court proceedings becoming live because we are actually not prepared for that. You can’t fight technology. It would have come one day. Sometimes things are said in a manner relevant for a particular moment. But unnecessarily aaplog afsana bana dete hain (you guys turn it into a fairytale unnecessarily). Judges are also human beings. You and the public should also understand that judges ultimately are doing a difficult task, as David Pannick says in his book. They take a decision which ordinarily people avoid doing in their lives. And the judges do it as a part of a duty, in a public space.

If some comments are uttered, which is not even for public consumption, which have nothing to do with the order also, they get blown up by the media. That is also not mature journalism.

Are you okay with the media reporting the banter between the bar and bench?

Sudhanshu Dhulia: You can’t help it. I mean journalists, suppose if you are there, you’ll never do it. I can understand that. But there are some who will.

There is a steep rise in live streaming and things going online. During your time as a judge…

Sudhanshu Dhulia: Kabhi nahi hota tha (it never happened)… Earlier, nobody was asking what was happening in a courtroom. These days everybody’s interested in it. It used to happen in the 1940s and ’50s when films were being made on courtroom dramas and people were interested in the proceedings because there was no television, not much cinema. Now there are so many other things happening, but still people are very interested in what is happening in the courtroom. Maybe it is a positive sign. But this unnecessary reporting is also not good. This doesn’t give signals of a mature democracy.

Are judges reading what the media is writing about them?

Sudhanshu Dhulia: I don’t know. Some judges don’t even care. But I’m sure even if someone’s not reading it, they are being informed by others who must be telling them, “Ye aisa aa gaya hai, woh aa gaya hai (This has happened, that has happened.” Sometimes it becomes very disturbing for the judges also.

Is there any impact?

Sudhanshu Dhulia: I don’t think any judge is on social media, Instagram or Facebook. But their friends are there, somebody will be telling them. Even if you are not there on social media, you are still there. Kuch prabhav padta hi hai (There is some impact).

Justice Sudhanshu Dhulia: Agar aap isko daba doge toh fir university university kahan rahegi? (If you suppress it, a university will not remain a university). (Screen grab from interview to The Indian Express)

Supreme Court judge Justice Ujjal Bhuyan strongly defended student dissent, calling threats of punitive action against students asking questions ‘unconstitutional’ and a ‘misuse of power.’ Should a sitting Supreme Court or high court judge be addressing the public? What is your take on student dissent?

Sudhanshu Dhulia: I 100% agree with what Justice Ujjal Bhuyan said. It is very courageous and an apt comment. On how much judges should speak, there has to be a certain restraint considering the nature of the job, because sometimes these matters come before you and then you are in a fix whether you have already made a comment on it. A certain degree of restraint has to be there among judges, no doubt.

But then don’t forget, a judge is also a citizen of this country. The very fact that he’s a judge of a higher court, a constitutional court, doesn’t mean that he ceases to be a citizen. Who would disagree with this statement? Why should you punish dissenting students? All of us have been to universities. Imagine the day you enter a university. Don’t you find a difference in the atmosphere in a university and your school life? And what is the difference? The difference is in critical thinking. It is for the first time when you enter a college or a university that critical thinking is developed. And not just in the classroom.

If you are fortunate, you will get a good teacher who would whet your desire to learn more apart from the lecture he or she gives, in the chai addas, in the corridors, in the libraries. Professor Rajeev Bhargava has used a very wonderful term: that it’s a place where people are in continuous conversation with one another. And where do you find this continuous conversation but in a university campus? So university toh dissent ke liye hoti hee hai (university is meant for dissent). It is meant to raise dissenting voices.

When we were students, if something was happening in El Salvador, there would be placards. If the students in a university are dissenting, or standing in support and solidarity with something, against oppression, I think it speaks volumes about the awakening. That’s good. Agar aap isko daba doge toh fir university university kahan rahegi (If you suppress it, a university will not remain a university). A line though has to be drawn between dissent and outright disruption or things like that, or crossing the line.

The sedition law has been kept in abeyance. Should it be completely done away with?

Sudhanshu Dhulia: My grandfather was charged with sedition. He was a freedom fighter and a journalist. The old colonial laws, they should be given up. These are archaic and oppressive laws of the colonial era.

You were part of a Supreme Court bench which questioned the government about the delay in judicial appointments. Keeping in mind the delays and the dearth of judges in higher judiciary, do you have recommendations to bring in more transparency in the judicial appointment system?

Sudhanshu Dhulia: Right now we have a collegium system that’s working, although there is much that needs to be done there as well. Yes, some changes are needed in the manner in which judges are being recommended to high courts and the Supreme Court. Some changes are required; some transparency is required. But that is a subject for a larger discussion and debate.

These appointments should not be delayed. Once a collegium recommends certain names, unless the government has very strong reasons, some reports against the judge, in normal circumstances, they should not be stopped.

What is your advice to younger legal professionals? Any book recommendations?

Sudhanshu Dhulia: Firstly, any person wanting to become a lawyer must have an immense thirst for knowledge. They should have a great appetite for reading and learning. And after they become lawyers, they should have the patience to observe senior advocates arguing in the courtroom because that’s the best part of their education.

Initially, they should not prioritise arguing cases but observe how seniors argue in the courtroom. More importantly, they should read and spend more time in libraries. Nowadays, there is a much higher use of technology among youngsters and I wonder if anybody is spending time reading an actual book. We had the Industrial Disputes Act, for example. If we did a labour matter, it was absolutely necessary for us to read the book of O P Malhotra. Similarly, there are very fine commentaries on the Constitution. It’s just that people are not reading now, whereas they should be spending more time on that instead of gossiping about courts and judges.

I recommend Discovery of India by Jawaharlal Nehru, which is a must-read, and also his autobiography. The other book is India After Gandhi by Ramachandra Guha. You must also read Premchand. In fiction, if you have not read Anna Karenina, go pick a copy and read it. It is a wonderful book and I learnt so much about Russian life.