Opinion Justice Shekhar Yadav and an ill-judged speech

In a country founded on the ideals of religious syncretism, communal remarks cannot be passed down as inconsequential. It was, therefore, comforting that the SC Collegium summoned Justice Yadav for a sit-down and, as reported, both counselled and cautioned him. The judge is believed to have blamed the media for selective quoting and distorting his words. However, one can’t overlook that the learned judge was mindful of media presence and even quipped that he didn’t have the slightest hesitation in sharing his views despite whatever the media may publish.

Justice Yadav’s remarks were made not in his judicial capacity — for judges speak only through their judgments — but as comments at a seemingly private seminar, despite being held inside the court premises. During his speech, Justice Yadav shared that his colleagues on the bench had quizzed him about what he may say on the topic, “Constitutional Necessity of Uniform Civil Code,” and had even reminded him that he was a sitting High Court judge. Considering all of this, there can be no doubt that Justice Yadav was aware that his remarks would evoke the reaction they did. It is in this context that his words have been termed as “hate speech” and an “incitement to communal disharmony.”

Our Constitution guarantees freedom of speech and expression saddled only with “reasonable restrictions.” However, there are areas where the caveat of reasonable restrictions does not come in the way of speech, inflammatory, or otherwise. A pertinent example of such un-curtailed speech would be remarks made in Parliament, which are covered by privilege as provided under our Constitution. This ensures that no parliamentarian should operate under a looming threat of legal action for their utterances during parliamentary discourse. Still, such immunity from legal action does not extend to these members outside Parliament. We may remember that parliamentarians and even sitting chief ministers and Union ministers have tendered unconditional apologies before the Supreme Court for their public comments. In a system governed by the rule of law, whilst remarks made by judges discharging their judicial functions are entitled to absolute privilege, such protection cannot extend to incendiary public speeches made outside the courtroom. Hence, reports that the Supreme Court collegium has asked Justice Yadav to apologise are in keeping with what the Court has sought from others, including our elected representatives. In the past three weeks, the apology has not been forthcoming and there are now reports that the Chief Justice of India has sought a fresh report from Justice Yadav’s parent High Court.

A Private Member’s bill — the Hate Crimes and Hate Speech (Combat, Prevention and Punishment) Bill, 2022 — was introduced in the Rajya Sabha, but other than sparking sporadic debates, it yielded no constructive action, let alone promulgation. Perhaps it’s time to revisit the need for such legislation.

At moments like this, one is reminded of the principles from the “Restatement of Values of Judicial Life,” which were adopted by the full court of the SC in the late 1990s. It resolved that “a judge, like any other citizen, is entitled to freedom of expression, belief, association, and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.” As the eloquent Justice E S Venkataramiah wrote, “The life of a judge does not really call for great acts of self-sacrifice; but it does insist upon small acts of self-denial almost every day.” His illustrious daughter, who is a sitting SC judge, reminded us of his words recently.

The framers of our Constitution were entrusted with the seemingly difficult responsibility of stitching together a civic society in a country, which at the time, had witnessed the extremities of religious divides. They succeeded in creating a constitution based on the ideals of liberty and fraternity, assuring the dignity of the individual. They created a pluralistic society where religious identities, views and ideas varied, but we were bound together by the virtues of unity in diversity. The Constitution did not seek to create a country for any religious denomination but built a nation for Indians who came in different colours and with varying religious beliefs. The members of the Constituent Assembly chose the opening words to our Constitution’s preamble carefully, “We the People of India.” This leaves no room for any conversations about us versus them, for we are one.

The writer is a Senior Advocate based in New Delhi