Hijab is a non-issue, Preamble based on Bhagavad Gita: Former Supreme Court judge, Justice DM Dharmadhikari [Watch Video]

In this interview, Justice Dharmadhikari speaks about issues related to religious and personal laws that have come up before the courts, nepotism in the judiciary and more.

Having spent three years as a Supreme Court judge from 2002-2005, Justice DM Dharmadhikari feels that he could not do what he wished to do as a sitting judge.

This, he says, was a function of the limited time most judges get at the apex court. His suggestion to the problem? A fixed tenure of at least five years for each judge.

In this interview with Bar & Bench's Debayan Roy, Justice Dharmadhikari also speaks about issues related to religious and personal laws that have come up before the courts, nepotism in the judiciary and more.

Excerpts from the interview follow.

Debayan Roy (DR): It has been 17 years since you demitted office as a Supreme Court judge. Do you miss being on the bench?

Justice DM Dharmadhikari: I really very much miss that period and I wish I could have some more time on the bench, because I could not do what I wished to do as a sitting judge. My personal opinion is that once a person goes to the Supreme Court, he must have a fairly long period. Minimum five years, so that he can perform and give something, contribute something towards the growth of law and do something for the society. I was there only for little more than 3 years. That is too short a period.

Initially, I did not occupy the Constitution Bench, only in the last phase could I do so. So what I think is that if judges in foreign countries have lifetime appointment, at least we can have appointment till a person is fit. Like you can say 70 years or 75 years. I mean you are at the zenith of your career, and at that time you are asked to go away.

If post-retirement, we can deal with commercial litigation of a very complicated nature or decide arbitration cases, then why can’t we decide cases?

There should be a provision in the Constitution that a person who goes to the Supreme Court or High Court must have minimum this much period, irrespective of his or her age.

For example, if the person reaches Supreme Court at the age of 60 or 62, then he must have at least 10 years there. 10 years, 5 years, 6 years, whatever period you fix. Fixed tenure in the Supreme Court and the High Court would be the most ideal thing according to me.

DR: What do you think of the fact that court proceedings have become more open to the public eye now?

Justice Dharmadhikari: This is the effect of technology, nothing more than that. Previously, everything that was happening in the court was not coming out in the public. Everything that happens inside the court, outside court, must be in the public domain. The entire court proceedings should be seen online and there should be a camera outside on the lawns of the court, so that anyone from the public can watch.

That is the concept of open court. Courtrooms have a very limited accommodation, and particularly the Supreme Court. Even lawyers don’t find place, they have to jostle with each other in the corridors. So better it is on the lawns you put a big screen so that public can come and watch the proceedings.

DR: So you are asking for live telecast of the proceedings?

Justice Dharmadhikari: Yes, live telecast.

DR: India's legislative scenario has gone through some major changes since you were last in public office - from the abrogation of Article 370 to the Tribunal Reforms Act. Do you think the landscape looks better now?

Justice Dharmadhikari: Definitely, because there are varied subjects which were not there, particularly in the realm of commercial litigation. Our trade agreements, environmental law, and many other laws which were not there are now coming up. For all of this, I think an interaction between the judiciary and legislature should be there. Only on the bench we say something and then the legislature takes some steps. Instead of that, there can be some interaction between the legislature and judiciary outside of the court.

DR: Can you elaborate a little on how that should work?

Justice Dharmadhikari: For example, a particular law is struck down and now the government is thinking of introducing a new law. So instead of again testing it in the court, it is better that the legislature and the judiciary sit down and discuss on the subject just like a symposium.

DR: Don’t you think this would breach the "Lakshman Rekha" of doctrine of separation of powers?

Justice Dharmadhikari: This is only a consultative process, [it is] not that in this consultative process, you have to give decisions. It is just a consultative process as you do in conferences and there sometimes judges speak out.

DR: So much has happened since you demitted office. The Collegium system was upheld, NJAC was struck down and the Right to Privacy was held to be a fundamental right. If you look back, is there any particular case you wish you were a part of?

Justice Dharmadhikari: The Right to Privacy judgment is really written very nicely, very nice. I would have liked to be on the bench for the right to privacy matter, or the Sabarimala matter.

I was on the bench for a Haridwar case in which the local municipality had said that here should be no sale of meat and eggs etc in the area to maintain its sanctity.

The question was in a secular country can you put this kind of a restriction? We upheld it on the grounds that Haridwar is the door to God and there is a sanctity and purity involved. In the Vatican City also there are certain norms which are followed by every Christian. Similarly, in a place like Haridwar, this kind of a restriction can be there. It is a reasonable restriction. Similarly many issues of religious issues are coming, I would have liked to be on the bench. I would have liked it.

Some amount of religious teaching is not bad in a secular country. We are taking moral education only from our religious books. Our Preamble is basically based on the Bhagavad Gita. All of those who framed our Preamble were very much Bhagavad Gita followers - Rajagopalachari, Bal Gangadhar Tilak, Mahatma Gandhi were very religious people and therefore very broad-minded and very secular.

DR: When we compare today's scenario to the early 2000's, are courts now focusing more on issues pertaining to religious rights and personal laws, or was that always the case?

Justice Dharmadhikari: This is recent; this is because of the human rights concept. The Indian Constitution adopted certain liberties as a part of international human rights because of the Universal Declaration of Human Rights. Case by case, the Supreme Court is introducing those human right laws.

So actually, Article 21 is being expanded. Therefore, several issues which could not have come to court are coming today. For example, right of entry of women in Sabarimala Temple or this hijab and other things. So these are all coming as a part of human rights concept, human right law.

DR: On the point of the hijab controversy, how do you decide on someone's right to wear a clothing item?

Justice Dharmadhikari: That is a tricky question and that is what the court has to decide. There is a uniform prescribed and all communities, all castes should follow it. Outside the institution, they are free to do whatever they want but inside the institution, that much restriction they have to follow.

All modern Muslim women are not using hijab. Even very educated women in Gulf countries and in Pakistan have left this hijab. This is only raking up an issue which is not an issue at all.

DR: But are these matters for courts to deliberate upon?

Justice Dharmadhikari: As I told you, this is part of that personal liberty. What I should wear, what I should eat, nobody should restrict that right. Therefore, whether it is a reasonable restriction would be decided by the court.

DR: How do you see the minority rights scenario in present day India today? Is it the same as the framers of our Constitution had envisioned?

Justice Dharmadhikari: This conflict with majority-minority was already thought of by our Constitution makers. The purpose of secularism is that even if the majority has a religion of their own, the religion of minorities should be protected and they should be allowed to carry on in the manner they like insofar as their religious culture is concerned.

If we give that much guarantee to minorities, then this conflict will not be there at all. That balance has to be maintained. There should be neither appeasement nor harassment.

These conflicts are being created only by people. A handful of people. They have to be restrained.

Justice DM Dharmadhikari quote 8
Justice DM Dharmadhikari quote 8

DR: Do you think it is time to take a relook at the Places of Worship Act?

Justice Dharmadhikari: To tell you frankly, I have not very minutely gone through that Act, but I find that these issues should have been avoided. All of this has only been created by people and should be halted. Their own RSS chief last said that we should not go on searching in every mosque and every religious place of Muslims any deity or anything like that, but that is unending.

Violence and religion cannot go together. Violence shows that this country is not religious. This country really is not religious. It has so many superstitions and so much of bad blood in the people.

DR: After demitting office, you were entrusted to resolve the allocation of power utilities cadre work. Though this was not a post-retirement role per se, do you think it is okay for judges to accept post-retirement jobs?

Justice Dharmadhikari: If judges are given a longer tenure, they can perform whatever they have been doing. But because that is not the situation, if you ask a person to retire, it doesn’t mean he has to just take pension and do nothing. Then our place is only mental asylum.

If our brain has to work, we must have some work to do. And after retirement, a person is not good for nothing. So most of the judges are doing something, whatever they get an opportunity to do. There are so many tribunals and someone has to head them. If judges are excluded from this, then the IAS lobby will take over and you know their working.

DR: The age-old debate over nepotism in the judiciary still rages on. It is said that only the sons and daughters of established lawyers and judges can thrive in the field. Given that you were not a first generation lawyer yourself, do you agree?

Justice Dharmadhikari: I come from a lawyer’s family. My grandfather was a district judge in the British period, before independence. As an actor’s son is an actor, a singer’s son is a singer; a judge’s son can be a judge. But of course, he should be taken on merit only. Being a son of a judge is not a qualification.

Otherwise ,the other extreme would be to exclude judges' sons. But if the judge’s son is qualified in every respect, then he should be considered like any other candidate.

DR: With the advent of technology, courts are becoming more and more digital. Do you think that there are certain traditional workings of the court system that should not be disturbed?

Justice Dharmadhikari: Human touch should not be lost. If human touch is lost, you are losing everything. Witnesses must come inside the court for cross-examination, which cannot take place effectively when a person is on camera. He has to be in the court if you want to bring out the truth from him. Wherever there is inconvenience for any party to come to a court of law, you can use technology, but otherwise, our traditional system should go on.

It is not merely dispensation of justice, the justice should reach the person and he should realize he has received justice. This feeling can come only if there is a rapport between the judge and the party. Physical hearings should be the norm; this online hearing should be an exception.

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