Supreme Court of India.
Dr JAVED JAMIL | Clarion India
THE appointment of 5-judge bench in the Supreme Court on Ayodhya case has rightly been criticized by one of the parties for its non-representation of any Muslim in the panel. The counter argument given in response is that Judges are just judges and cannot be doubted regarding their impartiality. Does that argument hold true?
Already, one of the judges had to take back his name following the argument that he had once appeared in the Court on behalf of a Chief Minister who campaigned actively in favour of Mandir. Can the judges be expected to be wholly objective in their judgment? If this was the case, why in the Triple Talaq judgment, the Muslim judge was against the majority verdict?
When it comes to purely criminal and civil matters not involving any ideological issues, judges can of course be expected to deal the case objectively and pronounce judgments according to their reading of the case and the law. But when the ideological issues are involved, it is but natural that their ideological positions will differ. This is not just true for the cases where religious issues are involved or where two communities are involved. This is even truer where issues related to morality and ethics are involved.
On issues like alcohol, smoking, liberty of sex, homosexuality, abortions, etc, the decisions of the judges are bound to be influenced by their personal views. On social and economic issues too, the judgments can differ if the judges have leftist or rightist proclivities. In the US, the judges in the higher courts are in fact appointed on the basis of their known views regarding moral issues, even their proximity to Republican or Democratic viewpoint.
Fortunately, till now, no such considerations are taken in the appointment of judges. But on many occasions, including the recent protest by some Supreme Court judges, the governmental intervention has been the subject of intense debate.
Moreover, judges do not live in isolation. They move in society and are in regular touch with the media. Their views are bound to be influenced by the trends of the time and the projections in the media. In a world dominated by the forces of economics and politics, their psychology is conditioned into believing in a specific way. Otherwise, what can explain the sudden change of Supreme Court opinion on Homosexuality and Adultery?
Previous judgments reflected the impact of Indian religious and cultural values. The latest judgments reflected the perceptional change brought by the forces that seek to commercialise human instincts irrespective of their devastating effect on life, health, family and social peace.
The recent passing of the Bill on the Reservation Quota issue has highlighted the fact that when the interests of the dominant forces are involved, even intense rivalry between different political parties, and even on the verge of the national elections, freezes to zero.
As far as I can see, it is highly unlikely that the Act will be undone in the Court, as the judges mostly belong to the same classes that are the beneficiaries of the act. Otherwise, how can one understand the economic criterion given in the act? With all those below 8 lakh per annum income eligible for the reservation, where will it leave any chances for the truly poor? While there is no ban on Muslims being the part of the recipients, their chances to get any real benefit are considerably less because the comparatively poorer Muslims will find it hard to compete with the comparatively richer non-Muslims.
The future will see even greater tilt in the Judgments towards the libertarian trends. Objectivity is only an ideal, which will continue to be comprised through subjectivity in an ever increasing amount.
Dr Javed Jamil is an eminent Islamic scholar and author.