“Lo, justice flees from you.
Expelled from its seat!
The magistrates do wrong,
Right-dealing is bent sideways,
The judges snatch what has been stolen.”
― Miriam Lichtheim
It is accepted jurisprudence that judges have biases that are rooted in their identity location. This is the reason for the strong pitch for judicial diversity across the globe to ensure that formal constitutional justice is seen to be done. I have very often critiqued the Indian justice delivery system particularly in its compositional access and diversity especially with respect to caste and gender. However, until recently, regardless of the savarna male nature of the Indian higher judiciary – locational biases of judges has been to a large extent subject to constitutionality and legality. Whether one agreed with it or not, a certain standard of jurisprudential rigour went into judicial pronouncements regardless of the philosophical juridical shifts. And moreover, whatever the tenor and political implications of a judgement, it always was rooted within the law.
In other words, Indian jurisprudence has had a history of strong legal reasoning that gave rise to evolution of broad principles like the Basic Structure Doctrine, whether one agreed with it or not. It was also inclusive enough to respect differences like when Justice Chinappa Reddy recognized the rights of Jehovah’s Witnesses not to sing the National Anthem based on their faith as part of their fundamental right. However, entrenchment of Hindutva as mainstream establishment has resulted in the sprouting of judicial impunity in the higher judiciary that has started adjudicating outside constitutional and legal framework based purely on locational biases. This has resulted in fantastic concepts ranging from “Love Jihad” to property disputes being settled in favour of Gods and various incidents of aggressive pursuance of Judges’ personal politics. Even Justice Krishna Iyer, with his penchant for literary aggrandisement never slipped remotely in his zeal for promoting judicial activism.
The latest to join this unsettling and constitutionally dangerous trend is Justice P. V. Kunhikrishnan of the Kerala High Court in the decision rendered in Peter Myaliparambil vs. Union of India on 21st December 2021. The question before the court was simple – whether the picture of the Prime Minister on Covid vaccine certificates violated the rights of the petitioner (or any citizen for that matter). Instead of limiting himself to addressing the arguments that were presented before the court and examining it in the light of existing legal framework, the Honourable Judge launches into a diatribe espousing his version of nationalism and launching an ad hominem attack on the petitioner to arrive at the operative part of the judgement that decides that the petition is frivolous and imposes a cost of INR One Lakh as penalty. The judge’s position is clear when he seems unable to distinguish between the petitioner working as a state level coach at the Jawaharlal Leadership Institute and the picture of the Prime Minister on his personal vaccine certificate. To top it, the judgement relies on ambiguous research in its reasoning. For instance, in paragraph 15 of the judgement, the Honourable judge says:
“The petitioner should study the history of Indian democracy. The beauty of the Indian democracy is described by our Father of Nation – Mahatma Gandhi in a beautiful manner. I heard this story from a speech of a public speaker, which is available on the internet. When a small child asked Bapuji about the definition of democracy, Bapuji replied to the child saying that democracy is a running race and who became first will lead the country. But, Bapuji also reminded that if there is no loser, there is no winner and the winner should always remember that if there is no loser, he will not become the winner.”
The judge relies on unverified stories from the internet to bolster his argument! In my opinion, the judge lost an opportunity to examine an important constitutional question.
Given the problematic nature of the above judgement, it becomes imperative to examine the constitutional and democratic repercussions of the Prime Minister’s picture on Covid vaccine certificates. Of course, in a democracy where optics plays an important role, every government regardless of ideological persuasion would do their utmost to advertise themselves and their performance. The problem is when this advertisement becomes intrusive insofar as the rights of a citizen or “subject” is concerned. And it is the job of the judiciary to step and in and check the other branches of government from such intrusion and protect fundamental rights guaranteed under the constitution.
Theoretically, within the constitutional scheme of things, the Prime Minister is a public servant elected to represent the citizens of India and govern the territory of India subject to the voters reposing faith in her through their elected representatives. In other words, Prime Ministership is term bound Constitutional office and neither the Constitution of India nor any principle of democracy accord this position with any kind of sanctity beyond that. While the Cabinet Secretary or a bureaucrat’s office may exhibit the Prime Minister’s portrait during the period of her office and change the same when the incumbent changes, it would be unrealistic and fantastic for any Prime Minister to insist that her picture be printed on personal identity papers that are issued during her tenure. It is absurd and against basic common sense to have Jawaharlal Nehru’s portrait on my mother’s birth certificate, Indira Gandhi’s on mine and Atal Bihari Vajpayee’s on my daughter’s; or even worse, if every Prime Minister insists that all currency notes printed during her tenure should have her portrait. Unlike what Justice Kunhikrishnan would have us believe, this has nothing to do with lack of respect for the Prime Minister’s office or the political will of the electorate. On the contrary, it is about constitutional and democratic values. Imagine the confusion if President Ram Nath Kovind as the Visitor of Jawaharlal Nehru University insists that his portrait be published on all certificates issued by the University!
In a post-Covid world, vaccination certificate has become a vital travel document. Even with valid passport and visa, most countries deny entry without a vaccination certificate. This means that the vaccination certificate has become an identity document like the passport, driving license or Aadhar card. Identity documents can carry symbols of the state and/or portraits of the document holder. It defies logic for identity documents to carry someone else’s portrait, be it the Prime Minister, President or even “Father of the Nation”! A friend, travelling to a European city in the early days of the vaccination drive was stopped at the immigration because the immigration officials suspected that he was passing off someone else’s vaccination certificate as his own. They (correctly) refused to believe that his vaccination certificate would have someone else’s picture – even if it were the Prime Minister of India. He had to make a call to the Indian consulate to clarify this practice of publishing the Prime Minister’s portrait on vaccination certificates. What I am trying to imply is that apart from the legal incorrectness of the practice, it is also largely embarrassing.
Coming back to the court proceedings, right from the onset of this case, reportage suggests that Justice Kunhikrishnan was unfavourably disposed towards the petition. It is alleged that he orally admonished the petitioner’s counsel for the frivolity of his case during the arguments and part of the admonition is mentioned in the judgement as well. The Honourable Judge takes strong exception to the petitioner wasting precious judicial time that could have been used fruitfully otherwise. Given his strong views on the matter and his concern for judicial time, I am left wondering why Justice Kunhikrishnan did not dismiss the petition right at the outset with or without the same punitive costs!
It is a constitutionally enshrined duty of the judiciary to check executive and legislative excesses. But, if the judiciary applauds executive actions without applying its mind, it would slip faster into the rabbit hole of an already eroding credibility. Loss of public confidence in the judiciary is a potent recipe for a constitutional disaster. After all Babasaheb Ambedkar did warn us that – “However good a constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a constitution may be, if those implementing it are good, it will prove to be good”
“Much more important, from the point of view of civil liberty and the general democratic character of the governance of the country, is the complete separation of the Judiciary from the Executive in every way that we can possibly guarantee. I think it is of the utmost importance that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.” – Prof. K. T Shah, Constituent Assembly Debates, Vol. VIII, 23rd May, 1949.
Bobby Kunhu is a lawyer, researcher and writer.