Dipak Misra, who was in the news, not long ago, for all the wrong reasons, asserting himself as 'master of the roster' and being taken down in estimation, by the liberals- who went so far as to initiate aborted Impeachment proceedings against him, is now the darling of the liberals. A week, they say is a long time politics: it seems longer in judiciary too. The week leading to the retirement of the incumbent Chief Justice-on Gandhi Jayanthi day- has been full of drama. Be it his presiding over the upholding of Aadhaar legislation while delinking the nexus with bank accounts, mobiles and school admissions, or the verdict with Ashok Bushan, declining to refer the Babri Masjid ancillary issue to a Constitution bench, or the orders in Sabarimala temple entry for women of all ages, he has written himself into the annals of judicial history as being part of a series of epocal pronouncements.
But, all hell has cut loose on the social media platforms- with the faithful/conservatives in a rage. There is total lack of sobriety in the debate, driven more by emotions and passions. One wonders, how many of us have taken the trouble of reading the 411 page verdict, including the solitary dissent from Justice Indu Malhotra. It is selective quoting and skewed understanding that has led to open season. Unfair.
Let's get real? The Supreme Court under our Constitution is a Court of Law. Law, as in the Constitution of India and the various statutes in place, have to pass constitutional muster. Please understand that the majority had little chance but to go the way they have. The languages may be 'provocative and insulting' to those who swear by their 'faith'. But, the driving force behind the verdict was ultimately 'statutory' and 'constitutional' -and the apex court cannot be seen to have entered areas 'out of bounds'.
The moment they ruled that 'Ayyappa devotees' did not form a 'denominational' group, which finding is unexceptionable, precedentwise- and Justice Indu Malhotra's contra view is wobbly on this score- the examination of the statutory provision and the Notification upon which the 'ban' was founded , had to pass the constitutional tests.
To begin with , the opening paragraph of Chief Justice's judgment points out that the petition was filed seeking to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 framed in exercise of powers conferred by Section 4 of the Kerala Hindu Places of Public Worship 2 (Authorisation of Entry) Act, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India. If that be so, the prohibition was traceable to the said provisions, which had to cross the bridge of constitutionality to survive. The provision failed, or so the majority has concluded. Justice Indu Malhotra chose not to bite this bullet and instead confined her dissertation to the 'religious beliefs' and allegation of absence of 'rational basis' and towed her dissenting path, invoking even a distant Supreme Court of Alaska verdict adverting to 'queer practices'.
Forget not, that the issue in Triple Talaq case, was similarly traceable to a statute, Shariat Act,1937. This, it was pointed out, is indeed the express mandate of Article 13(1), which provides that laws in force immediately before the commencement of the Constitution, insofar as they are inconsistent with the provisions of Fundamental Rights of the Constitution, shall to the extent of such inconsistency, be considered as void. The majority agreed and Triple Talaq went. It was Justice Nariman, a Parsi, who went this route on 'Islamic Faith'. To be even handed, he has treaded the same path on 'Hindu faith". Fair or Unfair ?
Blame not the majority for their defying the 'faith and beliefs' or 'transgressing into territory beyond their ken and domain'. Once there is a statutory premise for the 'practice and custom', it lends itself to constitutional challenge and that's exactly what has happened. But whether Justice Chandrachud has yet again traversed beyond this scope, is an academician's delight and does not belong here.
(Author is practising advocate in the Madras High Court)...