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Law

At Least 11 of 21 Former Judges Opposing Same Sex Marriage Are Not as Sanskari as They Seem

Do judges have any business quoting Bharatiya traditions when their allegiance is to the Constitution alone?

New Delhi: It may come as a surprise to some people that at least 11 of the 21 retired high court judges who wrote an open letter opposing same-sex marriage on the grounds that it violates the “Bharatiya marriage traditions and family system” are not as virtuous as they seem.

One of these 11 former judges had once confined his 30-year-old daughter at home to stop her from marrying her boyfriend from a different caste. Another was referred to as an “uncle judge” by the Bar Council because a relative of his worked as an advocate in the same court. Yet another called a Supreme Court justice from the minority community “communal” purely on the basis of his religion. All 11 have worked for the government in various capacities after their retirement.

The 21 judges released their open letter on March 24 in response to a Supreme Court decision to hear the final arguments on granting recognition to same-sex marriages on April 18.

Aside from claiming that same-sex marriages pose a threat to Bharatiya traditions, the retired judges also said that the prevalence of HIV – the AIDS virus – would rise if same-sex marriages were to be legalised, basing this argument on data from the US Centers for Disease Control and Prevention which said that 70% of new HIV-AIDS cases are amongst gay and bisexual men. Other objections made by the 21 retired judges included the fear that children from homosexual marriages will suffer from grave emotional and psychological traumas and that same-sex marriages will lead to a population decline and weaken the gene pool. All of this, the letter said, will seriously impact the entire human race.

None of these fears are supported by facts or statistics. But to underline their objections, the learned judges once again returned to the topic of Bharatiyata, stating that mindless aping of the West would sound the death knell of the already crumbling Bharatiya family traditions. They ended the letter by saying that law-making is entrusted to the legislature, not the judiciary.

At least two of the objections made in the letter are similar to those made by the Narendra Modi government at the Centre. The government has also opposed the same-sex marriage petitions in the court on the grounds of preserving Bharatiyata and also said that granting legal sanction to relationships is a function of the legislature, not the judiciary.

The open letter by the 21 retired judges raises several pertinent questions. First, do judges have any business quoting Bharatiya traditions while passing judgment, or is their allegiance bound by the Constitution alone? Next, are the former judges only frightened by threats to Bharatiya culture or are they beholden to the government because many of them have or had post-retirement jobs?

Perhaps the following list will provide the answers.

Justice S.N. Jha.

Justice S.N. Jha, who retired as the chief justice of the Rajasthan high court in 2005, has held several government jobs thereafter. He served as the president of the Customs, Excise and Income Tax Tribunal almost immediately after his retirement and worked as the chairperson of the Bihar Human Rights Commission from 2008-2013. In 2016, the Bharatiya Janata Party (BJP) government in Haryana appointed him as the head of a Commission of Enquiry to probe the Jat quota violence of January 2016 that had left 30 people dead. This led to the opposition accusing the then BJP government of nullifying the Prakash Singh Committee, which had been constituted in February 2016 to probe the same violence and which had indicted high-ranking officials of the police and state administration for their role in the agitation. The Jha Commission was to submit its report not later than six months after its appointment, but while it completed its investigation, it is yet to submit its report to the government even though the commission was wound up in September 2021.

Justice M.M. Kumar.

Justice M.M. Kumar retired as the chief justice of the Jammu and Kashmir high court in January 2015. The year before, Kumar had been named in a list of “uncle judges” in the Punjab and Haryana high court. ‘Uncle judges’ are those who have kin practicing law in the same court. In June 2015, Kumar was appointed as the chairperson of the Company Law Board for a year; he was then appointed as the first president of the National Company Law Tribunal till January 2021. In June 2021, he was appointed as a member of the National Human Rights Commission and is still in office.

Justice S.M. Soni.

Justice S.M. Soni, a retired judge of the Gujarat high court and a former Lokayukta, seems to be a serial writer of open letters. In August 2012, Soni wrote a letter to the then Chief Justice of India accusing Justice Aftab Alam of the Supreme Court of having a “communal mindset”. In the letter, he requested that Justice Aftab Alam be kept away from the “sensitive” Gujarat riot cases! In July 2022, Soni signed a letter written to then Chief Justice of India N.V. Ramana by 217 officials including retired judges, bureaucrats and army veterans, which castigated a Supreme Court bench for violating “judicial propriety and fairness” in their observations against BJP spokesperson Nupur Sharma. The Supreme Court judges had held Sharma responsible for single-handedly igniting emotions across the country with her utterances on the Prophet Mohammed. Soni also received a few assignments from the government, such as investigating irregularities in the functioning of an Ahmedabad cricket club, the Rajpath Club, in 2015.

Also read: The Paranoia of Former Judges Opposing Same-Sex Marriages on Civilisational Grounds

Justice S.N. Dhingra.

Justice S.N. Dhingra had also signed the July 2022 letter referring to Nupur Sharma. He has had several government assignments after his retirement in 2011 from the Delhi high court. The Haryana government appointed Dhingra for a one-man commission in 2015 to probe Robert Vadra’s land deals. A year later, while serving as a Delhi high court-appointed observer in a family business dispute, Dhingra himself came under the scanner for awarding contracts to his daughter’s firm from the very company he was monitoring. He resigned after the allegations arose. In 2018, Dhingra was appointed as the head of a Special Investigation Team appointed by the Supreme Court to renew a probe into 186 anti-Sikh riot cases in which closure reports had been filed. The report, which implicates several Delhi police personnel, was submitted in January 2020 to the home ministry. Last month, on March 15, the Supreme Court said it would soon hear the matter on the findings of the Dhingra report.

Justice Raghuvendra Singh Rathore.

In 2013, even as he served as a judge in the Rajasthan high court, Justice Raghuvendra Singh Rathore had to face the embarrassment of the Supreme Court ordering that his daughter, whom he had confined at his home, be allowed to marry her paramour. This did not stop the Modi government from appointing Rathore as a judicial member of the National Green Tribunal, where he served from 2016 to 2020.

Justice K.K. Trivedi, a former judge of the Madhya Pradesh high court, has been appointed to several bodies after his retirement, from the Gender Sensitisation complaints committee to heading a committee investigating a marksheet scam and yet another one probing financial irregularities at a medical college in the state. In latter case, Trivedi submitted his interim report in 2022, but the enquiry is still in progress.

Justice Karamchand Puri, a retired judge of the Punjab and Haryana high court, was cleared by the Centre in 2016 to take over the Srinagar-Jammu bench of the Armed Forces Tribunal (AFT), the body that hears all cases pertaining to the defence forces. As a claims commissioner, Puri was also appointed in 2018 by the BJP government in Haryana to assess damage caused to property during the Jat agitation. Later, he became a member of the Haryana Human Rights Commission.

Justice M.C. Garg, a former judge of the Delhi and Madhya Pradesh high courts, was cleared by the Modi government to take over as chairperson of the Appellate Authority, a government forum for the redressal of grievances against chartered accountants and so on. He was also a vociferous supporter of Union home minister Amit Shah’s Citizenship (Amendment) Act.

Justice P.N. Ravindran.

The loyalties of Justice P.N. Ravindran to Bharatiya traditions was revealed when he joined the BJP in March 2021 to deal with what he called “love jihad cases from both Hindu and Christian communities”. Ravindran, who had served as a Kerala high court judge from 2007 to 2018, said he was joining the BJP to protest the state government’s stand on the Sabarimala temple issue, which he said went against Hindu sentiments. Ravindran also hit out at those judges who raised the issue of nepotism in the appointment of judges. He referred to them as “publicity seekers”, apparently as a jibe aimed at his colleague, retired Justice B. Kemal Pasha, who himself later sought an election ticket from the Congress party.

Justice Sunil Hali.

Justice Sunil Hali, a former judge of the Jammu and Kashmir high court and the Allahabad court, was appointed by the Modi government only a fortnight ago as the chairperson of the Fee Fixation and Regulation Committee at Jammu. He took office on March 31 and will serve for three years.

Justice Rajiv Lochan Mehrotra, who retired from the Allahabad high court in 2018, surfaced in Goa as the ombudsman of the Goa Cricket Association, a position he holds till date.

In a footnote, it must be said that despite the protests against same-sex marriages, only a fortnight ago, on March 25, at the convocation ceremony in the Gujarat National Law University, Rohin Bhatt, an undergraduate who identifies as gay, received his degree wearing the pride scarf.

Vrinda Gopinath is a senior journalist.