New Delhi: A celebrated retired chief justice of a high court and a former Supreme Court judge held forth on threats to the concepts of secularism and the basic structure of the constitution at a gathering in Hyderabad on October 1.Constitutional functionaries should stay within their powers and better not go overboard, former Supreme Court judge, Justice L. Nageswara Rao said.Justice Rao was chief guest at the national seminar on ‘constitution and we the people’, organised by All India Lawyers Union’s Telangana Committee and spoke on revisiting the basic structure of the constitution. The event also had as guest former Chief Justice of the Odisha high court, Justice S. Muralidhar, who delivered a scathing speech on current threats to secularism.Seven hundred delegates from across Telangana participated in the day-long seminar, presided over by Kolli Satyanarayana who heads the All India Lawyers Union.Justice Muralidhar on secularismJustice S. Muralidhar, delivered a lecture on secularism and seven decades of its judicial interpretation.He said that there was a pervading fear now in speak out which amounted to self censorship. “If journalists start to write what is liked by their masters it is death knell of democracy,” he said.He said that India is not a theocratic state. Unlike Pakistan, India exercised a conscious choice to be secular, he stressed.“However we have to understand Indian nature of secularism which could be different from countries like that of the USA and France. Article 25 and 26 speak of religions tolerance. This kind of secularism is one of the basic features of our constitution,” he added.He noted that while parliaments have been trying to gain the power to amend to this basic feature, the Supreme Court recognises secularism as a ‘cohesive, unified, [and] casteless society’.He also stressed that caste is also a major threat to secularism.The former judge, known for celebrated judgments, said that in our current public discourse, this notion of secularism is being “seriously challenged”.“Chief Ministers donating public funds to religions temples is one such thing. Political persons are associating themselves with yagnas, yagas and other such functions and endorsing them in public functions,” he said.Quoting an example from Nehru he said that earlier public representatives never allowed religious practices in public institutions. But now the political climate is changing and posing a serious threat to what we inherited as secularism, he added.He also, crucially, said that issuing a mandamus to construct a temple at Ayodhya even without a prayer by the parties to the case triggers myriad apprehensions about the levels of the tolerance. “If the ruler is seen as the defender of the faith what does secularism do?” he wondered.Justice Muralidhar’s non-elevation to the Supreme Court, despite the SC Collegium advocating it, has been the subject of debates on the government’s overreach into judicial appointments and has been criticised across the board.In a spirited editorial on Indian Express, legal luminaries had noted that among key judgements that Justice Muralidhar authored is the Naz Foundation one that decriminalised consensual homosexuality, the conviction of Congress leader Sajjan Kumar for the 1984 anti-Sikh riots, the sentencing of 16 policemen for the killings of 38 Muslims in Hashimpura and the bail to Gautam Navlakha, arrested in the Elgar Parishad case. The authors spoke also on how a bench headed by him ensured ambulance services to riot-affected areas in northeast Delhi in 2020, through a late night hearing.Rajya Sabha MP John Brittas, also a speaker at the event, spoke on how Justice Muralidhar was not elevated for reasons not confined to judicial parameters and performance.Justice Rao on basic structureThe event’s press release noted that Justice Rao, narrating the background of the famous Kesavananda Bharati case, said that the tussle between government and courts is healthy as long as they maintain a balance.Justice L. Nageswar Rao. Photo: By arrangement.While realising the directive principles is primarily the duty of the state – and hence they make laws – courts interfere wherever they feel fundamental rights are trampled upon, he said.Quoting Dr B.R. Ambedkar, Justice Rao said that Article 32, the heart and soul of the constitution, preserves the right of judicial review. He also quoted Thomas Jefferson in pointing out that every generation has a right to decide what’s good for them but added, “You can’t abrogate the constitution. The essential elements can’t be touched upon”.Justice Rao also affirmed that the preamble is the soul of the constitution. He cited Israel and Benjamin Netanyahu’s example on efforts to take away powers of the judiciary.“In March 2023, powers of the Supreme Court in Israel curtailed by bringing an amendment to its basic law and by introducing an overriding clause. According to this clause, the parliament can over ride the directives, orders and judgements of the Supreme Court if the parliament wishes so. The amendment also gave right in the appointment of judges by changing the number of persons to be appointed from the executive. This overshoot angered the Israel citizens and who had been demonstrating for 36 weeks,” he said, questioning “how many of us in India would take to such a recourse of taking to the streets if similar thing happened here.”Then, speaking on the discretionary powers of speakers and governors, Justice Rao said that the former is not independent anymore and the latter sit on files. They should not go overboard, he said.He also said that the war cry of politicians who desire parliamentary supremacy over the other organs should be looked at with suspicion.
