Few institutions in the country demand the kind of exaltation that the Judiciary necessarily demands from those who essentially had no say over who gets to be their overlords. An institution meant to independently protect the constitutional interest of the citizens of the nation has often fancied itself as the guardians of public morality, collective thought, and conscience and increasingly, as the interpreters of faith – far exceeding their judicial brief and serendipitously, attempting to dictate how the nation should pray, live, breathe – conforming to their own sensibilities and perceptions.

By and large, despite almost zero accountability and transparency, the Judiciary has been a revered organisation. The average citizen of the nation at large accepts that the Judiciary is an independent institution and the last resort when their rights are being trampled upon by the State. Whether that reverence is a result of genuine faith or instilled fear, is a debate for another time.

While there have been several rumblings across the political and civil society spectrum, the faith of the populace in the Judiciary has largely held steady. What that faith is based upon is the assumption of neutrality – that they will be treated fairly and lawfully by the judiciary regardless of their religion, caste, creed, economic strata or political inclinations, fairness in the applicability of the law – which is to say that the law, written in black and white, is the same for everyone and will be interpreted equally for everyone and scholarship – the judges are learned, they are morally above the petty considerations that drive bias.

Several arguments can be made to refute the premise based on which the faith in the Judiciary is maintained by the populace, but even if one were to take these virtues at face value, perhaps the only people who can effectively shatter this optimism, are the conduct of the Judges themselves, especially after they retire and are freed from the constitutional shackles that often force them to hold their tongue.

On the 7th of January 2023, former Supreme Court Judge Justice V Gopala Gowda made incendiary, misplaced, and daftly political statements at an event.

The former judge was speaking at a National Convention on the topic Save Constitution, Save Democracy organised by the All India Lawyers Union, Delhi Union of Journalists, and Democratic Teachers Front.

Justice Gowda essentially said that the conduct of the Supreme Court has been disappointing in the past 8 years because it has supposedly not stood up to the executive – the government, essentially. He says that he was disappointed in several judgments passed by the Supreme Court and before 2014, which is when PM Modi rose to power, the court was far more likely to hold the govt to the task.

“In 2014, the apex court was not hesitant in going against the central executive in matters involving high political stakes, be it in the cancellation of 2G licenses and the coal gate case. The Court also passed several oral remarks, including the famous “CBI is caged parrot” remark. Judiciary was seen as a crusader against corruption. But post-2014, the Supreme Court presented a weaker self. The verdict in politically charged cases such as Sahara-Birla (where enquiry was sought against PM Narendra Modi), Loya case (where enquiry was sought regarding the death of judge trying the case against Amit Shah), Bhima-Koregan, Rafale, Aadhaar etc., have invited a lot of criticism of the public. When it comes to taking on the system, the Court acts hesitant”, he said.

First and foremost, the Supreme Court itself is not supposed to focus on delivering punch lines and being “crusaders”. The function of the Judiciary is not to be activists against the government but to uphold the law and the constitution. In this quote, Gowda seems to rue that the Judiciary is not acting like Yogendra Yadav, indulging in mindless activism and passing useless punchlines like “CBI is a caged parrot”. While the premise itself seems faulty, there is a factual inaccuracy here as well. While Gowda does not point towards any legal lacuna due to which he disagreed with the judgments in the cases cited, he also forgets that it is only after 2014 that we got gems like “dissent is the safety valve of democracy”. Clearly, the Judiciary has not lost its penchant for colourful, albeit judicially pointless punchlines, and Justice Gowda should find solace in that fact. Justice Gowda could also steady his heart with the knowledge that it was only after 2014 that woke, western constructs like intersectionality and critical race theory, which essentially have nothing to do with Indian ethos, are also being propagated by the highest echelons of the Judiciary – that has got to count for something.

Gowda also went on to talk about how “fascist Hindu elements” are taking over the country and by extension, how the Court failed to protect the secular ethos of the nation by passing the Ayodhya verdict. “Liberty, equality, and fraternity is the trinity which the Indian Constitution guarantees. Now, these are endangered because of reactionary elements and the State transforming to a fascist Hindu one. All pillars being taken over by such forces. For example, the Citizenship Amendment Act (CAA) denies equal citizenship; [it is] against secularism, which is the bedrock of our democracy,” he said. “The Ayodhya judgment has made right-reactionary forces claim Gyanvapi and other mosques in the country. This is a great threat to the Republic of India,” he added.

The former Justice of the Supreme Court erroneously claimed that CAA denied equal citizenship thereby peddling the false narrative that was printed on Islamist pamphlets distributed at mosques, leading to widespread violence against Hindus. The object sought by Citizenship Amendment Act, 2019 is to provide a remedy to the minorities who are victims of religious persecution aftermath of the Partition of India as the new nation Pakistan declared itself an Islamic state. And further, this Act aims to provide exemption under the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946, or inclusion in the Citizenship Act, 1955 those religious minorities who came before 31st December 2014 from Pakistan, Bangladesh, and Afghanistan. This Act does not include Muslims as Muslims are not persecuted minorities in the Islamic Republic of Pakistan, Bangladesh, and Afghanistan. This Act recognizes the right of Non-Muslims who came to India due to religious persecution from these three Muslim-majority nations. Secularism, the “bedrock of our democracy” apparently (added only much later), which is threatened by CAA only extends to citizens of India – since CAA was not for existing citizens at all, one has to wonder how Gowda thinks that it threatened the tenets of the Constitution legally. Further, as a learned man, he must know that Muslims from other nations have several other ways in which they can apply for Indian citizenship.

His comments regarding the Ayodhya judgment also must raise a few eyebrows, at the very least. The Ayodhya judgment was passed within the contours of a title dispute – the matter of faith was not the subject of the litigation at all. Besides that, when Justice Gowda grandly talks about secularism, equality, and liberty, one wonders why he thinks that the rights of Hindus must be denied for these values to be upheld and how Hindus demanding their right to worship become a threat to the Republic of India.

Interestingly, Justice Gowda had no words to spare for Asaddudin Owaisi, who spewed venom and rejected the Supreme Court verdict. He had taken to Twitter to claim that he wants his masjid back. A group of Muslim women in Telangana held a “prayer meeting” and should slogans like “Ram Mandir todenge”. In fact, only recently Al Qaeda came out with their magazine that raved and ranted against idolators (Hindus) and also claimed that their aim is to demolish the Ram Mandir being built.

Essentially, according to Justice Gowda, India is becoming a Hindu fascist state because Hindus won a court verdict and are not willing to accept the supremacy of the Islamic faith over and above their own after their temple was desecrated precisely because of the said Islamic supremacy. We are also becoming a Hindu fascist state because we wish to acknowledge the deep wounds of the partition of India, which resulted in a supremacist Islamic state being carved out of Bharat, where Hindus are being beheaded, raped, murdered, and forcefully converted to Islam. We are becoming a Hindu fascist state because CAA acknowledged the atrocities being committed against minorities (Christians, Sikhs, Parsis included) in neighbouring Islamic nations and wished to remedy it instead of letting them be persecuted.

Besides endorsing the very narrative that Islamists wish to peddle about Ayodhya, Gowda also seemed rather upset that India no longer wanted to be governed by NGOs that furthered nefarious designs after accepting dubious funding from foreign nations and donors.

“Government has increased restrictions on foreign funding for NGOs; 20,000 NGOs have lost their license. Amnesty International India was forced to wind up operations. 3 UN special rapporteurs urged to repeal FCRA claiming it is used more to silence those differing from government,” Justice Gowda said.

There are two important aspects of this statement that must be analysed. First, the FCRA Act which was upheld as constitutional by the Supreme Court. While Gowda slams the FCRA act, here are its salient features:

• – It will prevent public servants from receiving foreign donations.
• – The NGOs registered under the FCRA will not be able to use more than 20% of their foreign funds towards meeting their administrative expenses (earlier the limit was 50%)
• – In order to be registered or renew license under the FCRA, all the directors, office bearers, or primary functionaries of the NGOs will be mandated to provide their Aadhar numbers. In case these individuals are foreigners, they will be required to submit copies of their passports or Overseas Citizen of India (OCI) cards.
• – It provides for the surrender of license by NGOs post inquiry and clearance from the Central government.
• – The NGOs will be able to receive foreign contributions in their designated FCRA bank account in the State Bank of India in Delhi only.

In all of these provisions, the salient theme is that the NGOs need government clearance when they are getting money from abroad and need to ensure that their functionaries are identified by the govt. It also says that public servants, who are meant to work for the interest of the nation, cannot accept money from foreign entities that may and often do have vested interest. When the FCRA bill was being debated, it was also revealed that insurgency in the northeast had increased because of funds that were being funnelled through FCRA routs. The opposition that the amendment has received makes it clear that foreign-funded NGOs, although they seek transparency and accountability from others, are not willing to subject themselves to the same. It is therefore interesting that a former Judge, who seems to be battling for the soul of India and the interest of the nation, is opposed to an amendment that seeks accountability from organisations that may be getting funded by vested interests.

Further, it becomes important to deconstruct the statement about Amnesty International being “forced” to shut shop in India. It is pertinent to note that Amnesty was in the crosshairs of the law even before the Modi government came to power. In 2018, a statement by agencies said, “AIIFT was denied the permission/registration under FCRA, 2010 by MHA. They resorted to bypassing the FCRA Act by floating a commercial entity in the name of Amnesty International India Pvt. Ltd (AIIPL),” a statement issued by the ED said.

“This amount was immediately placed in FDs and another Indian entity, Indians for Amnesty International Trust (IAIT) had established an overdraft facility for Rs 14.25 crore keeping the said Rs 10 crore FD as collateral which means the receipt of FDI (foreign direct investment) by trust only,” it had added.

Following the freezing of the bank account in October 2018, Amnesty International says that it was able to access its funds through an intervention by the Court. Subsequently, it came to know of the government’s decision to freeze its bank accounts again on the 10th of September 2020 for bypassing FCRA norms.

It is pertinent to note that The NGO is accused by ED of violations in borrowing and lending regulations of FEMA to the tune of Rs 51.72 crore for rendering civil society activities in the country by getting remittances from its parent body, Amnesty International UK, in the garb of export of services.

While talking about how India is turning into a Hindu fascist nation in the past 8 years, Mr Gowda also forgets that in 2009, Amnesty International was forced to halt its operations after the UPA government had refused to grant it permission to access funds from its London headquarters. The Home Ministry had rejected its application to seek overseas funds twice since 2006. “We are extremely sorry to inform you that the AII Office is closing down… All the colleagues, working in the AII office will be relieved by March 31, 2009…This is because the Government of India continues to deny the FCRA registration to AI India Foundation and our local resources are very insufficient for our survival,” the director of its India chapter had said then.

The factual rebuttal to the speech by former Justice Gowda could be the subject of a thesis. However, the larger point, which is far more important, is that such misdirected political rants by former Judges do not particularly paint the Judiciary as an institution in a positive light. The judiciary, as discussed at the beginning of this article, is still widely viewed as an institution that would protect the right of citizens – all citizens – without favour or prejudice. With laws being misinterpreted by former judges and one section of society – 80% of it – being demonised based on perception and selective morality, the Judiciary runs the risk of losing the faith it has managed to hold onto in the eyes of the populace. Every former Judge is an ambassador of the institution that he once served and the judiciary is bound to be judged not only by the conduct of the serving judges but also those who once dispensed justice. With these motivated, factually inaccurate, clearly biased, and misplaced rants, former Judges do no favours to an institution they once served.