Holidays on holy days?

In the exchange of letters between CJI & a fellow judge on subject of secularism, several issues of import have been raised which merit a public discussion.

Updated - April 09, 2015 08:44 am IST

Published - April 09, 2015 01:05 am IST

Chief Justice of India, H.L. Dattu

Chief Justice of India, H.L. Dattu

To many, the exchange of letters between Justice Kurian Joseph of the Supreme Court and the Chief Justice of India (CJI), H.L. Dattu, might seem a trivial issue. But was it really so? Justice Joseph had recently expressed anguish at the way secularism was being tinkered with, objecting to a meeting of State Chief Justices on Good Friday and Easter Sunday, since these were national holidays and also days of prayer for the Christian community, in a letter addressed to the CJI. Justice Joseph had also gone to Kerala to attend Easter services. Hence, it was inappropriate, he argued, to hold the meeting on these days.

>Justice Dattu’s viewpoint was clear in his own response when he wrote, “The question that I have to ask myself, perhaps I can’t ask you, is whether it is institutional interest or individual interest that one should give preference to. As far as I am concerned I would give priority to the former and not to the latter…” Was this merely yet another public controversy, created by an overly sensitive judge, which could best have been resolved in private chambers? To those constitutional watchers who have followed the controversy in the media, and in the exchanges in open court, when the plea of an advocate to reschedule the conference was turned down by the CJI, this option of a private resolution was clearly unavailable. In this exchange of letters, several issues of public import have been raised and these merit a public discussion particularly since the issues have been articulated by high constitutional functionaries. Some of them require deep reflection while others can be more easily addressed.

Holidays and productivity

Let me begin with the easier ones. First, even in the United States, the courts work on Good Friday, and hence the angle of religious sensitivity appears overstated. The appropriate response to this objection is not to inquire whether the courts work on religious holidays but whether they work on national holidays. Justice Joseph should have finessed the point about religious holidays which are also national holidays. In the U.S., the courts do not work on national holidays. Good Friday is not a federal holiday in the U.S. whereas Christmas is. It is the wisdom of any state to determine which days are going to be its national holidays. Once this list is prepared, all institutions are closed on those days. For example, in the U.S., the birthday of Martin Luther King Jr. and Columbus Day are federal holidays. India has prepared its own list of national holidays, which are gazetted, and which must be observed. Good Friday is a gazetted holiday. People may work on these days but only do so voluntarily and not compulsorily. Hence, the issue is not about religious holidays but about national holidays.

Second, the objection that we have too many national holidays is a valid one. This affects our national productivity. Therefore, some argue that the CJI must be commended for working on a holiday, rather than being criticised for suggesting so. If, for argument’s sake, we overlook the “national holiday” point, discussed earlier, and look only at the “too many holidays” point, then this too can be easily met. Abolish all national holidays except Independence Day, Republic Day and Gandhi Jayanti. All religious and regional holidays should instead be placed on a list of restricted holidays and these can be made available to any individual who can choose any five. A month’s notice should be given for holidays that are to be taken so that the work of the organisation concerned does not suffer.

Third, senior officials are always required to be on call 24X7, and must come when summoned by constitutional authorities This rules out their being absent on national holidays if summoned to work. While this may be true for judges and secretaries to the Government of India, are subordinate staff also bound by such a duty, to attend work on national holidays, if called by their bosses? Can they refuse to attend office on the grounds that their right to leisure would be denied if they were ordered to come to work? Are they being coerced into coming to work? Will they be punished for insubordination if they remain absent? What are the rights of subordinate staff in the Supreme Court who have to make all the arrangements for conferences, for instance? Is the Court a special case unlike other public institutions? These are questions that have not so far appeared on the radar of public discussion, since they concern subordinates, but are no less relevant to our constitutional discussion of rights. We need to discuss them.

Rights of the individual Fourth, let me bypass the issue of tampering with the secular fabric and instead comment only on the solution offered by the CJI to the judge. The CJI had asked the judge to bring his family to Delhi and in this way, meet both his personal and his institutional duties. This shows a lack of understanding of the meaning of the religious day for the judge concerned. The nature of the religious obligation made it impossible for the judge to do both. In other words, the CJI’s understanding of what religious days mean for the practising citizen is limiting. Considering that the court exercises its authority legitimately when it intervenes in religious affairs, (which it has the supreme authority to do) it is clear that the silos of the mind within which we normally live, and within which even justices of the higher judiciary seem to live, must be breached. The National Judicial Academy in Bhopal must conduct an annual training programme on the meaning of religious-national holidays for all judges of the higher courts. This will perhaps help the avoidance of such comments. I would also want to explore (i) the binary between the individual and the institution, as presented in the CJI’s letter, and (ii) the priority he has given to the institution over the individual. How should one read his statement that he would give “institutional interest priority over individual interest”? As stated, it appears to reverse the foundational philosophy of the Constitution according to which the individual is regarded as the basic unit of the Constitution. The statement reverses the priority of the individual over the institution or the collective that emerged in the Constitutional Assembly debates between 1946 and 1950. The Chairman of the drafting committee, Dr. B.R. Ambedkar, argued as much when he rejected the Gandhian idea of the nation based on the village as the basic unit since, for him, the individual was the basic unit of our constitutional order. The village was, for Dr. Ambedkar, “a sink of localism and a den of ignorance”. It was a place of tyranny. Larger collectives, as basic units, he believed, had the potential for such tyranny and hence could not constitute the basic unit of the Constitution. Such collectives could be a village, an organisation, or an institution. In any conflict between the individual and the collective, the individual must triumph. Indian jurisprudence has evolved on this assumption. That is how the rights discourse has developed and even when there is a clash between individual and group rights, the rights of the individual come out on top, as should be the case.

The individual vs. the institution

From the CJI’s statement, the following question needs to be asked. If in the situation where the interests of the collective are given priority over the interests of the individual, must the individual always submit to it even when she disagrees with it and thinks that it violates a principle that she holds dear? Since the collective has priority, the answer is clear: the individual must submit. This is a troubling conclusion particularly when such decision-making is not participatory. Further, even if we were to couch such a decision in utilitarian terms, i.e., it leads to the greater benefit of the greater number, or it is based on the majority principle, it would still be tyrannical since it would impinge on the individual’s freedom. In contemporary philosophy, Ronald Dworkin’s principle of “rights as trumps” has been pronounced to safeguard these rights of the individual against possible tyranny. That is why we need to inquire what the CJI meant. Did he really mean that he would give priority to the institution over the individual? There is much at stake in his answer.

Having discussed the “priority” issue, let me now turn my attention to the “binary” issue that also emerges from the correspondence. There are only two possibilities on offer here (i) the individual versus the institution, and (ii) the individual along with the institution. The CJI recognises both options. The first has been rejected in our discussion of priority. Hence, we now turn to the second that seeks to align the interests of the individual with that of the institution. Such alignment, however, cannot be determined by the power of the institution over the individual i.e., subordinating the interests of the individual to it as entailed by the “bring your family to Delhi” suggestion. It must constitute a compromise of interests where the minimum adjustment is willingly (not sullenly) made by the individual to accommodate the interests of the institution. The institution, in fact, has to make the greater adjustment. Does this imply that the CJI should consider shifting the date of the conference to another date in the summer calendar of the courts with options of dates being given to all attendees? Perhaps. This is how it is normally done in important meetings when one wants maximum participation. Such accommodation is necessary to build a culture of trust and confidence so essential for the successful working of any institution.

(Peter Ronald deSouza is Professor at the Centre for the Study of Developing Societies. The views expressed are personal.)

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