The great 18th century Chief Justice of Britain, Lord Mansfield, was a workaholic. Once, while hearing a case, he proposed to continue the hearing on the following Friday. When reminded by Sergeant Davy, the counsel, that the date would fall on Good Friday, he said, “Never mind — the better day, the better deed.” The sergeant said, “Your lordship will do as you please, but if you do sit on that day, I believe you will be the first judge who did business on a Good Friday since Pontius Pilate”.
This exchange of over two centuries ago encapsulates the two contrasting, but equally valid, viewpoints that were expressed recently by Chief Justice H.L. Dattu and Justice Kurian Joseph of the Supreme Court of India. The question debated was whether it was right to convene a judicial conference of all Chief Justices and Chief Ministers during the long weekend from Good Friday to Easter Sunday. As the German philosopher Friedrich Hegel noted, “Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights.”
On March 18, Justice Joseph wrote to the Chief Justice, “I may with deep anguish bring to your kind notice that such an important conference shouldn’t have been held when some of us, who are otherwise expected to be part of the event, are otherwise committed on account of the holy days when we have religious ceremonies and family get-together as well.” He added that such “serious programmes” were not held during Diwali, Eid and other festivals. “Please don’t think that I am striking a communal note. Only since I see institutions like ours, which are otherwise bound to protect the secular ethos and project [a] secular image as per the mandate of the Constitution, slowly drifting away from constitutional obligations, I thought of putting this concern in writing,” he wrote.
The Chief Justice responded on March 20 saying he was shocked that the decision to hold the conference after a gap of two years “has been questioned on the ground of inappropriate time, i.e. during ‘holy and national holidays'”.
While he respected Justice Joseph’s commitment to holy days and religious ceremonies, the Chief Justice wrote that for him, “more important than anything else” was the agenda to be discussed at the conference — ranging from judicial reforms to computerisation of courts and reduction of backlog. He said the conference had been called in the first week of April because “the CJI and his two senior most colleagues and Chief Justices of High Courts will be free from regular court work and be able to contribute to the cause of judiciary”. The CJI said, “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.”
When advocate Lily Thomas mentioned the controversy in open court, the >Chief Justice pointed out that the Chief Justices’ conference was held on Valmiki Day in 2007 and on Independence Day in 2009. “In 2007 and 2009, nobody had any grievance. What happened to spirituality back then? If you want to oppose it, please file a petition and let the court take a decision,” he said.
When the Prime Minister invited all the judges and Chief Ministers expected to attend the conference to dinner, >Justice Kurian declined the invitation , but again buttressed his argument. He wrote on April 1 to the Prime Minister, “Your good self would appreciate that no important programmes are held during [the] sacred days of Diwali, Eid, Christmas etc ... I know it is too late to reschedule the events. I request Your Honour to kindly have in mind these concerns also while scheduling events and benevolently show equal importance and respect to the sacred days of all religions which are also declared as national holidays.”
Future course The conference was held in the absence of both Justice Kurian and the Chief Minister of Kerala. The question now is of the correct course to be adopted in future. Scheduling conferences and retreats during long weekends is administratively the right way forward. Administrative conferences of judges must be held on holidays so that judicial work does not suffer. There will be long weekend holidays around Good Friday every year. Should important government functions be held at all on such days? How far must a secular state go to ensure that no holiday of a religious nature is interrupted by work? On a declared holiday, if a government functionary perceives his duty to the government as being at odds with his religious observance, where should his wisdom lead him?
A constitutionalist may usefully recall B.R. Ambedkar who said, “I tell you, religion is for man and not man for religion.” As one schooled in a Catholic institution, I cannot help recalling instances in the Bible where religious observance in some circumstances specifically gave way to the greater general good.
For example, Jews were prohibited from working on Saturdays, the day of the Sabbath. But despite the rule, Christ worked to heal the sick and do good deeds on Sabbath days. When on a day of Sabbath, his hungry disciples plucked some grain to eat, they were charged by a strict sect called the Pharisees of not fully complying with the Sabbath. Christ said to them, “The Sabbath was made for man, and not man for the Sabbath. Therefore, the Son of Man is also Lord of the Sabbath.” (Mark:2:27-28). In another instance he said, “It is lawful to do good on the Sabbath.” (Matthew:12:12). He also asked the naysayers, “Which of you, having a donkey or an ox that has fallen into a pit, will not immediately pull him out on the Sabbath day?” (Luke 14:1:5) Thus, Christ preferred duty to a mere passive adherence to ritual piety.
The Bible has words of succour for the other point of view as well. It cannot be easily assumed that the response to a perceived religious slight will be a simple turning of the other cheek. The Book enjoins us to love our neighbours as we love ourselves. It was in this wisdom that the Indian model of secularism ‘Sarva Dharma Samabhava’, or equal respect for all religions, was conceived. There are holidays for all religious days so that no religion feels excluded. India is perhaps the only country where Jews, Muslims and Parsis live in amity with Hindus, Jains, Sikhs and Buddhists. On a holy day, while people pray, their friends outside the faith feel the benediction in equal measure. We cannot in good conscience ask of a neighbour to sacrifice a holiday on a Good Friday or Eid, if a holiday on Diwali or Holi remains sacrosanct.
A majoritarian acceptance of the greater common good at the cost of slighting a minority is not to be approved. Any impression that some religious holidays are too sacred to command work, while others are not must be strictly eschewed. No one must be made to feel that he or she worships a lesser God for whom the state cannot wait. In a secular state, India’s citizens must not be asked to make a choice. If they feel compelled to make one, the idea of India must be large enough to accommodate even an unpopular choice.
(Sanjay Hegde is a Supreme Court advocate.)
