Sangh Parivar is establishing Hindu Rashtra through Judiciary: Prof Mohan Gopal

Excerpts from the interview:

The stunning revelations, made by you both in the speech at CJAR (Campaign For Judicial Accountability and Reforms) and in the interview with Karan Thapar, bring to light a significant crisis that Indian democracy faces these days. You have made it crystal clear that interventions in the judiciary are crucial to the Sangh Parivar's agenda of establishing Hindu Rashtra. According to you Sangh parivar is trying to attain this goal by getting 'theocratic judges' appointed in the constitutional courts. You are also of the opinion that this is the most pragmatic way before the Sangh parivar to establish Hindu rashtra. What is the ground for this conclusion?

Establishing a Hindu Rashtra is an openly stated and long standing agenda of the Sangh Parivar. It is no secret. The Indian Constitution is the major stumbling block that the Sangh Parivar faces in achieving this aim. The Indian Constitution promises equal treatment and citizenship irrespective of caste and religion. The constitution is deeply rooted in equality, liberty, fraternity, socialism and secularism. The concept of Hindu Rashtra and the Indian Constitution can therefore never go together.

That means the Sangh Parivar won't be able to implement their agenda as long as the constitution remains in its present form?

Exactly! The soul of the constitution is antithetical to any theocratic state. An examination of the debates and discussions in the constituent assembly will make this crystal clear. The founding fathers of the constitution including Dr. BR Ambedkar shaped the document consciously rejecting the call for a theocratic state.

The foundation of the constitution was laid vis a vis the theocratic state of Pakistan. Wasn't it natural for the founding fathers not to choose the same path?

Certainly! The wound created by the partition was deep and painful. Lakhs of people sacrificed their lives in a bloody conflict over religion even while the Constituent Assembly was drafting the Constitution. Therefore the founding fathers had no doubt that India must remain secular. Fali S Nariman, a distinguished constitutional jurist often points out rightly that the Indian constitution is at its core a commitment to protect minorities. Every Indian is a minority - whether by religion, culture, language or region. There are so many diversities even within the Hindu, Christian and Muslim communities. In the Constituent Assembly the word 'minorities' was used to refer to all vulnerable groups. The project to bring majoritarian rule rejecting this pluralism is the agenda only of a microscopic savarna elite oligarchy. The Indian constitution and the Hindu Rashtra agenda are in direct conflict. Today the biggest hurdle before the Sangh Parivar in implementing their agenda is the Indian Constitution.

The Sangh Parivar can't implement this agenda without undermining the constitution. So, what is their plan?

The Sangh Parivar has three options. If BJP gets a two thirds majority in the 2024 Lok Sabha elections, the first option would be to convert parliament into a constituent assembly, repeal the present Constitution and adopt a Manu-Smriti based new Constitution. BJP can claim that the people have given them the mandate to act in this way. Between 1947 and 1950, the constituent assembly acted simultaneously as a constituent assembly and an interim parliament. They can follow that pattern. The second option would be to amend the current constitution extensively and change its basic character from republican to theocratic. A fundamental principle of the constitution is that the Indian republic doesn't have an official religion. In contrast, Islam is Pakistan's state religion. The Pakistani constitution stipulates that democratic principles like liberty and equality will be protected only in accordance with Islamic values.

The Sangh Parivar will say that the amendments to the Constitution are being made to ensure that the Constitution's basic features are interpreted and applied based on the teachings of Sanatana Dharma, which is an alias used by the Parivar for their version of the Hindu religion. Sanatana Dharma is entrenched in the ‘chaturvarnya’ social order. Hinduism will become the state religion. The new amendments will make criticism of the Vedas and Hindu dharma blasphemous. The ruler can no longer be questioned for anything. However, it will not be easy for Parivar to implement these two options. Those who plan to implement this agenda are a microscopic savarna oligarchy.The Hindu masses do not wish to be ruled by the Savarna oligarchy.There will be massive public revolt and resistance against both these options.

Won't the move to create a new constitution or amending the present one extensively lead to a civil war?

I certainly hope that there will never be a civil war in our country. However, we can't rule out the possibility if a Savarna Hindu Rashtra is sought to be imposed on the country. The most affected section will be those who belong to the Hindu community.The Sangh Parivar can't change the theological content of either Islam or Christian religions. Because both of them are global religions. However, the Hindu community will have to face the threat of the destruction of the vastly diverse faiths and beliefs of common Hindus so as to homogenise all Hindus as Vedic Hindus, based on a Manuvadi religiosity. We may not realise this now. But later on this danger will become clear. The diverse populations within the Hindu community will face an existential crisis. The non Abrahamic religions like Jainism, Buddhism and Sikhism will also be challenged.

Don't you think that it is this diversity, the pluralism that prevents the BJP regime from implementing the Uniform Civil Code?

Yes! The Hindu population is not at all homogenous. For example, the custom of some Hindu communities in Kerala permits marriage between first cousins. This is anathema to the Hindus in North India. There are so many diverse ways of life within tribal communities. It is not easy to reject all these and implement a UCC to replace our diversity. That is why any move to homogenise would be vehemently opposed by different Hindu communities themselves. Another consequence will be the erosion of India's image globally. There will be widespread propaganda that India is going the Iran way where a tiny bunch of Mullahs control the destiny of the nation.

That leaves the Sangh Parivar with the third option. And they have already started their journey on this path.

What is the third option?

The third option is to establish Hindu Rashtra through the judiciary, by having courts interpret the Indian constitution as a Hindu document and the State as a Hindu state. For this, what would be required would be appointment of 'theocratic judges' to the Supreme Court. By theocratic judges I mean judges whose judicial decision making methodology looks beyond the Constitution to religion (or their personal sense of morality and spirituality) as a legitimate source of law.

In contrast with 'theocratic' judges, 'constitutionalist judges' are those whose judicial decision making methodology sees the Constitution as the sole, exclusive and ultimate source of law and legitimacy and will never go outside well established unwritten judicial conventions on constitutional interpretation in making judicial decisions. For example, they will never interpret secularism as anything but a concept that eschews religion as a source of law. 'Constitutionalist judges' are an insuperable obstacle to the establishment of Hindu Rashtra whether through the judiciary or by Parliamentary or executive action.

Theocratic judges will write verdicts, each running into hundreds of pages, declaring that the Constitution is a Hindu document and that the Indian state is a 'Sanatana' state. These judgments would be unintelligible to the general public, even to most lawyers. The verdict of the SC is the law of the land under Article 141 of the Constitution. Therefore when SC judgments read the constitution as a Hindu document that essentially means the establishment of the Hindu Rashtra. The Sangh Parivar will then declare that the lies spread by generations of 'sicular' judges have been exposed and a set of honest and erudite judges have revealed the truth - that the Constitution has all along been a Hindu document and the Indian State (Bharat) has all along been a Hindu State.

So, the third option will enable the Sangh Parivar to establish Hindu Rashtra without even shedding a drop of blood?

I researched the appointment of judges under UPA (for ten years between 2004 and 2014) and under NDA (for eight years and ten months or so) to see whether there is any empirical evidence of this third option being implemented. According to information available on the SC website 111 judges have been appointed during the period from 2004 to 2023 (UPA and NDA governments) - 56 judges during UPA and 55 during NDA. I analysed the judgements of these judges to distinguish between 'theocratic' and 'constitutionalist' approaches to judicial decision making. My analysis only looked at the publicly available work of the judges - their judgments, writings and speeches, irrespective of the personal views, ideology or background of the judges, which was not taken into account.

My analysis indicates that whereas no judge whose public work shows a clear theocratic approach was appointed when UPA was in power, some nine 'theocratic' judges have been appointed to the Supreme Court while NDA has been in power. This shows a sharp increase in the appointment of judges whose decision-making approach is clearly theocratic. My analysis also showed, counter-intuitively, that the number of 'constitutionalist' judges (judges whose publicly available work shows clearly that their judicial decision making methodology is constitutionalist as I defined earlier) increased from around six judges under UPA to around nine judges under NDA.

This increase in Constitutionalist judges cannot reasonably be attributed to the NDA Government because it has consistently and quite openly resisted the appointment or further elevation of constitutionalist judges in a number of prominent cases. Since the only other institution involved in judicial appointments to the Supreme Court is the Supreme Court Collegium, this increase may be reasonably attributed to the Collegium - more specifically, to some members of the Collegium who are aware of the vital need for independent constitutionalist judges to protect the Constitution from being overthrown to make way for an alternate nation, the Hindu Rashtra.

There is no suggestion whatsoever in this analysis that in interpreting the constitution in a religious light 'theocratic judges' act dishonestly for personal gain (such as plum post retirement appointments) or out of fear or a desire to favour any litigant. On the other hand, we assume they are all honest, sincere, competent and conscientious judges. Nor is there any doubt about their scholarship in law. They are acting on the other hand only out of a bona fide and sincere belief that 'Sanatana Dharma' is the ideal culture for India to protect the best interests of the country, and that the Constitution is, and should be, correctly understood in its light. They see 'Sanatana Dharma' not as their religion but rather as a universal way of life applicable to persons of all religions, ignoring the fact that other religions also see themselves equally as all pervasive moral codes and ways of life.

What was the trigger for the realisation that the Sangh Parivar was undermining the constitution through the judiciary?

I am a student of the constitution. We are familiar with how the constitution has been interpreted by courts from 1950 onwards. Under established conventions of Constitutional interpretation, the Constitution is interpreted according to its 'plain language'. For example, the word democracy derives from the two Greek terms 'demos' and 'kratos'. Demos means common people and kratos means power. So, in essence, democracy is a system where power is actually in the hands of the people. The concept of democracy has evolved against the backdrop of our own Buddhist, as well as European traditions.

But today China claims theirs is democracy, Russia and Iran also make similar claims. We know these countries are not democratic by the definition of the founders of our constitution who did not speak of democracy in the context of the Chinese, Russian and Iranian models. We also know that, as a body, the founders of the Constitution expressly considered and rejected the option of establishing India as a theocratic Hindu Nation as it was not an acceptable form of democracy. This decision should not now be reversed through judicial misinterpretation.

There have been references to religious texts in the Supreme Court judgements in the past. But what the theocratic judges do now is entirely different. Theocratic judges are willing to go outside the constitution and use religion as the basis of judicial decisions.

Was this realisation validated by the verdicts in the Ayodhya and Hijab cases?

I have been working quite intensively on Supreme Court jurisprudence for many years now. I have started of late to notice the increasing presence of theocratic judging in some SC judgements.

An example is the Ayodhya judgement. The main judgement consists of 929 pages. There is a so-called addendum of 116 pages. The addendum forms part of the Ayodhya judgement. The five-member bench that gave the Ayodhya verdict states in the judgement that 'one of them' has put forth his specific reasons for the judgement in the addendum. The main judgement basically says that there is no evidence to prove the claims of possession and use of the inner courtyard of the Mosque by the Muslims and therefore the claims of the Hindus are stronger. I disagree with this verdict from a legal point of view but it is a finding of law, even if erroneous. It does not mix religion with facts and evidence.

The Addendum, however, says in paragraph 167, ''All Gazettes published by the Government authority repeat the same statement that Babri Mosque was constructed at the Janmasthan of Lord Ram. There is no evidence worth the name led by the plaintiffs of Suit No.4 to disprove the above statement and further, oral evidence as noticed above clearly supports the faith and belief of Hindus that Lord Rama was born at the place where Babri Mosque has been constructed. The conclusion that the place of birth of Lord Ram is the three-dome structure can, therefore, be reached.''

In other words, the judgement says in the addendum that the Muslim parties have not been able to produce evidence to disprove the faith and belief that Lord Rama was born precisely below the three domes of the mosque. How can evidence be adduced to disprove faith? What counter argument can be made against faith if a court takes such an approach? How can a party's own religious faith be used as the basis for creating rights for himself against others who do not share that faith?

You saw here precisely the intervention of a theocratic judge?

Yes! The judgement shows the use of theocratic judicial methodology which accepts religious faith and belief as the basis for a claim to property because it has not been disproved by evidence.

Isn't the Hijab case verdict an extension of this approach?

The two judges in the Hijab case reached conflicting conclusions. Therefore a new bench has been constituted to hear the matter. One judge said that wearing a hijab is a personal choice protected by the right to liberty under the constitution. We can clearly see the constitutional and judicial methodology here. In contrast the second judge says, 'The use of the word 'panth nirpeksh' in the Constitution brings out the difference in the terms 'Dharmnirpeksh' and 'Panth nirpeksh'. 'Panth', or sect, symbolises devotion towards any specific belief, way of worship or form of God, but Dharma symbolises absolute and eternal values which can never change, like the laws of nature. Dharma is what upholds, sustains and results in the well-being and upliftment of the Praja (citizens) and society as a whole'. The second judge quotes the concept of Dharma explained by the Late Justice M. Rama Jois (well known for his affinity with the views of the Sangh Parivar) in his Legal and Constitutional History of India as saying 'The learned rishis have declared that which sustains is Dharma....when dharma is used in the context of duties of the individuals and powers of the King (the State), it means constitutional law (Rajadharma).

Likewise, when it is said that Dharmarajya is necessary for the peace and prosperity of the people and for establishing an egalitarian society, the word dharma in the context of the word Rajya only means law, and Dharmarajya means rule of law and not rule of religion or a theocratic state.

Sanatana Dharma is a religious concept that is at the core of brahminical hegemony. It has no place in interpreting the Constitution. If one believes that Sanatana Dharma is constitutional law, should one have a role in constitutional interpretation? Isn't it like posting a person to defend our Arunachal borders who believes that Arunachal Pradesh is part of China? How can he defend our border? The defence of the Constitutional border between religion and state is as vital for the survival of our Republic as the defence of our territorial borders.

You got convinced of the Sangh Parivar agenda when you read these judgements?

The dharma of a microscopic savarna elite oligarchy is interpreted as the dharma of the whole population and imposed as constitutional law. The fact is that the Avarnas, Dalits and Adivasis have no place in this dharma. They are not in the Chaturvarnya order. They are out of caste - out-caste. They are not treated as human beings. The same dharma demands their dehumanisation and social exclusion. How can this dharma be interpreted as the cornerstone of the Indian judicial system? Let me quote from the judgement of the second judge in the Hijab case:

'The word religion in articles 25 and 26 has to be understood not in a narrow and sectarian sense but encompassing our ethos: 'Save Bhavantu Sukhinah'. What is meant by 'our ethos' in the judgement? Whose ethos? Does it not simply represent Chaturvarnya?

You make it very clear in your interview with Karan Thapar that our best defence against the theocratisation of the judiciary is the collegium (the system where the government doesn't have the upper hand in the appointment of judges.) To support your argument you point out that nine constitutionalist judges have been appointed during the NDA regime. This shows a higher number than that of the UPA period. And you are revealing that this has happened not because of the NDA govt's policy but because the constitutionalist judges within the collegium have been resisting the sangh parivar agenda effectively?

In the long term we need a democratic system for selection of judges like other modern democracies. However, for now, when we are confronting an attempt to establish Hindu Rashtra through judicial interpretation, our only hope to resist this attempt and defend the Constitution lies in the Constitutionalist judges in the Supreme Court collegium. Recall the opposition from Justice Rohinton Nariman to the Government's sustained effort to block Justice Akil Kureshi's appointment to the Supreme Court allegedly because Justice Kureshi had remanded the present Union Home Minister Mr. Amit Shah as was required by law in connection with a criminal case in Gujarat. We may also remember the press conference of four senior judges of the Supreme Court, members of the collegium, led by Justice Chelameswar, protesting against what they described as channelling of sensitive cases to favourable benches. If the collegium is weakened in this context and the power to appoint judges is handed over to the political executive, there will be no opposition to the effort to 'pack the court' to vacate the Republic and replace it with Hindu Rashtra.

The SC verdict on the appointment of election commissioners has been appreciated by democratic policy across India. Don't you think the judgement reflects the constitutionalist judicial methodology?

Certainly! This is a key judgement. It shows that it is possible to stand up for constitutional values even in the face of a powerful theocratic movement seeking to overthrow our democratic, secular republic. I am optimistic that these values will survive in the long term because they enjoy immense support from our masses whose future depends on them. But right now we are standing on the precipice of a grave constitutional crisis. This is a period when Indian democracy and our constitution are challenged to the core. Imagine that we are playing the last overs of a T20 match. The target is a huge score. But only a few balls remain. What that means is that we have to work very hard, be extremely alert and act with great care and deliberation. We must also be fearless. I tell my legal fraternity these days that we have to make the public aware of the theocratisation of the judiciary. People must know what is sought to be done to the Indian judiciary.

Some people raise a counter argument that the judiciary was undermined during the Indira Gandhi regime too. Yes, it is true. However, there is a difference. What was sought then was a compliant judiciary that will rubber stamp the actions of the political leadership. There was no attempt by Mrs. Gandhi to establish Hindu Rashtra. Even her harshest critics have not raised such an allegation. We shouldn't also forget that it was the Indira Gandhi regime that brought in the amendment to make the Indian republic secular in the preamble to the constitution during the emergency. Atal Behari Vajpayee too didn't face such an allegation. But now we are witnessing a concerted and planned move to establish a Hindu Rashtra through judicial interpretation by the Supreme Court. This is unprecedented.

You have pointed out that only we, the people can defeat this well-organised move?

People are the ultimate authority in a democracy. James Madison, the architect of the American constitution, said that all government rests on public opinion. There have already been peaceful protests against these anti-democratic measures of the present regime. The contemporary situation in India demands the strengthening of peaceful Constitutional action to defend and save our Constitution and resist the imposition of a theocratic regime in our country.