Terms of Trade: The politics of the shoe thrown at the Chief Justice of India

It can very well be argued that the CJI himself chose to be magnanimous by letting the offender go in the immediate aftermath of the incident,

One of the first statements which made news when Justice B R Gavai took over as the Chief Justice of India in May this year was him taking exception to the highest officials of Maharashtra bureaucracy not offering him a reception as per protocol when he went back to his home state after taking charge. The state took notice of Justice Gavai’s remarks and a course correction was made -- and rightfully so. It is therefore more than intriguing that neither the CJI nor the criminal justice system at large has done anything after a lawyer threw a shoe (it missed) at the CJI in his own court for his remarks (weeks before the incident) about a Hindu god while hearing what can only be described as a frivolous court petition. It can very well be argued that the CJI himself chose to be magnanimous by letting the offender go in the immediate aftermath of the incident. Such magnanimity ought to be appreciated and will hopefully be emulated by others in important positions.

Chief Justice of India BR Gavai. (PTI)

However, what cannot be let go on account of personal magnanimity is the offender’s repeated assertions that he does not regret his act and him continuing to cast aspersions on the CJI’s ideological standing vis-à-vis Hinduism in the country. The larger message is difficult to ignore: even the highest echelon of the judiciary is not immune from the mob’s anger if they do anything, however trivial, which offends majoritarian sensibilities in the country.

Lest the usual commentariat starts terming it as yet another doomsday sign of a complete meltdown of things, it is important to historicise these tensions. A de jure supremacy of the courts need not always ensure a de facto guarantee that it will hold. India itself has had multiple instances of such tensions from the disputes between the judiciary and the executive over things such as property rights in the immediate aftermath of Independence. These disputes only proliferated over time and the executive roped in the legislative to undo judicial decisions on things such as reservations, Muslim personal law, and dilution of the provisions under the Prevention of Atrocities against SC-ST Act etc. On certain occasions such as during the Emergency, the judiciary itself more than bent over backwards to accommodate the executive’s blatantly unconstitutional decisions whereas on others, such as during the Kesavananda Bharati case, it laid down vaguely defined and open-to-interpretation guardrails against the executive trampling upon the basic structure of the constitution. Then there are instances such as the protests against the Supreme Court’s judgment on entry of women in the Sabarimala shrine where the court’s decision was openly challenged and even politicised. Such protests perhaps forced the judiciary itself to rethink its stance. The larger point is, there is nothing new about the mob or its elected representatives rebelling against the bench -- even, sometimes, winning .

The current case of the shoe being thrown at the CJI, however, goes slightly beyond this conflict. Here is why. Justice Gavai is only the second Scheduled Caste (SC) CJI in India. A database of Supreme Court judges prepared by my colleague Nishant Ranjan shows that only eight of the 284 Supreme Court judges in India have come from the SC community, who were untouchables until the constitution granted them even the basic civil rights. A lot of the socially emancipatory content of the constitution was because of the struggles waged by B R Ambedkar, a dalit himself who fought extreme discrimination to become one of the most distinguished and inspiring figures of social reform and emancipation in not just India but the entire world. Ambedkar’s successes in codifying the rights of the socially disadvantaged, especially dalits and pushing wider social reform were far from complete. He resigned from Jawaharlal Nehru’s cabinet in protest against the conservative backlash against his efforts to push social reform in Hindu personal law from within the government. Instances like these pushed Ambedkar to denounce Hinduism per se and embrace Buddhism to seek a more socially egalitarian cultural order. Ambedkar’s decision to do so has promoted a radical stream within dalit politics in the country which although not the only one of its kind – rationalist movement by Periyar in Tamil Nadu, for example, was far more scathing of Hindu religion in its polemics – has a wide social base among the roughly one-fifth of the dalit population of this country giving the reverence they have for Ambedkar and what he did for this community.

However, the actual political strength of this particular stream of dalit politics has often been exaggerated within the wider dalit polity in India by suggesting that there is some fundamental contradiction between dalits and the politics of Hindutva in the country. This idea gained more traction during the Mandal-Kamandal conflict in India which was at its most powerful when the BJP lost power to an alliance of the Samajwadi Party and the Bahujan Samaj Party in the aftermath of the Babri Mosque demolition in Uttar Pradesh and subsequent alliances between the Congress and parties from the social justice stable coming together to stop the BJP from coming into power in the Centre and some states. Politically woke and attractive as the idea may sound, there is enough empirical evidence to suggest that the BJP’s growth as a dominant political force has also seen a rising imprint of the larger Hindutva ideology among the socially discriminated against, including the dalits. This can be seen in psephological data, growing number of SC and ST BJP MLAs and MPs and parties with their roots in the larger dalit movement becoming allies of the BJP. To give credit where it is due, such an expansion would not have been possible without the BJP’s ideological parent making concerted efforts in this direction. This has involved theoretical course-correction, focused outreach to expand RSS’s footprint among the dalits and symbolism through giving dalits representation in important actions and positions of the Hindutva political project. RSS Sarsanghchalak Balasahab Deoras’s 1974 Vasant Vyakhyanmala lecture on caste, RSS’s activism among dalits and STs described very well in scholarly works such as Tariq Thachil’s book Elite Parties, Poor Voters: How Social Services Win Votes in India and decisions such as making Kameshwar Chaupal, a dalit, the first Kar Sevak in Ayodhya in 1989 to the Narendra Modi government first making an SC and then an ST the President of the country are good examples of the first, second and third kind of praxis.

The electorally salient anti-BJP dalit political spectrum has been coming under pressure from this tactic of the larger Hindutva project and has increasingly sought a non-confrontational solution to the problem which tries to outflank the BJP from the representation route than a radical ideological opposition to Hindutva per se. To put it provocatively, it is unlikely that an anti-Hindutva -- often dubbed as anti-Hindu by the larger Hindu right -- political stance would have majority support even among the dalits today.

What is one to make of this larger trend described above along with the token criticism of the shoe thrown at the CJI by a Hindutva fanatic form the powers that be even as the culprit is being celebrated by the larger Hindutva ecosystem. The situation is best described by borrowing from two characters who are as far as they can be on the ideological spectrum. Idi Amin, the notorious Ugandan dictator is supposed to have said that there was complete freedom of speech in his country but what was not guaranteed was freedom after speech. George Orwell, the famous writer wrote in his satirical novel on communism that all animals are equal but some are more equal. There have always been mobs in India which have come after their ideological adversaries including in the judiciary to promote community preferences over law of the land. History suggests that such pressure tactics have been employed by diverse groups across the social and religious spectrum. India today, however, is gradually entering a situation where instead of all kinds of mobs being allowed to curb free speech and even law of the land, only one kind of it is being allowed this “democratic privilege”. This change is the result of a dedicated political project and not something which can be undone by wishful thinking or making doomsday proclamations. Only politics can challenge this kind of politics.