Shoe thrown, silence echoes | Is State complicit by inaction?

Fear of ideological backlash may be driving the State’s strategic inaction

Notwithstanding the personal magnanimity of Chief Justice of India B R Gavai towards the advocate who tried to hurl a shoe at him in the court, the Indian State is not absolved of its constitutional duty to protect the dignity and independence of the judiciary.

Mere condemnations of the despicable act by the Prime Minister and the Law Minister are not sufficient. Neither personal forgiveness nor personal condemnation equals institutional justice.

The State has failed in protecting the constitutional authority of the institution, especially as the attacker remains defiant. He has threatened to repeat the attack if “God commands” him. The attack on the CJI, is not a one-off act, but a broader ideological challenge to the judiciary.

Lest some argue that Gavai’s comments on a certain public interest were provocative, such misgivings may be put at rest. The litigation sought restoration of a dilapidated idol of Vishnu at a Khajuraho temple. Gavai dismissed the plea as a publicity stunt.

In Hinduism, ‘khandit’ or broken statues of gods have no value and are not worshipped, as they are believed to have lost their spiritual power. There is no question of repairing them. Praying to a chipped idol, in this case a statue missing a head, is not permissible among those Hindus who worship idols (unlike many others who believe god is formless).

Gavai’s comment was: “This is purely a publicity interest litigation. ...Go ask the deity himself to do something. If you are saying that you are a strong devotee of Lord Vishnu, then you pray and do some meditation.”

This informal comment was not part of any order — obiter dicta, rhetorical observation, which set no precedent, and had no legal value. It was a satirical way of telling the petitioner that divine matters are not justiciable; that the Supreme Court was not a theological forum, as it adjudicates legal rights and not religious beliefs.

His remark upheld the secular character of the judiciary by dismissing a frivolous and religiously-framed petition that had no merit. It was a legally permissible remark, consistent with the Constitution, and aimed at discouraging frivolous, publicity-seeking litigations.

The ‘backlash’ is not a reflection on Gavai being a Dalit and a Buddhist. Rather, it reflects the fragility of public discourse, where religious ideology and sentiments are almost encouraged to collide with constitutional reasoning.

That is why inaction by the State can set dangerous precedents — that symbolic violence against the judiciary can be rationalised, ideologically justified, and, therefore, even repeated.

There are legal, institutional and political options available to the State to remedy the situation, and send a strong message to potential culprits to desist.

The culprit, against whom not even an FIR has been lodged, could be tried under the Contempt of Courts Act, 1971, because throwing a shoe at a judge and shouting religious slogans in a courtroom is an act that scandalises and lowers the dignity and authority of the court.

If the Supreme Court does not do this by itself, the Attorney General or the Solicitor General can do this on their own or based on a complaint. Since they have not done so, it has been left to an advocate, Subhash Chandran K R, seeking permission from Attorney General R Venkataramani under Section 15 of the Contempt of Courts Act, requesting his consent to proceed with a contempt case. It remains to be seen whether the Attorney General will be shamed into giving consent for the proceedings.

The Bar Council of India (BCI) has only suspended the licence of the attacker, Rakesh Kishore. In view of his continuing provocative statements and threats, it could permanently debar him from practice, and refer the matter to the police for his criminal act and intent. Failing this, the BCI will be seen as complicit if copycat incidents take place in other courtrooms. By moving gingerly, the BCI has failed to reinforce professional accountability and deter such behaviour.

The Delhi Police can also file a suo motu FIR for obstructing a public servant (BNS Section 221), assaulting him (BNS Section 132), and for intentionally insulting him (BNS Section 352). The criminal act took place in a public institution, and the repeated public threats by the attacker constitute ongoing criminal intent. The Delhi Police does not need permission to perform its duty.

The political parties, instead of issuing individual condemnations, could pass a bipartisan resolution against such acts to reaffirm the constitutional sanctity of the judiciary. Such a powerful message would make it clear to the public that constitutional offices are above ideological differences.

The Union Law Minister has done nothing else beyond condemning the act. He ought to be proposing a mechanism to protect judges from ideological intimidation, including digital promotion of hate and abuse.

The police, meanwhile, are questioning a YouTuber and a self-styled godman for their provocative statements inciting the attack on Gavai. Yet the man in the video with the YouTuber is still free, although he espouses violence against Gavai, and exhorts that “if you can’t be a (Nathuram) Godse, then be a Gandhi at least” and “spit on his face” — although how that is Gandhian is beyond comprehension. The YouTuber was inciting people one week before the shoe-throwing incident took place.

If the remedies are staring it in the face, why has the State not acted decisively?

Are there political and ideological motivations for the State’s strategic inaction? The attacker invoked ‘Sanatana dharma’ and ‘divine inspiration’, both of which align with the Hindutva-influenced worldview of the ruling party’s electoral base.

Although some of those who openly incited the attack on Gavai have been questioned, the prospects of any decisive deterrent action seem dim for fear of backlash from the right-wing Hindu ecosystem.

While the ideological influence of the regime over the judiciary may be increasing, it does not fully trust it, particularly when it occasionally asserts independence. If the institution is viewed as a nuisance, then the powers that be may not see much harm in the judiciary getting undermined, especially if attacks on it align with its ideological goals.

The downside of such inaction is that the State will be seen as complicit in the symbolic violence. A signal that will go out is that such attacks on constitutional offices can be tolerated as long as they serve ideological ends. 

Bharat Bhushan is a New Delhi-based journalist.

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.)