Interim justice: A study in contrasts

Time of India

27-05-2025

V. Raghunathan is a former Director of the Schulich School of Business (India Program), York University, Toronto, a former professor at IIM Ahmedabad and a former President of ING Vysya Bank. A prolific author, he has written over 15 books, including the national bestseller Games Indians Play (Penguin). With more than 600 published papers and articles, his latest books include The Lion, The Admiral, and A Cat Called B. Uma Vijaylakshmi (Westland, 2025) and To Every Parent; To Every Child (Penguin, 2025) and Irrationally Rational: 10 Nobel Laureates Script the Story of Behavioural Economics (Penguin 2022), among others. LESS ... MORE
Justice HR Khanna, the eminent judge, jurist and advocate, renowned for his unwavering commitment to civil liberties and constitutional principles, firmly believed in the public's right to critique judicial decisions. Even in his autobiography, Neither Roses Nor Thorns, Justice Khanna emphasized the significance of dissent and open dialogue in a democratic society. He argued that the judiciary should not be immune to criticism and constructive scrutiny by the public, which serves to strengthen the legal system. His legacy, shaped indelibly by his historic dissent in the ADM Jabalpur case, has become a lodestar for those who seek to reconcile judicial authority with democratic accountability.
Justice Sanjiv Khanna, during his recent tenure as Chief Justice of India—an office he vacated only last fortnight—also underscored these values. While reiterating the judiciary's accountability to the Constitution and the rule of law, he affirmed that the judiciary must remain answerable to the Constitution and the rule of law, while underscoring a crucial truth: 'Public trust has to be earned; it can't be commanded.' This underscores the fundamental principle of democracy, namely, that it is not merely the legal mandate by which judicial authority is served, but it is by public's trust in honesty, moral credibility and fairness of judiciary.
In this broader constitutional context, two recent Supreme Court interventions—the cases of Professor Ali Khan Mahmudabad and Madhya Pradesh minister Vijay Shah—provide a compelling lens through which to examine the Court's application of constitutional protections and the principle of equal treatment before the law. Both cases related to the two individual's comments on 'Operation Sindoor'–– two women officers as spokespersons––and both causing public outrage, culminating in judicial oversight. Yet, how the two cases were treated by the highest judiciary reveals some stark inconsistencies.
Professor Mahmudabad, a respected academic and historian at Ashoka University, was arrested for a social media post which made some critical comments on the Operations Sindoor, represented by two women officers, Col. Sofiya Qureshi and Wg. Cdr. Vyomika Singh. Though many interpreted his comments as thoughtful and critical, even if intellectually provocative, it reflected India's secular values, the state considered them inflammatory. He was detained under laws governing incitement and enmity. In the end, while the Supreme Court granted him interim bail, it did so with significant caveats. The Court reprimanded him, restricted further public commentary on the issue, and ordered the seizure of his passport. Additionally, the investigation was allowed to proceed under the supervision of a Special Investigation Team (SIT) of three IPS officers.
This dual response—procedural protection coupled with explicit disapproval—invites reflection. Was the Court performing a balancing act between protecting civil liberties on the one hand and appeasing public sentiment around national security on the other? Or was this simply a pandering to public sentiment, reinforcing the narrative that freedom of expression can be selectively applied or curtailed at whim, when it goes against majoritarian sensitivities? For many observers, including this author, Professor Mahmudabad's post hardly breached the boundaries of responsible public discourse. One may be pardoned for the perception that had the same post been made by any of the majority of the country's population, the matter would not have raised so much as a judicial eyebrow. That the Hon'ble Court considered it necessary to censure and restrict the Professor's freedom suggests a growing discomfort with dissent, even when couched in reasoned argument.
In stark contrast, Vijay Shah, the Madhya Pradesh Tribal Welfare Minister, made openly communal and derogatory remarks targeting Colonel Sofiya Qureshi, one of the officers associated with Operation Sindoor communications. His comments were widely condemned as unbecoming of a constitutional functionary and prompted the Madhya Pradesh high court to direct that an FIR be filed against him. When the matter reached the Supreme Court, it too criticised Shah's remarks in strong terms, noting that such language from a public official brought shame to the country. Yet, in contrast to its treatment of Mahmudabad, the Court stayed Shah's arrest pending investigation, while ordering the formation of another SIT to conduct the probe.
The disparity here is not merely procedural but constitutional. An academic was arrested, censured, and effectively silenced and seemingly, a message sent out to the academic community at large, for a post that questioned political messaging; a politician was allowed to evade immediate legal consequences for blatantly divisive and communal speech. The implications for equality before the law are troubling. It seems that that the Professor's post was misinterpreted as his disloyalty to the nation due to his identity, background, and presumed ideological stance, while Shah's inflammatory pomposity was buffered by the institutional privileges and political patronage afforded to him as a minister.
This raises a difficult question: are constitutional rights contingent on who exercises them? Constitutionally, secularism and freedom of expression are supposed to be universal guarantees; on the ground, these cases suggest they are not equitably treated. The perception of some tilt in judicial response risks undermining public perception and faith in legal impartiality and the integrity of democratic governance.
Moreover, the public perception—which lies at the heart of the controversy surrounding Mahmudabad's reference to 'optics'—is hard to overlook, as the unfolding events appear to validate it in real time. His arrest, passport confiscation, and travel restrictions convey a chilling message to academics and dissenting voices. In contrast, the court's relatively restrained stance toward Shah, despite the explicitly communal tenor of his remarks (and a likely pattern of sexist commentary), risks sending an inadvertent signal: that political incivility is more tolerable when it comes from positions of power.
How do these two cases measure up on the scales of our Lady Justice—now seemingly unblinded? If the lady were to be witness to how these two cases have been treated, would she not instinctively flinch? At least in the eyes of the public, if not in those of Lady Justice, perhaps the stark contrast between the two cases––a minority academic and a majority minister; between a critical intellectual and a provocative politician; between one whose language was dissected for intent and another whose video evidence was overlooked for arrest––only reinforces why the blindfold was essential: to ensure that justice is dispensed without regard to identity, status, or power.
In conclusion, these contradicting rulings suggest the need for introspection within the judiciary. For India to honour its constitutional commitments to secularism, equality, and individual liberty, its institutions—above all, the judiciary—must uphold a uniform and impartial standard. Justice must not only be done but must be seen to be done—without fear, favour, or the shadow of political expediency.
Facebook Twitter Linkedin Email Disclaimer
Views expressed above are the author's own.