A 'strange' bail order and rumours of UP poll deferral

A suggestion by the Allahabad High Court that elections in Uttar Pradesh should be postponed has given life to rumours that this may be a real possibility. No less than the BJP’s maverick Rajya Sabha MP, Subramanian Swamy, considered close to the Rashtriya Swayamsevak Sangh (RSS), has tweeted, “Don’t be surprised by a Lockdown for Omicron and postponement of UP elections to September under President’s Rule in UP. What could not be directly done earlier this year can be then done indirectly early next year.”

Is it pure coincidence that Swamy’s tweet came a day after the Allahabad High Court judge’s observations? Is it equally coincidental that on the same day the Election Commission announced its visit to the state?

Allahabad High Court judge, Shekhar Kumar Yadav, advocated postponement of state elections in the bail order of an alleged gangster charged under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act that had nothing to do with the upcoming elections. He ordered that copies of his order be sent to the Election Commissioner and to the Centre. He also appealed directly to Prime Minister Narendra Modi to consider postponement. He must be aware that his obiter dicta (opinions expressed in a judgement which have nothing to do with the legal case being adjudicated) are not binding on anyone. Why then did he make these pronouncements?

Justice Yadav is a serial offender when it comes to issuing obiter dicta. In September, in another bail order, he said that cow-protection should be made a “fundamental right of Hindus”. He also erroneously observed that, “scientists believe that the cow is the only animal which takes in oxygen and gives off oxygen,” and suggested that “Parliament should bring a law to make the cow a national animal.” He explained that Indians traditionally offered ghee made from cow’s milk to the yajna fire as, “this gives special energy to the rays of the sun, which ultimately causes rain.”

The former Chief Justice of Allahabad High Court, Justice Govind Mathur had reminded Justice Yadav, that “The court is not a platform for imposing your own ideas/philosophies, and the judge is not supposed to touch the merits of the case in bail rulings.” But to no effect. In a recent bail order of a man accused of making obscene remarks against Lord Ram and Krishna on Facebook, Justice Yadav wanted Parliament to enact a law giving legal heritage status to Ram and Krishna, the Ramayana, Bhagwad Gita and their putative authors Valmiki and Ved Vyas

Is it just the arrogance of office which encourages Justice Yadav to hold forth or is he using his position to consciously push a Hindutva agenda? Many judges have made ridiculous and even unconstitutional observations – ranging from the fertility-inducing properties of peacocks’ tears (Justice Mahesh Chandra Sharma of Rajasthan High Court) to how India should have been declared a Hindu nation in 1947 (Justice Sudip Ranjan Sen of Meghalaya High Court). Justice Yadav’s lapse of judgement then is not so much in issuing obiter dicta but in his desire to propagate his political views.

Justice Yadav makes no secret of his Hindutva politics. In fact, he is quite open about sharing public platforms with RSS functionaries. In August this year, he was the Chief Guest at a Hindi promotion event organised by the Allahabad Bar Association where the keynote speaker was RSS Prant Pracharak (District Propaganda Chief) Murari Tripathi. In the same month, he attended a meeting at the Vishwa Hindu Parishad headquarters at Kesar Bhavan in the city as Chief Guest of the RSS front organisation, Bharat Vikas Parishad, along with BJP MP from Phulpur, Kesari Devi Patel. Several VHP functionaries were in attendance.

So when he suggested that the UP election should be postponed due to Covid-19 fears, was he voicing a public concern or was he lending legal gravitas to concerns from the fringe Right? Could it be that Hindutva forces would like the polls postponed because they foresee a drubbing in the UP assembly elections? Despite a worse pandemic situation prevailing then, these groups did not call for deferring polling for the West Bengal, Assam, Tamil Nadu and Kerala elections or for local body elections in UP and Telangana. Indeed, the Allahabad High Court had dismissed a public interest litigation challenging the holding of panchayat elections in the midst of the pandemic saying Covid-protocol was being followed by the government.

There are some eye-openers in the speculations floating around about how a postponement of elections in UP might help the BJP. There is conjecture that if UP polls are deferred (along with the other states where elections are scheduled), then Yogi Adityanath could be finished as a contender within the BJP – both for chief ministership of UP or as a national alternative to Prime Minister Modi. President’s Rule would have to be imposed in the state and for six months, Adityanath would not be a member of the legislature. He is also unlikely to be accommodated at the Centre.

It is possible, it is suggested, that six months later, in August- September, Prime Minister Modi would call for “one nation, one poll”, dissolve Parliament and state governments where the BJP is in power to hold national elections together with state elections. This would mean simultaneous elections for Lok Sabha and state elections for UP, Uttarakhand, Punjab, Goa, Manipur, Gujarat, Himachal Pradesh, Tripura, Karnataka, Madhya Pradesh and the Union Territory of Jammu and Kashmir.  

The advantage would be that by September next year, voters may have forgotten about the farmers’ agitation, Adityanath would be out of the reckoning, Ajay Misra Teni’s son would have been released for ‘lack of evidence’ and opportunities for yet more “inaugurations” in the election going states to showcase the BJP’s commitment to development. The UP election could then be won by Prime Minister Modi along with his re-election bid for a third term.

But will the BJP or Prime Minister Modi take such a gamble? A postponement now would underline the weakness of the regime and will be bad for Brand Modi.