The Madurai Bench of the Madras High Court was seized of a case filed by a Christian Priest seeking to quash the FIR registered against him for hate speech against Hindus. The hate speech was made during an event organized in the western Kanyakumari District in July 2021 to protest against the closure of Churches as a part of the Covid-19 lockdown.

In his speech, the Priest boasts that the Christians have crossed 62% of the population in Kanyakumari District and predicts that they would soon reach the figure of 72%.

In the Judgment, Justice G. R. Swaminathan discusses the peculiar situation in Kanyakumari. The Judge quotes extensively from Aravindan Neelakandan, a writer and co-author of the national bestseller Breaking India, about the change in demography in Kanyakumari and its impact on the lives of Hindus living there.

The Court notes that as per the 2011 census Hindus were the largest religious group at 48.5%. The Christian population was slightly behind at 47%.

The Court states that "One can take judicial notice of the fact a large number of Scheduled Caste Hindus, though having converted to Christianity and professing the said religion, call themselves Hindus on record for the purpose of availing reservation. Such persons are called as crypto-christians".

The Court cites this as the reason why notwithstanding the census figures, the Priest is able to boast about being 62% of the population and soon reaching 72%.

"There was even a motion picture based on this theme (Rudra Thandavam)", the Court says.

Rudra Thandavam was a 2021 action-thriller genre Tamil movie directed by Mohan G.

The movie is about an honest police officer who is falsely implicated for police excess and resultant death. The villain, a politician cum drug dealer, whose empire is under threat from the hero, conspires to portray the hero as a cast supremacist and his victim as belonging to a lower caste.

The hero contests the case against him under the PCR Act (Protection of Civil Rights Act, 1955) after discovering that the deceased had converted to Christianity before death. The Lawyer of the hero is shown arguing in Court that the PCR Act will not apply as per the Constitution.

The movie was met with an unusually large number of negative reviews in the media, all of them alleging motives against the Director for the plot. There is a 'review of a review' of the movie by none other than Arvindan Neelakandan (read here). The movie became a subject of political debate, with political parties taking different sides.

The Court then says," I refrain from mentioning the name of a Judge who belonged to such a category. There was even a writ petition challenging his status. Everyone pretended as if they did not know the truth. But when he died, he was buried as per Christian rites in a cemetery."

The Judge

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The reference is to none other than Justice S. Ashok Kumar. The same judge against whom Justice Markandey Katju wrote a blog in 2014 titled "How a corrupt Judge continued in the Madras High Court", without naming the judge., a now-defunct website, says thus about Justice Ashok Kumar's career –

"During his tenure at the bar he was greatly moved towards the cause of people. This led him to contest twice in Tamil Nadu assembly elections i.e. in the years 1977 and 1980. He later decided to keep away from active politics and went on to look for ways to help the community through the legal fraternity." (A domain name search reveals that the domain name of the website was registered to Augustin Baskar, Justice Ashok Kumar's son.)

As per the website, "After noticing his dedication and commitment towards the society the then Chief Minister of Tamil Nadu Thiru M. G. Ramachandran appointed him to assist Shri Ashoke Kumar Sen in the commission investigating the IMFL Licensing system in 1983-84."

Justice Ashok Kumar started his career as a District Judge in 1987, while M. G. Ramachandran was the Chief Minister of Tamil Nadu.

Justice Katju says in his blog, "That Judge had the solid support of a very important political leader of Tamil Nadu. I was told that this was because while a District Judge he granted bail to that political leader."

Justice Katju was referring to the midnight arrest of late DMK leader M. Karunanidhi from his house in June 2001 after Jayalalitha became the Chief Minister. After the arrest, Karunanidhi was produced before the then Principal Sessions Judge Ashok Kumar. Though he remanded Karunanidhi to custody, he made strong remarks about the treatment of the leader. His question to the state, "Is your heart made of muscle or mud?" become famous.

Though the state government released Karunanidhi considering his age and health, his son and present Chief Minister M. K. Stalin was not released. Judge Ashok Kumar was the one who released Stalin on bail while making strong remarks against the state.

Elevation to High Court

Justice Ashok Kumar was promoted as a Judge of the Madras High Court in April 2003 while DMK was part of the ruling NDA alliance at the centre. Justice Katju says in his blog, "…during his career as District Judge there were as many as 8 adverse entries against him recorded by various portfolio Judges of the Madras High Court. But one Acting Chief Justice of Madras High Court by a single stroke of his pen deleted all those 8 adverse entries, and consequently he became an Additional Judge of the High Court…"

After two years as an Additional Judge, the Collegium was reluctant to confirm Justice Ashok Kumar as a permanent judge. Instead, it gave him three extensions as an additional judge in April and August 2005 and then in August 2006. It was reported that the then Chief Minister, late J. Jayalalitha was opposed to making him permanent.

In February 2007 Justice Ashok Kumar was confirmed as a permanent judge of the Madras High Court when M. Karunanidhi was the Chief Minister of Tamil Nadu.

In July 2007, Shanti Bhushan and Advocate Kamini Jaiswal filed a PIL before the Supreme Court seeking a writ of Quo Warranto against Justice Ashok Kumar citing that norms prescribed by the Court were not followed while making him permanent.

The Supreme Court Bench comprising of Justice Dr. Arijit Pasayat and Justice Dr. Mukundakam Sharma in its detailed Judgment of December 17, 2008, found that Justice Ashok Kumar ought not to have been granted extension as an additional judge after being found unsuitable for making permanent.

The Court said, "On 29.4.2005 the collegium including the then Chief Justice of India was of the view that name of respondent No.2 cannot be recommended along with another Judge for confirmation as permanent Judge. Since it is crystal clear that the Judges are not concerned with any political angle if there be any in the matter of appointment as Additional Judge or Permanent Judge; the then Chief Justice should have stuck to the view expressed by the colllegium and should not have been swayed by the views of the government to recommend extension of the term of respondent No.2 for one year; as it amounts to surrender of primacy by jugglery of words".

As per the Judgment, it was Justice A. P. Shah, as the Chief Justice of Madras High Court who made the recommendation to make Justice Ashok Kumar permanent, which was accepted. The Court says that since the challenge to the extensions granted to Justice Ashok Kumar was belated, the Court cannot put the clock back.

The first and second extension to Justice Ashok Kumar as an additional judge was granted while Justice Markandey Katju was the Chief Justice. He says in his blog that as he got many reports about the corruption of Justice Ashok Kumar, at his request, the then CJI Justice Lahoti obtained an IB report about the Judge, which confirmed allegations of corruption.

What Justice Katju says next is shocking. It is worth quoting in entirety:-

"The 3 senior most Judges in the Supreme Court at that time were the Chief Justice of India, Justice Lahoti, Justice Sabarwal, and Justice Ruma Pal. This Supreme Court Collegium recommended that in view of the adverse IB report the Judge should be discontinued as a High Court Judge after his 2 year term was over, and this recommendation was sent to the Central Government.

The Central Government at that time was the UPA Government. The Congress was no doubt the largest party in this alliance, but it did not have a majority in the Lok Sabha, and was dependent on support by it allies. One of such ally was the party in Tamilnadu which was backing this corrupt Judge. On coming to know of the recommendation of the 3 Judge Supreme Court Collegium they strongly objected to it.

The information I got was that Prime Minister Manmohan Singh was at that time leaving for New York to attend the U.N. General Assembly Session. At the Delhi airport he was told by the Ministers of that party of Tamilnadu ( who were Congress allies ) that by the time he returns from New York his government would have fallen as that Tamilnadu party would withdraw support to the UPA ( for not continuing that Additional judge ).

On hearing this Manmohan Singh panicked, but he was told by a senior Congress minister not to worry, and he would manage everything. That Minister then went to Justice Lahoti and told him there would be a crisis if that Additional Judge of Tamilnadu was discontinued. On hearing this Justice Lahoti sent a letter to the Government of India to give another term of 1 year as additional Judge to that corrupt Judge, ( I wonder whether he consulted his two Supreme Court Collegium members ), and it was in these circumstances this corrupt Judge was given another 1 year term as Additional Judge ( while his 6 batch mates as Additional Judges were confirmed as permanent Judges ).

The Additional Judge was later given another term as Additional Judge by the new CJI Justice Sabarwal, and then confirmed as a permanent judge by the next CJI Justice K.G. Balkrishnan, but transferred to another High Court.

I have related all this to show how the system actually works, whatever it is in theory. In fact in view of the adverse IB report the Judge should not even have been continued as an Additional Judge."

After the publication of Justice Katju's blog, Times of India accessed and published the contemporaneous correspondence between the then Law Minister late H R Bhardwaj, the PMO, and the Chief Justice of India.

As per the correspondence, in March 2005 the CJI had written to the government saying that he wants to verify the authenticity of representations against Justice Ashok Kumar. On April 29, 2005, the Supreme Court Collegium unanimously decided not to make Justice Ashok Kumar permanent. On June 17, 2005, the PMO wrote to the Law Ministry asking why Justice Ashok Kumar's and another Madras High Court Judge's names were not recommended to be made permanent. The news report says that the Law Minister sent a note along the lines of PMO's letter to CJI Justice Lahoti on July 17, 2005, and on the next day, the CJI replied saying "The opinion of the collegium is clear…. However, in view of the sensitivity in the perception of the government highlighted in the note, the matter as to confirmation of Justice S Ashok Kumar can be postponed for being further enquired into".

The Supreme Court in its Judgment refers to this U-turn by the CJI as him being swayed by the views of the government, amounting to surrender of the primacy of judiciary.

Justice K G Balakrishnan, the CJI who made Justice Ashok Kumar permanent, denied any wrongdoing in an interview given after Justice Katju's blog was published.

Christian or Scheduled Caste Hindu?

In an interview given by H R Bhardwaj in 2019, he admits to DMK exerting pressure on the UPA government through MPs of the party writing to the government saying that Justice Ashok Kumar was discriminated against because he was Dalit. Bhardwaj said that this representation by MPs was sent to Justice Lahoti, who recommended an extension to Justice Kumar.

Justice Ashok Kumar was transferred to Andhra Pradesh High Court in March 2008 and retired in July 2009. Justice Kumar passed away in October 2009. One of his sons, Advocate Edwin Prabakar has been appointed by the DMK government as its government pleader at the Madras High Court.

The petition challenging the Scheduled Caste status of Justice Ashok Kumar, that the latest Judgment refers to, was filed by an Advocate in 2002 seeking a writ of Quo Warranto against the then-District Judge on the ground that he got the post as a member of Scheduled Caste, though he was a Christian. The Petitioner asserted that not only Justice Ashok Kumar but his wife, children, and all other family members were practicing Christians.

Judge Ashok Kumar denied the charges and claimed that he reconverted to Hinduism in 1971, changed his name from S. Antony Samy to S. Ashok Kumar in 1974 and that he contested Assembly Elections in 1987 from a seat reserved for candidates belonging to Scheduled Caste. He asserted that "he never visits Churches but visits Temples and he is also donating monies to Hindu Temples".

The Advocate General representing J Jayalalitha's government submitted before the Court that a direction be issued to the Government to cause an enquiry regarding the social status of Justice Ashok Kumar by a Committee constituted as per a government order.

The Division Bench of the Court refused to adopt that path. The Court held that his assertions regarding his conversion and his life as a Hindu are disputed questions of fact and that there is no scope for a factual enquiry in a petition seeking Quo Warranto. The Court noted that the official records regarding his religion as Hinduism were not challenged, and dismissed the writ petition.

The Judgment was delivered by a Bench of then Chief Justice Subhashan Reddy and Justice P K Mishra. Justice Subhashan Reddy was the Chief Justice even when Justice Ashok Kumar was elevated to the High Court.

Latest Judgment of Madras High Court

The latest Judgment of the Madras High Court highlights yet another angle to the entire episode relating to Justice Ashok Kumar. No one can dispute that the Church has a firm grip on the power politics of Tamil Nadu (read Aravindan Neelakandan's analysis). Justice Ashok Kumar's purported status as a Dalit was highlighted and milked at various stages in his career.

It is highly unlikely that Justice Ashok Kumar's body was buried in the cemetery against his wishes. Did he then lie to and mislead the High Court about his relinquishing his Christian faith? In the latest Judgment, High Court says that "Everyone pretended as if they did not know the truth".

The Constitution (Scheduled Castes) Order, 1950 states that "no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste".

In January 2020 the Supreme Court issued notice on a plea by 'Dalit Christians' to make scheduled caste reservation religion-neutral. Persons belonging to Scheduled Castes are lured into Christianity on a promise of egalitarianism and escape from the caste system of Hinduism. In Kerala, persons of Scheduled Caste converted to Christianity are granted an OBC status to encourage such conversion, by circumventing the 1950 Constitution Order.

In the latest Judgment, Justice G. R. Swaminathan has boldly analyzed and weighed the impugned speech to arrive at its conclusion, even at the risk of sounding politically incorrect in the process. Crypto Christians usurping the benefits due to genuine members of Scheduled Castes is a major issue. The Madras High Court has exposed the tip of the iceberg and as can be seen from Justice Ashok Kumar's saga, the rot runs deep.

The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.