“We might not be in a state of war, but we are in a state of emergency, unprecedented for generations” – Justice AP Shah

Justice AP Shah delivered a lecture titled The Supreme Court in Decline: Forgotten Freedoms and Eroded Rights in the memory of Justice Hosbet Suresh on September 18, at 6 P.M in a Zoom session. Justice Shah is the former Chief Justice of the Delhi and Madras High Courts and has been a former Chairperson of Law Commission of India. The event was chaired by Senior Advocate, Supreme Court of India, Mr. Dushyant Dave. This event was organized for conferring posthumously the Dr. Asghar Ali Engineer Lifetime Achievement Award upon Justice Suresh.

This event was organized by Citizens for Justice and Peace (CJP) in association with Bohra Youth Association Sansthan, Central Board of Dawoodi Bohra Community, Centre for Study of Society and Secularism, Institute for Islamic Studies and Majlis Law Centre.

In his lecture, Justice Shah honoured the legacy of Justice Suresh while addressing the many pertinent issues that the judiciary is plagued with currently. 

Firstly, speaking about the award being given to Justice Suresh, he said both Dr. Asghar Ali Engineer and Justice Suresh were activists in their own right. While Dr. Engineer fought for change in the Dawoodi Bohra community, Justice Suresh made some “path-breaking contributions to the human rights space” and that both their voices were the conscience of the nation. “Wherever there were instances or occasions of human rights violations, Justice Suresh’s wisdom, presence and support always made an appearance,” he said.

Supreme Court in all its glory

Justice Shah began his lecture by speaking about the apex court’s past. He regarded the Kesavananda Bharti case as a shining example of what the Court is capable of and said that the 13-judge constitution bench exhibited statesmanship through this judgment whereby the basic structure doctrine was laid down and judicial custody of the Constitution was reclaimed.

He said that initially the court played a passive role but over time realised its role in the governance of the nation.

The “invention” of  the public interest litigation marked the  beginning of what has been termed the “socialist judicial” era, where the Court’s activist role came into prominence. In the late 1990s, it expanded its scope into relatively less-explored territories, such as environmental protection, using its powers to tackle important questions in that arena,” he said. According to Justice Shah, the court entered the domain of the executive in the PIL era.

He stated that after the ADM Jabalpur case, the court was viewed as having gone astray and a few years after the case were doggedly spent in restoring some respectability to the institution and in the 1980s and 1990s its reputation was briefly reversed. “We seem to have regressed once again, and desperately need a wake up call in order to avoid another Emergency-like disaster,” he said, throwing caution to the wind.

An unaccountable executive

He then went on to comment on the loss of accountability of the executive. “In India today, every institution, mechanism or tool that is designed to hold the executive accountable, is being systematically destroyed. This destruction began in 2014 when the BJP government came into power… What we are witnessing today is a force in action strategically intending to render the Indian democratic state practically comatose, with all the power entrusted with the executive,” he stated.

He commented on the cancellation of the question hour in the on-going monsoon session of the Parliament and said that the Parliament has been debilitated but other entities such as Lokpal, National Human Rights Commission, Election Commission of India and Information Commission have failed to keep a check on the executive. Those who do raise questions, such as the civil society, unbiased journalism and students are being stifled and strangled in many ways.

 The decline of the judiciary

“With Parliament already so weakened, the Supreme Court would have been the next best space to discuss the Kashmir trifurcation, the constitutional validity of the Citizenship Amendment Act, suppression and criminalisation of protests against this law, misuse of draconian laws like sedition and the Unlawful Activities Prevention Act, electoral bonds, etc.,” Justice Shah said while pointing towards the role that the judiciary could have played.

“The Supreme Court’s descent was not fortuitous or coincidental, but was part of a larger, deliberately-crafted strategy on the part of the executive to seize control of the arms of the state, in ways  that would benefit  its own political agenda,” he stated while pointing out how the court’s decline coincided with the advent of the BJP at the Centre.

He alleged that the appointments of new judges and transfers of existing judges across high courts are many-a-times orchestrated by the Law Ministry. He noted that some judgements did demonstrate self-expression of the court such as right to privacy judgement in Puttaswamy case of the striking down of section 66A of the Information Technology Act in the Shreya Singhal case, as well as decriminalisation of homosexualiity, or  recognising transgender rights because the executive was not at all concerned with these issues and hence the court was at liberty. “But wherever the executive is an actively interested party, and  wants to undermine the rights of the people – usually in order to further its own realpolitik agenda – you will find that the Court is being pushed to the wall,” he pointed out.

He also made a comment on the contempt case against Prashant Bhushan wherein he was fined Re. 1. “The Court let off Mr Bhushan with a fine of one rupee for the contempt case against him over two tweets, but not without chastising his conduct. In the entire proceedings, one thing was clear: the Court came across as an intolerant institution,” Justice Shah commented.

He said that the court had failed to perform as a counter-majoritarian court as it failed to protect the interests of minorities.

“A democracy derives its legitimacy from representing the will of the majority. But this legitimacy comes at a cost, which is invariably borne by minority groups, and especially those that are unpopular or victims of deep prejudice and who cannot influence the legislature in any way. This power to protect minorities from the tyranny of the majority is the basis of judicial review powers that allow Courts to strike down laws for violating the Constitution.”

Justice Shah criticised the court for aligning with the majoritarian view and said that this was demonstrated in the Sabarimala review and the Ayodhya judgement. He said that while the 2018 Sabarimala judgement allowed entry of women in the temple, the review has left the rule of law in limbo as the government is able to ignore the judgment with impunity, even if there is no stay on the 2018 judgement.

About the Ayodhya judgment he said that it defied the rule of equity that one must approach the court with clean hands when it decided the case “anonymously and unanimously” in favour of the party that was the wrongdoer. He said that even though the criminal trial continues, “in the larger scheme of things, I am doubtful if any meaningful result will emerge”.

Failure to commit to the Constitution

Justice Shah also commented on how the Court failed to address the migrant crisis while it had “time for a billion-dollar Indian cricket administration, or the grievances of a high-profile journalist, but studiously ignored the real plight of millions of migrants, who do not have either the money or the profile to compete for precious judicial time with other litigants.”

Erosion of rights

Justice Shah also spoke about the repression of right to protest and freedom of speech. He said that the government was silencing the protestors while the court has avoided taking up the cases challenging the Citizenship Amendment Act and was being a silent spectator. He also commented on how in the Delhi riots, individuals are randomly being charged with criminal offences of rioting, unlawful assembly, criminal conspiracy, sedition in conjunction with the (newly interpreted) Unlawful Activities Prevention Act (UAPA).

“Contrast this treatment of civilians with that of leading politicians of the ruling BJP who have publicly delivered inciteful speeches. Shockingly, no punitive action was taken against them. Instead, the one judge who showed some inclination to take action was conveniently transferred.”

He pointed towards the investigations in the Delhi riots being unfair as they are mostly based on disclosures and how the Delhi Police has been accused of being partisan and politically motivated. He blamed the state of affairs on a weak judiciary.

“Had the Supreme Court not remained a mute spectator, and had it intervened more proactively, all this would arguably not have happened. Instead, the Supreme Court conveniently declined to intervene, showing no urgency in wanting to deal with these problems. For weeks, the matters involving many of these issues (for example, the Delhi riots) kept getting adjourned. Even where matters were heard and decided, when they were appealed, there was judicial silence.”

He also cited a case which has made it virtually impossible for people accused under UAPA to get bail. in NIA vs. Zahoor Watali, Justice Khanwilkar and Justice Rastogi decided that courts must presume every allegation made in the First Information Report to be correct and put the burden on the accused to disprove the allegations thus excluding the question of admissibility of evidence at the stage of bail. “With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely. It is nothing short of a nightmare come true for arrestees,” he said.

Bhima Koregaon case

Justice Shah said, “abuse of the UAPA and constant rejection of bail applications of accused as a means of silencing opposing voices can be seen most in the Bhima Koregaon cases, where mere thought has been elevated to a crime.” He pointed to the pattern followed in the arrests, “social activists, academicians, public intellectuals, who have worked in certain parts of the country are first accused of Maoist conspiracies, then with charges of misguiding Dalits, and then under the UAPA”.

Abdication of Justice and the Kashmir issue

Justice Shah said that the court failed to apply the principles laid out in the Anuradha Bhasin case while deciding legality of the communication shutdown in Kashmir. The court, in May 2020, instead asked the executive to form a special committee and review the situation to see whether 4G internet can be restored in the UT.

“This is clearly a case of misguided, and surely, constitutionally unacceptable, delegation: the executive has been asked to conduct a review of its own actions, when in fact the judiciary should have been conducting a judicial review of executive action.”

Threat to independence of Judiciary

Justice Shah, quite blatantly pointed out how competent judges were related to adjudicating private disputes and questioned the independence of the judiciary while attributing it to the executive.

“The combination of opaque systems like the “master of the roster”, and a certain kind of Chief Justice of India, and a handful of “reliable” judges, is sufficient to destroy all that is considered precious by an independent judiciary”

The death of democracy

Justice Shah referred to a book titled, How Democracies Die whereby authors Steven Levitsky and Daniel Ziblatt, write of how “most democratic breakdowns have been caused not by generals and soldiers but by elected governments”.

He said that the judiciary was the institution that had the capacity to turn the tide but “it seems to have lost its way”.

“There was a period in history, during the Emergency, as well, when the Supreme Court failed the nation, but it realised its follies and returned to its natural path in course of time. Now, too, we have many judges and exemplary  lawyers in practice who are sincere and committed to constitutionalism and to  the rule of law. I expect they will rise to the occasion. The occasion is now.”

He concluded with a quote by Jawaharlal Nehru who had said in the Constituent Assembly that we need judges who can “stand up against the executive government and whoever might come in their way” and Justice Shah left us with some words of hope, “I am hopeful that we will once again be able to see judges like these thrive in India.”

 The complete lecture may be read here:

The post The era of the SC’s glorious jurisprudence has vanished: Justice AP Shah appeared first on SabrangIndia.

Friends and comrades of the Human Rights Communities and fellow lawyers and friends of Justice Hosabet Suresh, or simply Justice Suresh, as I would call him.

It is indeed an honour for me to be here amongst you all, to talk about a giant in the Human Rights Community in India, Justice Suresh. For indeed he was just that. The fact that he has brought all of us together today, a rare thing, is a testimony to the esteemed position he holds in the Human Rights Community. In fact, I can say that I am meeting a lot of you after a long time. That is the magic of Justice Suresh.

I must confess that when I first met him in late 1981 and I emphasize the first time, when he had just resumed his practice at the Bombay High Court, I never thought that he would charter such a course in his post retirement life that he did. But over the next 6 months when I was with him in my months of initial practice at the bar, it was evident to me that he was a man of principle, which he would never compromise on. He was also critical, to the point of impatience, but constructively so, on orders that were wrongly passed and which agitated him. He would point out to the mistakes in the order and tell the juniors how he would have dealt with the issues. He was also impatient with the world, full of energy, which made him innovative in his approach. As you can well imagine he was a man passionate about his beliefs which he was completely committed to. Though initially I wondered why he resigned as a judge from the Bombay City Civil and Sessions Court, by the time I left him after 6 months, it was obvious to me that his reasons were good. But with all, that at a personal level he was humble, simple, unassuming and a generous person. All these qualities would endure him well in the next 30 years after he retired as a judge of the Bombay High Court. 

As a judge also he showed his caliber on all issues, civil, criminal and procedural too. He was quick to pick up the issues in the matters before him and dispose of matters with proper application of mind and quickly. The losing side may complain about the order but all the lawyers and the parties always felt that they had a fair hearing. And matters which would require settlement, Justice Suresh would go an extra mile to see that an equitable settlement was arrived at. I never heard any lawyer complaining about his judgeship. Let me tell you that it is quite common for lawyers to put down a judge in private in the manner the judge conducts herself in court. All I heard about Justice Suresh was praise. The disappointing thing was that he was not allowed to prove his real mettle as a judge given the assignment system in the High Court. 

But as all of us know, it was after his retirement as a judge of the Bombay High Court that he excelled himself. More accurately, given the opportunity, Justice Suresh blossomed. It was an unconventional thing for to do to be so active after retirement with civil society, but then he was not conventional man in his approach to human rights. All those qualities that I have mentioned earlier held him in good stead during the 30 long years of his work as a beacon of Human Rights. While others want to really retire after their official retirement, the impatient, uncompromising nature and his passionate commitment to issues of injustice would not let him to do that. Nay, he was most happy in doing that. And he did all that very well. 

He took up all causes that he was approached on. For him there was no saying no. He went on all fact-finding missions with a zeal. He was able to do the fact finding and prepare a report with expedition. Most of all his reports were easy to read.  With him, Human Rights defenders felt safe. As others have written, he became a shield for the Human Rights communities. He excelled in his work. Recently, rating judges of the Supreme Court has been a butt of controversy. But I can say with confidence that if we were to rate Justice Suresh about his post retirement work, we would all rate him as A+++, A triple plus. 

Friends and comrades, Justice Suresh has departed from amidst us at a time which is precarious for India and her constitutional order. Almost all of us are in some way or other are involved in ensuring that India’s constitutional order is preserved. All his life Justice Suresh strived to do just that. In a conversation with Teesta, Henri mentioned that we would all remember Justice Suresh through our work. It is propitious that Justice Suresh has brought us together. It would be in the fitness of things that all of us meet on a regular basis to feed into and help in each other’s work. Though we are all doing excellent work on our own, we are doing so in our silos. In his work Justice Suresh helped us all. Though it is not a conventional thing to do in an obsequious ceremony, like Justice Suresh let me be unconventional and propose that to continue the legacy of Justice Suresh we start meeting in a Human Rights conference to be held annually. 

We shall miss you dearly, Justice Suresh and miss your passion, your commitment to your beliefs and your energy which moved not only you but which rubbed off onto others. We assure you that we shall carry forth your legacy in dedicating ourselves all the more to the cause of Human Rights, no doubt each in our own way but hopefully together so that the vision of India enshrined in the Preamble to our Constitution that you cherished so much:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity;

Fraternity assuring the dignity of the individual and unity and integrity of the country remains with her people and is not usurped from them.

Related:

Adieu Justice Suresh: His voice was his conscience 

Remembering Hosbet Suresh: A voice for the voiceless and my chamber mate of 37 years 

Former Bombay HC judge Hosbet Suresh passes away

The post Remembering Hosbet Suresh: With him, Human Rights defenders felt safe appeared first on SabrangIndia.

BJP leader Avinash Rai Khanna. Image credit: Alchetro

Political Appointment to NHRC Wrong in Principle: Justice Rajinder Sachar

Opposing the appointment of a senior office bearer of the Bharatiya Janata Party (BJP) as a member of the National Human Rights Commission (NHRC), several judges and human rights activists have roundly condemned the decision –  first of its kind – to appoint a career politician to the national human rights body. 

“..the vacancy arose in November 2003 when Virendra dayal, a member of the NHRC retired after two terms. It was kept vacant intentionally because Sharma was still in service. When he retired in February, he was posted against the vacancy. It was of little concern to the BJP that Sharma did not fulfill the qualifications laid down in the NHRC charter and that Justice Anand had opposed the proposal. Apparently, the BJP has no respect for institutions like NHRC. Even earlier, it had tried to nominate to the commission two other police officials, MB kaushal and DR Karthikeyan…….Soon after joining the NHRC, Sharma wanted to attend a meeting of Interpol at Geneva. Justice Anand refused to release the necessary funds for the trip. I believe the CBI, or some other government intelligence agency, footed the bill. ‘Shining’ BJP is setting a new precedent by allowing a NHRC member to be part of Interpol at the same time.”

The post It’s Not the 1st Time, NDA I too had Encroached on NHRC’s Autonomy appeared first on SabrangIndia.

The Supreme Court (Varma J) in the case of Dr Ramesh Yeshwant Prabhoo (1995 (7) SCALE 1) held Dr Prabhoo and Bal Thackeray guilty of corrupt practice having appealed for votes on the ground of religion (Hindu religion) u/s. 123 (3) of the Representation of People Act, 1951. However, in the next judgement (1995 (7) SCALE 30) Manohar Joshi was exonerated. The Supreme Court did not change the law, but in the process made observations which have the effect of virtually giving licence to communal parties to invoke religion in electoral battle.
 

Now for a detailed analysis of the judgements.
 
Dr Ramesh Prabhoo had been held guilty of corrupt practice u/s. 123 sub-section (3) and (3A) of the Act, by the Bombay High Court in Election Petition No. 1 of 1988 (pertaining to election held on 13^th December, 1987). In that case, Bal Thackeray was held to be his agent and as such with his consent had appealed for votes on the ground of Dr Prabhoo’s religion and that the said appeal had promoted or tended to promote feelings on enmity and hatred between different communities. Prabhoo’s election was declared to be void on the ground u/s. 100 (1) (b) of the Act. Bal Thackeray was named u/s. 99 of the Act. Justice Varma dismissed both the appeals by Prabhoo and Bal Thackeray.
 
Manohar Joshi’s election was also declared void u/s 100 (1) (b) of the Act in Election Petition No. 24 of 1990 (pertaining of election held in February 1990), by the Bombay High Court. In the election rally held on 24^th February, 1990, Bal Thackeray, Pramod Mahajan (BJP) and others including Manohar Joshi had addressed the meeting appealing for votes. Bal Thackeray’s speech on that occasion (and on earlier occasions) was not different from the speeches delivered in Ramesh Prabhoo’s campaign. However, Varma J held that Bal Thackeray was not the agent of Manohar Joshi so as to attract the provisions of S.100 (1) (b) of the Act and that Manohar Joshi’s appeal was not an appeal on the basis of his religion. Varma J thus allowed the appeal of Manohar Joshi. In both these matters it was made known to the Supreme Court that Bal Thackeray was the leader of Shiv Sena.
 
In Prabhoo’s case, Varma J construing the manner of appeal for votes in the name of religion (u/s. 123 (3) of the Act) held that the words used need not be direct, and if indirect but lead to an inference that the appeal is on the basis of religion would be sufficient to invoke the prohibition u/s. 123 (3) of the Act. In terms he said: “The substance of the speech and the manner in which it is meant to be understood by the audience determines its nature, and not the camouflage by an artistic use of the language. For understanding the meaning and effect of the speech, the context has to be found in the speech itself and not outside it with reference to any other background unless the speech itself imports any earlier fact in the context of that speech. The speech has also not to be construed in the abstract or in the manner in which it would be construed in the debate. Care must be taken to remember that the public speeches during election campaign ordinarily are addressed to audience comprised of common men and, therefore, the manner in which it would be understood by such an audience has to kept in view.”
 
However, in Manohar Joshi’s case, the speech which was held to have been proved was the speech delivered by him on 24^th February, 1990 which he had, inter-alia, stated that the first Hindu State will be established in Maharashtra. Varma J held that “however despicable be such a statement it cannot be said to amount to an appeal for votes on the ground of his religion.” He further observed that was at best the “expression” of “such a hope”, though “we would express our disdain at the entertaining of such a thought of such a stance in a political leader of any shade in the country.” Though the statement was “despicable” and to be looked at with “disdain”, in Varma J’s opinion it was not a corrupt practice “to permit negation of the electoral verdict.” What was overlooked in this case, is his own observations in Prabhoo’s case, as set out above. We are made to believe that in Manohar Joshi’s case, we have to ignore that he was addressing an election rally in which Bal Thackeray and Pramod Mahajan had given the most provocative speeches. We have to overlook the manner in which it was meant to be understood, and the manner in which it would be understood by such an audience. We have to forget the surrounding circumstances and that was the final rally before closing of election campaign 48 hours before the date of election. We have to imagine that in such a rally the audience had only gathered to hear Manohar Joshi (in isolation) expressing a pious – but disdainful, despicable – hope that a Hindu State would be established!
 
Why disdainful? Why despicable? The Learned Judge has not explained. But coming from a Judge from the apex Court, it is legitimate to presume that the Judge had S R Bommai Vs. Union of India (1994 Vol. 3 SCC 1) in mind. For, it is in that case a nine judges Bench of the Supreme Court has clearly spelt out that our Constitution prohibits the establishment of a theocratic State. Yet a political leader could be permitted to express in public – in an election rally – a hope that he would establish a Hindu State, though such a desire was opposed to the unalterable basic feature of the Constitution!
 
In Prabhoo’s case, it was argued that the appeal for votes on the basis of religion, in order to make it prohibitive u/s. 123 (3) of the Act, should necessarily be related to the religion of the candidate himself. Accordingly it was contended that it did not prohibit the candidate from seeking vote in the name of a religion to which the candidate did not belong. Thus, a Muslim candidate contesting on behalf of BJP/Shiv Sena could appeal for votes in the name of Hindu religion, as the appeal is not on the basis of “his” religion. Similarly, it was argued that appeal to refrain from voting must also be on the basis of the religion of that other candidate, and then only it could be said that such an appeal fails within S. 123 (3) of the Act. That is to say, a BJP candidate contesting against any one who happens to be a Hindu, could say that “Islam (or for that matter Christianity) is no good for us” and therefore vote for BJP, and such an appeal would not be a corrupt practice u/s. 123 (3) of the Act. Varma J seems to have accepted these contentions when he says: “There can be no doubt that the word “his” used in sub-section (3) must have significance and it cannot be ignored or equated with the word “any” to bring within the net of sub-section (3) any appeal in which there is any reference to religion. The religion forming the basis of the appeal to vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language of sub-section (3) and this is the only manner in which the word “his” used therein can be construed”. He further says: “It is thus clear that for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. There is no ambiguity in sub-section (3) and it clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under sub-section (3)”.
 
These observations are directly contrary to what is stated in S R Bommai (Supra) at Para 149:
 
“With respect, we are unable to accept this contention. Reading sub-sections (3) and (3A) of Sections 123 together, it is clear that appealing to any religion or seeking votes in the name of any religion is prohibited by the two provisions. To read otherwise is to subvert the intent and purpose of the said provisions. What is more, assuming that the interpretation placed by the learned counsel is correct, it cannot control the content of secularism which is accepted by and is implicit in our Constitution.”
 
Again in R Prabhoo’s case, it was argued that in order to sustain the charge of corrupt practice u/sub-section (3), more appeal is not enough, but there should be a further element of prejudicial effect on public order. Varma J has rightly negated this contention. So also he has held that the appeal need not be a direct appeal. Further, after 20.9.61, since the Act stood amended, even one appeal could be sufficient to bring home the charge. Yet Manohar Joshi’s appeal was not held to be impermissible.
 
It was argued that S.123 (3) of the Act was ultra vires Act. 25 of the Constitution of India which guarantees freedom of conscience and propagation of religion. This contention was not accepted. But the Learned Judge takes into account certain statements made by A K Sen in the Parliamentary Debates. Inter-alia, the following statements were relied on i.e. “But in the guise of framing an electoral law, no fundamental right of the citizen can be taken away. That is what I am saying. The right to preserve one’s language cannot be taken away by an election law. That is as clear as daylight” …..But we are not debating here – on the aesthetics of language or the philosophy of language; nor are we here to debate the fundamental rights of a citizen to preserve his own language and culture. Fortunately, that is guaranteed to every man and woman in this country as it is not elsewhere…”
 
From this, Varma J infers “The clarification given in the speech of the Law Minister clearly shows that a speech for the protection of fundamental rights, preservation of own language, religion and culture, etc. are not forbidden by sub-section (3) of Section 123, and the limit is narrow to the extent indicated”. Thereafter, he proceeds further to say that “mention of religion as such in an election speech is not forbidden by sub-section (3)” so long as it does not amou8nt to an appeal to vote for a candidate on the ground of his religion or refrain from voting on the ground of other candidate’s religion.
 
He then says:
 
“It cannot be doubted that an election speech made in conformity with the fundamental right to freedom of religion guaranteed under Article 25 to 30 of the Constitution, cannot be treated as anti-secular to be prohibited by sub-section (3) of Section 123, unless it falls within the narrow net of the prohibition indicated earlier. It is obvious that a speech referring to religion during election campaign with a secular stance in conformity with the fundamental right to freedom of religion can be made without being hit by the prohibition contained in sub-section (30), if it does not contain an appeal to vote for any candidate because of his religion or to refrain from voting for any candidate because of his religion. When it is said that politics and religion do not mix, it obviously does not mean that even such permissible political speeches are forbidden. This is the meaning and true scope of sub-section (3) of Section 123 of the Act”.
 
I do not understand how on an election platform, a candidate can talk of religion and call them “permissible speeches”. Why should anyone talk of religion in an election rally? What is election? or electoral process? Is it a matter of politics? Or is it a matter of religion? Why do people attend an election meeting? Not for a religious discourse! What is the meaning of the word “propagate” in Art. 25? “Propagate”, for what purpose? How does anyone “propagate” religion without an element of persuasion? Is persuasion not an appeal? Varma J’s opinion does not answer any of these questions. It only assumes that just because a candidate has a fundamental right under Art. 25, he could legitimately exercise the same in an election rally.
 
In fact, the scope of secularism and in particular Art.25 has been elaborately dealt with in S R Bommai and those observations should have the binding effect on Varma J. sitting in a bench of three judges. It is said in S R Bommai : (Per Sawant J) (Para 148).
 
            “One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religion, religious sects and denominations – cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State’s tolerance of religion or religions does not made it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicity or implicity allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State. This is also clear from sub-section (3) of section 123 of the Representation of the People Act, 1951 which prohibits an appeal by “a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of or appeal to religious symbols.”
 
More elaborately, (Per Ramaswamy J) after explaining that political activities include matters relating to the management of affairs of State and activities pertaining to parties to control those who manage the affairs of a State, it was observed: (Para 187)
 
“Politics in positively secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion, right to belief of propagate teachings conducive for secular living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life.”
 
Again (at Para 190):
 
“Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely a negation of the constitutional mandates but also positive violation of the constitution obligation, duty, responsibility and positive prescription of prohibition specifically enjoyed by the Constitution and the R P Act. A political party that seeks to secure power through a religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to the constitutional culture and basic features. Appeal on grounds of religion offends secular democracy.”
 
In other words, it should have been clear to anyone that under our Constitution, there shall be no religion in politics just as there shall be no politics in religion. (Para 196)
 
            “In a secular democracy, in other words a flagrant breach of constitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics”. A religious talk, may be a dissertation or a discourse or even hoping for a religious State, on the basis of any so-called exercise of fundamental right u/Article 25, in an election meeting which is a political activity, would undoubtedly pollute politics, and can only be construed as an appeal to vote on the basis of religion.
 
Varma J, thereafter sought to lay down the meaning of “Hindutva” and Hinduism”, all because he wanted to convey that reference to “Hindutva” or “Hinduism” or “mention of any other religion” in an election speech does not bring it within the net of S.123 (3) or (3A) of the Act. As pointed out above, this proposition itself is contrary to the dictum laid down in S R Bommai.
 
Even otherwise there was no justification for going into this exercise for he himself has said that what is relevant is the speech, “the manner in which it was likely to be understood by the audience to which the speech was addressed” and the words are not to be construed in the abstract. If that is so, whatever be the meaning which the speaker wanted to convey would be meaningless inasmuch as no one could say with certainty that the speech would be understood the way the speaker wanted it to be understood.
 
Varma J thereafter summarises “Hindutva”, “Hinduism” in about four pages (printed), almost reminding me of Namboodripad’s case (AIR 1970 SC 2015) in which C J Hidayatullah performed a similar exercise of summarising Communism and dialectical materialism in about four pages – needless to say, both being an exercise in futility. Neither “Hinduism” nor “Communism” or for that matter any philosophy or religion can be confined to a few paragraphs in a legal judgement, for setting out its true meaning and content. After considering one or two judgements of the Constitutional Bench (not any matter arising in an election petition) Varma J observes:
 
“These Constitution Bench decisions, after a detailed discussion, indicate that no precise meaning can be ascribed to the terms “Hindu”, “Hindutva” and “Hinduism”; and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term “Hindutva” is related more to the way of life of the people in the sub-continent. It is difficult to appreciate how in the face of these decisions the term “Hindutva” or “Hinduism” per se, in the abstract can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or to be construed to fall within the prohibition in sub-sections (3) and (3A) of Section 123 of the R.P. Act”.
 
What are the implications of these observations? According to the Learned Judge, what is prohibited u/s 123 (3) & (3A) of the Act is “Hindu Fundamentalism” and not Hindutva as a way of life. The Learned Judge himself has seen the text of the speeches given by Bal Thackeray, in respect of which he could not help “recording our distress at this kind of speeches given by a top leader of a political party.”….. “The offending speeches in the present case discarded the cherished values of our rich cultural heritage and tended to erode the secular polity.”
 
But the question is, how would the Judge categories the speeches given by Bal Thackeray? He has held that the speeches would fall within the scope of S.123 (3) of the Act. Therefore, can it be regarded as speeches delivered by a Hindu fundamentalist? What fundamentalism of the Hindu religion did these speeches sought to convey? If one analyses these speeches made by Bal Thackeray, there is no mention of any fundamental concepts of Hindu state of mind. Neither BJP nor Shiv-Sena can be considered as a party of fundamentalists. On the other hand, in every religious group, there are fundamentalists. They are opposed to any reform in their own religion. But they may not be interested in any election. They may not even bother about the other religious groups. When BJP or Shiv Sena appealed for votes, they did so not on the basis of Hindu fundamentalism, but on the basis of Hindus v/s. Muslims and that this shall be a Hindu State and Muslims and other groups shall only stay here as subordinate citizens. The idea is to maintain a permanent divide so that the majority communities, the communities being divided not on the basis of political or economic ideologies, but on the basis of religion.
 
The Learned Judge concludes:
 
            “It is, therefore, a fallacy and an error of law to proceed on the assumption that any reference to Hindutva or Hinduism in a speech makes it automatically a speech based on the Hindu religion as opposed to the other religions or that the use of words “Hindutva” or “Hinduism” per se depict an attitude hostile to all persons practicing any religion other than the Hindu religion. It is the kind of use made of these words and the meaning sought to be conveyed in the speech which has to be seen and unless such a construction leads to the conclusion that these words were used to appeal for votes for a Hindu candidate on the ground that he is a Hindu or not to vote for a candidate because he is not a Hindu, the mere fact that these words are used in the speech would not bring it within the prohibition of sub-section (3) or (3A) or Section 123. It may well be, that these words are used in a speech to promote secularism or to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticize the policy of any political party as discriminatory or intolerant”.
 
The most question is why should a candidate speak of Hindutva in an election rally? Why should anyone speak in any election meeting, if not for seeking votes? So also for what purpose does the audience attend an election rally? Is it for learning Hindu way of life? Or to know what a candidate stands for and on what basis he is seeking votes in his favour? If a Hindu candidate says: “I am a Hindu, please vote for me” it becomes an appeal for “a way of life of the Indian people and the Indian Culture”. What about Christianity? Is it a way of life of the Indian people or not? What about Islamic way of life? Is it a part of Indian culture or not? So if what the Learned Judge says is right, candidates belonging to each of these religious denominations can speak of their way of life, necessarily based on their respective religious faiths, beliefs, and texts and seeks votes and that is permissible!
 
The Learned Judge says:
 
            “The fallacy is in the assumption that a speech in which reference is made to Hindutva or Hinduism must be a speech on the ground of Hindu religion so that if the candidate for whom the speech is made happens to be a Hindu, it must necessarily amount to a corrupt practice under sub-section (3) and / or sub-section (3A) of Section 123 of the R P Act.”
 
With respect, the fallacy is in assuming that in an election rally the candidate and the audience would be interested in preaching and learning Indian way of life or Indian Culture or Indian ethos!
 
In Manohar Joshi’s Case, the High Court had indicated its perception of the nature of trial of the election petition as under:
 
            “It must be noted that this Election Petition is not based upon individual acts of Respondent or his Election Agent or any other person with his consent. This petition is based upon the above-mentioned plank and / or policy decision of the Shiv Sena and BJP and the campaigning by the party and the Respondent on the basis of that plank….” Varma J brushed aside this as “an erroneous impression of the High Court which had led to serious errors….” In other words, the plank theory did not appeal to Varma J. The only meaning of this is that whatever be the plank or policy of a party, even if it contains religious appeal, the High Court cannot go into it and the corrupt practice required to be established should be of the candidate, and not of the party to which he belongs. In other words, the party can indulge in any corrupt practice and that cannot be attributed to the candidate. The Learned Judge thinks that such allegations have “no relevance for the pleading and proof of corrupt practice u/sub-section (3) and (3A) of S. 123 of the Act.”
 
If what the learned Judge says is right, it will lead to an absurd situation wherein the political parties can carry on the most vicious campaign and the candidate has just to keep his mouth shut. Neither the party nor the candidate can be held liable for corrupt practice! Ours is a parliamentary democracy and must necessarily function through political parties having distinct policies and programmes. If a policy and programme of a political party is anti-secular, it cannot be said that its candidate will have a different policy and programme. Either he survives by the party or he fails. It is here what the Supreme Court says in S R Bommai becomes relevant: (Para 188)
 
            “For a political party or an organization that seeks to influence the electorates to promote or accomplishing success at an election for governance of parliamentary form of Government, the principles are those embedded in the Directive Principles of the Constitution vis-à-vis the Fundamental Rights and the Fundamental Duties in Part IV A and should abide by the Constitution and promote tolerance, harmony and the spirit of commonness amongst all the people of India transcending religious, linguistic, regional or sectional diversities and to preserve the rich heritage of our composite culture, to develop humanism, spirit of reformation and to abstain form violence. Therefore, the manifesto of a political party should be consistent with these fundamental and basic features of the Constitution, secularism, socio-economic and political justice, fraternity, unity and national integrity”.
 
Referring to S. 123 (3) & (3A) of the Act, the Court said: (Para 189)
 
            “A political party, therefore, should not ignore the fundamental features of the Constitution and the laws. Even its manifesto with all sophistication or felicity of its language, a political party cannot escape constitutional mandate and negates the abiding faith and solemn responsibility and duty undertaken to uphold the Constitution and laws after it was registered under Section 29-A. Equally it / they / should not sabotage the same basic features of the Constitution either influencing the electoral process or working the Constitution or the law. The political party or the political executive securing the governance of the State by securing majority in the legislature through the battle of ballot throughout its tenure by its actions and programmes, it is required to abide by the Constitution and the laws in letter and spirit”.
 
Further, (para 252)
 
            “Political parties, group of persons or individuals who would seek to influence electoral process with a view to come to political power, should abide by the Constitution and the laws including secularism, sovereignty, integrity of the nation. They / he should not mix religion with politics. Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity. Programmes or principles evolved by political parties based on religion amounts to recognizing religion as a part of the political governance which the Constitution expressly prohibited. It violates the basic features of the Constitution.”
 
Dealing with political parties indulging in anti-secular activities, the Court said: (Per Jeevan Reddy J Para 310)
 
            “Given the above position, it is clear that if any party or organization seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a cultural organization. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. That is what we mean by saying “functional relevance.” One cannot conceive of a democratic form of Government without the political parties. They are a part of the political system and constitutional scheme. May, they are integral to the governance of a democratic society. If the Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart that is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce and impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. Thus would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or organization can simultaneously be a political and a religious party. It has to be either. Same would be the position, if a party or organization acts and / or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party. The fact that a party may be entitled to go to people seeking a mandate for a drastic amendment of the Constitution or its replacement by another Constitution is wholly irrelevant in the context. We do not know how the Constitution can be amended so as to remove secularism from the basic structure of the Constitution. Nor do we know how the present Constitution can be replaced by another; it is enough for us to know that the Constitution does not provide for such a course – that it does not provide for its own demise”.
 
In Manohar Joshi’s case, the Learned Judge did not accept the submission that Bal Thackeray was his agent, because Bal Thackeray was his leader. He said that agency “implies a subservient role of the person to whom consent is given and the authority of the given of the consent to control the actions of the agent. It is difficult to ascribe to an acknowledged leader of the party a role subservient to the candidate set up by that party in as much as the candidate is ordinarily in no position to control the actions of his leader”.
 
It is difficult to appreciate the notion of agency being construed as in a commercial transaction. An agent is the one who acts for another. The leader of a party canvasses for his party candidate, and in law he should be considered as an agent of his candidate. The Learned Judge thinks that the candidate must be able to control the actions of the agent, and then only the notion of agency would apply. But why? If the candidate acts and if someone else acts for him and on his behalf, where the consent is express or implied, the latter becomes an agent of the former. If the candidate is unable to control the act of the agent because the agent is the leader, the consent does not stand vitiated. He is still his agent and not a stranger.
 
            The Learned Judge was construing S.100 (1) (b) & 100 (1) (d) of the Act: The relevant provisions are as under:
 
            “(1) Grounds for declaring election to be void – (1) Subject to the provisions of sub-section (2) if the High Court is of the opinion—
 
(a)        …
 
(b)        that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent.
 
(c)         …
 
(d)        that the result of the election, in so far as it concerns a returned candidate has been materially affected –
 

1. …

1. by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent.

1. …

1. …

 
(2) If in the opinion of the High Court, a returned candidate has been guilty by an
agent, other than his election agent, of any corrupt practice but the High Court is satisfied—
 
(a)        that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent;
 
(b)        omitted
 
(c)         that he candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
           
(d)        that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.”
           
            If one analyses the above, it would show that there could be four categories of persons who could be committing corrupt practice: Under Cl. (b),
 
(1)        The candidate:
 
(2)        his election agent;
 
(3)        any other person with the consent of a returned candidate or his election agent; and under Cl. (d) (ii),
 
(4)        and agent other than his election agent.
 
            Significantly, under Cl.(b), the third category of person has not been referred to as “agent”. But he has been referred to as a person who has the consent of the candidate or of his election agent. If any corrupt practice is committed by any of these category of persons under Cl. (b), the liability is absolute and the election is liable to be set aside.
 
However, under Cl. (d) one more category of persons has been mentioned. He has been referred to as an agent, but not the election agent. If this person commits any corrupt practice, and the candidate or his election agent is not guilty of corrupt practice, the candidate gets a chance to say that this agent committed corrupt practice without his consent and contrary to his order and that he took all reasonable steps for preventing the commission of corrupt practice. Further under Cl. (d), the election petitioner has to prove that the result of the election has been materially affected by the act of such an agent.
 
            What the learned Judge did was that Bal Thackeray at best would fall within the scope of Cl. (d) (ii), but the petitioner has not pleaded or proved that the result was materially affected by the speech of Bal Thackeray.
 
            Therefore, the question is, in which category, the leader of a political party could be placed under these provisions. Certainly, he would not come under Cl. (d) (ii) because the candidate would not be able to order him not to commit corrupt practice nor would be able to take any step reasonable or otherwise, to prevent the leader from committing any corrupt practice. Similarly, when a leader himself canvasses for a candidate or for his party, there can be no question of pleading and proving that the results were materially affected by the presence of such a leader. That is the natural consequence of any campaign when the leader himself comes to the field for canvassing.
 
            Clause (d) (ii) applies to such an agent who is not a regular campaigner. He could be a person from amongst the audience who is requested to speak and if he transgresses his limits, he can be asked to stop and all steps can be taken to see that he does not indulge in any corrupt practice. Such a person could be someone who is influential in the locality and his help is sought, but who can always be controlled from going beyond certain limits. That is why in such a situation, the candidate gets a chance to prove that he was not responsible for the corrupt practice and that he had done his best to prevent such acts. It is natural that in such a situation, the petitioner knows that even if the returned candidate has not committed corrupt practice, it was that other agent who has committed corrupt practice, and because of the acts of that other agent, the returned candidate could win and the results were materially affected. Such a situation would not arise where the leader himself canvasses for his party candidate.
 
            Analysed this way, which appears to be the natural meaning of C. (d)(ii) and sub-clause (2), Bal Thackeray would fall within the scope of the third category of persons mentioned under Cl.(b). He is that other person, not an agent, and the consent is express or implied. If he indulges in corrupt practice for getting his candidate elected, and the candidate is unseated, he has to thank himself for the same.
 
            Any other construction of these provisions would result in such an illogical and irrational situation, that the leader of a political party can indulge in all sorts of corrupt practice for and on behalf of his party candidate while the candidate himself remains a silent approver of what his leader does, and the election remains valid. In other words, according to Varma J, the party plank and the party leader remain above the law. The Learned Judge says:
 
            “Thus even if the acknowledge leaders of a party have committed any corrupt practice which results in benefit to the returned candidate then on proof of the benefit having materially affected the election result in favour of the candidate, his election would be set aside on the ground under Section 100 (1) (d) (ii) of the R P Act.”
 
            Where is the question of proving that a leader’s action has materially benefited his party candidate? In every election that is the natural consequence of a leader supporting his candidate. He is there to see that his candidate wins. With respect, a leader of a political party would fall, not under Cl. (d) (ii), but under Cl. (b).
 
            It is unfortunate that, in effect, the two judgements tend to side track all that has been said on secularism in S R Bommai. Secularism betrayed is democracy denied, and rule of religion is no substitute for rule of law.
 
(This article was earlier published by the author and has been shared with Sabrangindia.in for re-publication)
 

The post Secularism Betrayed appeared first on SabrangIndia.

The Constitution is under attack not externally, but from within. The Indian State is under the administration of those who have no regard for the values enshrined in the Constitution. Every institution under the Constitution is being subverted  and maligned. The executive today is a saffronised executive with no respect for the secular ideals found in the Constitution. The Prime Minister and his ministerial colleagues, who have taken oath to protect the Constitution have no compunction in periodically reaffirming their allegiance to the Rashtriya Swayamsevak Sangh (RSS) with an oath which says: “I must solemnly take this oath, that I become a member of the RSS in order to achieve all–round greatness of Bharatvarsha by fostering the growth of my sacred Hindu religion, Hindu society and Hindu culture”… This is the prayer that every member, pracharak of the Sangh utters with reverence:

“Affectionate Motherland,
I eternally bow to you,
O Land of Hindus,
You have reared me in comfort..,
O God Almighty,
We the integral part of
Hindu Rashtra,
Salute you in reverence,
For your cause have we girded up our  
loins,
Give us your blessing
For its accomplishments.”

The domination of the RSS over the Indian executive is complete, with all the important portfolios retained by them, and small crumbs of no significance distributed amongst the BJP’s allies whose sole, albeit unholy, objective is to simply hang on to power. Constitutionally, the President is the executive head.  However, with the appointment of APJ Abdul Kalam they have succeeded in installing a very pliable President who has neither political acumen nor constitutional knowledge.
The next is the assault on Parliament. With a Shiv Sena man as Speaker in the Lok Sabha and a sangh parivar man as vice-president chairing the Rajya Sabha, the takeover is almost complete. Thus, the two wings of the government — the executive and the legislature — are under the leadership of those who have no faith in the Constitution.

What about the judiciary? It is difficult to imagine that the government is not doing anything to saffronise the judiciary. When  attempts at saffronisation of the bureaucracy have been so blatant, attempts to infiltrate the judiciary with men and women who are ideologically opposed to the Indian Constitution will not lag far behind.

At the lower level, the judiciary is dependent on the government whichever be the party in power. At the higher level, ie, at the level of the High Court and Supreme Court judges there is greater independence. But there is no transparency in the selection of judges. In any event, unfortunately, a commitment to Constitutional values neither is nor has governed the criteria for selection of judges. As Justice VR Krishna Iyer says: “The social justice perspective, a people–oriented credential, secular socialist essentials are frequently alien to the selection process of the brothers on the bench.”

For all we know, some of the the appointments to the bench could be primary members of the RSS who were appointed as judges later on. It is no wonder then that a former chief justice of a state high court has now become governor in a BJP–ruled state, the only apparent reason for his appointment being his close association with the VHP. This is in line with the perceptible policy of the government to appoint RSS pracharaks as governors in the states, yet another institution under the Constitution that is being manipulated and eroded.

When the Babri Masjid was about to be demolished, the only persons who could have stopped the demolition were the then Prime Minister Narsimha Rao and Justice Venkatachaliah, the judge who headed the Supreme Court bench before whom the matter was pending. Rao connived in the crime. Justice Venkatachaliah was naïve enough to accept an undertaking from Kalyan Singh, then chief minister of UP, which he never intended to keep.

After the masjid was demolished in full public view, resulting in the death of thousands of innocent people and large scale destruction of property in the riots that followed all over the country, there was hardly any feeling of righteous indignation on the benches of the Supreme Court. A routine contempt of court notice was issued  against Kalyan Singh. In response, Kalyan Singh paraded the corridors of the Supreme Court and his token punishment lasted only until the court rose for the day.
In sharp contrast, the innocuous tone and tenor of an affidavit filed by Arunadhati Roy was sufficient to invoke a severe punishment from the Supreme Court. Later on, another judge, Justice JS Verma of the Supreme Court, in what is now known as the Ayodhya verdict, observed that the demolition of the Babri Masjid was the act of certain mischievous “miscreants who cannot be identified” when the whole world knew who were the perpetrators of this crime.

It is a sad reflection on the Indian judiciary that when on occasions it has been called upon to deal with ‘secularism’ as enshrined in our Constitution, it has dithered, it has displayed unbecoming traits leaning in favour of the majority as against the minority community.

Soon after the demolition of the Babri Masjid, someone installed a ramshackle Ram Mandir on the site of the demolished mosque and sought protection for the same from the court. It was patently an illegal structure put up by “miscreants” who were plainly trespassers in law. Yet, Justice Tilhari, who in his wisdom found that Lord Rama has a place in the Indian Constitution, gave protection to the structure and allowed worship and darshan for the Hindus (Vishwa Hindu Adhivakta Sangh vs. Union of India — Judgement delivered on 1-1-1993).

A special leave petition filed against this judgement was summarily dismissed by the Supreme Court. The government enacted an ordinance on January 7, 1993, the sole object of which was to permanently establish and legitmise the  make shift Ram Mandir. When this ordinance (which later became an Act) was challenged in the Supreme Court, the majority judges (Judgement of Verma J.) upheld this very provision in the law (Section 7), which sought to maintain the status quo as on January 7, 1993, on the specious plea that in the demolition of the Babri Masjid, it was the Hindus who suffered their rights of worship which they were exercising from December, 1949  until December 6, 1992.
Further, Justice Verma observed that the “freeze enacted in Section 7(2) only enabled them to exercise “a lesser right of worship for the Hindu devotees” and as such the law “appears to be reasonable and just.” The learned judges conveniently forgot that in December 1949, the idols were forcibly installed within the premises of the Babri Masjid, after which action, they were sustained there through several interim orders. The minority judges on that bench of the Supreme Court rightly observed, “that the Act is skewed to favour one religion against another” (Bharucha J.).

Thus the issue of Ramjanma-bhoomi was kept alive by an order of the Supreme Court! It is the judiciary that kept this issue alive since 1949, by passing a series of orders which only favoured the Hindu community over the other. This trend set by the judiciary was to be exploited later by the communal elements in political parties, and to be hijacked and monopolised as their exclusive agenda by the sangh parivar, since about 1980.

It is a sad reflection on the Indian judiciary that when on occasions it has been called upon to deal with “secularism” as enshrined in our Constitution, it has dithered, it has displayed unbecoming traits leaning in favour of the majority as against minority community, reminding us unwittingly of what Justice Oliver Wendell Homes once said: behind every judgement lies an “inarticulate major premise.” However, their subjective conscience should not have allowed them to commit a breach of their own oath on the Constitution.

The only exception was the judgement in the case of SR Bommai (1994) wherein it has been said: “Article 25 inhibits the government to patronise a particular religion as State religion overtly or covertly. A political party is therefore positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws… A political party that seeks to secure power through a religious policy or caste orientation policy, disintegrates the people on grounds of religion and caste” …

In this case the court took into account the manifesto of the BJP which stated that the “BJP firmly believes that construction of Sri Ram Mandir at Janmasthan is a symbol of the vindication of our cultural heritage and national self respect… And (that) party is committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babri structure …”.

The court also took into account that the leaders of the BJP had consistently made speeches to the same effect and that some of the chief ministers and ministers belonged to RSS and that the ministers had exhorted people to participate in the kar seva that led to the demolition. The court observed that all these materials were sufficient to hold that the state governments (which were dismissed following the demolition of the Babri Masjid) were not run in accordance with the provisions of the Constitution.

Yet this judgement was not even referred to by the Supreme Court when the election of the Shiv Sena leader Manohar Joshi (former chief minister of Maharashtra, and the present Speaker of the Lok Sabha)  was upheld. In an election rally Joshi had sought votes stating that the first Hindu state will be established in Maharashtra with the Sena–BJP victory. The latter judgement gives the distinct impression that canvassing on the basis of Hindutva was permissible since “Hindutva is only a way of life.” What about Christianity? Is it not a way of life? Is Islam not a way of life? Thus, Hindutva got judicial reprieve and thereby the government at the Centre and in Gujarat today gets legitimacy.

In the 1992–93 riots in Bombay, none could doubt that the worst culprit was Bal Thackeray who had repeatedly incited the mobs through his mouthpiece, Saamna. Since the the Congress government was not taking any action against the Sena leader, two concerned citizens moved the Bombay High Court with all the newspaper articles and adequate documentation seeking direction to sanction prosecution of Thackeray. The two judges who heard the petition simply turned down the plea on the basis that past wounds and atrocities should be swallowed and forgotten because of apparent peace in the city. Worse still,  the division bench of the Bombay High Court held that the provocative exhortations by Thackeray to his cadres on January 9, 1993 were not against all Muslims “but only against anti-national Muslims.”

What is even more regrettable is that the SLP filed against the judgement in the Supreme Court was summarily rejected, giving sanction to, ‘kill, loot and forget!’ Much later, when Bal Thackeray was arrested, a lower Court in Mumbai released him on a technicality and the Bombay High Court has had no time in the last three years to hear a review petition against the said order.

 While the bomb blasts cases have been going on, almost on a day–to–day basis for the past several years,  the judiciary has simply been postponing the case against those accused for the Babri Masjid demolition (which include LK Advani & Co.) for the last nine years!

On  December 12, 1992, Narasimha Rao, by a notification, banned the RSS, the VHP and the Bajrang Dal under the Unlawful Activities (Prevention) Act, 1967. This ban had to be confirmed by a judicial tribunal under the Act. Justice PK Bahri, a retired judge of the Delhi High Court who sat on the tribunal confirmed the ban on the VHP but quashed the ban against the RSS and the Bajrang Dal. He however spoke of  “the laudable objects pursued by VHP.” So the Ram Janmabhoomi movement became a laudable act by virtue of a judicial pronouncement.

The issue of Ramjanma–bhoomi was kept alive by an order of the Supreme Court! It is the judiciary that kept this issue alive since 1949, by passing a series of orders which only favoured the Hindu community over the other.

What the judge said about the RSS discloses his “major inarticulate premise.” According to him: “The word “Hindu” has been firmly imprinted in our national mind, was radiantly reflected in our freedom struggle against the British as well. The fight was essentially for certain ideals associated with the word Hindu, and not for mere political independence or economic rights.” No wonder then that he came to the conclusion that the accusation that the RSS is opposed to Muslims is wrong. The question is, how did the then Prime Minister select such a person to head a judicial tribunal?

When Graham Staines and his two innocent children were so tragically burnt to death on the night of January 22/23, 1999 by Dara Singh in association with members of the Bajrang Dal, the government promptly appointed Justice Wadhwa, a sitting judge of the Supreme Court to hold an inquiry, inter alia on “the role, if any, played by any…organization…or individual in connection with” the killings. Within days, before the commission could begin it’s work, LK Advani, as Union home minister had granted a character certificate to both the VHP and the BD, on the floor of the Lok Sabha. He said that he knew these organisations well and they were incapable of criminal acts. What happened thereafter is well known.

Despite the investigations and depositions of police officers and counsel before the commission that revealed the clear links between Dara Singh and the sangh parivar outfits, the learned judge was in a great hurry, despite the submissions made by the commission’s advocate, Gopala Subramaniam to nullify the link. Justice Wadhwa categorically held that Dara Singh alone was responsible and that no “authority or organisation was behind the gruesome killings.” Thus Advani stands vindicated.

Fortunately for India and the founding principles of the Indian State under the Indian Constitution, the judiciary has not been entirely influenced, ideologically. It remains, with all these major deviations, the most secular institution under the Constitution, as compared to the other two. It is still the judiciary and the judiciary alone can resuscitate constitutional values to their original intent. However, we need to be warned of the subtle, steady and perceptible erosion that has been, and is, taking place at all levels and within all constitutional and democratic institutions, including the judiciary. One of the main causes for anxiety is the lack of transparency in the matter of selection and appointment of judges. Coupled with this is the lure that is offered to judges who are about to retire-with commissions and tribunals all legislatively sanctified as reserved for retired judges as also seats in the Rajya Sabha.

Added to this list is now the governor’s post. Even when there are no constitutional or statutory commissions to head that retired judges can be appointed to, the Government can always, by its executive orders create one like the recent Constitutional Review Commission — the sole purpose of which was to make use of retired judges to create doubts about the Constitution, in the minds of the people.                

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Your lordships, beware!

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Dear Zaka, I hope all is  well with you. You will  doubtless be surprised  to find a Rs.10 note enclosed with this letter.  This is a loan I took  from you nearly 35 years ago. As I intend to go for haj this year (Inshaallah), I am clearing all my debts. Things were so bad for me between 1964 and 1972 that I was hardly in my senses. Then, when it got better, I partly felt embarrassed returning such a tiny sum; partly distance was the excuse. In any case, please forgive me for my negligence. And please pray to Allah that he accept my haj. Ameen.
AU Siddiqui, Mira Road, Thane, Mumbai.

(A letter that ‘Zakabhai’, the proprietor of Fourways Travels, Mumbai, received from his long lost friend several months ago). 

The Vishwa Hindu Parishad and the Bajrang Dal want the government of India to stop its subsidy to haj pilgrims. Last month, the BJP-led Union government decided to hike the subsidy amount by over Rs.900 per haji compared to the amount paid last year. At Rs.20,000 per pilgrim, the subsidy for 72,000 hajis cost the government a total of around Rs.148 crore.

Not surprisingly, the announcement was greeted with the following from the national convenor of the Bajrang Dal, Surendra Jain: “If this is not vote bank politics, then why are they not extending the subsidy to Mansarovar (China) and Nankana Sahib (Pakistan) pilgrims.” While castigating his own saffron sibling, Jain also “appealed” to the “Muslim community” not to avail of the “extravagant” subsidy.

In support of its oft-repeated demand, the sangh parivar has found a formidable ally — Saudi Arabia. A report published in the February 26 issue of The Indian Express quotes both the Saudi ambassador to India, A. Rahman N. Alohaly, and the Saudi foreign minister, Saud Al-Faisal, trying to impress upon the Indian delegation accompanying India’s foreign minister, Jaswant Singh, during his tour of Saudi Arabia in January, that any state subsidy for haj pilgrimage is “wrong”. “Our ulema will help you in explaining to your people that the subsidy goes against the spirit of the Shariat,’’ Al–Faisal reportedly told the Indian delegation. 
Quick on the uptake, the VHP’s senior vice–president, Acharya Giriraj Kishore, wrote to Prime Minister Atal Behari Vajpayee and, quoting the Saudi viewpoint, demanded immediate withdrawal of the subsidy. “Even the ulema of Mecca have said that taking subsidy for Haj was un-Islamic and robbed (it of) the very purpose of undertaking the pilgrimage,” he cooed.

It should not be surprising if sooner or later, the sangh parivar even starts citing (and why not?) the example of Pakistan. While disposing of a petition before him in 1997, justice Tanvir Ahmed of the Lahore High Court had ruled that any expenditure defrayed by the government in subsidising hajis was contrary to the Shariat and therefore, wrong. Since then, the Pakistani government has stopped all subsidies for haj pilgrimage. Confusing as it might seem, while the Saudi orthodoxy and neighbouring Pakistan under growing Islamic fundamentalism find haj subsidy un-Islamic, secular India now under increasing saffron sway persists with the subsidy and the quantum keeps growing with every passing year.  

But what might come as an even greater surprise for Hindutva, a very large section of Indian Muslims – from the ulema to Islamic scholars to intellectuals to ordinary citizens – believe that only that haj is acceptable to Allah the entire expense of which comes out of the personal finances of the haji concerned. While speaking to Communalism Combat, a large number of Muslims, cutting across the Mr.—moulvi divide expressed themselves in favour of the haj subsidy being scrapped by the government of India. 

The letter of AU Siddiqui cited at the beginning of this report, as also the account of Mohamad Amin Khandwani, former chairman of the all-India Haj Committee and currently chairman Maharashtra State Minorities Commission (see box) are eloquent testimony to the punctiliousness of a very large number of Muslims on the question of haj.
Such qualm about whose money is spent on haj is part of a widely prevalent Muslim belief. This is evident from the fact that none less than the editor of Muslim India and former MP, Syed Shahabuddin, has consistently demanded for the last 15 years that the government of India phase out the haj subsidy. “I have told successive Prime Ministers of the country that this haj subsidy is there because of their political need; it has never been our demand. No Muslim leader has ever demanded subsidy”, Shahabuddin told CC in a telephonic interview. 
When newspapers reported the 1997 Lahore High Court judgement, castigating the Pakistani State’s subsidies for haj, Shahabuddin was quick to make xeroxes and despatch them to our own ministry of external affairs. But even swayamsevaks like Vajpayee, Advani, Murli Manohar Joshi and Uma Bharati in the BJP–led Union government have not had the courage to follow the example of ‘Islamic fundamentalist’ Pakistan.

Shahabuddin, widely perceived as a rabble–rouser, is a politician whose career depends on building for himself the image of a champion of Muslim causes and the cultivation of Muslim votes. Would he risk being such a consistent opponent of haj subsidy if he had the least doubt that this would make him unpopular with the moulvi sahebs and the Muslim masses? 

For an answer to the question, here is the gist of an exposition that Abdussattar Yusuf Shaikh, secretary, All India Muslim Personal Law Board and office bearer of a host of Muslim educational institutions gave to CC.
Ø Of the five essentials of Islam, three are obligatory on all Muslims. These are, kalma (the declaration that there is no God but one and that Mohammed is his Prophet), namaaz (prayers five times a day) and roza (fasting during the entire month of Ramzaan). The remaining two are obligatory only for Muslims with adequate financial means to fulfil them. These are zakaat (annual Islamic tax payable according to a prescribed formula depending on the financial status of a Muslim) and haj (pilgrimage to Mecca). 

Ø Haj is obligatory, only once in a lifetime and only for those Muslims who are both physically capable of undertaking the journey and have the adequate financial capacity. It is not obligatory for others. The issue of adequate financial ability has also been clearly specified. 

Ø The money needed for the performance of haj should come out of one’s own legitimate earning or possession and the amount should be sufficient to meet the entire expenses to be incurred on the performance of haj. Among other things, this includes the entire travel expenses, whatever the mode of travel. 

Ø Before embarking on haj, a Muslim pilgrim must ensure that he leaves enough money behind for the expenses of all his dependants during the entire period that he is away. Further, on his return he should be sure of adequate resources to maintain his current standard of living for at least the next six months. 

Ø If there are pending family obligations (for example, if daughters are of marriageable age), they must be fulfilled before one plans a haj pilgrimage.
Ø All pending personal loans must be settled before one takes stock of one’s financial ability to perform haj.
In view of all these stipulations, for Shaikh saheb, haj subsidy is nothing but “bheek ka paisa” (alms) which is “no good” for haj. “The position in Islam is very clear. If I do not meet the required conditions, haj is not obligatory for me. Moreover, the most important consideration before Allah is my niyat (intention). If I sincerely desire to perform haj but do not have the means to do so, Allah will still grant me all the rewards due to a haji. On the other hand, if I perform a haj merely for show, it is useless before Allah. No, there is nothing wrong if the government withdraws this bheek ka paisa for haj,” he categorically asserts.

Is haj subsidy un–Islamic, then? If an entire array of Muslim ulema, scholars, intellectuals and ordinary Muslims — stretching from Saudi Arabia to Pakistan to India — are so clear that this is so, shouldn’t Indian Muslims themselves ask the government to discontinue the subsidy or at least refuse to avail of it? The problem is that there are also a fair number of important personages who support the existing government practice on grounds that range from simple opportunism, to rationalisation on grounds of communal parity, to statements of principle.
The let-it-be argument: “Chodiye bhi. After all, if some Muslims are benefiting, why rake up the issue? Who benefits if the subsidy is withdrawn?” A variant: “How can you blame the ordinary Muslim going on pilgrimage? He is keen to go to haj, the government–appointed Haj Committee says pay so much for air travel, and he pays it. How is the poor man supposed to know anything about government subsidy? So how can anyone say that his haj will not be accepted Allah?” 

The communal parity argument: “The VHP claims only Muslims benefit from subsidy. But if not subsidy on airfare, what about the crores that the government regularly incurs on logistical support to help Hindu pilgrims reach highly inaccessible places like Mansarovar (in China) or Amarnath (in Kashmir)? And what about the actual expenses incurred on the recently concluded mahakumbh at Allahabad?” (According to Shahabuddin, the UP government spent Rs.150 crore, while the Centre provided another Rs 50 crore for the mahakumbh). 
The issue is further complicated because, as in case of the uniform civil code debate, the campaign is being led not by secularists or ordinary citizens but by blatantly communal Hindutvavaadis. 

“I totally agree that subsidy – as different from discounts that are normal for flights chartered by any group — for haj is un–Islamic and I would appeal to Muslims not to avail of the government subsidy. But if someone demands that the government scrap the subsidy, I would say that any financial benefit — including the tax benefit to available only to Hindus according to the Hindu Joint Family system — given to any religious community must also be scrapped,” argues businessman, politician and community leader, Ghulam Mohammed Peshimam. 
The man-does-not-live-by-bread-alone argument: Interestingly, the strongest pro- subsidy argument was forwarded by Muslims who claimed simultaneously that such a practice was neither un-Islamic, nor contrary to the principles of a secular state. Fuzail Jaffrey, editor of the Urdu daily published from Inquilab, is one of them. 
Jaffrey told CC: “I am by no means a shariah expert. But as a laymen I do not see anything wrong with the state subsidising airfare for haj or money for maintenance of temples. I don’t see this in Hindu Muslim terms; I don’t see why Muslims should feel guilty or defensive about it. After all, doesn’t our secular state also provide financial support to many temples in the country? And what about state aid to educational institutions like madrassas, pathshalas and Vidyapeeths run by religious bodies? Should the state stop supporting all of them? If it does so, haj subsidy will also go along with everything else”. 

Senior advocate, legal advisor to the Bohra head priest Syedna Burhanuddin and member of the All India Muslim Personal Law Board, Yusuf Muchchala, is equally unrelenting in his defence of financial support by the state for haj as much as or for mahakumbh or for the temples maintained by the Travancore Dewasvom Board in Kerala and Tamil Nadu as provided for in the Indian constitution itself (Article 290 A). According to him, a deeply religious society like India has wisely opted for the secularism model adopted by an equally religious Ireland, instead of the erstwhile Soviet (anti-religious) or American (aloof from and indifferent to religion) models of secularism. “Muslims would be deeply hurt if the subsidy is withdrawn simply because of the naked communal demand of the VHP and the Bajrang Dal,” Muchchala told CC.

If neither Jaffrey nor Muchchala lay any claim to being Islamic experts, none less than the president of the All India Muslim Personal Law Board (AIMPLB), Maulana Qazi Mujahidul Islam Qasmi, too, finds nothing un–Islamic in haj subsidy. In a telephonic interview to CC from his Patna residence, Maulana Qasmi lent the authority of a theological heavy weight to the ‘Islamic-cum-secular’ argument in favour of state subsidy for religious activities. 
Remember the ‘sarkari peshimams’ scheme: When contacted telephonically at his Nagpur residence for his comments, Maulana Abdul Karim Parekh, treasurer of the AIMPLB, recipient of the Padma Bhushan award on Republic Day this year and a man reputed to hold ‘moderate’, ‘earthy’, ‘practicable’ views, dodged a direct response to the subsidy controversy. Instead, he chose to recount how the ulema were not at all amused by former Prime Minister Narasimha Rao’s attempt to win over the entire constituency of peshimams who lead prayers in mosques across the country. The ulema believed that here was an attempt to convert lakhs of moulvis throughout India into ‘sarkari peshimams’ or servants of the powers that be. 

“I told Rao that if such state largesse was extended to Muslim clerics, surely priests from other religions would legitimately stake their claim, too? OK, girjaghars and gurdwaras are relatively better off, so maybe Christians and Sikhs will not press their demand. But I asked Rao whether he had given any thought to how easy it was to set up temples overnight and what the government would do if lakhs and lakhs of Hindu priests, too, demanded salaries from the state. Rao smiled knowingly and that was the end of the scheme in–the–making for India’s peshimams”.
Is there a moral contained in this real life story that Maulana Parekh chose to recount of his own volition? Was the good maulana subtly suggesting that there is a connection somewhere between the question of subsidies for haj and Rao’s aborted salaries for peshimams scheme? That, apart from the Islamic and secular dimensions of the subsidy issue, there is also the need to consider the political dimension of issues, specially in the context of growing competitive communalism and Hindutva’s sustained drive towards majoritarian politics in India?
What Maulana Parekh really intended is a matter of conjecture. But Maulana Qasmi was head on when asked whether continuing haj subsidy adds bite to Hindutva’s “Muslim appeasement” propaganda. And, therefore, would it not be better if as a matter of political strategy as much as a matter of secular principle, Muslims themselves demanded an end to all state support for purely religious activity. No, was Maulana Qasmi’s response. “The ‘Muslim appeasement’ bogey is raised even when Muslims raise legitimate demands. Should Muslims stop raising even their legitimate demands?” 

How, in the maulana’s view, should Muslims react if the government were to decide on scrapping the haj subsidy? “Well, why should we tie our hands right now. If such a situation arises, the time and the then prevailing circumstances will govern our response”, came the answer. 
Given such sharply divergent views within the community, should the ordinary Muslim accept or refrain from accepting the haj subsidy as suggested by Abdussattar Yusuf Shaikh Ghulam Mohammed Peshimam, Islamic scholar, Asghar Ali Engineer and numerous other Indian Muslims, not to mention the Saudi and Pakistani perspective on the issue?

It is a question that exasperates people like Peshimam and Hisamul Islam Siddiqui, editor of the Urdu/Hindi bilingual weekly, Jadeed Markaz, published from Lucknow. “Our ulema are fully aware that this issue continues to simmer and Hindu communal bodies are fully exploiting it for their purposes. Why can’t they sit together, deliberate on the issue and come to some consensus on whether Muslims should support or oppose government’s subsidy?” Others would argue that as in the case of Muslim Personal Law, the issue is far too important to be left in the hands of the ulema alone.

The secular argument: If opinion on the subject is divided among Muslims, the situation seems to be no different among secularists either. Nikhil Wagle, editor of the Marathi eveninger published from Mumbai, Apla Mahanagar, is categorical: “We must move away from the Sarva Dharam Samabhav (equal respect for all religions) concept practised so far to that of a Dharam Nirpeksh (indifference to religion) secular model. I am totally opposed to any state subsidy for any religious activity, whether it is mahakumbh or haj”.

But another crusader for human rights, Justice Hosbet Suresh, has a contrary view that may surprise many secularists. “Of course, the state must be secular, but can one ignore or deny citizens their right to religion? I would not see the issue of haj subsidy as a religious issue but as a human, social issue. Who can decide that a human being’s need for faith is less important than his need for education, health services or a clean environment? If we expect the secular state to cater to his other needs, what is wrong in a state extending financial support to his spiritual needs as well? Of course, just as the argument for free education or free health is in support of those who cannot afford it, I would say that similarly in religious matters, state assistance should be strictly need based and non–discriminatory”. 

The need–based caveat is something that people like Yusuf Muchchala and Fuzail Jaffrey readily accept. Even as the debate continues, could one not begin, right now, with a minimum common denominator — the demand that pending further clarification on the subject, state subsidy for haj and all other religious activities must strictly be need–based, not community-based? 

But conceding the argument for a need-based subsidy is to concede that there is no rational basis to justify any haj subsidy. The government currently pays Rs.20,000 towards subsidising the airfare of haj pilgrims only because the airline is paid Rs.32,000 per ticket, whereas through proper negotiations the fare can be pegged down to around Rs.24,000. This would then mean that, if at all, only Rs.12,000 need be paid towards subsidy instead of the current Rs.20,000. In either case, an intending pilgrim must still put together at least Rs.65,000–70,000 for haj. By Indian standards this is a large sum of money, clearly way beyond the reach of the overwhelming majority of Indian Muslims. By what logic can anyone argue that a person who can spare/afford Rs.60,000-70,000 is incapable of raising another Rs.12,000 and is, therefore, deserving of subsidy on a needs basis? 

More pertinently, even currently, there are well over a hundred travel agencies which offer an all inclusive haj tour package to hajis for the same Rs.65,000–70,000. Not only is there no government subsidy involved in case of the privately conducted tours, the tour operators even make a profit for themselves. (See accompanying box, ‘Sarkari haj is no cheaper’). In sort, private initiative leaves no room for any justification of subsidy on a needs basis.  

Archived from Communalism Combat, March 2001 Year 8  No. 67, Cover Story 1

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