Tamanna Pankaj
The legal monolith of a state not only stands on a substructure of its socio-historic constitution, but is itself designed by its socio-political aspirations. Thus, law is nothing but a reflection of the society it seeks to govern and protect. Now, two of the three main pillars of a democracy, i.e. the legislative and the judiciary play the most important role in shaping and maintaining the legal identity of the state. In the complexities of the modern society, the rule of absolute separation of power, where one organ strictly checks the functioning of another is no longer feasible.
The modern complexity calls for not just a strict check but also a constant cooperation between the government and the judiciary. But, where does one draw a line? Does this ‘cooperation’ between the two organs ever become excessive to the extent to just ignore the checking function? Such never heard before questions start coming to mind when one takes a closer look at the current state of affairs.
Prioritizing Justice
Being the highest Court of the land and the protector of rights of citizens in a democracy as big as ours, it is no surprise that the Supreme Court is perpetually overburdened. The institution that is entrusted with the duty to conclusively decide the status of rights and liabilities of government and citizens alike, when overburdened is reasonably be expected to prioritise matters judiciously.
But when the head of very same institution makes statements like “We do not have time to here so many matters. We have a Constitution bench case (Ayodhya dispute) to here,” where the other matters being referred to are issues related to abrogation of Article 370 and the plight of the citizens thereafter, including allegations of restrictions imposed on the movement of journalists within the state, illegal detention of minors in the state, arrest of leaders and suspension of civil liberties.
We cannot deny the efforts by former CJI Ranjan Gogoi to ensure an issue which is highly politically charged and which has remained sub judicefor almost three decades now before he retired from the post of the head of the apex court, it wouldn’t be wrong to ask why has this come at the cost of rights of people of J&K and why such an urgency has not been shown for the protection of rights.
To put things into perspective, it has been over three months since Article 370 was revoked but the telephones and internet is still not back in the entire region, a few schools have opened but parents are too afraid to send their children to school, protests are being held on daily basis, incidents of stone pelting, minors getting picked up and getting detained and passerby are being monitored by soldiers in a bunkers.
Faith vs Law
The urgency that was on display by the apex court and CJI RanjanGogoi in disposing off the Ayodhya dispute seems to be justified as it puts to rest a long standing politically charged dispute which was being used by political parties to stir up emotions and polarise the society all for the sake of votes. But when we see the outcome of this urgency, the verdict of the Supreme Court, one can’t help but question the real intentions behind all of this.
Back in 1949, devotees forcefully broke into the then-standing Babri Masjid and placed idols inside it, all at the time when Muslims were still offering their prayers there. Then in 1992, an agitated crowd of devotees, when instigated by hateful political speeches broke into the premises and in a matter of hours brought to ground a historical build which also happened to be a place of worship. In the judgment the Supreme Court has condemned both these acts as illegal and worthy of punishment. However, the apex court decided to reward the very same people who committed these illegal acts by giving the right to build a temple there.
On page no 215 of the judgment, it says, “it is true that in the matters of faith and belief, the absence of evidence may not be an evidence of absence.” This was made the basis of ruling that as per continuous faith of the people, the disputed site is the actual birth place of Lord Ram. But, surprisingly enough, it was said that the Muslims have failed to show unimpeded possession and proof of worship from 1528 to 1857. While stating that the matter is not decided on the matter of faith, all the benefit of faith has been given to the Hindu parties whereas Muslims have been ask to prove conclusive proof of something as hard to prove as, show unimpeded possession and proof of worship from centuries ago.
Going further into the reasoning given by the apex court, heavy reliance has been placed on the ASI report. The ASI repost says that there is a non-islamic structure beneath the mosque which dates back to 12th century. A closer look at the ASI report reveals that, there is no evidence to show that the structure which has been found beneath the mosque was in fact the Ram Temple. Moreover, there is gap of 4 centuries between the time when the mosque was constructed and the time when the underlying structure is said to be from. Thus, there is no proof that the underlying structure was actually demolished to build the mosque.
A meandering pattern of acceptance and denial of faith as the basis appears throughout the judgment which just leaves one wondering as to what is worse, judgment on the basis of faith or judgment on validity and acceptance of one faith over the other. So the coming back to the point of urgency and prioritising the Ayodhya hearing at the cost of plight of residents of J&K, all we can be completely sure of is that the ruling government would be now have two reasons to be happy, firstly that since ‘Mandirwahibanega’ they can and most certainly will capitalise on it to get votes in the next elections and secondly that the Kashmir issue, the protests and the agitations have been completely taken out of the lime light.
No State for the Minorities
In the midst of all the media coverage first on the issues of abrogation Article 370 and then on Ayodhya verdict, another equally important issue has totally faded from the minds from the minds of people, the National Register for Citizenship. NRC has been described by the United States Commission on International Religious Freedom (USCIRF) as a “tool to target religious minorities, and, in particular, render Muslims stateless”. The final NRC list has allegedly excluded 19 lakh people, which is around 6% of Assam’s population.
USCIRF has further stated that the NRC is a “targeted mechanism to disenfranchise Assam’s Bengali Muslim community, implicitly establishing a religious requirement for citizenship and potentially rendering large number of Muslims stateless”. The alarm that such reports ring suddenly becomes much louder when we pay attention to the fact that whole process of NRC is being monitored directly by the Supreme Court and the government is acting in accordance with the directives issued by the courts.
USCIRF has pointed out that for many impoverished families it was challenging to prove their claim because of lack of education and literacy, absence of family records and lack of funds to travel all the way to government offices and file legal claims. Despite all this the BJP has indicated an intent to have a nationwide NRC. USCIRF has gone to the extents to allege that “following the August 2019 release of the NRC, the BJP government has taken steps that reflect an anti-Muslim bias”. But despite all of this, the then-CJI publically defended NRC in Assam calling it base document for the future and a solution within framework.
A dangerous Trend
What is happening in the country right now clearly shows that we are living in an era where things are changing faster than ever. The situation is delicate as the changes being made today are going to set the trend and decide the course of our countries future. But are we heading in the right direction?
The government is leaving no stone unturned to centralize the power as much as possible while the so called ‘fourth pillar of our democracy’, the media is showing an unprecedented lack of criticism of the government. Criticism of policies and the ability to question is conspicuously absent. These are the times when we need our judiciary the most, the country cannot afford let the judiciary be a tool in the hands of the government.
With cases such as the review petition in the Sabrimala case, constitutional validity of triple talaq bill and petitions regarding the situation in J&K, the path that we are on will become clearer. The trend that is going on right now is a dangerous one and could seriously damage the democratic structure of our country. Ours hopes lie with the judicial system, and we cannot afford another let down at their hands.
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Tamanna Pankaj is a human right lawyer and social activist.
Note: These are the personal views of writer.