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Modified Justice

Modified Justice

If independent India’s history can be divided into two parts, I would divide it as pre-Babri Masjid demolition and post-Babri Masjid demolition. Similarly, I would divide the history of the Supreme Court of India as pre-Ayodhya verdict and post-Ayodhya verdict.

Until the apex court gave its verdict on Ayodhya on November 9, 2019, at least I considered the Kesavananda Bharati verdict in 1973 as a great divider. A 13-bench court gave its historic verdict that the basic structure of the Constitution was unalterable. No Parliament could tamper with it.

The Bench did not explain what the basic structure was. When a judge was asked to explain, he said let the basic structure be touched and then the court would respond. The people began to realise the import of what Dr BR Ambedkar said about the Constitution: It is as good as the people who implemented the Constitutional provisions.

The Ayodhya verdict is in many ways a classic one. All judgements of the Supreme Court are written by a judge with which other judges on the Bench concur or dissent. A judge who does not agree with the judgement has the right to write a dissenting judgement.

However, it is the majority verdict which will prevail. In the case of the Ayodhya verdict, the judges neither owned up the verdict nor expressed dissent. True, one judge gave a dissenting judgement claiming that Hindus always considered Ayodhya as the birthplace of Lord Ram. He even quoted Guru Nanak visiting Ayodhya.

Even the dissenting judge did not reveal his name. Of course, it could be argued that the judgement was the judgement of the court and it did not matter who wrote it or who concurred with it or not.

The judgement began with a great hypothesis. The issue of Ayodhya was not religious but legal. The court’s findings are also very laudable. It said that there was no evidence that the Babri Masjid was built by demolishing a temple. The Sangh Parivar and archaeologist KK Muhammed had been making such claims.

However, the court did not rule out the possibility that the mosque was built on the debris of a religious structure. After all, no writer of the period, including Tulsidas who wrote the Ramacharitamanas, made any such reference.

The court was convinced that the mosque had been continuously in the possession of the Muslims. More significant, the court was sure that an idol of baby Ram was surreptitiously planted in the mosque and it did not appear there on its own as falsely claimed by the Parivar.

And to top all this, the court also said that the demolition of the mosque in 1992 was an act of violence. In short, there was no justification whatsoever for the Ayodhya campaign which led to the demolition.

Then came the twist in the verdict. The court ordered the handing over of the whole disputed area, one-third of which the Allahabad High Court had given to the Muslims, to the Hindus to build what they call a “a magnificent” temple for Ram.

Yet, those who took the law into their own hands, be it in planting an idol in the mosque or demolishing the mosque, were rewarded with the whole disputed land. The Muslims never asked for a plot of land to construct a mosque. To satiate the conscience of the judges, they ordered that five acres of land be found and given to them.

For a community of at least 160 million, it is no big deal to buy five acres of land. What is more significant is that despite the injustice involved in the verdict, there was no violent protest anywhere in the country. Yet, it is not uncommon to find Muslims being portrayed as violence-prone in the popular discourse.

One shudders to think what would have happened if, as a logical conclusion of the validations made in the verdict, the Muslims were allowed to build a mosque on the same spot where the Babri Masjid once stood. 

By the way, despite All India Radio reporting that the assassin of Mahatma Gandhi was a “non-Muslim” while reporting the assassination, reports came of at least 40 Muslims killed in various parts of India.

Poet ONV Kurup in his autobiography describes how some people distributed payasam (a sweet dish made of rice and jaggery) at Thiruvananthapuram to “celebrate” the killing of Gandhi. By the way, the person in charge of AIR was a British who knew the seriousness of the situation if the religious identity of the killer was not revealed.

Of course, it is not the first time that the apex court gave its verdict taking into account the possible reaction of the people. In the case regarding the burning alive of Australian missionary Graham Staines and his teenaged sons Philip and Timothy, the court virtually stated that the killing was the result of conversion. 

The judge concerned was forced to withdraw some of his comments from his judgement but he was rewarded with a gubernatorial assignment. He also upheld the ban the Jayalalithaa government imposed on a film titled Dam, though the film was fictional and did not violate any law of the land.

Now the question is, when did the court reach the nadir of infamy? That was when the court, presided over by a judge who was accused of inappropriate behaviour by a lady staff, heard the case against himself. For the first time a judge became the accused and the judge himself, denying the woman an opportunity to be heard.

Come to think of it, it was the same judge who presided over the Ayodhya verdict too. How has the court been behaving since his departure? 

There was a time when the Supreme Court earned considerable infamy. That was during the Emergency when the court said that even the right to life stood suspended. It took a while for the court to come out of the darkness in which it had placed itself.

The Supreme Court is supreme, not because it has the greatest wisdom or knowledge but because there is no court above it. That is precisely why people approach it for redressal of their grievances.

When tens of millions of people were adversely affected by the banning of high-denomination currency notes, some of them, including political parties, approached the court for a favourable verdict. The court did precious little, while the demonetisation caused havoc to the economy. Time lost can never be regained!

In 1950, the President issued a notification exempting Scheduled Castes professing faith in Christianity from the purview of reservation. It is yet to hear the plea against it. On January 31, 2020, when a three-member bench took up the case, the Centre sought time to file a reply. In short, the tactics of delay is still being resorted to deny justice.

When Article 370 was abrogated and the state of Jammu and Kashmir was truncated into two Union Territories, the people expected the court to hear their plea. Millions of people in Kashmir suffered for months but the court had no time to hear their plea. 

Kashmiris had to remain at home, many of them with no access to medicine and food but the court was not moved. The whole “Union Territory” had become a jail but the court remained nonchalant. Access to the Internet was denied for months together. The court could have ordered restoration of the Internet but, instead, it just issued a notice to the government. 

The protest against the Citizenship Amendment Act (CAA) is unprecedented. Similar protest was seen only during the freedom struggle. The court could have stayed the implementation of the CAA till it gave its verdict. The heavens would not have fallen and the country could have heaved a sigh of relief.

The CAA was against all the Constitutional principles of equality, fraternity and liberty. For the first time, religion mattered more than anything when it came to granting citizenship. The court asked the petitioners to end violence when it sought its intervention. There were video clips showing policemen perpetrating violence like burning buses and destroying two-wheelers.

For the first time the nation saw Sangh Parivar activists in civilian dress joining the police forces and beating the students of Jamia Millia Islamia. The court did not deem it fit to ask the police too to behave. The height of police complicity was the letting of a person to shoot at the students of Jamia with a pistol on the anniversary of the killing of Gandhi by one of their ideologues. 

The court’s stance was likened to a doctor asking a diarrhoea patient to approach him after his loose motion was over. No, it did not want to antagonise the government.

Even parties like the JD(U), the AGP and the Akali Dal which supported the CAA in Parliament are now opposed to it but the Supreme Court has no time to hear the case.

Yet, it found time to hear the plea of 14 convicts from Gujarat. They were accused of burning alive about three dozen Muslim men, women and children a few days after the Godhra incident. These men surrounded some Muslim houses and put the torch to them.

Some of them ran out and sought shelter in a concrete building. There, too, the mob followed them. Their bodies turned into carbon even as they rejoiced over the killing. In the Gujarat riots, only a few were properly tried and punished. The 14 men were given life imprisonment. The trial court’s verdict was upheld by the Gujarat High Court.

They approached the Supreme Court with a petition questioning their conviction. Yes, they had every right to do so. True, the court could have heard them. Instead, they were released on bail till the case is heard.

The 14 cannot enter Gujarat. Godhra is a railway station in Gujarat. Madhya Pradesh is just a few kilometres from Godhra, while Ahmedabad is hundreds of kms away from there. Yet, there was no reaction to Godhra in adjoining MP, ruled by the Congress, while Ahmedabad witnessed widespread violence.

If anything, this was proof that the Gujarat riots were engineered by those holding power in the state. The violence was not at all spontaneous. Be that as it may, the SC verdict is peculiar.

The 14 murderers were given bail on the condition that they should do “religious service” or “social service” for six hours a week. The court was large-hearted enough to tell them that while they could not enter Gujarat, they were free to work in MP and live anywhere in the state.

Yes, they have to report periodically to the local police station. None of them will have a GPS device on them and the Supreme Court would have no way to ensure that they did not visit Gujarat. In short, they have been released.

What constitutes religious duty? I wish the court had elaborated it. Hinduism is a way of life. Even an atheist can be a Hindu. Since all of the 14 are Hindus, they are free to do anything and term it as religious duty.

For an atheist, not taking part in any religious function is a “religious duty”. An alternative for them is “social work”. 

These 14 are not the ones who feel remorse for what they did. They are, in fact, challenging the punishment awarded to them. If they wanted to atone for their crime, bail would have been justified. 

What kind of social work can a person, who burnt alive human beings, only because they professed a faith other than that of his own, do when he does not even admit his crime? Why can’t the killers of Nirbhaya be given an opportunity to do religious duty or social service? 

Whatever that can be said about the 14 — they did not commit any crime after they were imprisoned or during their bail — can be said about the Nirbhaya rapists whom the state wants to send to the gallows as early as possible. Yes, times are changing. Let me conclude, paraphrasing a stanza from the famous Bob Dylan song titled “Times are a-changin”:

“Come judges, MPs/ Please heed the call/ Don't stand in the doorway/ Don't block up the hall/ For he that gets hurt/ Will be he who has stalled/ There's a battle outside/ And it is ragin'/ It'll soon shake your windows/ And rattle your walls/ For the times they are a-changin”.

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(Published on 03rd February 2020, Volume XXXII, Issue 06)