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Tuesday, November 30, 2021

Shah Bano’s ghost over the rubble

The BJP should watch its step in trying to fire its bullets from the shoulders of the judiciary

Written by Narayananmadhavan |
July 18, 2006 11:10:26 pm

Being a party that swears by Hindutva, the Bharatiya Janata Party (BJP) must have reason to believe in the law of karma, and how it can catch up, in its own sweet way. Two decades ago, the party fired perhaps the first of its big salvos in its quest for big power when its leaders took up the cudgel on behalf of Supreme Court verdict that awarded alimony under Muslim marriage law to Shah Bano, and the old lady from Indore who has since breathed her last. It squarely attacked the then Congress government of Rajiv Gandhi for moving to undo the Supreme Court verdict by parliamentary action, taking its familiar line against appeasement of minorities.

One wonders what its leading lights thought this week when the selfsame Supreme Court minced no words as it attacked a quickfix, hotch-potch enactment of a law that proffered a moratorium against demolitions by the Municipal Corporation of Delhi (MCD) acting under court orders.

Now, appeasement of Muslims as a broader issue may rightly engage the attention of the society, but BJP’s rantings in the Shah Bano verdict and its aftermath was about the reversal of judgements and violation of the sanctity of the country’s highest court. It mattered little that the Congress commanded a comfortable brute majority in Lok Sabha to bludgeon its opposition. For the BJP the battle was about the principle of respecting the honourable court’s words. While women’s groups, Congress’s own leaders like Arif Mohammed Khan (then a minister) and media did take a line similar to the BJP’s on the issue, the BJP itself did not probably realise the significance of the precedent that it was setting for itself.

On Monday the Supreme Court’s judges gave it a wake-up call. “Pure and simple, this is a legislation to override the court orders,” the court’s judges said as they spoke against the government’s efforts to seal a drive against demolition for six months, and then enacting a law that imposed a moratorium on knocking down the buildings erected in clear and brazen violation of the law.

The Congress can breathe a little easier on the subject though it did take a controversial step forward in backing the Delhi Laws (Special Provision) Act, 2006, which the court declared to be “wholly invalid and void”. After all it was the Congress that imposed the Emergency in 1975 using perfectly valid provisions of the Constitution. And it was the Congress again which invoked its two-thirds majority in reversing the law to rescue Indira Gandhi from the Allahabad High Court verdict that disqualified her election to the Lok Sabha. Later, it passed several amendments to the Constitution during the infamous 19 months, including the ‘mini-Constitution’ called the 42nd amendment, which nearly turned the Constitution around. The Supreme Court later ruled that the basic structure of the Constitution cannot be altered as it struck down parts of the 42nd amendment.

For the Congress the relationship between the legislature and the judiciary has been habitually one of inevitable tension, and it has not particularly bothered to steer clear of grey areas in the sensitive zone that lies between two pillars of the Indian democracy.

But not the BJP. To be fair, the BJP wanted an amnesty scheme to regularise the illegal Delhi buildings, and its leaders had the foresight to say that the Act would be struck down by the courts. But their criticism of the law must be seen in a different light. They wanted to go beyond the Congress in overriding court orders. Thus, the significance of Monday’s remarks by the Supreme Court lies not in the BJP’s official stance but in the nuances of the relationship between the legislature, the executive and the judiciary. Delhi’s anti-demolition Bill was quickly passed in May and assented to with comparable speed by President Abdul Kalam.

For the BJP, often seen in proximity to traders — the worst affected in the MCD’s demolition drive — the real issue is that it should watch its step in trying to fire its bullets from the shoulders of the judiciary. It no doubt wins middle class respectability and much-needed credibility, but the consequences of setting precedents in warring or supping with the judges can be particularly embarrassing. Bad karma, if you will.

The Supreme Court has not knocked down the controversial Delhi law, but it has left little doubt that confrontations between the judiciary and the legislature can turn ugly. Political responsibility could well lie in the legislature maintaining a healthy distance from the judiciary. Or at least, a studied silence.

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