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Thursday, October 29, 2020

The Supreme Court has overlooked the gravity of the Delhi violence

Events in Delhi have taken a high toll. Apex court and government must act urgently to restore confidence, and to ensure that minority rights do not remain on paper.

Written by Faizan Mustafa | Updated: February 28, 2020 9:46:31 am
The visionary framers of the Constitution were conscious of the insecurities of the minorities and, therefore, provided them the right to propagate and practise their religion freely, and assured protection to their places of worship. (Illustration: C R Sasikumar)

The 32nd US president, Franklin D Roosevelt, once said, “No democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities”. More than 30 people have lost their lives in the violence in Delhi, houses have been torched and an entire market set on fire. But the visual that is likely to haunt people is of the desecration of the Badi Masjid in Ashok Nagar — it has evoked memories of the demolition of the Babri Masjid on December 6, 1992.

The Supreme Court has condemned the Delhi Police for its lack of professionalism. The Delhi High Court has also observed that it could not permit a repeat of the genocide against the Sikhs in 1984. The Muslim community has accepted the SC’s verdict on the Babri Masjid, even though it was flawed in more than one respect. Now, less than four months after the verdict, a mosque was vandalised in Delhi. In medieval times, Muslim rulers demolished temples. But there was no Constitution at that time.

The visionary framers of the Constitution were conscious of the insecurities of the minorities and, therefore, provided them the right to propagate and practise their religion freely, and assured protection to their places of worship. Mahatma Gandhi went to the extent of saying that the claim of a country to be civilised depends on the way it treats its minorities. Moving the resolution in the Constituent Assembly to set up an Advisory Committee on Fundamental Rights and the Rights of Minorities, G B Pant said: “The satisfactory solution of questions pertaining to minorities will ensure the health, vitality and strength of the free State of India… Unless the minorities are fully satisfied, we cannot make progress; we cannot even maintain peace in an undisturbed manner.”

The object of Articles 25 to 30 is to preserve the rights of religious and linguistic minorities. Yet, during campaigns in election after election in the past five years, Muslims have been painted as “anti-nationals” who threaten the majority community. References to the Pink Revolution during the run-up to the 2014 general election, the threat to deport all illegal Bangladeshi immigrants during the campaign for the Assam elections in 2016, describing them as “termites”, and the slogan of “Goli maaro…” during the campaign for the Delhi Assembly elections are part of a systematic hate campaign. AIMIM leader Waris Pathan is also guilty of delivering a hate speech, though he has apologised and withdrawn his statement — unlike Anurag Thakur or Kapil Mishra.

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On Tuesday, the Allahabad High Court had to stop a lower court in Varanasi from proceeding with a case filed in 1991 pertaining to the Gyanvapi mosque that was constructed after the demolition of Kashi Vishwanath temple by Aurangzeb in 1664. Even the SC’s Babri judgment admitted that the Places of Worship Act, 1993 “preserves non-retrogression” as an essential feature of the country’s secular values. The court observed: “The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the state to preserve and protect the equality of faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution.”

The Act provides for maintaining the religious character of all places of worship on August 15, 1947. The Court, therefore, observed that “the law speaks to our history and to the future of the nation. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.”

The SC also referred to an incident in December 22-23, 1949 when some Bairagis forcibly entered the Babri Masjid and idols of Lord Ram were surreptitiously installed under the mosque’s central dome. It said that the installation of idols “led to the desecration of the mosque and the ouster of the Muslims otherwise than by the due process of law”.

Editorial | It took so many to die in Delhi for New Delhi to wake up. That delay will hang in the air long after the streets fall silent

The apex court also took a strong view that the Babri Masjid was demolished despite the promises made to it by the then BJP Chief Minister Kalyan Singh. Interestingly, however, the SC has not yet punished Singh for contempt of court. Without mincing words, the five-judge bench headed by then Chief Justice Ranjan Gogoi observed that “the destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law”.

Two people accused of demolishing the Babri Masjid are now members of the new Ram Mandir trust. If this is not rewarding the mosque’s demolition, what is? In fact, there has not been much progress on the criminal case pertaining to the destruction of the Babri Masjid despite the apex court’s orders.

A fact that has not been much talked of is that the SC itself was repeatedly requested to stop the kar seva leading to the demolition of the Babri Masjid. It was informed about the weapons of demolition reaching Ayodhya in big numbers in the run-up to the mosque’s demolition. But it seems to have made an error of judgement. In 2017, in State of Gujarat v. I.R.C.G, the SC refused to ask the Gujarat government to pay compensation for the desecration and destruction of 567 religious places, including mosques, dargahs and khankahs during the 2002 riots, though the Gujarat High Court had ordered the state government to get these religious places repaired or reimburse their owners/managers if they had already got them repaired. In this case, the two-judge bench headed by Justice Dipak Misra and Justice P C Pant ignored the view of a nine-judge bench in the privacy judgment that fundamental rights are to be read together, and not in silos. The two-judge bench also took the view that compensation can be given only when the right to life and personal liberty is violated — and not for the violation of other fundamental rights. As a matter of fact, compensation was sought for the failure of state to protect religious places.

The court also pointed out that Article 27 would be violated if a secular state contributed towards the repair of religious places. But it seems to have overlooked that under Article 290A, the state of Kerala provides Rs 46.5 lakh annually to the Travancore Devaswom Fund and Tamil Nadu gives Rs 13.5 lakh to the Devaswom fund for the “maintenance of Hindu temples”. Several states spend huge amounts of money on religious places including temples, mosques, madrasas and churches.

Najeeb Jung writes: Minorities in India are coming to believe that there is a campaign to make them second-class citizens

By not hearing petitions on the constitutionality of the CAA, not taking cognisance of the inept handling by the Delhi Police of atrocities against the students, the apex court has overlooked the gravity of the situation. The SC had stayed the acceptance of the Mandal Commission’s recommendation of reservation for OBCs because there had been protests by upper castes. A stay on the CAA would have ended the nationwide protests. Today, minorities are living in fear. The promises made to them in the Constitution in Articles 25 to 30 are broken with impunity. In the words of Justice H R Khanna, in the Ahmedabad St Xaviers College judgment (1974): “… these provisions enshrined a befitting pledge to the minorities… As long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible…”

Let the apex court and government restore the confidence of the minorities so that these rights do not remain on paper.

Also read | Dr Rakesh Sinha writes: Marginalised intellectuals are using discourse of secularism to stoke imaginary fears of majoritarianism

This article first appeared in the print edition on February 28, 2020 under the title ‘Dishonouring a pledge’. The writer is vice chancellor, NALSAR University of Law, Hyderabad. Views expressed are personal.

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