Faizan Mustafa, legal scholar, disclosed in a recent article (‘Bench above religion’, IE, July 5) that in 1997, he refused to undertake a project on the role of Muslim judges as it was against the ingrained ethos and non-partisan character of the Indian judiciary. The article appears to be a response to the mounting criticism in India and abroad that the Indian judiciary, especially its higher echelons, has succumbed to majoritarian pressures. Mustafa states that “Judges have been not only fair but also sensitive to Muslim causes”. This is a problematic statement.
Are Muslim causes not Indian causes? To take a few contemporary examples: The Ramjanmabhoomi-Babri Masjid demolition case, the indefinite incarceration of youth/intellectuals/journalists under terror laws, protests against the CAA and subsequent repression of activists and protests against the abrogation of Article 370 — are these solely “Muslim” issues? They are much maligned as being so but, in fact, they are a test of the Indian polity’s constitutional commitment towards social-political-religious equality, secularism, federalism, the rule of law and independent judiciary.
Mustafa referred to the 2019 Supreme Court judgment in the Babri mosque case and quoted Justice D Y Chandrachud’s speech on June 20 at King’s College, London, as proof of the non-partisan character of the Indian judiciary. The SC bench in the case, which included Justice Chandrachud, according to Mustafa, “termed the installation of idols in 1949 and the demolition of the Babri Masjid in 1992 as egregious wrongs… [and said] the Babri Masjid was not constructed after the demolition of a Ram temple and pointed out that the Archaeological Survey of India report had not found any evidence of such a demolition. It had also observed that the Places of Worship Act, 1991, protects and secures the fundamental values of the Constitution”.
However, for reasons known only to the professor, he did not elaborate on why, despite all these glaring facts before the honourable, non-partisan justices, it was decreed that due to the “faith and belief of Hindus… that Janmaasthan of Lord Ram is the place where Babri Mosque has been constructed” and a Ram temple must be built there. It is important to note that the Babri mosque-Ramjanmabhoomi case was not a Hindu-Muslim issue, as it was later made out to be by Hindutva organisations.
The Babri Mosque was demolished on December 6, 1992, by an illegal assembly of Hindutva zealots gathered in Ayodhya. It was not an issue between Hindus and Muslims but between Hindutva organisations and the democratic-secular Indian polity. The mosque was demolished despite SC orders and assurances made by BJP leaders to Parliament and the then prime minister, P V Narasimha Rao. Rao made a solemn promise both to Parliament and the Indian nation (from the ramparts of Red Fort on August 15, 1993) that the wrong would be undone and the demolished mosque would be built at its original site. The SC allowed the affiliates and members of the same organisations that admitted to playing a leading role in the demolition of the mosque to construct the Ram temple.
Mustafa praised Justice Surya Kant and Justice J B Pardiwala for making “scathing observations against ex-BJP spokesperson Nupur Sharma for speaking against the Prophet. Justice Surya Kant blamed her for the tragic killing in Udaipur”. But Mustafa did not touch on the action against human rights activist Teesta Setalvad and retired IPS officer R B Sreekumar. As former SC Justice Madan B Lokur wrote on the issue, Setalvad was “condemned by innuendo” from the Gujarat Police’s prosecutors and “it is tragic that the Supreme Court has taken upon itself to unilaterally decide who should be arrested and why. That is certainly not the jurisdiction of the Supreme Court, as we know it, except in the case of contempt of court. And, even in a case of contempt, the Supreme Court hears the alleged contemnor before judgment and arrest.”
It would be a travesty of justice if our examination of the independence of the higher judiciary is shackled by the binary of “SC versus Muslims”. The SC has not been able to expedite its scrutiny of terror laws, the use of Pegasus spyware for snooping on journalists, activists, the constitutionality of CAA, the abrogation of Article 370 and anti-worker laws, to name a few. This judicial inertia is prolonging the misery of many incarcerated political activists, journalists, lawyers, human rights activists and trade unionists. Every Indian needs an independent judiciary, not Muslims alone.
The writer taught political science at the University of Delhi