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Muslims and Judiciary: We do not have Muslim or non-Muslim judges in India

Faizan Mustafa writes: Judges have been not only fair but also sensitive to Muslim causes. Muslim women in particular have had more success before judiciary than Hindu women

Written by Faizan Mustafa | New Delhi |
Updated: July 5, 2022 9:06:05 am
Our judges are ideologically neutral, unlike in the US where there are Republican and Democrat judges. (File Photo)

After the superannuation of Chief Justice A M Ahmadi in 1997 as the 26th Chief Justice of India, a research foundation asked me to conduct a project on the contribution of Muslim judges to the Indian legal system. I declined the offer with a one-line response: We do not have Muslim or non-Muslim judges in India. Our judges are ideologically neutral, unlike in the US where there are Republican and Democrat judges. That does not mean that questions about the inclinations of judges have not been raised in the past — Justices A N Ray and M H Beg, for instance. Justice K Subba Rao contested the presidential election as an Opposition candidate and Justice Krishna Iyer was a minister in a communist government.

On June 20, Justice D Y Chandrachud was asked about the judiciary’s treatment of Muslims at King’s College London. A scholar judge, Justice Chandrachud didn’t take offence to the question but answered it politely. In this writer’s view, our judges do not have the litigant’s religious identity in mind while dispensing justice. But since no question is wrong — only answers can be wrong — let us examine how our courts have dealt with the issues relating to Muslims so that the record is set straight.

Last week, Justice Surya Kant and Justice J B Pardiwala made scathing observations against ex-BJP spokesperson Nupur Sharma for speaking against the Prophet. Justice Surya Kant blamed her for the tragic killing in Udaipur. Unfortunately, the remarks of the judges have drawn criticism, though their real intention was merely to end the controversy, improve our international image and give a much-needed healing touch to the Muslims. Different benches of the Supreme Court had made similar strong observations against the Dharam Sansad held in Uttarakhand.

In 2021, one Waseem Rizvi filed a petition seeking the deletion of 26 so-called controversial verses of the Quran. The Supreme Court not only refused to admit this petition but came down heavily on the petitioner and imposed a fine of Rs 50,000. In 1984, another petition in the Calcutta High Court had met with a similar fate.

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It is true that many young Muslims had been arrested on terror charges under successive governments. But that the accused in many such cases were acquitted clearly demonstrates that ordinary Muslim litigants have been getting justice from our judges.

Even in the Ramjanmabhoomi-Babri Masjid case, the Supreme Court termed the installation of idols in 1949 and the demolition of the Babri Masjid in 1992 as “egregious wrongs”. The court accepted the central argument of Muslims that the Babri Masjid was not constructed after the demolition of a Ram temple and pointed out that the Archaeological Survey of India (ASI) 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. After the Babri Masjid demolition, the SC, in S R Bommai (1994) upheld the dismissal of the BJP governments in Madhya Pradesh, Rajasthan and Himachal Pradesh, this author had criticised this part of an otherwise historic judgment. Though in its Hindutva judgment (1995), the Court had controversially held Hindutva to be a way of life, and not a religion, it did indict Bal Thackeray and Ramesh Prabhoo for making anti-Muslim speeches.

In the privacy judgment, the apex court talked about culinary freedom and the freedom to dress. As a result, several laws that put restrictions on beef-eating can now be constitutionally re-examined. In Hadiya’s case (2018) too, the SC overruled the regressive judgment of the Kerala High Court, though its decision to ask the NIA to investigate links between conversions and terrorist activities was unnecessary. In Tehseen S Poonawala (2018), it came down heavily against mob lynching and asked Parliament to enact a law against such activities. Even in the triple talaq verdict (2017), the majority deemed triple divorce to be void because the Quran doesn’t mention it and pointed out that what is sinful in theology cannot be valid in law.

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In his reply to his King’s College interlocutors Justice Chandrachud referred to the Article 30-related jurisprudence on the right of minorities to establish and administer educational institutions. The court has given the widest possible interpretation to the words used in Article 30: It has held that the term “institution” would include a university and its use of the word, “choice”, makes this right an expansive one. The court has consistently held that “government aid” cannot come with conditions that affect the minority character of an institution. The only disturbing decision in the long list of such cases is Azeez Basha (1967) in which the court took an extremely narrow view by holding that the Aligarh Muslim University was established by the legislature and not Muslims.

In Ahmedabad St. Xaviers College (1974), Justice H R Khanna observed that “minorities are as much the children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, a feeling of security, a consciousness of equality and the awareness that the conservation of their religion, culture, language and script as also protection of their educational institutions is a fundamental right enshrined in the Constitution.” He went on to say that “as long as the Constitution stands as it is today, no tampering with those rights can be countenanced.” In Bijoe Emmanuel (1986), the right of followers of Jehovah’s Witnesses to not sing the national anthem was upheld.

Any matter referred to a Constitution bench does take four to five years and that explains the delay in hearing petitions related to the CAA and Article 370. But the judiciary disapproved of the heavy penalties on the CAA protesters in UP. Like all of us, judges too are fallible. There are a number of wrong judgments pertaining to Muslims — Ismail Faruqui (1994), for instance, where the SC held that a mosque is not an essential part of Muslim practice. But judges have gone wrong in cases that had nothing to do with Muslims. There are good and bad orders on habeas corpus — in A K Gopalan (1950), ADM Jabalpur (1976) and Bhima Koregaon (2018) petitioners were not Muslims.

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Thus, our judges have been not only fair but also quite sensitive to the Muslim causes. In fact, Muslim women in particular have had much more success before the judiciary than Hindu women. Muslims have full faith in our judiciary and do not need the Organisation of Islamic Cooperation or any other foreign agency to take up their causes.

(The writer is vice chancellor, NALSAR University of Law, Hyderabad. Views are personal)

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First published on: 04-07-2022 at 07:23:26 pm
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