The Supreme Court of India in P N Kumar (1987) paid rich tributes to our high courts. It observed: “Our High Courts are High Courts. Each High Court has its own high traditions. They have judges of eminence who have initiative, necessary skills and enthusiasm.” By 2010, the apex court itself changed its position: In Raja Khan, it said: “Something is rotten in the state of Denmark, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court.” The 37-page judgment of Justice S R Sen of th Meghalaya High Court, and the clarification issued by him on December 14, have not enhanced the reputation of our high courts. Though, in the clarification, he does acknowledge secularism as part of the basic structure of the Constitution, he has not clarified his statement that India is a Hindu country or the exclusion of Muslims from the citizenship law he has proposed.
By calling Modi as “our beloved Prime Minister”, to whom he directed his judgment be handed over within 24 hours and receipt received by the additional solicitor general, he has not only shown his political preferences but also undermined the independence of the judiciary. His clarification that he does not belong to any political party is unnecessary as no sitting judge can be a member of a political party. By saying that Indian citizenship should be given to any Hindu from anywhere in the world, he virtually declares India to be a Hindu rashtra. His judgment is contrary to the notion of citizenship under Articles 5 to 11 of the Constitution and the Citizenship Act of 1955. But it is consistent with the Hindu right’s position of India as a country of, and for, Hindus.
Justice Sen is a little considerate with Muslims living in India for generations and abiding by Indian laws, but he expects them to obey the “uniform law”. If anyone opposes such a law, he is to be deprived of citizenship. By the way, by suggesting “religion” as the basis for the grant of citizenship, Justice Sen himself is opposing Article 15 of the Constitution that prohibits the state from discriminating “only on the basis of religion”. By opposing the National Register of Citizens (NRC) and its cut-off date, he is also opposing the Citizenship (Amendment) Act, 1986.
In his clarification, Justice Sen asserts that “his judgment makes references to history and one cannot change history”. But he indeed made several disingenuous statements about Indian history: “It is wrong to say Indian independence is [won] by non-violence”; “post Partition, while Sikhs were rehabilitated, Hindus were not”; “India was a big country commanded by the Hindu kingdom and then the Mughals came and partitioned the country and at that time many conversions took place by force”. Moreover, the Mughals were not the first Muslims who came to India. Muslims came to India as traders on the Malabar coast in the seventh century. Five Muslim dynasties had ruled Delhi from 1206 to 1526 before Babur captured power from Ibrahim Lodhi.
There is no evidence of forceful mass conversion to Islam during the Mughal rule. The massive Hindu majority of India is a conclusive proof of it. In fact, the Rajput share in Mughal bureaucracy and nobility ranged between 18 to 41 per cent. Many Mughals had Hindu mothers and wives, who were not converted to Islam. The Mughal rule ended in 1857 and therefore, the Mughals cannot be blamed for the partition of the country. In fact, the first war of Independence was fought under the leadership of the last Mughal emperor, Bahadur Shah Zafar. Similarly, the judge has excluded atrocities against Muslims from his narration of post-Partition violence.
By observing that Pakistan became an Islamic state and India should have been declared a Hindu country, Justice Sen overlooked the historical fact that the framers of the Constitution, in a conscious decision, decided to create a religion-neutral and progressive state. Why does he have to say that “I make it clear that nobody should try to make India another Islamic country, otherwise it will be a doomsday for India and the world”. Yes, of course. But it will also be a doomsday if India becomes a Hindu country.
Justice Sen is quite critical of both the Hindus as well as India. “The history of persecution continued even after East Pakistan became Bangladesh in 1971 with the help of India and even with the help of the residual Hindu population there,” he says. He says (Assam’s) “habit of intolerance is age old and its people were responsible for virtually shoving Sylhet and the Bengali Hindus to the acute kind of crises situation it is suffering from today”. He also blames poor educationally backward Bengali Muslims for siding with the Assamese. He even says since rehabilitation programmes for Hindu Bengalis have been non-existent and the Indian state is using state apparatus to identify them as foreigners. Justice Sen suggests that any Bengali Hindu, as and when he decides to migrate to India, should be given citizenship without being asked to produce any document. It seems that he is not aware of atrocities and discriminations against Shias and Ahmadiyas in Pakistan and Bangladesh.
As an impartial judge, he cannot appeal to Hindus of Assam in these words: “I appeal to all Hindu people of Barak Valley and Assam Valley to come together and find an amicable solution because our culture, traditions and religion are same.” He has also gone against his own oath under which he must adjudicate without favour, affection or ill-will. His affection for Hindus in general and Bengali Hindus in particular, is crystal clear.
There are also many statements in the judgment for which Justice Sen deserves commendation. For instance, his remarks on the persecution of minorities in Pakistan and Bangladesh, the opposition to March 24, 1971, as the cut-off date for NRC inAssam. In his clarification, Justice Sen has rightly said that most Indians live in villages and do not preserve documents and, therefore, their exclusion from NRC on the non-submission of documents will be unjust.