Comrade Provash Ghosh, General Secretary, SUCI(C) has issued the following statement on 28 February 2020:
It is not at all surprising under BJP rule that justice S Muralidhar got an immediate transfer order at midnight as a reward for his judgment pronounced just a few hours before, in which he dared to sharply rebuke Delhi police for its conscious inaction in quelling the gruesome Delhi riot, hold them accountable for so many deaths, injuries, arsons and destructions and order them to lodge FIR against some of the BJP leaders who delivered inciting communal speeches. How could the BJP government allow such an audacity of a judge?
It is claimed that Judiciary is independent and free from Executive interference. But since long, this prescript is merely remaining on paper in the bourgeois rule. It is an indisputable fact that since long, parliamentary democracy has been reduced to fascist autocracy.
The process of elimination of whatever semblance of independence of Judiciary was there in our country, started at the time of Congress rule under Smt. Indira Gandhi. Now, the last nail into the coffin has been stuck by the BJP Government. So many judges have been transferred as they could not satisfy the ruling party. On the other hand, those who complied with the will of the government have been rewarded with undue promotion etc. Even a judge, Justice Loya, faced sudden death under mysterious circumstances. According to his family, it was a murder as he refused to be bribed while presiding over a trial implicating the present Home Minister in a murder case. Family demanded an enquiry of this mysterious death but it was unheeded.
Thus Judiciary is being reduced to be subservient to the Executive controlled by the ruling party and the ruling class. Its relative independence is being trampled underfoot only to provide injustice. This is a grave danger for the country.
Delhi violence :
Grand design of RSS-BJP-Sangh Parivar is as clear as daylight
‘Neros dine as Gujarat Model reaches Delhi’—this has been aptly befitting headline of a mainstream English daily to show how the BJP prime minister was nonchalantly spending a gala evening with the US President in the state capital which went into flames because of a targeted violence against the minority community perpetrated by the frenzied stormtroopers of the arch Hindu communal RSS-BJP-Sangh Parivar. Official death toll has crossed 48. Unofficial figure is much higher. Injured are many more hundreds. The numbers are increasing with every passing day. The aforesaid paper also ran the headline “The Real Beast” to denote how insane and inhuman have been the attackers led by an infamous BJP leader from Delhi with the police-administration in tow. Pictures and videos showing how the armed pro-CAA criminals jumped police barricades and started pelting stones and hurling bombs at the religious minorities and vandalized the tents set up by the anti-NRC anti-CAA demonstrators in Jaffrabad in North East Delhi went viral in no time and were also covered in both print and electronic media. Video clips of a group chanting “Jai Shri Ram”, hurling religious slurs, collecting stones and loading those on to a truck surfaced on social media. In one clip, the group could be seen and heard cheering and sloganeering just as a tractor full of stones and brick was unloaded. Reuters photograph of rioters beating a Muslim man appeared on the front page of some well-known dailies. According to the residents of the area, a fanatic mob, in the presence of the police, was raiding the area and torching shops, houses, markets and mosques. Several parts of Delhi, especially northeast Delhi, went burning. A Reuters witness saw at least one Muslim man and a burqa-clad woman being beaten by dozens from a pro-law group with sticks and iron rods. A protester, who the police identified as Shahrukh, (later revealed to be Chandral Shukla, a Sangh Paribar activist) was seen opening fire right in front of a policeman. The police also stood by as a mob vandalised a store with a Muslim name, pulling out vehicles and setting them alight. “Go ahead and throw stones,” a policeman shouted to an attacking group, during one of the running battles. In a video posted on Twitter, a man who seems part of a stone-throwing mob explicitly claims that they have the support of the police. The man recording the video shouted, “Police prashaasan zindabad” (hail the police force), besides giving slogans declaring his Hindu communal identity. Terror was writ large on the faces of common people and shop-owners belonging to both communities in the area. The entire city is descending into a night of dread and despair.
Even journalists were not spared. A correspondent for JK 24×7 News, was shot at. Four of NDTV’s reporters and camerapersons were assaulted and another reporter lost three teeth in a barrage of blows and was reportedly about to be hit by a stick on his head when his cameraperson intervened and ended up taking the blow instead. A photojournalist was manhandled and asked to prove by raging pro-government mobs if he was a Hindu. Correspondents of a web portal “saw supporters of the law threatening journalists and checking their phones for videos and deleting them.” It seems the BJP is in a mood to punish the people of Delhi for not voting for them in the Assembly election,” said a Hindu resident of Seelampur that adjoins Jaffrabad. “The violence is part of the bigger conspiracy to defame anti-CAA protesters and clamp down on all such peaceful protests by delegitimising them,” commented another onlooker. Everyone blamed police inaction for the communal conflagration. Even communal inclination of police also did not go unnoticed. It is understood that the police was busy playing annual cricket tournament when Delhi was set ablaze.
This is no riot, but a planned carnage. The situation is turning from bad to worse with RSS-BJP hooligans running amuck. The afflicted citizens of Delhi are virtually trembling in horror wondering whether it is a civilized country, forget about democracy, or a reincarnation of a pre-historic savage land fraught with feral ferocity?
Who engineered the violence and why?
What prompted the RSS-BJP goondas to go berserk in re-enact of the Gujarat pogrom? Because, Shaheen Bagh has been showing the way! Starting from housewives with small children in lap to elderly females aged 80s and 90s—womenfolk, mostly from abjectly poor families, spearheaded the movement against draconian NRC-NPR-CAA—the ploys hatched by the BJP government to divide people inciting communal sentiment and posing threat of declaring genuine Indian citizens as “illegal foreigners”. Later, some men also joined the protest. Rising above all divisiveness, people at large stood by the legitimacy of the movement. With crowd reaching as high as one lakh this peaceful protest has become one of the largest sit-in protests of this magnitude of modern India led by women. The whole country responded to the call of Shaheen Bagh in no time. Already over 96,000 demonstrations have been organized in various parts of the country with spontaneous and whole-hearted participation of the toiling masses rising above all divisiveness. No fundamentalist element was allowed to sneak in. Many Shaheen Bagh like sit-in demonstrations braving all odds are continuing over months. The ruling RSS-BJP like any other fascistic despots had applied every weapon in their armoury—painting the demonstrators as anti-nationals, threatening them of dire consequences, intimidating them with guns pointed and shot by armed criminals, undertaking sabotaging activities like planting burqa-clad RSS activist who raised pro-Pakistan slogans—and what not. Finally, while campaigning during the recently held Delhi assembly election, the RSS-BJP leaders openly spewed communal venom, gave inflammatory speeches and tried to malign the Shaheen Bagh movement as anti-national, unpatriotic and spearheaded by the traitors. But they could neither dampen the spirit of Shaheen Bagh nor disrupt the amity and fraternity among different religious-linguistic-ethnic communities cemented further in course of development of this spontaneous mass movement. First, a bogey was raised that the Shaheen Bagh demonstrators were blocking the main arterial roads and hence need to be forcibly evicted. So, they filed a plea in the apex court seeking directions to authorities to remove protestors from the area. However, one of the two interlocutors whom the Supreme Court appointed to talk to the demonstrators called the protests peaceful and beautiful, and held the police responsible for unnecessarily blocking roads. Even one media group which mapped the roads in the area found that the public inconvenience was not merely because of the closure of just one road. Two alternative routes that could have been used by commuters have been barricaded by Delhi and the Uttar Pradesh police.
Moreover, in the Delhi assembly election, the BJP was routed. This crushing defeat of the BJP roused the oppressed toiling citizens of Delhi to build up more Shaheen Bagh like agitations in the different parts of the capital. So, the second spot chosen was Jaffrabad in North-East Delhi. But the RSS-BJP leadership visibly rattled by the fast development of anti-NRC anti-CAA movements round the country and a bit cornered by the Delhi defeat decided to anyhow prevent proliferation of Shahen Bagh spirit. So, some rotten elements filled with communal rancour and adept in undertaking any kind of criminal activities were pressed into action. Kapil Mishra, a BJP leader who courted one controversy after another in recent months — from starting the chants of ‘DeshKeGaddaron Ko’ (to the traitors of the country) at a pro-CAA rally in December to leading an agitation against the Shaheen Bagh protests, was brought to the fore. Mishra held a pro-CAA rally in Jaffrabad from where he had shouted communal slogans and gave a “three-day” ultimatum to the Delhi Police to get the roads cleared of anti-CAA protesters. He then boasted that he would not allow “another Shaheen Bagh” and issued a call through microblogging site Twitter urging people to gather and “prevent another Shaheen Bagh” protest from taking place near the Jaffrabad metro station. Everyone other than the RSS-BJP quarters stated that the violence escalated a day after BJP leader Kapil Mishra had taken out a procession near the epicentre, Jaffrabad. Saffron flags were seen hoisted on the houses and shops belonging to the majority community in the neighbourhood. The attempt was seen as an effort to mark the houses and shield them from the RSS-BJP ruffians during rioting. “Why are these groups hoisting saffron flags on Hindu households? This violence is well planned and organised and is the direct result of incitement by BJP leader Mishra. ‘‘The police did not take any action against him when he held a procession provoking his supporters to clear the peaceful protest,” said a schoolteacher in Jaffrabad. Even the Supreme Court also came down heavily on the police, saying it lacked “professionalism.” The Court said the violence would not have happened if the police had not allowed the instigators to get away. Lives could have been saved and the spiral of communal mob violence stopped had the police acted in time to halt people from making inflammatory remarks, observed Supreme Court Justice K.M. Joseph. The peace-loving conscientious people of the entire country, international media and the right-thinking community round the globe are expressing their disgust, condemnation and protest against such a spree of communal killing and arson as well as police inaction.
But the ruling party and government took no cognition of that. Junior home minister G. Kishan Reddy said the violence was a “conspiracy to shame India globally” during Trump’s visit. The BJP leadership that takes to the air waves frequently significantly steered clear of the government’s formidable publicity machine and refrained from issuing any direct appeal for peace. After prolonged silence, the Union Home Minister was quoted to have said: “ the professional assessment is that the violence in the capital has been spontaneous.” He also, contrary to what has been said by one and all, said that the police force has shown maximum restraint to get the situation under control.These very statements insinuate that the ruling circle abets the role of RSS-BJP leaders and goons in orchestrating the communal violence and killings.
This is further attested by another development. A division bench of Delhi High Court comprising Justices S Muralidhar and Talwant Singh while hearing an urgent petition on Delhi violence was “amazed at the state of affairs” after the Delhi Police said it has not yet watched the video clip of BJP leader Kapil Mishra, Anurag Thakur, Pravesh Verma and others making hate speeches which allegedly led to the communally-incensed mob attacks in northeast Delhi. In an order after a late night hearing at Justice Murlidhar’s residence on 26 February, the bench asked the police to ensure safe passage and emergency treatment for those injured and asked to open a helpline. Stating that they could not allow another ‘1984 riot’ in the capital, the two judges asked the Solicitor General to examine the video clip, while watching the same in the open court. It also asked the SG to advice Police Commissioner Amulya Patnaik on lodging of FIRs against alleged hate speeches by the named BJP leaders. “We are sure the police commissioner has a TV in his office. Please ask him to watch this clip,” the bench observed. Then the bench decided to meet again on next morning (27 February) to convey final verdict. But the Law Ministry late on Wednesday notified the transfer of Justice S. Muralidhar from Delhi High Court to Punjab and Haryana High Court seemingly to forestall an adverse verdict against the government and the erring police-administration. Indeed it happened so. After Justice Murlidhar’s exit, a new division bench of Delhi High Court has ruled that situation is not conducive for FIRs on hate speech as police need around 4 weeks to scrutinize the videos. It means the culprits are now allowed to move freely for about one month. Incredible no doubt! It bears recall that just a year back, on 27 February 2019, Ashish Joshi, a Department of Telecommunication employee, who wrote to the same Delhi Commissioner of Police Amulya Patnaik seeking action against same Kapil Mishra for circulating provocative “inflammatory and incendiary video” as well as for “hate mongering” under Section 153A of the Indian Penal Code, was suspended forthwith on charges of misusing his official position. The facts speak loudly and loudly enough to show who is pulling the strings and how as well as why.
The pre-meditated and organized looting, killing, vandalism and setting fire can hardly be termed simply a riot but a communal cleansing with the government and its administration’s calculated involvement with, rather than inaction against vandals and willful shirking of duties and responsibilities in containing the same. No amount of jugglery of words and manoeuvre tactics can hide this stark reality. It is a clash between barbarity and civility.
One can remember that the RSS, the highest body of the Sangh Parivar and mentor of ruling BJP, left no one in quandary about the state-sponsored genocide perpetrated in Gujarat in 2002 by adopting a resolution in Bangalore at that time which said: “let the Muslims understand that their real safety lies in the goodwill of the majority”. The message is quite clear. And who are these Hindus? Are they the common people on the road? No! They are those communally brainwashed gangster brigade who can take up arms on the slightest provocation, can go on a rampage, can threaten the civil society and can even hold the entire society to ransom. They despotically arrogate to themselves the title of real masters of the land. Their decision is the law of the country. Whatever they do, they do it according to the ‘divine will of the Lord Ram’. The tone and tenor of the aforesaid RSS resolution suggests that it alone stands to tell the last word in respect of the Indian state and its Constitution alike. It cannot but be otherwise in as much as the emergence of RSS is embedded in its fascist moorings which stamp religious minorities as ‘enemy of the country’. To trace its parallel, one has to recollect what Hitlerite Germany, in the 1930’s practised with the Jews to the disastrous consequence of Germany itself! Coming as it were, in the midst of such a heightened communal cauldron in Delhi, the RSS resolution during inhuman Gujarat pogrom, was merely a re-iteration of M S Golwalkar’s definition of nationhood which prescribed that non-Hindus: “must learn to respect and hold in reverence Hindu religion, must entertain no idea but glorification of the Hindu race and culture and may stay in the country wholly subordinated to the Hindu nation…” The cat is now out of the bag and any doubt about who are fostering the Delhi violence is dispelled, by one stroke, in as much as the above-mentioned RSS Resolution and the blustering of the BJP leaders justified the subsequent violence let loose on the minority community as “natural and spontaneous”.
This heinous conspiracy must be foiled
When the RSS-BJP are pushing the toiling people into the leaping flames of communal fire, where shall people look to for a solution? How to bring about that granite unity of all communities, all sections of toiling people? How to thwart communal fundamentalist danger and direct the mighty movement against capitalist class and governments for jobs and all other basics of life? We know so long as capitalism exists, danger of communalism also exists and the bourgeois parties will only aggravate it. Its permanent solution lies with the end of capitalism by accomplishing socialist revolution. So long as it is not achieved, powerful ideological struggle against fundamentalism- communalism-parochialism should be incorporated in the mass democratic movements on burning issues of life. At this very moment, strengthened more and more, surge of such a movement under correct revolutionary leadership and based on higher revolutionary culture and morality alone can act as an effective deterrent to the reactionary ideas, despite its breeding ground being present in the existing exploitative society. We again fervently call upon the toiling people of the country to strengthen mass movements against retrenchment, joblessness, curtailment of education, price rise, lack of health care, etc., and against communalism which is the enemy of this movement. This enemy is trying utmost to destroy mass movements both from within and outside. The exploited people should unite and foil this conspiracy.
[Information sources: ndtv-24-02-20, 26-02-20, The Week 24-02-20, scroll.in 23-02-20, 24-02-20, 25-02-20, 26-02-20, News18 24-02-20, 25-02-20, Reuters 23-02-20, The Telegraph 25-02-20, 26-02-20, The Wire 25-02-20, The Quint 25-02-20, First Post-27-02-19, Indian Express-26-02-20, The Hindu 27-02-20, 28-02-20, Deccan Herald 25-02-20, livemint 25-02-20, The Print 26-02-20, altnews-25-02-20, India Today 26-02-20, Times of India 20-02-20]
Why the judicial fraternity is miffed with the juridical process and executive functioning
“Judiciary is what we always turn to whenever the state abuses its power, or our fundamental freedoms are threatened. We truly believe that the courts can be our saviour. The value of a judiciary is measured by its fidelity to the constitutional scheme that birthed it. Our Supreme Court has used the phrase constitutional morality several times in its judgements, particularly in recent years. But instead of pointing outwards, I think the Court should be self-reflective, and should ask whether the institution itself is loyal to the spirit of constitutionalism, to this idea of constitutional morality?…Judicial review involves more than a mere declaration of the law. It requires the application of law to the facts at hand…. Throughout, there is always the assurance that the democratic wheels are still turning. Levitsky and Ziblatt (Harvard professors who authored the book ‘How Democracies Die’) call the leaders who thrive in such situations ‘elected autocrats’. Such elected autocrats weaponize institutions, to use them as political ammunition. They compel the media and the private sector into silence, and they redraft rules to suit their interests over those of their political opponents. Critical voices still rise up in the backdrop of the chorus of the hoi polloi (meaning common people), but those who dare to question the powers that be end up at the receiving end of all kinds of trouble – they are charged with making seditious remarks, or evading taxes, or some such thing. In this way, they use ‘the very institutions of democracy…to kill it’…”, observed Justice A P Shah, former Chief Justice of Delhi High Court while delivering a scathing indictment of recent Supreme Court orders in his LC Jain Memorial Lecture in Delhi on 10 February last. Close on the heels, Justice D Y Chandrachud, a sitting judge of Supreme Court, while delivering the 15th PD Desai Memorial Lecture at the Gujarat High Court auditorium in Ahmedabad on 15 February said: “The blanket labelling of dissent as anti-national or anti-democratic strikes at the heart of our commitment to protect constitutional values and the promotion of deliberative democracy… Protecting dissent is but a reminder that while a democratically elected government offers us a legitimate tool for development and social coordination, they can never claim a monopoly over the values and identities that define our plural society…Employment of state machinery to curb dissent instils fear and creates a chilling atmosphere on free speech which violates the rule of law and distracts from the constitutional vision of pluralist society….Inherent in the liberal promise of the Constitution is a commitment to a plurality of opinion. A legitimate government committed to deliberate dialogue does not seek to restrict political contestation but welcomes it, …Suppression of intellect is the suppression of the conscience of the nation.” Almost voicing the same opinion, the Aurangabad Bench of Bombay High Court constituted with Justices TV Nalavade and MG Sewlikar,while pronouncing on 13 February a verdict on the ongoing anti-CAA demonstration on Beed district of Maharashtra, opined:”…We must keep in mind that we are a democratic republic country and our Constitution has given us rule of law and not rule of majority. When such act (CAA) is made, some people may be of a particular religion like Muslims may feel that it is against their interest and such act needs to be opposed. It is a matter of their perception and belief and the court cannot go into the merits of that perception or belief…The courts are bound to see whether these persons have right to agitate, oppose the law. If the court finds that it is part of their fundamental right, it is not open to the court to ascertain whether the exercise of such right will create law and order problem… This court wants to express that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law.” In a similar tone, Justice Deepak Gupta, another Supreme Court judge while addressing a lawyers’ workshop in Ahmedabad observed that “Criticism of the Executive, the Judiciary, the Bureaucracy, the Armed forces cannot be termed sedition…Indian citizens have the right to criticise the government, and dissenters cannot be labelled as anti-nationals for holding contrary…. If we stifle criticism of these institutions, we shall become a police state instead of a democracy.”
While many of the honourable judges have been expressing wrath and disgust at the way the juridical process is tampered with to give a stamp of legal approval to the whims and dictates of the Executive in the fascist autocratic rule euphemized as democracy, a few judges, unfortunately, have been sickeningly singing praise of the Executive just for receiving some favours in this or that way like getting plum posts after retirement etc. Just the other day, pretending to show bonhomie between the Judiciary and the Executive, Supreme Court judge Arun Mishra praised Prime Minister Narendra Modi as a “versatile genius” and said that Modi is the one who “thinks globally and acts locally”. Immediately, he faced sharp criticism from his own fraternity. Several retired judges, senior lawyers and politicians have been sharply critical of his remarks and termed it as sycophantic, atrocious and a threat to the independence of the apex court. Some even called for him to recuse himself from all cases against the government. Also instances are not in short supply where brave and honest judges are being punished for upholding judicial ethics and values. Recent midnight transfer of a senior Delhi High Court judge who criticized the Executive for dereliction of duty and directed to perform the due role it is assigned with, is a case in point.
Expressed concern at degeneration of parliamentary democracy
So, what do these observations from the protesting honourable justices allude to? They allude to the fact that the credibility of the Judiciary is under scanner, the ruling parties are on a mission to arrogate to themselves autocratic powers to tinker with the laws, both in framing as well as applying, thereby overstepping and subverting the delineated role of the Executive, and ‘the fundamental right to agitate’ cannot be infringed upon under whatsoever pretext since it militates against constitutional sanction of plurality of opinions. All these attest to one fact—whatever vestiges of democracy were left are also being wiped off fast by the ruling class, the ruling party and the government. This cannot but be of serious concern to the common people as well as the thinking minds. Obviously, there is a growing dissent against such fast degeneration of bourgeois parliamentary democracy and disapproval of the way the Judiciary is functioning and delivering verdicts. That is why, not only right-thinking democratic-minded people but even the jurists are shaken by one after another incidents, governmental actions and judicial pronouncements which are perceived to be and rightly so, as subversion of democracy. We first take up some of the recent judgments which a part of the judicial fraternity is thoroughly miffed with, so much so as to hold that the Court is doing a ‘balancing act’ rather than enforcing the rule of law. All the facts and quotes have been collated from the coverages in the media.
Judicial pronouncements indicate the peril the Judiciary is in
A Division Bench of the Apex Court while opining on a petition that questioned justifiability of the anti-NRC anti-CAA movement in Shaheen Bagh of Delhi, held recently that “The right to protest is recognised world over, more particularly in India. There is a fundamental right to assemble peacefully to protest.” But at the same time, the Court went on to say, “Our concern is if everybody starts blocking public areas then where will it end. There must be a balancing factor. Blocking of public road is troubling us.” Commenting on this , Atul Kumar, a lawyer practising in the Supreme Court, said, “There is a definite issue in getting orders enforced. Enforceability of the rule of law is a problem.The executive is more to be blamed for this state of affairs…The Supreme Court perhaps understands its orders may not be enforced if the government is unwilling.” Similarly, in a case related to blocking Internet communication in Jammu and Kashmir after abrogation of Article 370, the Supreme Court declared access to Internet a fundamental right available to all citizens. But the Court fell short of ordering restoring full Internet access in Jammu and Kashmir. So, despite the ruling, ban on 3G and 4G Internet services in Jammu and Kashmir was further extended. Referring to the Supreme Court’s orders on Kashmir issue, Justice A P Shah, in his L C Jain memorial lecture, held that those “represent a missed opportunity for the Court to come out strongly in favour of fundamental rights, and fulfil its role as the sentinel on the qui vive(on the alert or lookout)…While the reliance on Lon Fuller’s (a noted jurist who defended a secular and procedural form of natural law theory) famous statement that “there can be no greater legal monstrosity than a secret statute” is praiseworthy, it did not result in any practical benefit, given that the government was effectively allowed to take advantage of its own wrong of not publishing all the orders or submitting it before the Supreme Court.” The underlying import of his comments needs no further elaboration.
Next, in 2017, a nine-judge Bench of theSupreme Court declared privacy a fundamental right meaning that under normal circumstances, no government order or law can infringe upon privacy of an individual.But in 2018, another Division Bench of Supreme Court allowed linking of Aadhaar for income tax purposes and also for delivery of welfare schemes and government subsidies, many of which are operationalized through private vendors, especially in smaller towns and villages. The Supreme Court barred private entities from making Aadhaar linking mandatory but it did not expressly order for de-linking and deletion of Aadhaar details already procured by private entities such as telecom companies. In this 4:1 ruling, Justice D Y Chandrachud, the only dissenting judge, noted, “Identity is necessarily a plural concept. The Constitution also recognises a multitude of identities through the plethora of rights that it safeguards. Technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself/himself through a chosen means.”
Next ruling warranting mention in this regard is the case of transparency in the view of the Right to Information Act (RTI Act).In 2015, the Supreme Court directed the Reserve Bank of India (RBI) to release all information sought under the RTI law in the interest of transparency and accountability. But the RBI did not comply with it. Instead of raising the question of non-enforceability of a court order by a government agency, the Supreme Court diluted its own order in December 2019 by asking the RBI not to make banks’ inspection reports, risk assessment reports and financial inspection reports public. Similarly, in a landmark judgment of 1993, the Supreme Court had acknowledged reservation as the right of the SC/ST communities while keeping the cap on quota at 50 per cent of the number of vacancies. But of late, the same Apex Court while interpreting the Scheduled Castes and Scheduled Tribes Act, has ruled that providing reservation in government jobs is optional.
Next to feature in the reference are the verdicts on Sabarimala and Ayodhya disputes. In the Sabarimala temple of Kerala, menstruating women were barred from entering the shrine. In 2018, the Supreme Court judgment held the right of not to be discriminated on the basis of gender as superceding the right to freedom of religion. However, the Supreme Court did not tell the authorities to enforce the ruling strictly to uphold the rule of law, meaning, allowing menstruating women to go inside the temple. Later in 2019, on appeal, the Supreme Court decided to refer the issue to a nine-judge Bench for final adjudication thereby admitting, as the quarter well-versed with juridical process and judicial interpretations of court verdicts feel, that there was a scope for reconsidering the position of the right to gender equality ranking lower compared to other fundamental rights. In the Ayodhya ruling the Supreme Court held that the mosque’s demolition in 1992 was “an egregious violation of the rule of law”. But in the same breadth, the Court adjudicated that the Hindutva forces responsible for the demolition should have legal possession of the land. Moreover, the Court held that “faith is a matter of individual belief and no evidence has come on record to discount the belief of the Hindus” who illegally demolished a valid structure. This was notwithstanding the fact that the Hindutva forces have illegally demolished a valid structure and the admission that there is proof of the Muslims having been offering namaz there from 1857 till 1949, when they were illegally ousted “through an act which was calculated to deprive them of their place of prayer”. The Supreme Court agreed that “scriptural interpretations are susceptible to a multitude of inferences’’. Yet, it strangely concluded that, “once the court has intrinsic material to accept that the faith or the belief is genuine and not a pretence, it must defer to the belief of the worshiper,” (‘defer to’ means allow or agree to).Clearly it was “faith”, and more so, “religious faith” which outweighed all other considerations in deciding a title suit. Hence many persons belonging to legal fraternity considered it mystifying on many counts. In the words of Justice A P Shah: “…in the Ayodhya judgment, where the Court tried to give legal quietus to an essentially political issue… The need for the 116 page anonymous ‘addendum’ to the judgment, that sought to reinforce and reiterate the “faith, belief and trust of the Hindus” that the ‘disputed structure is the holy birthplace of Lord Ram’ is highly questionable given that the bench had already unanimously decided the case on constitutional principles, and the addendum was not serving the role of a concurring opinion. Instead, the addendum seems to reinforce the supremacy of Hindu theological considerations. Given the Court’s findings, one wonders if the mosque had not been demolished, would it still have been given to the Hindus?” “This is a classic case of a balancing act rather than adjudication”, commented advocate Atul Kumar. “There is another message in it. The act of balancing actually falls in the realm of the Executive, the government. It has to see if there would be some genuine anguish among a sizeable population and if that is the case, the government usually chooses to address the concern. But for the Supreme Court to do this conveys that it is not sure that the government would do its part for greater social harmony,” he further added.
Assam NRC related rulings
Dwelling on the judicial pronouncements in regard to the NRC exercise in Assam, Justice Shah said: “ The Supreme Court had already, years ago, described the illegal immigration happening in Assam by Bangladeshi Muslims as an “external aggression” and an “invasion” of India. The Supreme Court decided to ask the persons claiming citizenship of India to prove their status, shifting the burden of proof away from requiring the state to show that the person was a foreigner”. He thus seemed to have indicated that the essential principle of jurisprudence about the onus of proving criminality of or violation of law by an accused lying with the accuser has been overlooked. Then, in regard to the NRC exercise, he said: “Inarguably, this was an administrative exercise, which the executive and the bureaucracy ought to have been responsible for. Instead, we had a process that was ‘overseen’ by the Supreme Court, and primarily under Chief Justice Gogoi, although many would argue that the Court ‘oversaw’ it less, and ‘controlled’ it more.” Then taking a dig at the former Chief Justice of India, he observed: “Even in a hearing in the Supreme Court, former Chief Justice Gogoi asked the authorities how many people are there in a particular detention centre. They said 900. Chief Justice got furious – he said why just 900, they should be thousands in the detention centre. This, coming from the Supreme Court of India, a rights court, do you still believe that it is a rights court? Activist Harsh Mander asked for the recusal (withdrawal of a judge, prosecutor, or juror from a case) of Chief Justice and ultimately he recused himself.” These are very strong observations coming from a retired chief justice of a lower court on the functioning of the highest court.
Of late, while giving judgement on a writ petition filed by a person challenging his being declared a ‘foreigner’ by a “Foreign Tribunal’ of Assam, the Division Bench of the Gauhati High Court comprising of Justice Manojit Bhuyan and Justice Parthivjyoti Saikia remarked: “the Supreme Court has reiterated the legal position that marking of documents as exhibits and their proof are two different legal concepts. Mere production and marking of a document as exhibits cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence i.e., by the evidence of those persons who can vouch safe for the truth of the facts in issue. Regarding Electoral Photo Identity Card this court has held that Electoral Photo Identity Card is not a proof of citizenship.” However, as per clause 16 of “The Representation of the People Act 1950’, “A person shall be disqualified for registration in an electoral roll if he is not a citizen of India.” Then how can a person who furnished voters’ identity card meaning his recognition as a valid voter be declared a ‘non-citizen or foreigner’? The same Division Bench has also dismissed citizenship claim by a woman who produced as many as 15 documents including land revenue paying receipt, bank passbook, voter list, Permanent Account Number (PAN) and certificate by a village Gaon Bura holding that “PAN Card, bank documents and certificates issued by a village Gaon Bura can never be the proof of citizenship.” It needs to be mentioned that during the updating process of the National Register of Citizens (NRC) in Assam, the Supreme Court has allowed married women to submit Gaon Bura (village headman) certificates as documents to establish their relationship to their parents for inclusion of their names in the NRC through proper verification. So, it is an enigma as to how a High Court can overrule Supreme Court directive.
Recalling enunciated principles of bourgeois democracy
Obvious question which arises is that why is this deterioration in operationalizing the claimed democracy in the country, and how is that even fingers are raised against the Judiciary, which people still hold in high esteem as the deliverer of justice? To seek an answer, we need to flip over the pages of history and social development. Bourgeois democracy originated during the advent of capitalism as a progressive force when the rising bourgeois class assumed power by overthrowing old obsolete feudal autocracy. This bourgeois democracy or parliamentary democracy emerged as political superstructure of capitalist economic base. At that time, capitalism was operating in laissez faire mode, encouraging free competition among the capitalists. So the bourgeoisie then upheld liberal principles of equality, liberty and fraternity; stood for individual freedom, freedom of expression and freedom of association. The tenets of bourgeois parliamentary democracy that its founding fathers envisaged was to ensure that it was fundamentally different from the autocratic feudal system. So bourgeois democracy rested on three pillars or had three organs — the Legislature (elected body with the power of formulating laws), the Executive (police-military-bureaucracy-ministers assigned the responsibility of applying, overseeing and preserving the rule of law) and the Judiciary (the interpreters of law and responsible for correct resolution of legal disputes based on the broader framework of law upholding the spirit of democracy). To ensure that democracy itself did not slide into autocracy, to prevent concentration of power in the hands of a single organ of the state and that there was no disharmony in and overlapping or interference of their functions,the bourgeoisie also enunciated the theory of ‘Separation of Power’. This theory clearly stipulated the specific duties and tasks of each of the organ as well as attributed relative independence to each and every organ. Also definite ‘checks and balances’ were also codified to guarantee smooth operation of the doctrine of “Separation of Power”. The bourgeoisie then stood not only for the democratic right to movement, they even guaranteed the freest right for people’s democratic movement outside the Parliament on their democratic demands. Even there were thoughts and discussions on whether people should enjoy the right to propagate cause and need of rebellion. People’s opinions and people’s extra-parliamentary movements ‘on the streets’ were considered decisive providing people with the power to assert upon the Legislature (Assembly or Parliament) and the government. However, it ought to be kept in mind that notwithstanding this relative independence, as parts of the bourgeois state machine all the three organs were never supra-class (that is above class) and hence designed to ultimately stand in the interest of the ruling bourgeoisie even if it went against the interest of the ruled toiling millions—workers-peasants-middle class.
Responsibility vested with the Judiciary, as indicated above, was to check and safeguard whether the laws promulgated by the Legislature and being enacted or executed by the bureaucracy are compatible with the expressed provisions of the Constitution; the process of checking being termed as the judicial review. However, the scope of such review is kept within very brief limits to ensure that the supremacy of the Legislature is not impinged upon. After all, the bourgeoisie at the time of their rise as a social power and time of emergence of bourgeois democracy scrupulously held that as far as the independence of the Judiciary was concerned, people’s opinion was of supreme importance. And of all the three organs, it was the Legislature which was to be directly formed by the people through elections in a parliamentary democracy. So whoever believed in democracy had to also believe in the ultimate triumph of public opinion, if it were strong, united and fearless. If it were the people who had to govern the country, the will of the people could only be manifested through public opinion and the demands of extra-parliamentary movement. The Legislature or parliament was considered sovereign. But sovereignty of parliament was contingent upon sovereignty of people.
Barest precepts of democracy are trampled underfoot in dying capitalism
The heyday of bourgeois parliamentary democracy was however brief and starting to fade away once the period of lassez faire was over with the advent of monopoly. And now when capitalism in its decadent moribund stage is plunged in escalating insolvable market crisis endemic of the system, the established democratic principles, norms, values, codes and practices are trampled underfoot with alacrity by the reactionary bourgeoisie and its trusted political managers so that there is hardly any leeway for the aggrieved masses to vent their anger and wrest their just demands using any wing of the bourgeois democratic system. The eminent judges, jurists, constitutional experts, democratic-minded thinking personalities and commentators who are voicing dissent against and disapproval of the functioning of the Judiciary as well as some of the judicial pronouncements and are taking umbrage at the way the Executive i.e. government and bureaucracy are showing highhandedness in governance and even the arrogance of disobeying court verdicts, need to take into cognizance the changed socio-political context. Estranged from the objectivity determined and ordained by the law of social development, the cause of worrying deterioration of the Judiciary, the Executive and the political class subservient to ruling monopolists cannot be understood. So all disgust and revulsion would only veer around making disappointing statements and directed wrath against some of the individual functionaries of the system while the system which is the root of all aberrations would remain unscathed to take the situation from bad to worse. In that event, notwithstanding all growing anguish and repugnance over the all-out degeneration of parliamentary democracy, people would remain in the grip of that putrid capitalist system. In such a situation, there should be resurgence of an organized protest against subversion of democracy. Alongside launching a painstaking ideological struggle to unmask the historic obsolescence of bourgeois democracy and establish supremacy of alternate socialist system, it is also necessary to intensify people’s democratic movements on the burning problems of life. From the platform of this movement, demand should also be raised for correcting the faltering judicial process, restoring the curtailed democratic rights, including fundamental right to dissent and the planned move on the part of the Executive to wedge a divide into people’s unity by fostering inequality and discrimination centred on caste-creed-race-language-ethnicity. As mentioned above, the basic tenets of bourgeois democracy once viewed such mass actions as means of ‘check and balance’ as well as vigil on proper operation of parliamentary democracy. It is only the pressure of such a people’s movement that can wrest some of these legitimate demands and exercise some restraint on the ruling class and its servitors from acting in any manner they like. It is heartening to note that disdaining the red eye and punitive measures by the bourgeois government, the common people are now taking to streets to press for redressal of the burning problems of life and the conscientious intelligentsia is using all available platforms and forums to voice their dissent and concern. Particularly the momentum being picked up by the countrywide anti-NRC anti-CAA movement is heralding the dawn of a new chapter in the history of democratic mass movement in post-independence India. And once this mass awakening is gradually manifested, the rulers and their cohorts are expectedly upping their ante against that and seeking to ridicule the surging people’s struggles as ‘turmoil on streets’, ‘disruption of normalcy’ and handiwork of anti-national elements. Alongside, there is an effort by the ruling quarters to create a committed judiciary so as to elicit desired verdict on crucial issues by using ‘carrot and stick’ policies. Danger inheres here. This attempted crucification of democracy and the fascist autocratic moves have to be resisted at all cost.
[Information and quotation sources: scroll.in 08-09-19,12-02-20, 23-02-20, 24-02-20, The Wire 15-02-20, Ananda Bazar Patrika 16-02-20, 25-02-20, NDTV 15-02-20, 25-02-20, The Print-22-02-20, The Hindu-23-02-20, The Quint 23-02-20]