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Mainstream, VOL LX No 20, New Delhi, May 7, 2022

Role and behaviour of the judges in the backdrop of majoritarian politics | Arun Srivastava

Friday 6 May 2022

by Arun Srivastava

Majoritarian’ propensities has completely riveted the Indian politics and its social order. This majoritarian principle has not only vitiated the political structure, instead it has also affected the judiciary; the bureaucracy is already dancing to its tunes. Stimulating majoritarian is the part of the well designed strategy to convert India into a Hindu Rashtra.

The attack has been so intense that only a week back Supreme Court CJI N V Ramana while presiding over a three judge bench rued; “It’s a new trend started. Government has started maligning the judges. It’s unfortunate. This is a “new trend” of government maligning…judges”. While describing it as ‘unfortunate” he said “We are watching in court also. Nowadays it’s a new trend. Earlier we used to see private parties with this type of tactics. We are watching everyday”.

The bench was hearing appeals against an order of the Chhattisgarh High Court which had quashed an FIR lodged under the Prevention of Corruption Act against former Chief Minister Raman Singh’s Principal Secretary Aman Singh and his wife Yasmin Singh in 2020, after the BJP government was voted out and Congress party came to power in the state.

For majoritarian politics does not have any respect for the democratic institutions. It has contempt for all the democratic establishments and ethos. This is the reason that the politician or the ruler surviving on the tendencies turns into an autocrat. He prefers to trample any one coming in his way. The worst victim of this propensity has been the bureaucracy and the administration. They instantly turn subservient to these leaders and give a shape to his autocratic whims.

The judiciary, especially the Supreme Court has been the last hope of the people to get justice. The Modi government is sure that once the prestige of the judiciary is lowered and jeopardised, the people will not go to the court for seeking redressal. With an agile judiciary, it would be a tough proposition foe the government to smash the human rights.

The fact of the matter is it is the functionaries of the judiciaries, especially the judges who are responsible for the degradation of the judiciary and maligning of the judges. An insight into the nature of the justice delivery would make it apparent that the judges of the lower courts, even in some cases of the High Courts, do not apply their mind before pronouncing verdict. Of late the small time BJP or RSS cadres have formed the habit of filing complaints against their opponents. Even though the charges are unsustainable and false, the judges pass the sentence and send the person to the jails. We have seen how a judge has been openly sitiing on the bench has been eulogising the primeminister.

There are number of cases in which the accused persons have been languishing in jails though the police has miserably failed to prove their guilty and crime. Let us look at the case of student activist Umar Khalid. He has been repeatedly refused bail in the larger conspiracy case of northeast Delhi riots. The Delhi High Court on Wednesday asked whether it was proper to use the term ‘jumla’ in respect to the Prime Minister of India and said that there has to be “a line” or a “Lakshman rekha” when it comes to criticism of the government.

The judge would not like any one to criticise the government. It is not that he was the first to use the word jumla for Modi. His advocate rightly pointed out that it was not illegal to criticise the government. “Criticism of the government cannot become a crime. 583 days in prison with UAPA charges was no envisaged for a person who speaks against the government. We cannot become so intolerant. At this rate, people will not be able to speak”. The fact of the matter is the FIR against Khalid is a result of intolerance against freedom of speech.

The court had made the observation when the counsel representing Khalid was reading the portion where he is reported to have said that Mahatma Gandhi had launched a non-cooperation movement against the British in 1920 and Jamia Millia Islamia University was one of the first educational institutes to be established after Gandhi’s call. Khalid in the speech is further stated to have said that the same varsity was now facing bullets, being maligned and called den of anti-nationals.

This nature of observation turns the judges an object of ridicule in the eyes of the government and rulers. We have seen how a former CJI of Supreme Court helped the government in the matter of Ram Mandir. Using the word Jumla is not such a crime that he shouod have to spend years in the prison.

We have before us the Bhima Koregaon case. Father Stan Swamy’s death in judicial custody will forever remain a stain on India’s human rights record. Swamy was jailed last October on “fabricated terrorism charges”, and had been subjected to “harassment” and “repeated interrogations”, A renowned human rights and social justice advocate for over four decades, Swamy passed away on July 5 at a private hospital in Mumbai, awaiting his bail on medial grounds. Swamy’s case should remind all states that human rights defenders and all those detained without sufficient legal basis, should be released.

It is worth mentioning that all the so called accused persons in Bhima Koregaon case were falsely framed by the investigating agencies. They do not have sibstantial proof against them, but they continue to be in prison for years. Jesuit priest Stan Swamy’s custody death was a “failure” on the part of India’s government and would “forever remain a stain” on the country’s human rights record, the United Nations Working Group on Arbitrary Detention has said.

The RSS and Modi government have been imprisoning people on false ground those who are opposed to rightist forces and ideologies. The RSS and Modi are scared that in cse these people are not punished then the foreces opposed to right ideology would emerge iin a strong manner endangering their existence.

It is a known fact that the RSS and the Modi government, in association with the larger Hindu nationalist ecosystem, has been hell bent to change the fundamental tenets of Indian democracy eve r sincxe it came to power seven years ago. But in recent months it has hastened the process. Earlier their target has been the Muslims. They wanted to terrorise Muslims resorting to various manoeuvres. But now tey have started terroriing liberal Hindus.

In effect Modi government has been more worried of the resurrection of the Hindu protest. RSS leadership and Modi had presumed that the Hindus would not raise their voice against their Hindutva political strategy. But the opposition from Hindus has scared them. No doubt the BJP swept the UP assembly election but that happened due to some other reason. It was not that the people of UP voted for BJP. The fact of the matter is while the RSS and Modi have been raising the issue of nationalism, the liberal Hindus have been advocating “constitutional nationalism”.

The design of the RSS and BJP got exposed this year on the occasion of Ram Navami and Hanuman Jayanti. A large number of bloody clashes were witnessed across the India. While the intellectuals, ex army personnel and opposition leaders have been quick to condemn this and question the governement’s passive attitude, Modi refrained from speaking out his mind. In most of the cases the Muslim community were targeted by the followers of the RSS and Modi government.

It is a brazen fact that Muslims are being systematically marginalized across the India, particularly in the BJP-governed states. Only the non BJP state are putting a protest against this policy of Modi government and the RSS. But in turn they are being victimised by Modi government.

Only recently the union stae home minister told the Lok Sabha that according to the NCRB data, around 3400 cases of communal riots were registered in the country from 2016 to 2020. Besides 1, 61,117 cases oftorture against the SCand ST wee registeredfrom 2018 to 2020. He said around 857 cases of religious violence were registered in 2020. After Modi coming to power tere has been substantial incese in such cases. The number of cases was 438 in 2019, 512 in 2018, 723 in 2017, 860 in 2016. The figures say that 2,76,273 riot took place during the last five years.

Since the Supreme Court is concerned of the maligning of judges by the government, it must assert. It must initiate the process of rectification. It must remind the judges not to play into the hnds of the politicians and government. They must follow the Constitutions and on the plea of applying their mind they must refrain from twisting the facts. The Supreme Court must exercise its constitutional authority and enforce the rule of law instead of proselytising on the falling credibility of the institutions.

The CJI must realise that the ruling elite and the rightist forces have been determined to turn India into Hindu Rashtra. For this they can go to any extent. Obviouly the sanctity of judiciary dies not matter at all for them. If they are determined to alter the body politik of India and also its cultural ethos, they will not mind humiliating and maligning the judiciary and judicial system as by resorting to it they would be accomplishing their mission by terrorising the people. It is absolutely clear that nothing will happen by merely expressing concern. The Congress spokesperson rightly observed; “Till the Supreme Court, which has the power, takes note of actual violations and restrains the agencies from acting like the stooge of the government, what is said will be just empty rhetoric. The judges should look within and introspect about their constitutional responsibilities.”

It is sad that inspite of repeated warning the by the Supreme Court the CBI, ED, income tax and other agencies have not been changing their attitude and style of functioning. It is sigbificant that recently Chief Justice Ramana, had told the police and investigative agencies: “Ultimately, you must remember that your allegiance must be to the Constitution and the rule of law and not to any person…. The political executive will change with time. But you, as an institution, are permanent. Be impermeable and be independent. Pledge solidarity to your service. Your fraternity is your strength.”

He also cautioned; “they need to function within democratic framework as prescribed under the Constitution. Any deviation will hurt the institutions and will weaken our democracy. The police and the investigative agencies may have de-facto legitimacy, but yet, as institutions, they still have to gain social legitimacy.”

Concerns about the central agencies are, however, not new. It was during Congress rule that the Supreme Court had described the CBI as a “caged parrot”. The court had suggested several measures to ensure autonomy of institutions but the situation has gone from bad to worse. Almost every political party in the Opposition has accused the Modi government of harassment through the misuse of central agencies.

In yet another important but highly sensitive development the veterans of Indian army have called upon the Supreme Court to check the genocide calls against Muslims. The petitioners said that if left unchecked, such hate mongering could affect the morale of the Indian Army and its battle preparedness as the force draws soldiers from different communities, including Muslims, Sikhs and Christians.

The RSS and Modi have also been bringing about change in the system and structure of governance. While Modi did not object to the introduction of bulldozer governance, quite significantly almost all the BJP ruled states are adopting the bulldozer governance. This is the highest order of majoritarian rule. The BJP governments are targeting their enemies, particularly the Muslims to bulldoze theor houses and establishments.

Resorting to ruthless governance and use of reckless police force has been primary motive of the RSS and BJP. Gujarat MLA Jignesh Mevani was remanded to five days in police custody on Tuesday by a court in Assam’s Barpeta district in an assault case filed by a woman police officer. Chief Judicial Magistrate Mukul Chetia remanded Mevani to police custody. Mevani, an Independent MLA backed by the Congress, was first arrested on April 19 from Palanpur town in Gujarat, and was brought to Kokrajhar for tweeting against Prime Minister Narendra Modi. It is alleged that he assaulted the woman officer when she was accompanying him from Guwahati airport to Kokrajhar along with senior police officers. The BJP government has been harassing Mevani simply with the aim to terrorise the forces and individuals who are opposed to BJP’s rightist policies.

Maintaining that judging is not an easy task, the CJI said, “Before rendering any decision, judges have to weigh several socio-economic factors and the impact of their decision on the society.” noting that the biggest issue affecting all institutions nowadays, including the judiciary, was ensuring sustained faith in the eyes of the public, he said judging wasn’t an easy task. “Judges should be aware of social realities. We have to carefully watch the changing social needs and expectations. The world is moving very fast,” he said.

Asking judges to sharpen their ideas and perceptions, Justice Ramana said, “We need to expand our knowledge base and adopt technology as an enabler. There cannot be a gap between the mind of a judge and the needs of the society. Ultimately, we are entrusted with the duty to deliver justice for all.”

The worst has been happening in Karnataka. The police and the judiciary are keen to avct even at the smallest insignifi ant complaints of the BJP block level workers. Bangalore Archbishop Peter Machado on Tuesday dismissed a Sangh parivar outfit’s allegation that a century-old Catholic school in the city has made it mandatory for students to carry the Bible with the aim of converting non-Christians. “This allegation is false and misleading,” the archbishop said in a statement, contesting the allegation against Clarence High School. The archbishop’s clarification followed claims by the Hindu Janajagruti Samithi that the school management was forcing parents to sign a declaration allowing their children to carry the Bible to class. The outfit had alleged that the aim was to forcibly convert non-Christian pupils.

The latest controversy aimed at harassing minorities has reared its head at a time the BJP government in Karnataka is contemplating to make the Bhagavad Gita a part of the curriculum in schools. Christians have been specifically targeted with allegations of fraudulent conversions, which the Church has vehemently denied.

Escalation of this nature of activities by the BJP cadres and also hate violence against minority communities has acquired a frightening new dimension. In a letter to Modi a collective of senior of retired bureaucrats appealed to break his “deafening” silence and end the hate-fuelled violence against minorities in mostly BJP-governed states and flagged the complicity of the State in the atrocities perpetrated by “the forces of majoritarianism”. They mentioned ; “It is no longer just the politics of an assertive Hindutva identity, nor the attempt to keep the communal cauldron on the boil — all that has been going on for decades and in the last few years had become a part of the new normal.” “What is alarming now is the subordination of the fundamental principles of our Constitution and of the rule of law to the forces of majoritarianism, in which the State appears to be fully complicit,” the letter added.

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