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Mainstream, VOL LX No 29, New Delhi, July 9, 2022

Protecting Supreme Court from the designs of the Saffron brigade | Arun Srivastava

Friday 8 July 2022


by Arun Srivastava

Speaking at a seminar in San Francisco the Chief Justice of India N V Ramana observed that the fundamental principle behind the existence of an independent judiciary is that its has been answerable only to the Constitution. Justice Ramana was absolutely right. The politicians and the political establishment of the country have already made the other three pillars of a vibrant democracy executive, legislative and media subservient to it. Now they are desperate to bring the judiciary under their wings.

Constitutional interpretation or constitutional doctrine, has always been controversial. Taking advantage of this the RSS and BJP have launched an insinuation campaign the judiciary, especially against the Supreme Court which is the only effective body to protect and delineate the constitution. Questions are being raised on the judgements of the court. Only a week back some enlightened people raised the issue of efficacy of proceedings of the apex court in the matter of BJP leader Nupur Sharma’s incensed statement against Prophet.

At a time when unity is endangered, an understanding of the Constitution becomes more relevant than ever. Although this is not what the Chief Justice of India, N.V. Ramana, said recently in San Francisco, his reported remarks on the Constitution could prompt ideas along these lines. The CJI deplored the fact that the roles and responsibilities assigned by the Constitution to different institutions had not been fully appreciated even 72 years after the country became a republic. The CJI’s focus seemed to be on the attitude of the political class. Those in power believe that all government action is entitled to be endorsed by the judiciary while the Opposition wants that the judiciary should advance its causes. These remarks suggest a corruption in the understanding that places the higher judiciary in a direct relationship with the political sphere. Against this ‘flaw’, the CJI laid. That is, it is beyond the reach of transient political power and, together with the executive and the legislature, a separate and equally load-bearing pillar of the Constitution’s imagination of the democracy.

Besides some jarring remarks which merely consoles the hurt sensibilities of a common Indian and strengthens his belief in the Indian judicial system, the observations and remarks of the Supreme Court are not more than of the character of non-noticeable narrative. The division bench of the apex court listening to the request of Nupur Sharma to club all the FIRs filed against her across the country over her remarks against Prophet Mohammed during a TV show, neither censored the police for not arresting her despite filing of large number of FIRs against her nor did it pass an order directing the police to arrest her.

No doubt the observation of the bench was quite scathing, but the question is being asked in the academic and social circle, what purpose it served. It would be naïve to believe that the political parties or the establishment which depute their spokespersons at such TV debates after duly briefing them would act in a more restrained manner in future.

Already some Hindu fundamentalist organisations have started saying; “Dear Milords, did you provoke the Islamists too with your ‘loose tongues’”. They also wrote; “Did you know: 306 years ago, Mughals had stuffed Sikh warrior Baba Banda Singh Bahadur’s mouth with his son’s liver and heart before cutting him”. In the most shocking manner it wrote; “SC Judges end up emboldening Islamists, conducts a witch trial blaming Nupur Sharma’s ‘loose tongue’ for Hindu man’s beheading by Islamic fanatics. The Supreme Court of the so-called secular, democratic country, which is supposed to be the conscience of the nation, has shockingly chosen to behave like a Church figure in a medieval witch trial.”

These comments reveal that the observation of the SC are not enough to goad these organisations and angles of hate to abandon their nefarious actions. True enough the court should a clarification from the Modi government as to why the Delhi police, which is directly under its command and jurisdiction did not arrest her. It was imperative that the government ought to have send a strong and hard message. Bench’s remark; “She has threat or she has become security threat? The way she has ignited emotions across the country… this lady is single-handedly responsible for what is happening in the country,” to the submission of her lawyer that she was facing threats to life lacked the judicial thrust and people by and large interpret it as an exercise to assuage the enraged feelings of the people and help Modi government to diffuse the political crisis it was faced with.

Her tendering apology or withdrawing her statement was a clever ploy to shield the Modi government. It she would have been honest and has a strong morale she would not have apologised with some conditions. AS she was holding the brief of the party, obviously there wasno reason for her to apologise.

The judges were absolutely right in observing; “her petition smacks of her arrogance, that the Magistrates of the country are too small for her”. “What if she is the spokesperson of a party. She thinks she has back-up power and (can) make any statement without respect to the law of the land”.

In fact the bench should have handed out punishment to her and also to the TV channel for choosing a sub-judice topic for debate. The reason is quite simple. This nature of debate helps the political and communal needs of the RSS and Modi government.

The court was critical of the Delhi Police’s response in the matter but its observation; “Don’t make us open our mouth” has been intriguing. How could Supreme Court come out with such statement? No power on the earth could obstruct it from speaking truth and unravelling the true facts. This nature of turns the people suspect and scared. If the SC is hesitant to unravel the truth how could a common people dare to speak truth? This becomes more imperative when the courts holds the belief that her statement was disturbing and led to unfortunate incidents and ignited emotions across the country. She has been "single-handedly responsible for igniting emotions across the country".

The opposition parties rightly hailed the observations of the Supreme Court, but they faulted in not pointing out that it should have indicted the government for protecting her and also not directing the state to arrest her and prosecute according to the law of land. The Congress spokesperson Jairam Ramesh was far from the truth in observing; "These remarks by the Supreme Court, which resonate with the entire country, should make the party in power hang its head in shame". True speaking the word shame is alien to the BJP and RSS.

The Left parties have also hit out at the government over the Supreme Court’s observations. “We hope that beyond words, if according to the Supreme Court, Ms. Sharma is responsible for starting the hate spiral & most recent reprehensible cycle of violence, she will be proceeded upon as per law” said CPIM general secretary Sitaram Yechury in a tweet. He also said; “But if the law does not act against her and others like her promoted by the party, who sow discord, separatism and damage India, the wrong message would go out. We would find many more like her mushrooming from the RSS/BJP’s hate factory and on vitriolic TV debates”.

CPI MP Binoy Viswam tweeted, “Red carpet for Nupur Sarma, prison cells for Teesta and Sreekumar! Comments from Supreme Court should alert Modi Govt. Irresponsibility, driven by bigotry shouldn’t be the hallmark of any spokesperson. Such elements caused Udaipur incident. They should apologise to People & Nation.”

Zubair has got interim bail but he continues to be in jail. But at the same time the anchor who insinuated against Rahul Gandhi has been set free. . For Modi government arrest of Zubair is of vital importance is manifest in the appearance of the country’s second-highest law officer, solicitor-general Tushar Mehta, in the case to defend the government’s interest and “tells the whole story”.

More than 300 lawyers, academics and rights activists have written to Chief Justice of India N.V. Ramana seeking a clarification that the recent Gulberg Society massacre case judgment “was not intended to have any adverse consequences whatsoever on Teesta Setalvad, R.B. Sreekumar and others”. The apex court had on June 24 endorsed clean chit given to then Gujarat chief minister Narendra Modi over the 2002 riots, dismissing a plea from Zakia Jafri who had alleged a larger conspiracy in high places. Meanwhile, a letter petition was filed before Chief Justice N V Ramana seeking withdrawal of adverse remarks made by a Supreme Court bench against Sharma. The letter petition said that it be treated as a PIL and the adverse remarks made during the hearing be declared as “uncalled for”.

The reason for the Modi government for not taking the judiciary seriously owes to certain actions of the judiciary. The questions put to the lawyer of Nupur Sharma by the judges make it explicit that the bench was aware of the incident and the mood of the country. But this nature of alacrity and awareness was not noticed while SC delivering order in the cases of killing of Ahsan Jafri. It rejected the petition of his wife Zakia Jafri seeking justice and gave clean chit to Narendra Modi with the observation; ‘No larger conspiracy behind Gujarat riots’.

The apex court even said “we find force in the argument of the respondent-state that the testimony of Sanjiv Bhatt, Haren Pandya and also of ex DGP of Gujarat police R B Sreekumar was only to sensationalise and politicize the matters in issue, although, replete with falsehood”. In 2004 the then divisional bench of Supreme Court did not exonerate Modi and even said that the situation was similar to Nero’s action.

The Supreme Court has been averse to intervening suo mato in the cases of arrest of Zubair and Teesta. In those these cases the police has violated the constitutional provisions. On the contrary the Supreme Court went beyond the issue of looking into the matter of involvement of Modi in the pogrom and commented against Teesta, which the Gujarat government instantly used to arrest her.

Misinformation is a challenge globally, but in India it has got official sanction. While the platforms that are host to this misinformation, like Facebook and Twitter, have made attempts to curtail it, it hasn’t been enough to stem the tide. The average Indian media consumer is inundated with misinformation from the time they open the day’s paper to when they lie in bed scrolling on their smartphones at night, so much so that if they don’t make the effort to seek out facts for themselves, they risk responding to a fictional reality.

But what makes the Indian media ecosystem unique, Zubair told me, is that much of the misinformation is focused on religious minorities, particularly Muslims, India’s largest such minority. “Typically,” he said, “it’s a Muslim doing something”: images from Egypt misrepresented as Ramadan gatherings in India at the height of the pandemic, scenes from Bangladesh misleadingly shared as anti-Hindu violence. . India is ranked 142nd out of 180 in the World Press Freedom Index, whose creators noted in a recent report that “pressure has increased on the media to toe the Hindu nationalist government’s line.” Dozens of journalists have been charged with sedition, a crime that is punishable by life imprisonment. Some have ended up dead. Sinha manages the company’s digital security, but it’s more than just that — keeping the Alt News team physically safe is also part of his every day.

When misinformation first started circulating widely across the country, it was the run-up to the 2014 general election. The elections pitted Rahul Gandhi, the scion of Congress, the country’s oldest party, against a rising star, Narendra Modi of the BJP. Members of his team had coined the term “Gujarat model,” a foundational in the myth-making of the politician’s legacy. This reputation endeared him to India’s middle class and its prosperous diaspora, who were frustrated with the country’s slow progress relative to the superpower next door, China. These groups contributed so liberally to Modi’s campaign that the 2014 election started to look like a one-horse race.

Human Rights Watch report implicated Modi’s administration in the violence, for many in India, Modi’s version of these events stuck. Nirjhari Sinha, the director of Pravda Media Foundation, the parent company of Alt News, and Pratik’s mother, calls Modi’s train story a “myth” — “one of the biggest pieces of misinformation” ever to be circulated in India.

After Modi was elected prime minister, Hindu mobs unleashed a spate of deadly attacks on minorities, low-caste people, and Dalits, a historically marginalized community in India. On July 11, 2016, the Gujarati city of Una became the latest to witness radical-Hindu terror when a group of men publicly flogged four Dalit cattle skinners. On August 5, Dalit groups and supporters set out on a protest march from Ahmedabad to Una, more than 300 kilometers away. Sinha and his mother went along, and he documented the 10-day long march on social media. Rural India witnessed the greatest transformation. According an estimate at least there are 227 million internet users in India’s villages. Unfortunately many of the user do not have the tools to differentiate between true and false online content.

The double standards may be part of the reason why the “curve of misinformation in India isn’t flattening at all,” says Sinha. When it first began, largely because of its small team, Alt News fact-checked about seven pieces of misinformation a week; they now sometimes publish that same amount in a day. On some days, they get as many as 1,000 requests for fact-checks from people on the receiving end of pictures, videos, and messages they aren’t sure are real.

Mohammed Zubair, journalist and fact-checker par excellence, who co-founded Alt News with Pratik Sinha, was remanded to 14 days in judicial custody by a Delhi court on Saturday. This followed four days in police custody for a case so flimsy that it blends in perfectly against the tatters that “the mother of democracy” is in. On Monday, another 14 days were added to his time in custody for another case, for calling three Hindutva hardliners – who have themselves been charged with hate-related offences – ‘hatemongers’.

When it became apparent right after his arrest that the ‘hate speech’ charges against him would not stick, the authorities accused him of violating the Foreign Contribution Regulation Act (FCRA). This is another baseless accusation but it helped a magistrate send Zubair to 14 days of judicial custody on Saturday – a decision that a senior Delhi Police officer announced to the media even before the magistrate had time to write her order.

Solicitor General of India Tushar Mehta personally appeared for Delhi Police when Zubair’s plea against his remand was heard by the Delhi high court on Friday. That tells us something about the importance of the case for the ecosystem ruling India. Mehta is from Gujarat. The Delhi Police Commissioner is Rakesh Asthana, a controversial IPS officer from the Gujarat cadre, who was appointed by the Union government days before he was to retire last July. Delhi Police answers to the Union Home Ministry, which is presided over by Amit Shah, who is also from Gujarat. An FIR has been registered against Moitra in Bhopal, under Section 295A of the IPC for hurting religious sentiments. “Hindu religious sentiments have been hurt by Mahua Moitra’s statement. Insult of Hindu deities will not be tolerated at any cost,” Madhya Pradesh chief minister Shivraj Singh Chouhan said, according to ANI.

The BJP’s Mahila Morcha has claimed to submitted no fewer than 56 complaints against Moitra to the Bengal police. A section of Mahila Morcha leaders marched to Kolkata’s Bowbazar Police Station, asking for ‘action’ to be taken against Moitra within 72 hours, Anandabazar Patrika has reported. Police has allegedly promised ‘complaint numbers’ to the BJP leaders but has not yet lodged FIRs in Kolkata.

While the RSS and BJP cadres have been intensifying hate campaign against the Muslims , Modi is planning to launch Sneh Yatra. According to the BJP leaders it is also a yatra of sadbhav (harmony) and samanway (coordination). “The prime minister talked about new politics in the country and a new culture where political ecosystem transcends beyond bantering, and for coordination and affection.”

In another significant intervention, Modi also asked the partymen to reach out to Pasmanda Muslims (Dalit Muslims) as they have been left out of the fruits of development. Party leader said Modi twice referred to Pasmanda Muslims in two days of BJP meeting. This was the first time that the prime minister may have referred to this section of the minority community within the party forum, sources said, and the message was clear.Amit Shah and Narendra Modi Addressing the concluding session of the national executive meeting of the Bharatiya Janata Party in Hyderabad, the prime minister, Narendra Modi, urged the rank and file to reach out to deprived segments among other — ‘non-Hindu’ — communities. The idea was raised for the first time, nearly 15 years ago by the JD(U) MP Ali Anwar.

A group of former judges and bureaucrats on Tuesday criticised the recent Supreme Court observations against suspended BJP member Nupur Sharma, alleging that the apex court surpassed the "Laxman rekha" and calling for "urgent rectification" steps. In the annals of judiciary, this nature of objections have no parallel. This is purely an exercise to coax Supreme Court. Criticising the observations, the statement said, "We, as concerned citizens, do believe that democracy of any country will remain intact till all the institutions perform their duties as per the constitution. If they have been really concerned they would not have raised figures on the remarks of the court. They ought to have realised that that it was not order, but simply oral remarks.

There is no denying the fact that Supreme Court has given space to the Hindu biogots to malign it. In the case of Ranjan, the TV anchor and Zubair the court delivered two different natures of orders. While the court set free the TV anchor who supported the fundamentalists, Zubair was granted only 5 days interim bail. He still continues to be in jail. This is giving the impression among the common people that the apex court is dithering in passing rigorous orders against the biogots.

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