Ultranationalist Hindus’ control of Indian judiciary?

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Syed Qamar Afzal Rizvi

I am perplexed and disturbed. The constitution gives the right to everyone and justice has to be given to everyone but in this case the justice has not been done to minorities, Retd. Justice AK Ganguly said. “This is undeniable and it is also undeniable that the mosque was demolished by sheer act of vandalism. Even the SC has in its verdict said that it is a gross violation of rule of law and act of vandalism. In that scenario the question is that who has been wronged. It is the minorities that have been wronged,” AK Ganguly added. Veritably, India’s Chief Court’s verdict on Babari Masjid doesn’t uphold the norms of justice since the verdict is the outcome of ultranationalist Hindus’ control over the Indian judiciary.
The Muslim side, represented by All India Muslim Personal Law Board (AIMPLB), expressed dissatisfaction over the judgment signed by five judges of the apex court. The ALMLB held the argument in title suit. “Our plea is that the site has been used as a Masjid since 1528 so the ownership of the site be granted to Wakf [which runs the affairs of the mosque].” Undeniably, democracy and minorities are concomitant with each other in nature as “we cannot have a democracy without minorities” and “where there is no democracy the question of minorities as such cannot arise.”
The complementary and supplementary character of democracy and minorities act as a litmus test of success of a democracy. A diverse country like India can claim real success of democracy if the minorities sheltering in India enjoy maximum security, protection and confidence. Franklin Roosevelt highlights this datum and presages that “no democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities.
Put academically, constitution of India doesn’t define the word ‘Minority’ but nonetheless has used the word minorities— considering religion and language of a person. For minorities Constitution of India has envisaged a number of rights and safeguards. To provide enough equality and to dwindle the discrimination, makers have spelt out various things in Fundamental Rights (Part III); Directive Principles of State policy (Part IV) and also the Fundamental Duties (Part IV-A). However, with rising right and rising wedge between right and left and also the ephemeral political aspirations of various political parties have diluted the ‘discrimination safeguards’. The Union Government set up the National Commission for Minorities (NCM) under the National Commission for Minorities Act, 1992. Six religious communities— Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains —have been notified in Gazette of India as ‘minority communities’ by the Union Government all over India. Original notification of 1993 was for five religious communities; Sikhs, Buddhists, Parsis, Christians and Muslims.
The Allahabad High Court verdict of 2010 attempted to provide a solution to the 125-year-old Ayodhya dispute by a three fold division of the property of the Complex. The majority decision gave the litigants—two groups of Hindus and one of Muslims, an equal share. The AM of 1875 finds explicit mention in the judgments. A year later the Supreme Court overturned this verdict. As it stands now, the four basic suits that make up the dispute in civil jurisdiction are being heard and argued in the Allahabad High Court sitting at Lucknow. In its destruction, the mosque leaves traces of its fading in law—it is almost as if the name, Babari Mosque, is a necessary condition for inscribing disappearance. Although after 1992 the Babari Mosque is not available as an architectural structure, its circulation in the High Court judgment is presupposed as the background of the judicial decision. This decision, in turn, rests on what remains in place of the mosque. In part what remains are ruins, but also in part, a re-imagination of Rama and the city.
The only way in which the Allahabad High Court decision admits the validity of Hindu claims is by acknowledging the tractability of mythic time in its proceedings. In this way, Rama and Ayodhya provide a counter to historic time and rules of evidence based on empirical detail, thereby exposing secular law’s insufficiency.
The cultural policing of the Indian community— under ‘Hindu vigilantism’ espoused by those religious zealots who pay allegiance to the RSS,—shows that India has certainly become a de facto ‘Hindu rashtra.’ The influence of the Sangh Parivar at the grassroots level is penetrated with the tacit support of the BJP-dominated state apparatus: while Hindutva forces may indulge in illegal actions, they are often viewed as the legitimate embodiment of majoritarian rule. And yet some of the liberal Indian mindset like Siddharth Varadarajan have rightly argued: “None of this should surprise us since we were never dealing with a civil dispute between litigants operating on a level playing field but a naked power play. One in which the political agenda of the ‘cultural’ Rashtriya Swayamsevak Sangh is not hidden and the biases of the Uttar Pradesh and Central governments are on open display.’’ As clearly shown in by the verdict, faith has the last laugh here. The main beneficiaries of the Supreme Court’s verdict are fundamentally linked to the main accused in the crime of demolishing the mosque.
Meanwhile, a five-judge constitution bench headed by Justice N.V. Ramana adjourned hearing of the case to Nov. 14, allowing the government to file a written response to petitions seeking the reversal of the decision to abrogate Article 370 of Indian Constitution that granted Kashmir special status. India’s top court has come under criticism for not giving priority to cases against the related decision to impose an unprecedented communication and movement lock down in Kashmir on August 5. Since 1952 the International Commission of Jurists ICJ has been performing a unique and prominent role as a nongovernmental organization (NGO) defending human rights and the rule of law globally. The ICJ should take into account the ongoing human rights violations, particularly, the violations of the minorities’ fundamental rights in India.
—The writer, an independent ‘IR’ researcher-cum-analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.