Role of Supreme Court in stemming rising communalism in India

By Prof Satya Narayan Misra*

The historian Bipan Chandra defined communalism as a byproduct of socio, economic phenomena. It appears when people try to combat socio economic problems without knowing the real reasons. For Ashis Nandy, the social theorist, communalism came as the evil byproduct of  secularism as the shadow delineating the limits of modernism. The shadow is especially evident, not amongst the elite but amongst the poor and the middle class, who bear brunt of it. Gandhi in Hind Swaraj wrote: “India cannot cease to be one nation because people belonging to different religions live in it. In no part of the world are one nationality and one religion synonymous figures; nor has it ever been so in India. For Dr Radha Krishnan: No one religion shall be given preferential status or unique distinction. Religious impartiality and forbearance have a prophetic role to play. No group of citizens should suffer any form of disability or discrimination because of his religion’ (Recovery of Faith: 1955). For Nehru, our past is a palimpsest where each successfully dominant culture, religion left its traces, never quite effacing what came before it.

Sunil Khilnani, an intrepid admirer of Nehru’s inclusive vision of India in his iconic book ‘Idea of India’  (1997) has observed that “the constitutional democracy has prevented monolithic outcome in India. It has stalled zealots in the tracks, penned demagogues to their corrals and taken wind out of popular sails. Democracy’s singular and astonishing achievement has been to keep India united as a political space. And that space has become a vast market place whose strength lies in its internal diversity and dynamism.

However, such a sanguine view of India’s democracy is not being corroborated by the ongoing rise in the arc of communalism in India. Sh Gopal Krishna Gandhi, a venerable liberal voice, in a recent edit in Hindu writes: The Hindu Muslim divide growing in to a new and menacing proportions is belittling our constitution, debasing its greatness and destroying its heritage of a shared peoplehood. ‘When the heart is hard and parched up, come upon me with a shower of mercy’, wrote Tagore. In these dystopic times, when communalism is on the rise Tagore’s plaint for mercy could not have been more timely as the courts are perceived as the last lamppost of hope, justice and empathy for the ordinary Indians who wear no religion on their sleeves; nor does gender, color, caste or ethnicity matter to them as they grapple with malnutrition, poor education, basic health care and an unaccountable apathetic nation state.

At the inauguration of supreme court, Shri Motilal Setalvad, our first Attorney General had expressed the hope that: Like all human institutions, the Supreme Court will earn reverence through truth. However commenting on the role of judiciary during the emergency years, Granvil Austin the famous jurist had observed: the judicial system has failed adequately to serve the social revolution strands of the web. The failure of the system to dispense speedy justice is because of the dilatory and self-indulgent process of which both judges and lawyers are guilty of. However, if one takes a long term view of Supreme Court judgement as a check and balance against executive and legislative excesses, the ADM Jabalpur case in 1975 when the majority of the judges agreed that right to live and liberty stand suspended during emergency has been a blot in its record of judicial independence. The lone dissenting voice was of Justice HR Khanna, who said: Detention without trial is an anathema to all those love personal liberty. Expanding further he said: Neither life nor liberty are bounties conferred by the state, nor did the Constitution created these rights. In the Putta Swamy case in 2017, Justice Kaul has rightly observed that the Jabalpur case has been an aberration of constitutional jurisprudence and the majority judgement in Jabalpur case is now buried ten fathoms deep.

The importance of the dissent in judicial decision was brought out by the highly respected Justice Ruth Baden Jamesburg of US Supreme Court, the first Jewish women to don the robes. In the Bush Vs Gore case where the majority of judges did not allow recount of vote in the state of Florida, writing the minority judgement she had observed that stopping the count of votes is a violation of three judicial principles: refrain from opinion of the state supreme court, just exercise of jurisprudence and peremptory exclusion of federal law. She also averred that the confidence of men and women in administration of judicial system is the true backbone of rule of law”. Fali Nariman in his book “Before memory Fades” writes that an “Impartial administration of law is like oxygen in the air. It is not enough for the judiciary to be independent of the executive. They must be seen to have noble quality of mind and heart and above all courage. And that courage of conviction was shown by Justice Khanna who knew that he will be superseded to the post of CJI for standing up to an absolutist government, which wanted a committed judiciary; albeit to the powers that be, rather than upholding the majesty of rule of law.

In an interesting edit today, in the Times of India titled “The Missing I in India” Raghuram Rajan argues that the present tendency of group identity viz Hindu vs Muslim, Dalit vs Brahmin would need to be supplanted by natural rights of individuals. That will make us Indian citizens who happen to be Hindus and Muslims. These are utopic ideas in these dystopic time. It is therefore of importance that impartial judges should adjudicate sensitive communal issues with the scalpel of a surgeon by taking stock of glissando facts with objectivity and impartiality. As the Supreme Court stopped the bulldozers from pulverizing the houses of poor Muslims in Laxmipur Kheri, the clear manifestation of state brutality with a minority bashing agenda has reared its ugly head again. Prof. Upendra Baxi, the renowned jurist had observed after the Keshabananda Bharati case in 1973, where inviolability of basic structure doctrine and judicial review as part of it was enunciated, that the Supreme court has now become “Supreme Court of Indians.” The time for the courts to arrest the canker of communalism and stop the heinous trend of bullying & butchering the poor, because they belong to a minority religious community has come.



Professor Misra teaches Constitution Law in KIIT School of Law.


DISCLAIMER: The views expressed in the article are solely those of the author and do not in any way represent the views of Sambad English.

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