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The Mohammad Zubair and Nupur Sharma episodes have made it absolutely clear that all it takes for a Muslim to be arrested in India is an anonymous complaint; while a Hindu rabble-rouser and instigator will not only escape arrest, but also be given police protection.
Notwithstanding the scathing comments made by the Supreme Court, Sharma continues to be free while Zubair is behind bars for a satirical tweet of a still from an old Hindi movie. The episode should clear misgivings, if any, about the demise of the rule of law in India, especially if one belongs to a minority community; particularly Muslims.
The portents of this demise have been evident to discerning eyes since the middle of last decade, which coincides with the beginning of the reign of present Bharatiya Janata Party (BJP) regime that had tried and tested it in its ‘Gujarat model’.
That all pillars of democracy, including the fourth – the media – are complicit in this state of affairs, is extremely worrisome.
The executive, through its blatant misuse of democratic institutions, is the main perpetrator of this lawlessness. The police and other law enforcement agencies have become handmaidens of the ruling party.
The police, in any case, has never been a friend of the weak and downtrodden; those who are bereft of political patronage. It is only the rare policeman who believes in the rule of law. Custodial torture, disproportionate use of force and misuse of the law to set up innocents has been common practice of a police which continues to behave like a ‘force’, raised by the British to suppress the Indian masses and serve their colonial interests.
Notwithstanding the shadow-boxing of ‘police reforms’ that some retired senior police officers have been indulging in, they have failed to exercise initiative within their jurisdiction and convert the police into a ‘service’, like the one the British had – and continue to have – in their country. As a result, the faith of the common public, especially India’s largest minorities – the Muslims – in the police has totally vanished because of their openly partisan behaviour.
The openly hostile behaviour of the police has been evident in several recent incidents, like the ones at Jawaharlal Nehru University (JNU), Jamia Millia Islamia (JMI) and Aligarh Muslim University (AMU) in 2019; the Delhi riots of 2020; and recent protests after the Sharma’s vitriol against Prophet Mohammad.
The police openly sides with Hindu majority rioters/crowds and joins them in throwing stones at Muslim rioters/crowds instead of trying to contain the situation. Not only this, the Delhi Police was brazenly breaking CCTV cameras to destroy evidence of their high handedness and complicity. They were caught on camera torturing Muslim youth and forcing them to sing National Anthem, resulting in death of one youth, Faizan.
The police, especially in BJP-ruled states, has totally abandoned even the pretence of impartiality and adherence to the law. With ‘thok do‘ (beat them) culture being given legitimacy through public utterances of a chief minister and the view that rioters can be “identified by their dress” being expressed by no other than the Prime Minister himself, the inherent biases of police personnel have come to the fore, manifest in their cruelty and the cropping up of ‘encounters’ – a euphemism for custodial killings – across the country.
The ‘encounter specialists’, earlier confined mostly to Bombay (now Mumbai) and thereabouts, have now sprung up all over the country and alleged criminals are being ‘encountered’ with impunity. The adulation received by these encounter specialists from the common man spurs them to further violate the law with impunity.
The indictment by the Supreme Court-appointed panel of the encounter killing of alleged rapists by the Hyderabad Police is a rare phenomenon where conscience has prevailed.
Selective application of the law
Several instances can be quoted of the selective application of the law by the police on the basis of the religion and political leanings of an individual.
A Muslim comic spends over two months in jail for an offence which he was “presumably” intending to commit – “trying to denigrate Hindu Gods”; several honest journalists and activists are in jail without trial or even bail. Yet, the likes Yati Narsinghanand, Nupur Sharma, Kapil Mishra Anurag Thakur and many more continue to roam free and are treated with kid gloves even after calls like “goli maro saalon ko” (shoot the traitors) or open calls for taking up arms to eliminate minorities.
These are not isolated cases. While Muslims and political opponents of the BJP are charged with offences under the draconian laws of sedition, Unlawful Activities (Prevention) Act (UAPA) and the like to prevent them from even getting bail; or are subjected to swift ‘bulldozer justice’, those who lynched Mohammad Akhlaq and those accused of many such mob lynchings, continue to roam free.
The arrest of fact-checker Mohammad Zubair, who relentlessly busted the false propaganda of the ruling party and, in fact, the propaganda of all political dispensations, is one such example of partisan behaviour. Another is the arrest of the activist Teesta Setalvad, arrested for daring to expose the complicity of powerful people in the Gujarat riots. The fact that she helped hundreds of victims of the Gujarat pogrom and succeeded in getting convictions in more than 50% cases, did not deter the authorities – and even Supreme Court – from accusing her of “running a campaign to keep the fires burning”.
There is no longer even a veneer of fair play in the deployment of institutions like the Central Bureau of Investigation (CBI), the Enforcement Directorate (ED), the National Investigation Agency (NIA) and the like against political opponents, who are then given the option of automatically dry-cleaning all their sins if they chose to join the ruling BJP.
The executive overreach gets further fillip by the apparent surrender of the second pillar – the judiciary – to the executive, notwithstanding the public pronouncements by several judges appealing for the rule of law.
The judiciary is repeatedly failing the masses, either through decisions which appear to defy logic and common sense, or by deferring important matters indefinitely so they lose their relevance.
The Supreme Court, which should have nipped the Gyanvapi mosque issue in the bud by deciding it on basis of the Places of Worship (Special Provisions) Act, 1991, in its wisdom, decided to refer the case to Varanasi district court to decide on its admissibility. This in spite of the fact that top court itself had decided, in the Ayodhya case, that no future claims are to be entertained and the above Act is part of the basic structure of the constitution.
The result is a flood of claims by Hindu fundamentalists that several mosques and places of historical importance were originally temples. These claims include the ones on the Qutub Minar and Taj Mahal.
The highest court in India continues to defer hearings on several important cases, like the ones on Pegasus, electoral bonds, Article 370 and so on. The same court, which was very keen on the early finalisation of the contempt plea against Prashant Bhushan before a particular judge retired, has not once taken up the contempt petition against Narsinghanand, even though several months have elapsed after permission was granted by the Attorney General.
The adverse comments by Supreme Court against Setalvad and retired additional director general of police, R.B. Sreekumar, in the order dismissing the plea by Zakia Jafri against the clean chit given to Prime Minister Modi by the SIT in the Gujarat riots case, were totally uncalled for, to say the least, and has presented the government with a fresh opportunity to victimise them.
It is worth mentioning that Setalvad has been standing like a rock with the victims of 2002 Gujarat pogrom. It is her thanks to her unrelenting effort that a large number of perpetrators of atrocities during the riots have been convicted.
Further, the court’s order upholding the Maharashtra governor’s order directing the state government to prove its majority while the case of the disqualification of rebel Sena MLAs was pending with the same very court was, to use cricketing terms, akin to the on-field umpire ordering the resumption of a game while an appeal for stumping against the batsman was pending with the third umpire.
This malaise permeates all levels of the judiciary. Lower courts either do not hear the bail pleas of people like Umar Khalid and Sharjeel Imam and many others, or defer the hearings repeatedly on one pretext or the other. As a result, these accused continue to languish in jail.
A discerning eye can clearly see that the charges against these people are fabricated and proceedings would ultimately lead to their acquittal, but the judiciary refuses to see that. Also, the legal cases filed against these individuals are filed under such laws and sections that in many instances, the court’s hands are tied and “the process itself becomes punishment”.
Coming back to Zubair’s case, the executive’s influence over the judiciary was starkly evident when the Delhi Police reportedly publicly announced the court’s order hours before the order was actually pronounced.
The unwillingness of the courts to err on the side of caution perhaps emanates from a desire to not offend the powers that be. This may, at times, emanate from a fear of some skeletons in the closet, such as a retired Supreme Court Justice, serving as the vice-chairman of the SIT on black money, himself under-reporting his income by Rs 1.06 crore and taking resort to voluntary disclosure scheme to avoid prosecution.
Similarly, the example of former Chief Justice of India (CJI) Ranjan Gogoi presiding over his own case and his nomination as a MP after his retirement also does not inspire confidence among general public.
To be fair, some orders, such as the scathing oral remarks by the Supreme Court in Nupur Sharma’s case on July 1, give rise to hope that things are not beyond redemption. However, these instances are few and far between.
It would be good if judges, instead of serving platitudes about the sanctity of the Constitution and rule of law in public forums, spoke through their judgments. These public utterances are having a negative impact on institutional integrity, leading to public cynicism. Their work must match their words.
When it comes to the third pillar –the legislature – the less said the better. Parliament has been made redundant over the last eight years. The BJP government doesn’t seem to believe in discussion and consensus. Laws have been promulgated through the ordinance route in as many as 76 cases during the seven years from 2014-2021; compared to the 61 in the ten years of UPA rule, from 2004-2014.
These ordinances are then passed without effective discussion in Parliament, through orchestrating disruptions. Hardly any legislative proposal is put through the process of public debate or discussions in Parliamentary committees and the result is half-cooked legislations which then have to be put subjected to several amendments.
Prime examples of this are the much touted Citizenship Amendment Act (CAA) and the three contentious farm laws. These laws led to prolonged agitation which culminated in the withdrawal of farm laws and Union government’s failure to notify rules for the CAA, even after three years.
The government is not averse to subterfuge and bypassing established procedures, as was done in the case of the Aadhaar law, by getting it certified as a ‘Money Bill’ when the government found it didn’t have requisite majority in the Rajya Sabha to get it passed.
Several measures having huge ramifications, like the amendment to Article 370, the enhancement of the jurisdiction of the Border Security Force (BSF) in bordering states and so on were introduced in Parliament without adequate notice and while ignoring the demands of the federal structure of our country.
The haste and secrecy with which measures like demonetisation, the countrywide coronavirus lockdown and the like were implemented has brought immeasurable misery to the common public. The fact that the ramifications of these actions were not analysed properly is apparent from the subsequent amendments that had to be resorted to on a daily basis.
The recently introduced Agnipath scheme has already seen a few amendments and there is a real danger of it compromising the combat effectiveness of our defence forces. Wider discussions and a pilot project, say in the Territorial Army or Rashtriya Rifles, would have gone a long way in fine-tuning the scheme.
Further, a scheme of such importance vis-a-vis national security was never discussed in the Parliamentary Committee on Defence, whereas the then Chief of Defence Stadd (CDS) deemed it fit to bring the minor issue of a change in defence uniforms before the committee.
The government and treasury bench members of different Parliamentary Committees have successfully stalled many discussions on important matters, such as the breach of national security through the use of Pegasus and the use of Facebook for advancing the agenda of a particular political party.
The fourth pillar – the media – is no better than the other three. Most of the mainstream media, instead of asking questions of the government, asks the opposition about what happened in the past 70 years. The media has abjectly failed to raise issues concerning the masses. Inflation, unemployment, poverty, education and so on are of no concern to it and it continues to focus on its divisive communal agenda.
A recent report suggested that a disproportionately large percentage of the discussions held by prominent TV channels pertained to religious issues. Only one or two media channels can really be said to be independent.
Anchors and journalists behave like trolls and do not give adequate air time to view opposing those of the government. Fundamentalist views, especially those of Hindu fundamentalists, are allowed to be broadcast unhindered. The Nupur Sharma episode arose out of just one such debate where the anchor did not deem it fit to stop her from making the vitriolic statement.
The Supreme Court is right in condemning the now-suspended BJP spokesperson as well as the anchor and the channel concerned. The chain of events triggered by her imprudent statement do not bode well for the communal harmony and the well-being of this great nation of ours.
The fact that there is large public support for doing away with due judicial process for alleged criminals and for the public delivering justice unto them, especially if the crime appears to have been committed by a person of the Muslim faith, is indicative of a breaking down of societal norms.
That a large percentage of public openly supports the divisive agenda of party in power and openly advocates for Muslims and their supporters to go to Pakistan is a stark indicator of the extent of hatred prevalent in the society.
India now stands at the precipice and can only go downhill, unless we as Indians collectively take immediate corrective measures by defeating the forces advancing this communal agenda. Failing this, the demise of the rule of law and democracy in this country is imminent.
Sanjiv Krishan Sood retired as additional director general, Border Security Force.