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Legal tactics such as the PIL (Public Interest Litigation) have been used time and again as a prominent instrument in order to bring social change through the courts. They have often been used to fight for a particular social cause, benefit people or enhance social movements. However, what was meant to benefit society has gradually become a tool to serve the purpose of gaining and scoring political brownie points.
A series of petitions have been filed in various courts aiming to create discord and chaos in society via judicial channels. The judiciary, which has historically been criticised for remaining inaccessible to the poor, marginalised and oppressed communities, has further secluded itself and created a mistrust by allowing the use of PILs for pre-designed agendas.
The recent judgement by a local court in Varanasi to seal a certain part of a mosque is evidence of it. The two-decades-long Gyanvapi Mosque-Vishwanath Temple legal issue was reignited when another litigation was filed in 2019 saying, “Hindus are entitled to have darshan, perform rituals and pooja of Maa Srinigar Gauri, Lord Ganesh, Lord Hanuman and other visible and invisible deities within the Gyanvapi mosque.”
The court appointed a commission to take out a survey to probe the claims. On the basis of this direction, the court commission conducted a survey and claimed to find a shivaling. However, the caretaker of the mosque says what the commissioner found during the survey was part of the wazukhana (ablution tank) and not a shivaling or any religious idols. On May 16, the court ordered that the place where this purported shivaling was found be sealed. On May 20, the Supreme Court transferred the case to the Varanasi sessions court, directing it to stop ‘selective leaks’ in the case.
Similar petitions were filed in different courts, like one in the Allahabad high court seeking to open locked rooms and search for Hindu symbols inside the Taj Mahal.
During the Babri Masjid demolition, ‘kar sevaks’ took the law into their own hands and violated Section 144 to riot and demolish the mosque. The present case, pertaining to the Gyanvapi Mosque, is not the same. The law and judiciary have been approached as a means to create the groundwork to build communal tensions and delegitimise minorities’ claim to access their place of worship.
This raises many questions. Does it indicate that the people of India have finally developed a great respect for the rule of law, particularly in the matter of faith and religion? The immediate answer to the question is no. But instead, have people now begun to contemplate that the courts can be compelled and manipulated to give a favourable verdict or side with the religious belief of the majority community?
Firstly, a legal order or judicial verdict carries legitimacy. It can be more easily be defended, at least in the public narrative. An action – even if the objective is destructive – has to be validated by the law. Jacques Derrida (1992) says the law must not be just a law but it should be a ‘just’ law. In other words, it has to be accepted in the eyes of its recipients, otherwise it will lose its claim of legitimacy.
Secondly, such legal order and judgement carry the force of the authority of the state. “Law is always an authorised force,” to quote Derrida again. The state uses force to implement the law. However, the force varies in terms of the priority of the state. In an ‘ordinary’ matter – let’s say cases related to welfarism, where the state has to chart out programmes and allocate funds to ensure food, shelter, health, education and so on to its citizens – the state rarely acts expeditiously. However, cases such as the one on Gyanvapi immediately get the government’s backing.
Thirdly, there is a correlation between power and law. In India, as Upendra Baxi (1982) says, people see real power not in making laws, but breaking them. There is a lack of respect for the rule of law, not just among the lawmakers or guardians of the legal system but among the masses too.
Fourthly, rule-breaking by the powerful or dominant individual or community has a psychological impact on the masses. On the one hand, it gives the impression that it is hard or impossible to get justice if you are poor, oppressed and a minority. On the other hand, it puts the legitimacy of the legal institution like the court in question.
Finally, and most importantly, all these things in a larger way are related to cultivating what Dr B.R. Ambedkar called a constitutional morality, the supreme spirit to guide affairs of the state and its institutions, particularly dealing with the issues of liberty, equality, fraternity, secularism and democracy.
Violating the Places of Worship Act, 1991, which disallows the conversion of a place of worship and maintains its religious character as “it existed” on August 15, 1947, is neither about upholding the law nor about constitutional morality. Section 3 of the Places of Worship Act, 1991 states: “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”
Whenever such cases become a talking point, especially in news debates or on social media platforms, it reminds oppressed and marginalised groups that this nation is yet to fully establish ‘law and order’ in a real sense. In the Gyanvapi incident, a judgement has already been passed on social media, with users saying the structure found in the mosque is actually a shivaling. Many leaders from the ruling party have tweeted in support of the petition and welcomed the court’s decision to seal the place where the claimed shivaling was found. People who contradict this claim have already started facing the consequences. The tactics which are adopted in such cases – including ‘selective leaks’, as the Supreme Court put it – are well scripted.
In the US, the second half of the 20th century witnessed a number of people’s actions aiming to bring social change by mobilising the judiciary. The civil rights movement was described by Theodore J. Lowi (1971) as “law and disorder”, meaning social movements using the legal channel to bring social change. The Brown vs Board of Education (1954) case to end racial segregation of Black students, the Schultz vs Wheaton Glass Co. (1970) and the Corning Glass Works vs Brennan (1974) case that inspired the gender-based pay equity and the Roe vs Wade (1973) case which gave women the right to have an abortion are just a few of these.
However, what we witness in India at present is not “law and (dis)order” as defined above, to bring meaningful social change, but a “disordering of law” to create social unrest. Legal provisions are being used not to develop social harmony but to break it, not to generate community feeling but to harm it, not to establish social stability but to promote hate in the society, negate the very foundations of the legal system. With the courts wading into such uncharted waters, it can end up permanently damaging the fabric of the judicial system and breaking the confidence of the general citizens, who up until now have maintained absolute trust in the courts.
Impartiality and fair judgement should continue to remain in the edifice of the Indian judiciary, before all is lost.
Rama Naga is a research scholar at the Centre for Political Studies, Jawaharlal Nehru University, New Delhi. He can be reached at email@example.com.