It is a sign of the times that a recent watershed judgment of the Supreme Court – one that, in my view, ranks alongside the Kesavanand Bharati determination of 1973 pertaining to the “basic structure” of the constitution – should have gone largely unnoticed and unremarked by our newspapers, barring the Indian Express, which thankfully led with the story on February 27.
No TV channel, to the best of my knowledge, made mention of this, let alone took it up for prime debate.
Contrast that with the 2022 judgment which chastised Zakia Jafri, widow of the slain former MP, Ehsan Jafri, for her plea that the Gujarat killings of 2002 be revisited to examine the role of the then chief minister of that state.
Zakia’s co-appellant, Teesta Setalvad, was hauled over the coals for seeking to keep the pot “on the boil” as part of a nefarious “conspiracy”.
This latter judicial pronouncement has in recent days been widely propagated by the right wing to trash the findings of the much-maligned BBC documentary on those killings.
But the reaction to the more recent judgment rejecting a petition seeking to restore the ‘original’ (sic) names of entities that were renamed by “barbaric invaders” remains muted; even those who continue to be anguished about the state of constitutional democracy in India seem to have passed over the systemic significance of what Justices K.M Joseph and B.V Nagarathna have had to say in the matter.
The petition in question was filed by advocate Ashwini Upadhyay, who also happens to be a BJP leader.
Upadhyay was, at the conclusion of the hearing, disallowed the option of “withdrawal” of his petition, which was then formally “dismissed.”
Rarely, perhaps, have judgments of the top court been accompanied by such telling obiters as this one.
Not unless those enunciations made by the learned judges are taken into full account may we quite understand the ideational and constitutional contours which informed the dismissal of the Upadhyay petition.
Listen to a sampling of what the judges said:
“the country cannot be a prisoner of the past, and the court should not be an instrument to create havoc”;
“India is a secular state, and this is a secular forum”;
“there is no space for bigotry in Hinduism”;
“you want to keep the issue alive, and keep the country on the boil”;
“fingers are pointed at a particular community; you want to run down a particular section of society”;
“Hinduism is a way of life; because of that India has assimilated everybody; because of that we are able to live together”; (Caveat: it is another matter that the Hindutva ideologues think that, having been so assimilated, all non-Hindus must now consider themselves to be Hindus.)
“Divide and rule policy of the British brought about schism in our society; let us not bring that back”;
“India is wedded to the rule of law, secularism, constitutionalism of which Article 14 stands as a grand guarantee of equality and fairness in state action”;
“the guiding principle of fraternity again enshrined in the Preamble is of the greatest importance.”
Needless to say, this collage of averments is an enunciation of the secular-constitutional pluralism which drove the freedom movement and rooted the democratic republic in a sacred adherence to the equality of citizenship and rights.
More wisely, and in line with the best insights of the world’s most noted historians, the court has underscored the reality that any spaces where people live in the present are layered by epochs of historical making and unmaking. Those societies which best assimilate that richness of layering succeed the most in operating republican democracies.
In our own case, for example, it was Man Singh, a Rajput, who fought Maharana Pratap, another Rajput, on behalf of the Moghul king, Akbar at Haldighati; Shivaji had huge numbers of Muslims in his army, gave Afzal Khan a state funeral, and sanctioned money for the upkeep of his tomb, and behold, the reviled Aurangzeb gave many grants and lands to Hindu temples, as and when, like any other ruler of any denomination, it suited his realpolitik.
Communal historiography does not explain why Hindu kings raided Hindu temples to collect war trophies, and so on.
The mischievous fallacy of course has been to equate a Gupta dynasty with Hindu rule, the Sultans and Moghuls with Muslim rule etc., where the facts suggest that all rulers pursue class interests that leave the impoverished of any community to fend for themselves, even as they are often misguided by calls to religion.
This was true of British colonial rule, and it is true of class-rule in India today. And so on.
In a more exclusive academic space, it could be argued that the past of any country is never as black and white as extremists tend to propagate; and that all such propagations are actually less concerned with the past and more with justifying some particular form of present and future that extremists wish to make.
For now, the purpose here was primarily to jot down the landmark observations made by the honourable judges in the renaming case, so that, hopefully, those that just renamed the Mughal Gardens, no less, (as if to erase Moghul-ruled portions of our history) may chew on the wisdom of the Supreme Court, which they often cite when it suits their purposes, and halt the agenda to recast India’s plurality into a coercively dull and false uniformity.
The disasters that can continue to fester as counters to grab-it-all totalitarianism can be seen in the unresolved contentions in Kashmir, the Northeast, even the deep south, and now the rebirth of revanchist trends in Punjab.
Not without true fraternalism and a willingly embraced and operated federalism may so large and diverse a country as India be expected to flourish.
What the ruling right-wing needs to recognise and accept is the fact that if we excised Muslim contributions to the cultural and professional attainments of India, that is Bharat, we would be a tragically impoverished society.
Badri Raina taught at Delhi University.