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I practice law and I have, on occasion, been asked whether I believe that the Indian judiciary is autonomous. It is a disconcerting question. But I do believe that the Indian judiciary is autonomous systemically.
In fact, the judiciary is not only independent, but also quite insulated. It is even sequestered from within, such that different courts in the hierarchy appear to be shielded from each other.
Take for instance the lower court that considered Umar Khalid’s bail application and then rejected it.
The yet unexamined allegations before the lower court, taken at face value, accuse Khalid and his ‘co-conspirators’ of having deliberately mobilised Muslim protestors, after suggesting to them that certain policies of the present government were discriminatory and must be challenged on the streets. There were other participants at the street protests, but they were brought in only to provide “secular cover, gender cover and media cover” to the ‘Muslim critical mass’.
The ‘conspirators’ sought to slowly escalate the protests and embarrass the government, inconvenience commuters and residents by blocking thoroughfares, and disrupting supplies. They ‘conspired’ to provide to Muslims an articulation of their grievances, and a methodology for its articulation. In creating, a ‘critical mass’ of Muslim protestors they communalised the political space and excited violence.
The lower court judged that these allegations in themselves made out a prima facie case of ‘terrorism’ on the part of the protest leadership. It thus kept itself completely insulated from the reasoning of the higher Delhi court, which laughed away exactly similar allegations against certain other leaders in the same chain of events.
The Delhi high court was dealing with a petition, which sought the filing of ordinary criminal cases (as opposed to anti-terrorism ones) against certain leaders of the ruling party, who had created an alternate ‘Hindu political mass’ in juxtaposition to the ‘Muslim protestors’. The former have not been identified thus in popular discourse, although the prosecution in Khalid’s case repeatedly refers to the latter, rebuked protestors as ‘Muslim critical masses’. I am choosing to call them that since they were mobilised in response to the impliedly Muslim protests.
The protests were painted as being false, fabricated, funded by external agencies and internal dissenters to disturb the government, and therefore prima facie ‘anti-national’.
The counter protest on the other hand, was presented as a natural ‘nationalist response’, which sought to clear the streets (and political discourse) of anti-nationals. The organisers, amongst whom was at least one minister of state, and another sitting Member of Parliament, had consistently, over days, raised incendiary slogans against the ‘traitors to the nation’.
The Delhi high court did not see any threat in the mobilisation.
It said, almost in a ‘stream of consciousness’ kind of manner:
“Suppose you have said something just for creating mahaul (atmosphere) and all this, I think there is no mens rea because some other political parties say something else. Everybody is addressing their constituencies and mobilising their constituents. That speech has been done for the purpose of mobilising the constituency. If you’re saying something with a smile then there is no criminality, if you’re saying something offensively, then criminality. Because we are also in a democracy…you also have the right to speech and all these things.”
According to the higher court, there is place in our vibrant democracy for political and social mobilisations, but the lower court inexplicably thinks that the same acts constitute a terrorist offence.
We are left no wiser as to why ‘Muslim critical mass’ is a dangerous thing, while ‘Hindu political society’ is only a corrective.
It must be said that the Delhi high court bench too has kept itself away from evolving jurisprudence and a line of judgments of the superior court.
The Supreme Court has clarified in the case of Pravasi Bhalai Sangathan v. Union of India (2014) that the harm done by hate speech is not measured by its offensive value alone, but rather by how successfully and systematically it marginalises a people: by dubbing them ‘anti-nationals’, by delegitimising their grievances as motivated (and externally funded) and by colouring their mobilisation as dangerous activity. Such speech that excludes people from political and social spaces is not democratic. In fact, it causes a ‘democratic deficit’, because it labels dissenters as ‘anti-nationals’ and therefore outside of acceptable political discourse.
The Supreme Court has also categorically held that discriminatory or inciteful speech by a minister of state for instance, is much more potent and harmful than extreme or distasteful speech by lesser leaders. (Amish Devgan v. Union of India (2020). The riling speech by a minister of state that the Delhi high court may condone, would qualify as hate speech according to law laid down by the Supreme Court of India.
How is it that even in autonomous systems the less privileged always draw the short straw?
Judicial reasoning very often involves subjective assessments, and judges often interpret and understand facts on the basis of perceptions, and social and political views (‘should essential services be privatised?’, ‘why did the prosecutrix not look disheveled and distressed in the aftermath of an alleged sexual assault?’, ‘why should Muslims have any real grievances in this country?’).
In a court of law, one is not always arguing on first principles, but also trying to explain, or circumvent, firmly held opinions outside the realm of black letter law.
At least some perceptions are formed from lack of familiarity. How would any ordinary judge know why Muslims feel besieged and pained? On the other hand, he does hear often about how they are disloyal and never happy; how the security agencies are battling constant threats from outsiders waiting to exploit the situation.
The courts are autonomous in that they certainly do not take orders from the executive. And often enough (but not always), they are autonomous in their reasoning too, when they rise above their own commonly held perceptions and give a ruling that might run contrary to it.
But to return to the present matter of the lower court’s rejection of Khalid’s bail, it is difficult to critically examine the judicial reasoning employed. There is simply not enough of it.
Gautam Bhatia in his inimitable style has called the court the prosecutor’s stenographer, for it diligently records every improbable allegation, in all its nasty detail. But even in that record, the court’s lack of familiarity with the accused subjects is startling.
The court records an apparently revealing Facebook post that says “La ilaha illallah; Muhammad –ar- Rasululullah”, and then proceeds to explain that the phrase means that the Law of Allah is above all and its usage is evidence of the Muslims’ plotting against secularism, democracy and nationalism.
I laughed out loud when I realised that the conflation of the phonetically similar Arabic ‘La’ with ‘law’ had given it a new meaning altogether. The phrase is actually the first and most common of the six Kalmas (or traditions): it literally means ‘there is no God but God, and Muhammad is his messenger.’
Metaphorically, and in a manner that most people understand it, it means “don’t create false material gods out of wealth, or power, but believe in a moral imperative, the transcendental God. This was Muhammad’s message.”
It does not challenge democracy.
In another passage where the court dutifully records prosecutorial allegations, the same lack of familiarity and lingering suspicion is on display:
“There are two other important factors which were highlighted by counsel and which need a mention. First is the idea of chakkajam as used normally in the country.
“However, a look at the speech of Sharjeel Imam on 13.12.2019 at Jamia University reflects that chakkajam is envisaged as part of a plan of action. There is a reference of Muslims Students of JNU followed by the desire to do chakkajam in as many as 50 cities in India where Muslims can do it.
“However, when chakkajam or blockage is used in the normal course, the main object is to highlight the point of protest with some inconvenience that might be caused as a result of it. What is different here is that chakkajam is desired with a certain goal. (emphases mine)”
The court tries, quite unsuccessfully in my view, to distinguish ordinary chakka jam calls from Muslim ones.
The first is done to highlight an issue, while the latter is done with a certain goal!
The court is convinced that the ‘Muslim critical mass’ has no real grievances, only ulterior motives, and is out to create trouble. The prosecution has of course provided speeches and messages, in all their nastiness, allegedly attributed to Khalid and his ‘co-conspirators’, which seek to buttress their case, that there was indeed an ulterior motive.
Incidentally, the Supreme Court has held in Amish Devgan (supra.) that those with the most serious grievances sometimes say the most politically incorrect things.
“Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. This is recognition of the denial of dignity in the past, and the effort should be reconciliatory.”
But here again, subjective views on history, or politics, may unselfconsciously employ themselves as tools of analysis: what history of deprivation do Muslims have, that pampered minority? This principle does not refer to them.
The court has taken the view that the anti-terrorism law, the UAPA, does not give much leeway to the lower courts, when deciding bail. It can only grant bail if no prima facie case is made out. Therefore, with respect to most allegations, even if unbelievable, the threshold is not their veracity, but what might happen if they were presumed to be true at this stage. The defence has the right to refute their veracity only at the stage of trial.
But this court has convinced itself far too easily of the existence of a prima facie case.
The allegations, even if assumed to be true, allege that Khalid and ‘co-conspirators’ created a political movement, having supplied people with political issues and political tools. However, creation of political issues and consequently a political community is a democratic right. The prosecution case hence tries to distinguish this mobilisation as being different for being ‘motivated’. The court, for its part, does not examine the thesis that ‘Muslim critical mass’ is necessarily anti-state, and an aberration, while ‘Hindu critical consciousness’ is a nationalist correction.
Consequently, the arc of violence is drawn from the point that the ‘Muslim’ protestors got together, and not from the point of counter-mobilisation in order to teach the ‘traitors’ a lesson. The responsibility for counter-mobilisation is also to be borne by the Muslim protestors, for they must have known and conspired to trigger the counter-mobilisation, by articulating ‘Muslim’ political concerns in the first place.
In addition to being politically problematic, the prosecution case is legally untenable. I am curious to understand how criminal liability for the entire violent episode has been put on the accused protestors as provocateurs of violence caused by others.
Incidentally, in all the prosecution’s case, there is no straight answer to the question: who was in fact excited and who caused violence?
The court doesn’t ask it either.
It must be said that the constitutional court has examined the peculiar idea of the ‘Muslim critical mass’ and ‘confrontation through protest’. They have granted bail to protestors while hearing their appeals against rejections by the lower courts, and implicitly disregarded the prosecution’s prima facie case. But why are the constitutional courts not able to hear the case comprehensively and consider whether there has been an illegal inversion of liability for violence, from the hecklers to the dissenters?
There is probably a very mundane reason: they are just too busy to put their heads up from the staggering pendencies. The routine matters take up a lot of time and energy.
Also, this case seeks to primarily establish certain political communities as dangerous and unacceptable per se, and therefore criminal in themselves. It pushes forth a new political norm. To take suo motu notice and decide this case out of turn would require significant mind space.
Shahrukh Alam is a lawyer practising in New Delhi.