Recent events in the country leave citizens wondering whether the Prime Minister can ensure his promise to the Nation, of ‘ Sabka Saath Sabka Vikas ’ (‘Together, for everyone’s growth, with everyone’s trust’). With one of the largest populations of Muslims in the world, India needs to tread carefully in its approach towards them.
Developments of concern
The race among States ruled by the Bharatiya Janata Party (BJP) to issue ordinances or bring laws against the so-called “love jihad” and the challenging if not provocative statements by some of their Chief Ministers, the latest happenings in Madhya Pradesh, and lopsided investigations into the Delhi riots must be viewed with concern by sensitive citizens.
Also read | Bombay High Court quashes FIRs against foreigners who attended Tablighi Jamaat congregation
Of greater concern has been the Nizammuddin Markaz episode (in the context of the novel coronavirus pandemic ) where many worshippers including several foreigners were arrested and jailed for no reason whatsoever as has now been pronounced by series of judgments including a powerful expression by the Division Bench of the High Court of Bombay, Aurangabad Bench in an order dated August 21, 2020 .
Contrast this with the “Namaste Trump” meeting attended by thousands of people between February 24-25, 2020 at Ahmedabad, and, separately, hundreds of congregations, religious, social and political, which were permitted during the height of COVID-19 in India. Were they not super-spreaders as well? Constitutional institutions, especially the judiciary, need to be on guard and pro-active in this regard.
Clearly, the BJP, the dominant ruling party at the Centre and in the majority of States in India, is paying no heed whatsoever to the warnings given by India’s greatest leaders, during the Constituent Assembly debates.
Comment | Has the Special Marriage Act failed to protect inter-faith couples?
Past advice still relevant
On November 4, 1948, Dr. Ambedkar had cautioned future India with these words : “... To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State... The other is that the minorities in India have agreed to place their existence in the hands of the majority... It is for the majority to realize its duty not to discriminate against minorities...”
Prime Minister Narendra Modi while laying the foundation stone of the Ambedkar Memorial in 2016 said , “Baba Saheb was guardian of Human Values” and that “... if you make a list of founding fathers whose ideas are most relevant today, Baba Saheb will be right at the top”. He added: “... the time has come when we must again strengthen the unity of our society and we can learn about this from Baba Saheb.” Yet, the Prime Minister maintains virtual silence even when citizens from the minority community are killed in the name of cow protection or jailed in the name of being COVID-19 and ‘love jihad’ spreaders.
Sardar Vallabhai Patel, another towering figure, and who Mr. Modi paid tribute to by giving the nation a statue of him, its tallest, in Gujarat, was the Chairman of the Advisory Committee on Minorities in the Constituent Assembly. On May 25, 1949, he presented the report of the said Committee, and in his speech had these poignant words for future India, “... It is not our intention to commit the minorities to a particular position in a hurry. If they really have come honestly to the conclusion that in the changed conditions of this country, it is in the interest of all to lay down real and genuine foundations of a secular State, then nothing is better for the minorities than to trust the good-sense and sense of fairness of the majority, and to place confidence in them. So also it is for us who happen to be in a majority to think about what the minorities feel, and how we in their position would feel if we were treated in the manner in which they are treated. But in the long run, it would be in the interest of all to forget that there is anything like majority or minority in this country and that in India there is only one community....”
Yet, Mr. Modi, as the undisputed leader of the BJP, does little to follow the sound advice of the Iron Man of India and reassure the minority community.
Even Dr. Syama Prasad Mookerjee on December 17, 1946 declared , “...We shall go ahead with our work in spite of all difficulties and obstacles and help to create that great India, united and strong, which will be the motherland of not this community or that, not this class or that, but of every person, man, woman and child, inhabiting this great land, irrespective of race, caste, creed or community, where everyone will have an equal opportunity, an equal freedom, an equal status so that he or she could develop himself or herself to the best of his or her talents and serve faithfully and fearlessly this beloved common motherland of ours.”
Undisputably, the BJP and other respectable organisations supporting it have treated Dr. Mookerjee with great adulation and rightly so. Yet, the BJP, the governing party, is following a path different from the one he envisioned.
A blow against rights
Laws in the name of stopping ‘love jihad’ strike at the very basic principles of human values and the fundamental rights. Nobody can justify forceful conversions but when two adults fall in love, it can never be equated as such. ‘Jihad’ has been defined in the dictionary as “religious warfare or a war for the propagation for the defence of Islam” or “a campaign or crusade in some cause”. Some of the most respected Indians from all walks of life — judges, lawyers, politicians, artists, bureaucrats, men in uniform belonging to both majority and minority communities — have fallen in love and married. It has been happening for centuries. To regulate it in the garb of stopping forced conversions is to strike at the very freedom of conscience that citizens possess.
Also read | Supreme Court to study anti-conversion laws of Uttarakhand and U.P.
Judiciary’s path
Sadly, even the Supreme Court of India did not credit itself well when in August 2017, it asked the National Investigating Agency to examine the marriage between two adults , Hadiya and Shafin Jahan. Pertinently, the Bench comprised the Chief Justice of India, J.S. Khehar and Justice D.Y. Chandrachud. Ultimately, the young lady appeared before the Court and confronted the judges by professing her love for the man she had married, compelling the Supreme Court to set aside the judgment of the High Court which had annulled their marriage, and allowing the happy couple to be united. But in the interregnum, the legally wedded wife was kept away from her husband under the protection of paramilitary forces. This was the seed that was sown in the country to justify so-called ‘love jihad’ .
Political footprints were made and many who were associated with the case were conferred benefits by the BJP government. Sadly, some of us lawyers, who appeared for the hapless husband were targeted by the government by instituting an inquiry through the Ministry of Home Affairs and the Income Tax Department.
The Supreme Court has decided to examine the validity of the laws on ‘love jihad’ but declined to protect citizens being arrested and jailed under them. The laws on ‘love jihad’ are draconian. The words of Justice Hidayatullah must sound a warning bell, “…If a halt is to be called, we must declare the right of Parliament to abridge or take away Fundamental Rights. Small inroads lead to larger inroads and become as habitual as before our freedom was won. The history of freedom is not only how freedom is achieved but how it is preserved. I am of the opinion that an attempt to abridge or take away Fundamental Rights by a constituted Parliament even though an amendment of the Constitution can be declared void. This Court has the power and jurisdiction to make the declaration.”
Let us hope the Court does not put this case also in cold storage as it has done with many cases which the Executive may not want to be heard. Since 2014, the Executive has had an almost total approval by the Court of all its Executive actions, the latest being the Central Vista case. One can only wonder: does the government ever falter?
The Supreme Court, which showed great alacrity in staying the implementation of the Farm Laws , ostensibly to save the lives of innocent people, failed to stay the implementation of the Citizenship (Amendment) Act , resulting in avoidable violence that caused the deaths of many innocent citizens and damage to properties worth crores. Many people are languishing in jails following violence. What should a citizen make out of this selective administration of justice by the highest court of the country?
India needs to move forward and the present government has a great role to play here. It does not need such distractions, even for political mileage. The ruling party is firmly in the saddle and can continue its popularity with development and progress.
Let us hope and trust that we can together re-affirm ‘Sabka Saath Sabka Vikas ’.
Dushyant Dave is a Senior Advocate at the Supreme Court of India and currently the President of the Supreme Court Bar Association. The views expressed are personal
