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India’s Muslim clerics and the academics are apprehensive—and, have expressed their grief. Does the ongoing political unrest, and emerging chaos in the capital city Delhi, signal an end of to the ‘sabr’ (patience) of the Muslims, who are spread across the length and breadth of the country? Perhaps, the newly introduced ‘citizenship’ law may have provided the trigger for Friday’s ‘unprecedented’ protest, at the capital city’s Jama Masjid, participated by a mammoth gathering of the faithful.
What is the next available option for today’s 200 million grieving Muslims, who feel they have reached the limits of hopelessness? Perhaps for a vast majority, this has marked the end of their connection with secular India. This could be a forlorn warning for the rest of the country, that protests against the controversial law, will only intensify in the coming days.
The response of the State machinery and judiciary, to the protests against the Citizenship Amendment Act has cast a serious question on the rule of law in the country, which is guaranteed under Article 14 of the Constitution. The State’s action has been disproportionate and excessive, where there are frequent internet bans and violence is meted out to the protesters while the Supreme Court seems to be reluctant to protect people’s core fundamental rights.
The State has resorted to excessive measures in clamping down on the protests. In Jamia Milia Islamia, the university’s Chief Proctor reported that the police forcefully entered the campus when they had no permission to do so. Further, the State has sought to muzzle the voice of dissent by banning internet facilities in several parts of the country, including Assam, Aligarh, Mangaluru and other parts of the country and in parts of the national capital.
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The instant response (or reaction), has short-circuited the legal and constitutional procedure for doing so. Section 144 prohibitory orders have been imposed in several parts of the country and peaceful protesters have been detained despite there being no potential threat from them. The imposition of Section 144 in Bengaluru, where peaceful protesters at Town Hall were detained without any cause, is one such example.
The unfortunate events have serious are likely to have adverse implications for substantive due process, that draws its legitimacy from a legally aware public. Let us not be shy of the reality: the voice of the people needs to be heard and factored in better to strengthen democracy. Any instances of violence and legal violations need to be dealt with in the manner and procedure established by law rather than by illegally storming into university campuses and libraries. When the government observes the rule of law, only then will the public have faith in the government and enforcement machinery.
Rule of law is part of the basic structure of the Constitution. Not long ago, in the matter of opinion, (SP Gupta vs Union of India), the Supreme Court had observed that “the rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of power by the State, whether it be the Legislature or the Executive or any other authority, should be within the constitutional limitations.” Is the rule of law is an inherent part of Article 14 of the Constitution, not inherent?
To the students of law, let me remind that British jurist AV Dicey conceptualized the rule of law based on three propositions:
the absence of discretionary power in the hands of governmental officials;
that, no person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the courts of the land; and further, that rights of the people must flow from customs and traditions of the people recognized by the courts in the administration of justice.
All this has implied that the government machinery should not use power arbitrarily or excessively. Doing so is antithetical to the rule of law. Again, the
Rule by/under law, on the other hand, confers unlimited power on the sovereign. It is based on the idea that the ‘King can do no wrong.’
This particular system of law means that the sovereign can do anything and the sovereign itself is not subject to legal scrutiny. It confers unbridled power on the State machinery vis-à-vis the citizenry.
The Supreme Court had been quite reluctant to interfere in the matter. When the matter was brought up for urgent hearing, Chief Justice of India SA Bobde has observed that violence must stop, else the Supreme Court would not hear the matter. It is pertinent to note that Article 32 of the Constitution, under which the petitioners approached the court, confers citizens a right to be heard for the enforcement of fundamental rights irrespective of any external factor. Babasaheb Ambedkar famously remarked that Article 32 was the ‘heart and soul of our Constitution.’
The Supreme Court attaching a prior condition is against the very Constitution that the court has been created to protect. Upon taking up the case, the Supreme Court refused to intervene and asked the petitioners to approach the High Court, saying that the latter was free to
constitute a panel of retired High Court or Supreme Court judges to investigate the matter.
As students who believe in judicial pry, the approach of the highest court is diametrically opposite to its activist approach. Do we remember In the Hyderabad fake encounter case, the Supreme Court had stayed the matter before the High Court and took cognizance of the case, ‘suo moto’. It ordered a judicial inquiry into the matter by a former SC judge. It is incomprehensible why the Supreme Court did not extend the same protection to the present case, which poses a greater threat to the fundamental threads that hold the country together.
However, this is not the first time that the Supreme Court has done so. Recently, a few women had also approached the Supreme Court seeking protection for entry into the Sabrimala temple. The CJI refused to entertain the matter because it deemed— that was an ‘emotive issue’, even though the court had remarked that the law was on the side of these women. Was this not the duty of the court to order the State to provide protection to these women, who had a rightful claim to it?
I feel that pertinent to note Ambedkar’s exhortations during the Constituent Assembly Debates that democracy is only the top-dressing on Indian culture which is essentially undemocratic. We, the citizen of India and all those who inherited the British legal system, must believe in, imbibe and cultivate constitutional morality. It is high time that all of us in India, worked on these founding ideals of the Constitution.
The executive must change its functioning and needs to align itself with the Constitution. The judiciary, on the other hand, must act as guardian and protector of the Constitution, rather than engage in enforcing rights on its whims and benevolence. It is the duty of every wing of the State to uphold the rule of law, and it must reflect in their daily functioning.
Narendra Modi government’s amended law seeks to grant citizenship to non-Muslim refugees from Pakistan, Bangladesh, and Afghanistan if they faced religious persecution there.
For the past week, protests — some violent, some peaceful — have broken out across the country over the law. The agitation that began in Assam, other parts of the Northeast and West soon spread to several university campuses—including Jamia Millia Islamia, AMU, Jadavpur University, TISS, IIT-Bombay, and IIT-Madras.
To remind our readers, last Friday, a massive protest was led by Bhim Army chief Chandrashekar Azad, which saw hundreds of people, mostly from the Muslim community, gathering in and around Jama Masjid, demanding a repeal of the new law. The crowd at Jama Masjid was large, with protesters carrying posters of ‘Save the Constitution’, Bhagat Singh, B.R. Ambedkar, and Mahatma Gandhi, and some also flying the Indian flag.
According to India’s influential academics, Friday’s protests had signaled a paradigm shift, in how the community has reacted so far to issues involving student unrest.
Prominent voices from within the community also that Muslims did not protest after the Babri Masjid was demolished in Ayodhya in 1992 or when the triple talaq bill was passed or even after incidents of lynching of Muslims for allegedly carrying beef, but now their patience has reached a tipping point.
‘It seems their patience, like many other sections of Indians, has been tested for far too long. They seem to be coming out of the state of shock and awe. It should have been addressed long ago. It is still not too late,’ S.Y. Quraishi, former election commissioner., had retorted.
Mufti Mukarram Ahmed, Shahi Imam of Delhi’s Fatehpuri Masjid, said the protests are only likely to intensify across the country;
“Mussalman ka sabr kab tak azmaoge (For how long will you test a Muslim’s patience?). Today’s protest, as also the protests happening elsewhere in the country, is against the attempt to change India’s Constitution,” he added.
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Another prominent Muslim voice, Zafaryab Jilani, convener of Babri Masjid Action Committee, told ThePrint the protest at Jama Masjid is a reflection of how their faith in the government has broken.
According to Jilani, Muslims have realized that now, they have been left with no choice but to come out and protest. And the support that they have got from non-Muslims has given them a big boost, he added.
Many among the Muslim members of think tanks have affirmed that Delhi has not seen such an open show of Muslim solidarity in a long time:
‘I do not remember seeing Muslims coming out in such large numbers openly to raise their voice even when their own got lynched or the triple talaq bill was passed. The unprecedented protest in the capital Friday happened because the government is now questioning them on their ‘Indianness’, their right to live in India,’ said Supreme Court advocate Anas Tanvir.
Some also drew a parallel between citizenship law protests and the demonstrations that happened way back in 1985 after the Shah Bano verdict—in which the Supreme Court upheld her right to alimony, setting off a political battle as well as a controversy about the extent to which courts can interfere in Muslim personal law.:
‘The two issues are not comparable as Shah Bano’s case pertained to Muslim personal law and religion. The citizenship law is about allegiance to the country. But that was the only other time that I can think of where people from the community came out on the streets to protest,’ said Tanvir Aeijaz, professor of the political science department, Ramjas College.
Aeijaz said he views the citizenship law protests largely as an assertion of Muslim solidarity, where they see themselves being pushed against the wall after the passage of the law.
The obvious conclusion is that Indian Muslims and all those watching from the neighboring countries see it essentially, as an attempt by the government to ‘disenfranchise’ them in the long run. They can see their future. Also, the Muslims in the country have been looking for a support structure. And the support rendered by Chandrashekhar Azad’s Bhim Army has been immensely helpful.
A question, therefore, has lurked: Will the Bhim Army chief, have to bear a high price for being on the right side of history? Let us see…
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By Nazarul Islam. The author is a former educator based in Chicago (USA)
Copy Edited By Adam Rizvi