Saffron judiciary


Asma Shuaib

The Indian Judiciary, which is said to be the harbinger of justice in the land, has been proving its saffron colors more explicitly in recent times, through various verdicts that blindly favours the ruling government without any legality, to the latest judgment on Babri Masjid that gave out blatant lie and held there is no evidence when the shreds of evidence were floating around even in international media. What is to be terrified by this verdict is the extremity of the situation we have come into, when the said Supreme Body of Justice gives out such a verdict, that sounds more of a dictatorship in nature without any logical reasoning. In other words, their strategy of silencing dissents has come into a way that there isn’t anything that could overpower or challenge them off, even after saying against the basic fundamentals of the Constitution that they proclaim to safeguard and stand for.

Indeed, the Constitution, that serves as a holder of democratic rights and values, was merely a namesake to uphold the nation as a democratic one in front of the world, while it was an undeclared emergency that has been creeping in through its name, and have reached in its full form as of today. To put it simpler, the nation has turned into a Constitutional Ram Rajya, where the Constitution and its safeguard structure Judiciary, is made to serve the hindutva agendas in a seemingly legal way with all the existing system of democracy.

This strategical hijacking of the legal system by the RSS for well-planned propaganda is not just evident in the latest Babri verdict where all the accused were blindly acquitted, or in its land dispute verdict which was purely a ‘faith-oriented verdict rather than law-oriented’, as said by legal experts. It was more than evident when the SC refused the interim stay on Citizenship Amendment Act on 22 January 2020 when there were nationwide protests and the number of murders had already happened in its name, and also in the Court’s say in the Delhi Pogrom and arrests of students and activists that followed thereafter. All these on the same line indicate that this saffronization of the judiciary is not an all of a sudden incident, but a well-portrayed process throughout history. The history of Indian Courts, when studied in detail on the basis of issues regarding religious freedom and rights, it can be seen that a slow process of culminating the concept of Secularism in the favour of Hinduism was being done by the Courts throughout the years. A three-judge bench headed by Justice J S Verma in the Ramesh Yeshwant Prabhoo case [1996 SCC (1) 130] held that  “The words ‘Hinduism’ or ‘Hindutva’ are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people.”

In the Gujarat riot incident, the Court had said that a State cannot rebuild mosque and other religious affairs, as of a secular State. There arises a question of whose head the burden of secularism is given when it comes to the Muslims of the country. Even Article 25 of the Indian Constitution that clearly gives out religious freedom is not an absolute guarantee, as all the cases that come under this provision are subject to an ‘essential religious practice test’, which fully comes under the autonomy of the Judges, and is an extra-constitutional power. This means, in short, that the Constitutional Rights and provisions are not guaranteed in reality, as it can be easily manipulated by the authority dealing it.

The manipulation of law can also be seen in the cases of caste-based violence, where the bias of the authority denies the fundamental rights of the victims, which is the Dalits. In the cases of rape or any other sexual assault of Dalit women, it is a hard-fought battle to make it to the trials, and even there the discrimination of being a Dalit and a woman has to be endured. The statement given out in the Bhanwari Devi case is just one among many examples to this, where the Court said that “an upper-caste man could not have defiled himself by raping a lower caste woman.” This predominance of caste can be seen in almost all such cases, either by the police or law officials that hinder them accessing their ‘constitutionally guaranteed rights’. With the latest incident of Hathras, where the police after burning the victim’s body claiming that she wasn’t raped, along with the District Magistrate threatening the girl’s family, it can be said that the law and order of the country are now governed as per the Manuvaadi rule, in which rape of ‘untouchables’ isn’t any crime.

All these reveal in a way that the courts are not that ‘independent structure of democracy’ that stands for our said constitutional rights when it comes to the Muslims and Dalits of the country, but merely a state apparatus and nothing more, that stands to legalize the new ‘normalcy’ dictated by the draconian government, through blatant unjust verdicts and orders. In such a dreadful crisis where the law is only for the savarnas, and every single inhumane crime done by them on the Muslims and Dalits is legalized in one way or the other, we are left with no choice but to question the existence of such a law and order system that no longer seems to serve its purpose. Also, the entire democratic system that exists now seems to be helpless in saving democracy in itself, as it is fully seized under the fascist powers. The way out from this ‘normalized’ warzone of brutal attacks, rapes, unreasonable arrests, and lynching to death, lies in fighting the long accepted Savarna dominated system in itself. As the law and order of the nation have now fully ceased in its intended purpose, the way for survival in this land seems possible only in a strategical mass movement outside the boundaries of this saffron legality.

Asma Shuaib is a law student at Jamia Millia Islamia, New Delhi.