Supreme Court and Muslims: Why refuse to recognise justice isn't a balancing act?

By Shamsul Islam* 
Faizan Mustafa, professor of law and vice-chancellor of the National Academy of Legal Studies and Research (NALSAR University of Law Hyderabad established by the Legislative Assembly of Telangana) in a recent write-up, ‘Muslims and Judiciary: We do not have Muslim or non-Muslim judges in India’, has disclosed that in 1997 he refused to undertake a project on the role of Muslim judges as it was against the ingrained ethos of Indian judiciary: its non-partisan character.
Be that as it may, Faizan's write-up deals with the issue of treatment of Muslims by the Supreme Court (SC), where he presents his defence of the Supreme Court of India. Surely, it is in response to the mounting criticism in India and abroad that the Indian judiciary, specially its higher echelons, has succumbed to the majoritarian pressures and is being ‘managed’ by the RSS-BJP rulers committed to Hindutva.

Claim: judges are sensitive to Muslim issues

Faizan stresses that “judges have been not only fair but also sensitive to Muslim causes”. It is a problematic statement. Are Muslim causes not also Indian causes? To take few contemporary examples: Are Ramjanmabhoomi-Babri Masjid case, indefinite incarceration of hundreds of youth/intellectuals/journalists under terror laws, protests against CAA and subsequent repression of the activists, bulldozing of residences and protests against abrogation of the Article 370 only Muslim issues?
These issues much maligned as ‘Muslim’ issues, in fact, test Indian polity’s constitutional commitment towards democracy, social-political-religious equality, secularism, federalism, rule of law (even rule by law) and independent judiciary.

Reality: inbuilt hostility

Faizan’s defence of the SC starts with the defence of Justice DY Chandrachud whom he describes as a “scholar judge”. Faizan states: “On June 20 [2022], Justice DY Chandrachud was asked about the judiciary’s treatment of Muslims at King’s College London. Justice Chandrachud didn’t take offence to the question but answered it politely… our judges do not have the litigant’s religious identity in mind while dispensing justice.”
As another proof of the non-partisan character of the SC he referred to the 2019 SC judgment in Ramjanmabhoomi-Babri Masjid case, which included Justice DY Chandrachud as member of the bench which delivered the judgment. According to Faizan, in this case SC,
“Termed the installation of idols in 1949 and the demolition of the Babri Masjid in 1992 as ‘egregious wrongs’ [and said] the Babri Masjid was not constructed after the demolition of a Ram temple and pointed out that the Archaeological Survey of India report had not found any evidence of such a demolition. It had also observed that the Places of Worship Act, 1991, protects and secures the fundamental values of the Constitution”.
However, for reasons known to the professor only, he does not elaborate why despite all these glaring facts and proofs even corroborated by the honourable non-partisan justices, it was decreed by the non-partisan highest court of India that due to the “faith and belief of Hindus… that Janmaasthan of Lord Ram is the place where Babri Mosque has been constructed” a Ram Temple must be built there.
It is important to note that Babri mosque-Ramjanma Bhoomi case was not a Hindu-Muslim issue which was made out by Hindutva organizations and later SC falling for it.
The Babri Mosque was demolished on December 6, 1992 by an illegal assembly of Hindutva zealots gathered in Ayodhya by the RSS and its fraternal organizations. It was not an issue between Hindus and Muslims but between Hindutva organizations and democratic-secular Indian polity.
The mosque was demolished despite orders of the SC, assurances by the RSS/BJP leaders to Indian Parliament and the then PM Narsimha Rao. Rao gave solemn promise both to Parliament and the Indian nation (from the ramparts of Red Fort on August 15, 1993) that wrong would be undone and the demolished mosque would be built at its original site.
As if it was not enough, SC allowed the same organizations (Vishwa Hindu Parishad, an appendage of RSS) to construct Ram Temple which had admitted playing leading role in demolition of the Mosque. Thus what Hindutva juggernaut could not accomplish on December 6, 1992 was facilitated by SC.
Faizan keeps silent on how later Justice Chandrachud violated unanimous judgment in Babri mosque-Ramjanma Bhoomi case in which he was part of the bench. Renowned political analyst, Ashutosh, states that the judgment referring to the 1991 Act was expected to put at rest the Hindutva project of demolition of innumerable mosques. On the contrary,
“While hearing the Gyanvapi petition, Justice Chandrachud opined that the 1991 Act does not stop the ‘ascertainment of the religious character of the place’… Now anyone can go to court and put a question mark over the veracity of any mosque or temple or Gurudwara or Church or a Synagogue and request to change its status… Therefore the Supreme Court has practically made every religious place in the country suspect and disputed. Would it be correct to say that the Supreme Court in its deliberation has, mistakenly, been impacted by the majoritarian thought process?”

Arrest of Teesta Setalvad and Sreekumar

Faizan praises Supreme Court Justices Surya Kant and Justice JB Pardiwala [July 1, 2022] for making “scathing observations against ex-BJP spokesperson Nupur Sharma for speaking against the Prophet. Justice Surya Kant blamed her for the tragic killing in Udaipur”.
The Justices deserved thanks for this gesture. However, Faizan forgets to deliberate on what the Supreme Court bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar did to renowned human rights activist, Teesta Setalvad, and a senior much decorated police officer, RB Sreekumar.

Faizan refuses to admit Indian higher judiciary delivers justices which not only affect Muslims but other minorities, Dalits and women too

Minimum, he should have read what former SC Justice Madan B Lokur (who happens to be member of both academic and general councils of the law university headed by Faizan) wrote on this issue. He stated that Teesta was “condemned by innuendo” of the Gujarat police prosecutors and...

“it is tragic that the Supreme Court has taken upon itself to unilaterally decide who should be arrested and why? That is certainly not the jurisdiction of the Supreme Court, as we know it, except in the case of contempt of court. And, even in a case of contempt, the Supreme Court hears the alleged contemnor before judgment and arrest.”

No relief for most of the dissidents

It is sad that Faizan who happens to be VC of a university (whose chancellor is chief justice of the Telangana High Court) and known as expert on legal/judicial issues can be so untruthful. He admits “that many [meaning countless] young Muslims had been arrested on terror charges under successive governments” but resorts to a grave lie when he states that “the accused in many such cases were acquitted clearly demonstrates that ordinary Muslim litigants have been getting justice from our judges”.
Faizan as a professor must know that a teacher should never bungle with the facts. These are not countless Muslims only but countless Hindus, Christians, Sikhs and Dalits who have been languishing in jails under terror laws without hearings, grant of bails or any kind of judicial intervention.
Faizan as a researcher of Indian judiciary should have read tribal and human rights activist Jesuit Fr Stan Swamy’s factual report on the pathetic condition of incarcerated youth in jails, most of them hailing from Adivasi, Dalit and minority stocks. Does Faizan need to be reminded that Fr Swamy was the oldest prisoner [83 years old] incarcerated under terror laws on October 8, 2020 and was given interim bail only on May 28, 2021 for treatment when there was no chance of his survival? He died on July 5, 2021.
Two kinds of criminal justice Faizan Mustafa refuses to admit that Indian higher judiciary delivers two kinds of justices which not only affect Muslims but other minorities, Dalits and women too. Whenever the country witnesses large-scale violence against minorities and Dalits, the search for perpetrators continues endlessly and criminals rarely punished.

Faizan Mustafa

Major incidents of violence against minorities like Nellie massacre (1983), Sikh massacre (1984), Hashimpura custodial massacre of Muslim youth (1987), pre/post-Ayodhya mosque demolition violence against Muslims (1990-92), Gujarat carnage (2002) and Kandhmal cleansing of Christians (2008) are testimony to this reality.The status of anti-Dalit violence is no different. The major incidents of persecution and massacre of Dalits; 1968 Kilvenmani massacre, 1997 Melavalavu massacre, 2013 Marakkanam anti-Dalit violence, 2012 Dharmapuri anti-Dalit violence (all in Tamil Nadu), 1985 Karamchedu massacre, 1991 Tsundur massacre (all in AP), 1996 Bathani Tola Massacre, 1997 Laxmanpur Bathe massacre (all in Bihar), 1997 Ramabai killings, Mumbai, 2006 Khairlanji massacre, 2014 Javkheda Hatyakand, (all in Maharashtra), 2000 Caste persecution in (Karnataka), 5 Dalits beaten/burnt to death for skinning a dead cow 2006, 2011 killings of Dalits in Mirchpur (all in Haryana), 2015 anti-Dalit violence in Dangawas (Rajasthan) are some of the thousands of incidents of the Dalit persecution.
In almost all these cases perpetrators are yet to be identified. Even if identified the prosecution rate never exceeded 20%.
On the other hand, the Dalit and minority 'perpetrators' of violence are efficiently put on trial by constituting special investigation teams and punished by fast track courts. In order to meet the end of justice and national security they are hanged and jailed. But when the victims are Dalits or minorities no such urgency is shown.
In such cases the Indian state is fond of playing commission-commission. Commissions after commissions would be constituted to see that the heinous crimes disappear from the public memory. The horrendous massacre of Sikhs in different parts of India is a living testimony of this criminal attitude of the Indian justice system.

Balancing is no justice

Faizan as a legal luminary must understand that justice is not an art of balancing but requires honesty to call spade a spade. It would be travesty of justice if our examination of independence of higher judiciary is shackled by the binary; SC versus Muslims.
SC has not been able to expedite its scrutiny of terror laws, use of Pegasus for snooping on journalists, activists, constitutionality of CAA, political bonds and Article 370, anti-working class laws, hate mongering to name few.
This judicial inertia is prolonging the misery (of being incarcerated) of hundreds of political activists, journalists, lawyers, human rights activists and trade unionists. It is whole of India which needs an independent judiciary and not a merciful SC for Muslims only!
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*Formerly with Delhi University, click here for some of Prof Islam's writings and video interviews. Facebook: https://facebook.com/shamsul.islam.332. Twitter: @shamsforjustice. Blog: http://shamsforpeace.blogspot.com/. A version of this article first appeared in Indian Express