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Mainstream, VOL LIII, No 17, April 18, 2015

Children of Democracy

Friday 17 April 2015, by Kuldip Nayar

Religious sensitivity has deepened since the advent of Prime Minister Narendra Modi’s regime. Even though he has underlined the principle of sarva dharma samabhava, parochialism has shown its ugly face in one field or the other. The judiciary is the only institution that has been above the taint. Nonetheless, the outburst of Supreme Court judge Kurian Joseph shows the pent-up feelings of a justice belonging to the minority community.

There can be no exception to what he has said: “Our religious and cultural festivals and hues, irrespective of caste and creed, have contributed to the vibrancy of our rich pluralistic culture and ethos. The whole world jealously looks at the beauty of the secular image, communal harmony and cultural integrity of our great nation. India must in these trying times, safeguard her credentials and be a model that other nations must follow.”

However, I think that he over-reacted to the scheduling of the annual Chief Justices’ conference on Good Friday. Chief Justice of India H.L. Dattu honestly believed that the working of the court would be disturbed because of stretched holidays. He, therefore, decided to utilise the large weekend, which included Good Friday, to hold the conference of State High Court Chief Justices. Where he went wrong was that he did not fathom the sensitivity of Christian judges or the community.

This is not the first time that such a conference has been held on Good Friday. But those days the feeling of discrimination was not suspected by members of the minorities. Now the blatant expression of Hindutva ideology, which the BJP represents and implements, has changed the climate of pluralism that the nation has inhaled since independence.

True, the country has given the BJP an absolute majority in the Lok Sabha. This does reflect a change in the thinking of the people, who have been voting for a secular plank until a few years ago. However, it must be remembered that the basic structure of the Constitution, defined by the Supreme Court, cannot be changed. One part of that structure is secularism that animates the Constitution.

What must be disconcerting for the judiciary is the relentless effort by the extremists to change the very basics of our nationhood. The new terminology like ghar wapsi (reconversion to Hinduism) has been coined to the detriment of pluralism. The Gita has been introduced in the curriculum of Haryana schools.

Churches have been attacked in Delhi, Navi Mumbai and Jabalpur in Madhya Pradesh. There is a ban on beef in Haryana and Maharashtra. After a lot of cajoling, Prime Minister Modi deprecated the attack on the churches. Yet the general perception is that he is not against the soft Hindutva that is spreading in the country.

The BJP-run States are worse because they are not on the national radar and evoke limited attention. In any case, they are already islands of Hindu chauvinism. The fear among the minorities is, therefore, understandable. I have heard several Muslims saying that they are afraid of their jaan aur maal (life and wealth).

The RSS leaders are sitting pretty. Even the liberals in the BJP are mum. They may want the domination of the Hindutva ideology. But it is difficult to imagine that they could be in favour of a second-class status for Muslims, a flagrant violation of the Constitution which enunciates equality before the law and underlines the principle of one man, one vote.

It is incumbent on the Modi Government, which represents the majority, that the institutions remain without the taint of communalism. The judiciary in particular cannot afford to have a finger pointed towards it. The allegation by the Prime Minister that the ‘five-star activists’ are driving the courts has only aggravated the situation.

The Chief Justice of India has rightly contradicted the statement, adding that the judiciary and Parliament are like ‘siblings’ and must work together “towards a truly and effective administration of justice”. Both the judiciary and Parliament are children of democracy. They have to work hand in hand for a just and egalitarian society. One has to correct the other whenever one of them goes wrong.

However, the impression that the activists influence the court’s judgment has to be removed. The National Judicial Appointments Commission is expected to replace the collegiums system of appointing judges, giving a greater say to the executive in the process. Yet there was a time when the executive had its say. But it was found that the government’s interference in appointments and transfers of judges was politically motivated. And hence the matter was left to the judges themselves.

Still, both the collegiums and the executive have failed to ensure impartiality in appoint-ments. Therefore, the Law Commission should seriously consider how to insulate the judiciary against any influence and constitute some mechanism to take into consideration what the executive says. This way the sensitivity of both the judiciary and the executive, which represents the people, are taken care of.

For example, the Right to Information (RTI) has proved to be useful to know the reason behind a particular decision. This has helped to bring in transparency in the official decisions. It has deepened democracy. The government may feel embarrassed over the disclosure of the truth. But there can be no compromise with the demands of an open society.

To that extent, the Prime Minister’s statement comes in the way of scrutiny. This cannot be the purpose of his warning against the activists. He should realise that they are doing their job. Many scams would not have seen the light of the day if they had not questioned the official decisions.

The Modi Government has to ensure the executive does not in any way interfere in the working of the judiciary. At the same time, the judiciary has to be sensitive enough to the executive’s right to frame policies from time to time. Ultimately, both have to adhere to the limits of the boundary delineated by the Constitution.

The author is a veteran journalist renowned not only in this country but also in our neighbouring states of Pakistan and Bangladesh where his columns are widely read. His website is www.kuldipnayar.com