If you thought that Justice Ranjan Gogoi and Justice Abhijit Ganguly were the last echoes of the hollowed structure of judiciary in the country, then you were certainly wrong. The edifice of the Indian judiciary has other bastions of partisanship, always waiting to go one step further.
While we were still consuming the shift by former Calcutta high court judge Ganguly to the Bharatiya Janata Party (BJP), another judge from Uttar Pradesh proved that renunciation of office was not the sine qua non for a judge to prove their political loyalty. The same allegiance could be pledged while one was in office, Additional Sessions Judge Ravi Kumar Diwakar demonstrated in an order he passed with regards to a riot that took place in Bareilly, following a dispute over the shift of route of a group of Muslims heading to join a larger procession, in March 2010.
In the order, Judge Diwakar declared Maulana Tauqeer Raza Khan as the main conspirator and mastermind of what he called the 2010 riots of Bareilly, in addition to summoning Maulana Tauqeer to the court. Based on witness reports, Judge Diwakar went on to say that since Maulana Tauqeer holds the status of the leader of a religious family and is the president of the Ittehad-e-Millat Council (IMC), he has great influence over the Muslim community. The judge further asserted that Plato, in his book Republic, illustrates a religious person on the seat of authority as capable of achieving positive results. He said that the word justice was a reference to religion in Plato’s age, and that Plato argued for a religious person at the position of power for their quality of leading a life of sacrifice and dedication instead of gratification.
This much opinionated speech of the judge delivered in the form of a judicial order is followed by what appears to be an ode to today’s ‘philosopher king’. Without any mincing of words, Judge Diwakar’s oratory took a turn towards the present and he said, “For instance, in the present time, Mahant Baba Shri Yogi Adityanath ji of the Siddhapeeth Gorakhnath Temple, who is also the current Chief Minister of Uttar Pradesh, has proved Plato’s concept to be true.” He added that a religious person doing the opposite, or inciting their community, ultimately leads to riots, of which Maulana Tauqeer is an exemplar.
Whatever Plato might have wanted for a king to be, he would certainly be appalled to find a judge using him to show his allegiance to the ruler. This one sentence should be sufficient for the higher authorities in the judiciary to take away his judicial powers.
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It gives us some solace that the Allahabad high court has expunged the personal remarks of Judge Diwakar. But does it not taint the whole order itself? The bias demonstrated in the statement of the judge is an integral part of the order. Would it not be fair that the order is put in abeyance and a different judge is asked to look into the matter?
The judge’s utterances praising the chief minister of Uttar Pradesh should not surprise us. After all, he happens to be the same judge who gave the verdict on the wazukhana case of the Gyanvapi mosque, while serving as the civil judge senior division in Varanasi. It was Diwakar who in 2022 ordered to seal the ablution pond of the Gyanvapi complex after the lawyers of the Hindu litigants claimed that a ‘shivling’ was found in the area.
It was also Diwakar who did not resist videography inside the mosque by an advocate commissioner appointed by the court, following the claim that there was a deity located just outside the western wall of Gyanvapi.
The order of the judge is a communal document and a dogwhistle to instigate suspicion and hatred against Muslims.
He did not merely demonstrate his fidelity to the ‘philosopher king’, he also used his order to promote the communal politics of the king he swears by. He wrote that he was threatened by Muslims after his Gyanvapi judgement. In the order passed by him on March 5, he mentioned being sent a 32-page threat from a Muslim organisation. Even after filing an FIR, there have not been any arrests, Diwakar stated in the order. Despite a focus on the objective details of his subsequent account, Judge Diwakar did not forget to add in a personal touch to the order. In an effort to exhibit fervent sentiments, he made sure to state that his mother, his younger brother and his children were constantly anxious about his safety following the issuance of the threat.
Judge Diwakar went on to add that his children asked whether what the news channels were reporting about their father’s possible attack was true. He further said that even though he tries to allay their fears, they tell their father that they are not naïve, and their schoolmates have told them the truth.
One can understand why the judge is linking his Gyanvapi order and its fallout and the case of Maulana Tauqeer. The order reads like a public statement where he is addressing his chosen audience. He went further to mention that the alleged conspirator Maulana Tauqeer had in the past made remarks about the prime minister. Thereafter, he mentioned his wife, the only family member left to be cited, and quoted her to suggest a peculiar analogy to hint Maulana Tauqeer as capable of doing worse things.
Judge Diwakar accused the then law and order authorities of not doing enough to keep check on rioters. He added that Bareilly’s Divisional Commissioner, Senior Superintendent of Police, Deputy General of Police, Inspector General of Police and District Magistrate allegedly supported Maulana Tauqeer and in an attempt to work according to the say-so of the government, failed to act legally.
As if that was not enough, he further instructed that a copy of his order be submitted to Adityanath so that the chief minister may take action against police officials who failed to act in accordance with the law and allegedly assisted Maualana Tauqeer.
If one intently reads the passed order, a number of interesting findings appear before the eye. The order mentions eight witnesses of the 2010 riot in Bareilly. Witness P.W.-3 clearly mentions in his statement that “rumours spread that Tauqeer Raza Khan incited a riot”. We find the judge drawing the conclusion that the witness’s statement proves that the riot sprouted after Maulana Tauqeer’s speech.
Witness P.W.-4, a chowki in-charge, states that because of his duty, he could not listen to the complete speech and that he does not remember it, but the riot erupted just afterwards. Judge Diwakar concludes that it is “clear” from the witness’s statement that the riot took place right after Maulana Tauqeer’s oratory.
Two other witnesses, a constable posted near the site where Maulana Tauqeer delivered his speech that day, and another commoner, present their versions of the statement. Both of them mention in their articulations that they could not comprehend the ‘hard’ Urdu in the speech. However, they claim to get an idea of what Maulana Tauqeer pronounced. It is also interesting to note that the constable mentions a unique phrase – “sacrificing life in the process of leading the procession” – while quoting Tauqeer Raza, which is absent from all other accounts.
Six out of the eight witnesses quoted in the order mention the incident of protest or opposition from the Hindu faction, following the change of route of a group of Muslims heading to join a procession, in addition to subsequent stone-pelting (or tension) between Hindus and Muslims. All six of these statements say that these occurrences precede (or otherwise coincide with) Maulana Tauqeer Raza’s speech.
Since the issuance of the judgment, Diwakar has only demonstrated his proclivity for perpetuating bias in the case with his orders. Following the failure to serve summons to Maulana Tauqeer by the designated police station in-charge, Judge Diwakar directed the Senior Superintendent of Police, Bareilly, to take punitive actions against him for not following the correct procedure.
Furthermore, Diwakar issued a non-bailable warrant against Maulana Tauqeer and directed commanding officer Pratham Sandeep Singh to arrest and present him in the court on March 13. The commanding officer’s inability to submit Maulana Tauqeer on the said date prompted Judge Diwakar to instruct SSP Bareilly to arrest and present Tauqeer Raza in court on March 19.
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Meanwhile, the All-India Lawyers’ Association for Justice (AILAJ) has written to the Chief Justice of India, asking for Diwakar’s observations to be expunged from the record (as they now have been, on orders from the high court), and has described his conclusions as perpetuating misplaced stereotypes and bigoted impressions about the Muslim community. AILAJ has also opposed the judge’s directive that a copy of the verdict be delivered to Adityanath.
Additionally, an accused from the Muslim community filed a transfer application with the District Judge Bareilly citing Diwakar’s clear bias against his community in the March 5 judgment. This was followed by an argument in the District Court on March 18, where the date for the issuance of order was scheduled as March 21, while the next date of appearance of Maulana Tauqeer was March 19.
While we write these lines, we hear that a notice has been affixed on the door of Maulana Tauqeer’s house, while it remains to be seen what unfolds in the courts further.
The bias in the police against Muslims is well documented and commented upon. It is alarming to see the same bias now entering the judiciary. Now we understand why Judge Diwakar ordered the sealing of the wazukhana of the Gyanvapi mosque. It is his anti-Muslim bias which drives his judgement. How can such a man be entrusted with the job of doing justice?
We have seen with dismay a tendency in the judiciary, right from the trial to the highest level, to treat Muslims with suspicion. Should we conclude that the Hindu common sense which treats Muslims as conspiratorial, bigoted, dangerous or violent is also the judicial common sense, at least at the primary level?
When such thoughts assail us, we see reassuring orders by the courts, one from a court of a first class magistrate Devander Sharma acquitting 16 Muslim men (one died in 2019) in Madhya Pradesh, who suffered prison and alleged torture for the alleged crime of raising the slogans to hail Pakistan and celebrating the victory of Pakistan in a cricket match. But it could happen only after the Hindu complainant and government witnesses told the court they were forced to make false allegations against them. What would happen if the Hindu witnesses failed to be so brave?
This we understand after we read the the judgment of the Supreme Court in Javed Ahmad Hajam vs State of Maharashtra. Hajam, a professor in a college in Kolhapur, had a first information report filed against him for promoting religious disharmony. How did he do it? According to the police, his three status updates on WhatsApp had the potential of causing violence in which he wished Pakistan and Pakistanis a happy Independence Day, commemorated August 5, the day Article 370 was diluted in Kashmir, as a “Black Day”, and expressed his unhappiness with the decision. The high court found his posts on Kashmir objectionable and refused to quash the police proceedings against him.
The Supreme Court, fortunately, came to his aid. A two-judge bench of the Supreme Court quashed the charges against Hajam. Going further, it said that Hajam had a right to air his opinion. It can be a disagreement with the state action of abrogation of Article 370. He also has a right to greet Pakistan.
These two cases of justice again take us to the order of Judge Diwakar and his averment in his order which is clearly Islamophobic. It is a fit case for the Supreme Court to take note of and do a course correction by quashing it and also sending the judge for constitutional sensitisation.
