In this Modi-yug (era), where Hindutva Brahmanical majoritarianism is subverting the Indian constitution by reinterpretation and distortion, the unanimous verdict of the Supreme Court’s constitutional bench upholding the abrogation of Article 370 and the convoluted logic it offers to justify its concurrence with the political acts of Modi should be a matter of great concern to people who care about India’s future as a secular, democratic and federal republic.
And if the similarity of the judicial logic and other self contradictory judicial premises that the top court offered in the Ayodhya judgement – another political agenda central to the Hindutva right – is considered, the questions become more fundamental.
Both the Supreme Court benches that adjudicated the Article 370 case and the Babri Masjid case were constitutional benches of five judges led by the Chief Justice of India (CJI), then and now. The rest of the bench in both the cases consisted of the senior most in the apex court who were in line to become CJIs except for Justice N.V. Ramana in the Babri Masjid dispute.
Both the cases were of utmost importance to the ideological project of Hindu Rashtra (nation) of the present regime.
In both the cases, the Hindutva forces had achieved their goals partially and in a de-facto manner, the judicial verdicts gave them a final and a de jure closure in their favour. Through these verdicts, the apex court normalised the most abnormal and constitutionalised the most unconstitutional while providing judicial legitimacy to the idea of a Hindu Rashtra.
Since, in both the cases, the bench constituted the cream of the Indian judiciary and the verdict was unanimous, their judgements cannot be considered either as an aberration or exceptional.
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In fact the CJI, in an interview to PTI has said that in the Ayodhya case, the anonymity and unanimity of the judgement was conscious so that a strong message of complete judicial concurrence in the rationale and the judgement is conveyed.
Hence the critique of these judgements should also raise some very fundamental questions pertaining to the character and direction the Indian jurisprudence is heading towards.
In fact, a closer analysis of both the judgements indicates the dangerous emergence of a majoritarian jurisprudence in direct proportion with the majoritarian polity ruling the country.
Take, for example, the judgement on abrogation of Article 370 and bifurcation of the erstwhile state of Jammu and Kashmir.
Abrogation of Article 370
Article 370 was a manifest instrument of guarantee of the autonomy and limited sovereignty of the state of Jammu and Kashmir, assured by the Indian constitution, even after its accession to Indian republic. While the erstwhile governments, including the Congress, had been betraying the guarantee surreptitiously, the Bharatiya Janata Party (BJP) and its previous avatar, the Jan Sangh, wanted a blatant, forcible and complete integration of the predominantly a Muslim state into Indian Union.
Thus, after the Modi government came to power for the second time in 2019, on a Hindu Rashtra agenda, it abrogated Article 370 through presidential orders. The question before the constitutional bench was the illegality, irrationality, procedural impropriety and constitutional immorality involved in the Modi government’s act.
Chief Justice of India D.Y. Chandrachud and other judges at an event in Srinagar last week. On the right is J&K lieutenant governor Manoj Sinha. Photo: Twitter/@OfficeOfLGJandK
Many senior legal luminaries like Justice (retired) Madan Lokur, Justice (retired) Rohinton Nariman and constitutional experts like Fali Nariman and many such sane voices in the legal world have already exposed many serious constitutional flaws in the judgement which could be summarised as being arbitrary at the best or preconceived at worst. They are surprised at the reluctance of the bench in examining the constitutional validity of the degradation of the status of Jammu and Kashmir and also at the eagerness of the bench to be legally satisfied by oral promise of the executive to restore the status of statehood to Kashmir. They also found it unconvincing, the Bench’s approval to the postponement of elections till after the Lok Sabha elections!
The premise of the Supreme Court bench in upholding the abrogation of Article 370 smacks of selective reading of its insertion as a temporary measure completely in tune with the distorted arguments of RSS-BJP which considers Article 370 as a constitutional impediment. In fact CJI Chandrachud’s judgement goes to an extent of declaring that: “Jammu and Kashmir did not retain any sovereignty after accession to India”.
This interpretation goes against the explanation given by B.R. Ambedkar in the Constitutional Assembly about the residual sovereignty of the states and sets a dangerous precedent for other states in the republic. According to Ambedkar:
“…a dual polity consisting of the Union at the Centre and the states at the periphery, each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution”.
Even the convoluted logic provided by the constitutional bench in establishing the temporariness of Article 370 relies on a peripheral fact of its inclusion in the constitutional lists dealing with the temporary measures and not on the substantial debates in the Constituent Assembly or the constitutional history leading to the Article 370 as instrument of constitutional guarantee.
The most questionable part of the judgement regarding abrogation of the Article 370 is its very illogical reading of the meaning of 370 (3). According to this clause, a recommendation from the constitutional assembly of Kashmir was a “necessary” precondition for the President of India before he ordered its abrogation. But the learned judges have wilfully neglected the conditionality provided in the clause. They wishfully read it as either of one, and read down the necessary precondition of concurrence of the constituent assembly of Kashmir.
Also read: Looking Beyond Politics, Constitution and Law: How the People of J&K Feel About SC’s Decision
On the other hand, the bench considers the hitherto extensions of the Indian statutes to Kashmir by erstwhile governments as a sufficient condition to abrogate the Article 370.
CJI Chandrachud reasonably found fault with the way Article 368 is used to amend Article 370 (3) for the purpose of substituting the terms “legislative assembly” in the place of “Constitutional assembly” and thereby acquiring constitutional authority to abrogate Article 370. Even though the CJI considers this process as unconstitutional and strikes it down, the bench does not consider the act of abrogation, made through this faulty constitutional process, as wrong. This is surprising and appears intentional because the hitherto jurisprudence considered procedural propriety as sacrosanct and equal to the intent of the law. It held that an act brought through improper procedure is null and void!
Ayodhya judgement
This may appear less surprising when the Ayodhya judgement – where similar illogical and contradictory arguments are provided to uphold the claim on the land where Babri Masjid existed – is analysed.
In the course of the Ayodhya judgement, the constitutional bench had declared that there is no proof to suggest a temple existed beneath the mosque while concluding that Babri Masjid’s destruction was an egregious crime. Still, it came to a strange conclusion contrary to its own reasoning by privileging the faith and belief of the majority over the facts and the evidence provided by the minority. Thus the bench reasoned:
“…Matters of faith and belief lie in the personal realm of the believer. That which sustains solace to the soul is inscrutable. Whether a belief is justified lies beyond ken of judicial inquiry. This is not a case where the witness statements indicate that the belief or faith is a veneer or that it is being put-forth merely as a strategy in a litigation. Once the witnesses have deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief. Scriptural interpretations are susceptible to a multitude of inferences. The court would do well not to step into the pulpit by adjudging which, if any, of competing interpretations should be accepted. Faith is a matter for the individual believer.”
Also read: The Ram Temple at Ayodhya is a Symbol of Injustice, Congress Leaders Should Stay Away from It
Thus, the whole judgement was based on deferring to the faith of the Hindus rather than the bundles of proof and evidence provided by the Muslim petitioners. This trend in the judiciary becomes more apparent if one compares how the faith of the Hindu believer is allowed in the Ayodhya judgement but denied to Muslims in the Hijab judgement. The three judge bench of Karnataka high court on hijab ban declared that:
“…Conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars. Merely stating that wearing hijab is an overt act of conscience and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief… No material is placed before us for evaluation and determination of pleaded conscience of the petitioners. They have not averred anything as to how they associate wearing hijab with their conscience, as an overt act. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression. Pleadings at least for urging the ground of conscience are perfunctory, to say the least.”.
This judgement is guided by the Ayodhya judgement for its rationale. Thus it quotes:
“..The Constitution Bench of the Hon’ble Supreme Court of India, in M.Siddique Vs. Mahanth Suresh Das, the Ram Janma Bhumi Temple case has held that faith is a matter for the individual believer. Once the Court has intrinsic material to accept that the faith or belief is genuine, it must defer to the belief of the worshipper.”
Not only this, the Supreme Court bench in the Ayodhya judgement, extolled the Places of Worship Act 1991, which bars the conversion of the religious nature of the historical religious shrines, as an instrument of safeguarding the secular fabric of India. But Justice Chandrachud, after becoming the CJI, has allowed petitions challenging the same act. The bench led by him has also diluted the spirit of the 1991 Act in the Gyanvapi and Mathura Masjid cases, arguing that ascertaining the religious nature of the disputed shrines is not prohibited under the 1991 act. The Hindutva forces are celebrating the same as judicial endorsement of their agenda.
Thus, the similarities of these judgements, which concur with the Hindutva agenda, do not appear to be accidental or coincidental.
Shivasundar is an activist and a freelance journalist based in Bangalore.
