Wednesday, February 14, 2024

In conversation with Ashraf Engineer on the state of India's Supreme Court


https://open.spotify.com/episode/3bJMToFInqW3i1on83g658?si=w9itQlH4QVqkkqoAy_rlFw


https://podcasts.apple.com/in/podcast/all-indians-matter/id1527740349?i=1000645245455


Website: https://www.allindiansmatter.in/supreme-courts-flawed-reasoning-when-ruling-in-favour-of-govt-is-worrying/


Friday, October 13, 2023

Why the Places of Worship Act Must Be Preserved

The Allahabad High Court judgement dismissing a PIL asking for the removal of the Shahi Idgah in Mathura is a relief, even though it is on the technical ground that similar petitions are pending before it.  Given the Supreme Court’s willingness to entertain an archaeological survey of the Gyan Vapi Mosque in Benaras and a challenge to the Places of Worship Act 1991, both the Gyan Vapi mosque and Shahi Idgah may go the way of the Babri Masjid. The template is set– a local dispute elevated to a national issue, a self-appointed next friend of the idol, a court mandated archaeological survey, and a judiciary which values faiths differentially. 

When Chief Justice Chandrachud argued that ascertaining the religious character of a place was not barred under the Places of Worship Act, and agreed to examine the Act itself, he reneged directly on a commitment the Supreme Court had made barely a few years ago. In an otherwise disappointing judgement, handing over the site of the Babri Masjid to the very people who vandalised it, a five-judge bench of the Court reiterated the importance of the Places of Worship Act of 1991: 

In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered. The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level. Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well. The State, has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution. The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values (para 82 of the 2019 Ayodhya judgement, M Siddiq (D) v. Mahant Suresh Das and ors, emphasis mine)

 

Friday, August 11, 2023

Umar Khalid, the Historian

Muslims in India, somewhat like Adivasis, are always being told to ‘integrate’ and to join the ‘mainstream’. The difference with Muslims and Adivasis is that the former are seen as unwilling to be ‘mainstreamed’ and the latter as incapable of it. The assumption is always that the ‘main-stream’ is an upper-caste Hindu river, singularly flowing without any input from minority streams.  At the same time, when Muslims, Dalits and Adivasis fill the jails disproportionately and are denied bail when others get it for the same offence, then there is no admission of how the mainstream has excluded them. 

When a Muslim like Umar Khalid crosses boundaries, there is a further panic attack. A young articulate Muslim man who does not wear a skull cap, who is an atheist, who did his Phd from JNU in history on Adivasis in Singbhum is seen as an anomaly in the segregated world the RSS wants to create. The attempt is then to reduce him to just one aspect of his identity – so that whatever else he does or says or writes, in the end he must be seen merely as a Muslim, and by extension, violent, anti-national and a threat to the “Indian mainstream.” So dangerous that he has been in jail for three years without bail. It is not surprising that so many of the young people who were arrested for the anti-CAA protests were Muslim students at India’s leading universities. 

Friday, July 7, 2023

The Supreme Court in Modi's India


In what is globally called ‘autocratic legalism’, current authoritarian regimes maintain a semblance of legality and constitutionalism while in practice attempting to remake the judiciary in their own image. In this article, published in the new Journal of Right-Wing Studies, published out of Berkeley University,  I look at how the Indian Supreme Court (SC) has responded to executive incursions under the Narendra Modi regime since 2014. Even today, the court continues to deliver important democracy-enhancing judgments, breaking away from India’s colonial inheritance in matters like criminalizing same-sex relationships and adultery. However, the last decade is strongly marked by two features: first, an unwillingness to hear major constitutional issues that might challenge the regime; and second, judgments that serve as an advertorial for the regime, reinforcing an antiminority ideological orientation, justifying the government’s actions, and promoting Modi’s personality cult. By outsourcing several political decisions to a seemingly disinterested and neutral judiciary, the Modi government has been far more successful than it would have been if it had imposed those decisions purely by legislative majority. In turn, by addressing a variety of political issues as purely procedural matters and not addressing them as constitutional questions, the courts have collaborated in the delegitimization of dissent and reinforced the claims of the Modi regime.

Saturday, August 13, 2022

https://thewirehindi.com/223249/chhattisgarh-judgment-upends-justice-fraternity-and-basic-common-sense/

 https://thewirehindi.com/223249/chhattisgarh-judgment-upends-justice-fraternity-and-basic-common-sense/

Friday, August 5, 2022

Chhattisgarh Judgment Upends Justice, Fraternity and Basic Common Sense

The police filed FIRs for the killing of villagers only after their kin filed petition, provided an account riddled with inconsistencies, detained the petitioners before their testimony was recorded, yet the Supreme Court chose to believe the state and punish those who knocked on its doors.

The Supreme Court’s judgment in Himanshu Kumar and ors vs the State of Chhattisgarh and ors is another remarkable addition to the developing case law on criminalizing petitioners who dare to approach the courts on civil liberties matters, especially when they happen to come from poor and/or minority communities. While Dr Ambedkar described Article 32 – the right of judicial redress for violation of fundamental rights – as the ‘soul of the constitution’, our judges seem increasingly to feel it is a waste of judicial time. 

This case is about excesses by the security forces in the anti-Maoist Operation Green Hunt announced by the police in 2009, in what is now Sukma district of Chhattisgarh. More specifically, it is about what happened over two days – September 17, 2009 in Gachhanpalli and Singanmadgu and October 1, 2009 in Gompad and surrounding villages (Belpocha, Nulkatong, Chintagufa). 

Friday, July 29, 2022

La Trobe University: Protest, Dissent, and the Struggle for Justice in India

Protest, Dissent, and the Struggle for Justice in India on 28 July 2022.

 

In this conversation, Professor Nandini Sundar discussed her widely read 2020 report on threats to academic freedom in India, recent arrests of academics journalists, and activists, and her three decades of writing and scholarship about Adivasi communities in Bastar district, Chhattisgarh. The conversation took place on the two-year anniversary of the arrest of Delhi University professor of English Hany Babu.  Professor Sundar discussed his arrest, and the arrests of other lawyers, activists and academics who have been charged in the infamous Elgar Parishad case. The conversation concludes with Professor Sundar’s thoughts on the rights granted to all citizens by the constitution of India.

 

We are extremely grateful to Professor Sundar, Ian Woolford and Gerald Roche for giving so generously of their time to share their knowledge and expertise with us.

 

If you were unable to attend the live event or would like to view or listen again, you will find the recording as follows: (you are welcome to share the links)

 

  YouTube 



https://www.youtube.com/watch?v=VEEZMZPlIiY