10th Anniversary Issue
August - September 2003 

Year 10    No.90-91
LAW


 


‘Welcome focus on criminal justice system’

Mihir Desai

The law and justice delivery system is a significant part of both the communalisation of society as well as the fight against it. The Constitution declares India to be a secular state. It also provides religious freedom as a fundamental right. Hate speech is prohibited under Sections 153A and B and Section 504 of the Indian Penal Code. The same law also prohibits the vandalisation of religious places. Religious appeals are prohibited in elections under the Representation of Peoples Act. The Prevention of Unlawful Activities Act provides for the banning of communal organisations. India has also signed and ratified the Genocide Convention.

There is a large regime of laws dealing with the communalisation of society. The Commission of Enquiries Act provides for detailed enquiries into cases, including those involving communal riots. Many such commissions headed by sitting and retired judges of high courts and the Supreme Court have been set up over the past 50 years to deal with communal violence. Many battles have also been fought in courts. These include cases of communal violence, the scope of religious freedom, the rights of minorities, hate speech, maintenance for Muslim divorcees, etc. A large part of the battle to retain the secular fabric of the country has been fought through legislation, policies and courts.

In the last ten years, a number of issues with tremendous communal overtones have also had a major legal component.

The decade began with the Babri Masjid issue, which concerns not just a 50-year-old pending litigation but also the enactment of the Places of Worship Act and the Act leading to the acquisition of various areas in Ayodhya.

The demolition of the Babri Masjid led to the imposition of President’s Rule in four BJP-ruled states and the consequential challenges in the Supreme Court resulted in the famous Bommai case, where the Court laid down that secularism is part of the basic structure of the Indian Constitution.

The post-Babri riots all over the country led to the establishment of the famous Srikrishna Commission in Mumbai, which scathingly attacked the right-wing fundamentalist forces and brought open the partisan role of the police. The demolition has also led to the institution of the Liberhans Commission. The murder of Graham Staines led to the establishment of the Wadhwa Commission.

TADA, POTA and the Unlawful Practices Act were used selectively to attack Muslims and ban a few organisations.

In the meanwhile, education was being constantly saffronised, with history and other social sciences being ‘revised’ to incorporate the sangh agenda. Vedic mathematics and astrology were included as part of the national curriculum and some of these changes were unsuccessfully challenged in the Supreme Court.

The use of religion in elections came under close scrutiny in the Manohar Joshi and allied cases in the Supreme Court, where, though the court barred Bal Thackeray from using religion in election propaganda, it permitted the use of Hindutva in elections on the specious acceptance that this was a way of life rather than an appeal on religious grounds.

In the meanwhile, communal violence continued in many parts of the country, demonstrating the utter collapse of the criminal justice system as there were no significant convictions and no remedial steps taken, and enquiry reports gathered dust.

The culmination of all this was in Gujarat, 2002, which saw the emergence of a fascistic state that actively encouraged the communal carnage and which saw, for a period of more than one year, a total collapse of the criminal justice system. From refusing to make preventive arrests, to lodging of false FIRs and completely botched investigations, to the appointment of card-holders as public prosecutors, everything possible was done to undermine the justice system.

Even as this was going on, Tamil Nadu and Gujarat passed the anti-Conversion Bills and the Central cabinet approved the Cow Slaughter Ban Bill.

Currently, a major debate has been raging on the implementation of a uniform civil code.

Communalisation has occurred, not just at the level of civil society but also significantly in terms of law making and law implementation. The battle against communalism has also been fought extensively in courts and by resisting changes in the laws and policies.

For an effective legal battle, any instrument used to fight communalism would have to take into account the legal component for an effective overall battle. Having followed Communalism Combat from its very inception, it has been very heartening to note the kind of focus it has provided on legal issues. It is the only magazine to have covered all these issues, not merely as snippets but as campaigns. The coverage has not only been extensive but has, on many occasions, been done through sound legal articles by prominent persons.

The culmination of all this has been their Gujarat coverage, which has been the best on the issue in the country. Knowing Teesta and Javed, one has always been aware that none of this has resulted from armchair journalism, but was done in the face of personal risks and threats. We must congratulate Communalism Combat’s entire team for having covered these issues widely and intensely and for having maintained a level of consistency over the decade. I wish them many such anniversaries.

(Mihir Desai is a senior advocate, specialising in human rights issues and co-editor of the journal, Combat Law).


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