Guest post by SAIF MAHMOOD

If you are Indian but not a supporter of the present Government, on social media your loyalty to your country will be tested on the following touchstones :

1. Have you said anything against the CBI’s palpably malicious agenda against Teesta Setalvad or even hinted that, even if the CBI’s allegations are taken on their face value, she is entitled to anticipatory bail ?
2. Do you think that the decision to hang Yakub Memon deserves one last re-look ?
3. Have you criticised the manner in which female Muslim and Christian PMT aspirants were told to take off their hijabs and scarfs if they wished to take the test and / or the intemperate language in which the Supreme Court refused to interfere in the matter?

If the answer to any of the above questions is in the affirmative, you have just failed the loyalty test; and failed you have, irrespective of the reasons that you may have for your answers.

When 200 years of British rule of India came to an end in 1947, Independence came at a cost. The cost was the country’s partition based on religious lines. The distinction could not have been clearer – Pakistan would be a Muslim state governed by Islamic law; India would be a secular democracy governed by a secular Constitution. This Constitution – to which all Indians would owe allegiance and to uphold which all ministers and judges would take oath promised, at the very threshold, to secure to all Indians “Justice – social, economic and political”, “Liberty – of thought, expression, belief, faith and worship”, “Equality – of status and of opportunity” and to promote among them all “Fraternity – assuring the dignity of the individual and the unity and integrity of the Nation”. The Bill of Rights enshrined in Part III thereof specifically guaranteed to citizens, the rights to equality before law and equal protection of law, the right to be treated equally irrespective of one’s religious beliefs, the right to freely practice, profess and propagate one’s religion and the right to freedom of speech and expression.

Recognizing the need to expressly protect the rights of minorities in a humongous country where they could simply get engulfed by sheer numbers, the Constitution explicitly secured to them the rights to conserve their language and culture and the right to establish and administer their educational institutions. Some of these rights could be regulated by the State in the interests of public order, health, morality, security of the Nation and the like. This voluminous document – forming the fountainhead of Indian law – not only contained the State’s unambiguous undertakings to its citizens but also incorporated a mutual agreement between the majority community and the minorities, and in particular citizens who chose to be treated as members of a minority in a secular nation rather than as members of the ruling majority in a theocratic one. The mutual agreement so entered was this – the majority community recognizes the minorities as equals in all respects and agrees that certain affirmative actions are required not only to bring them to an equal platform but also to sustain their presence on the playfield; the minorities agree that, even though there is no American-style absolute wall of separation between religion and State, they should “render to Caesar the things that are Caesar’s, and to God the things that are God’s” and that public law is in Caesar’s domain. In 1976, the Constitution was amended to incorporate 10 Fundamental Duties, at least 4 of which directly exhorted citizens to ensure that they act in a manner consonant to this agreement.

In the years to come, these Constitutional guarantees were interpreted in numerous decisions of the higher courts. When, after 26 years of its existence, the Constitution was amended to insert the word ‘secular’ in its preamble, a 9-judge Bench of the Supreme Court categorically held that notwithstanding the fact that the word ‘secular’ was added much later, the concept of secularism was very much embedded in our Constitutional philosophy from the very beginning and by this amendment what was implicit was made explicit. The Constitution, the apex court said, has chosen secularism as its vehicle to establish an egalitarian social order and secularism forms part of its basic structure which cannot be altered even by a Constitutional amendment. [SR Bommai Vs. Union of India (1994) 3 SCC 1]. Secularism was, therefore, not only held to be an unimpeachable and impenetrable feature of the Constitution but also recognized as not just a passive attitude of religious tolerance but a positive concept of equal treatment of all religions.

Interestingly, the Supreme Court in Bommai (supra) also said something else. It held, in terms, that

“if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution (it) would certainly be guilty of following an unconstitutional course of action . . . Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire Constitutional scheme. Under our Constitution, no party or organisation can simultaneously be a political and a religious party. It has to be either. Same would be the position, if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party”.

Similarly, in the very first year of its existence, the Constitutional guarantee of Free Speech vis-a-vis the permissible restrictions on the same, was tested before the Supreme Court and the court held that

“freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was “the leading spirit in the preparation of the First Amendment of the Federal Constitution,” that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.” [Quoted in Near v. Minnesotta (3)] . . . (thus) very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression” [Romesh Thapar Vs. The State of Madras (AIR 1950 SC 124)].

In 65 years of its existence, the Bill of Rights enshrined in the Constitution has been interpreted by the Supreme Court in at least 65 important judgments and, each of these 65 times, at least in spirit and essence, the apex court has expanded the scope of these rights. It has stood up to the composite culture of India, decried communalism, upheld dissent and abhorred unreasonable restrictions on free speech. In fact, some times, in order to uphold these guarantees, the apex court has not shied away even from striking down an entire provision of law as unconstitutional if it could not practically severe the unreasonable parts thereof from the reasonable ones [See Shreya Singhal Vs. Union of India (2015)]. Yes, there have been aberrations and some rather astonishing ones but, in the long run, these exceptions have only gone to prove the rule. On the whole, the higher judiciary has ensured that hope survives even in the most difficult times.

Law and judicial pronouncements aside, the secular and pluralistic ethos of Indian society has always been the very cornerstone of its existence. What else explains the names of my Jain and Sikh sisters on my wedding invite and mine on my Hindu friend’s ? So also free speech. Nowhere could one criticize, condemn, maul, blast and lash with such fearlessness as in India. Even when the Modi government was elected last year, I had not lost hope. I was not willing to believe that overnight an entire population has given up its secular and democratic character and turned communal and fascist. I believed that an ostensible, untested promise of good governance had simply taken precedence over issues of secularism, harmony and dissent – though even that was bad enough. But the manner in which things have since moved, and especially how three purportedly ‘minority-related’ issues have been dealt with in the last one week not only by the State and the judiciary but also by the people at large, has forced me to have a relook at my beliefs.

In the case of Teesta Setalvad, it will not take even a law student, much less a lawyer or a judge, to conclude that she and her husband and colleague are being persecuted and not prosecuted. Even if the CBI’s allegations against them (howsoever absurd they may be) are taken on their face value, there is no reason whatsoever for refusing them the benefit of anticipatory bail. Some months ago, after seriously deprecating the Gujarat Government in open Court, a Division Bench of the Supreme Court had said that they deserved anticipatory bail and that the Court will not keep “justice on a ventilator in an ICU”. In an unusual move, the matter was subsequently referred to a larger bench but the State was restrained from arresting them. To circumvent this interim protection granted by the apex court, the CBI registered yet another complaint against the same people on the same (or at least similar) allegations forcing them to apply, once again, for anticipatory bail. There is no reason why the same principles for grant of anticipatory bail will not apply this time. But the CBI court thought otherwise. The CBI, inter alia, maintains that the reasons for which the Ford Foundation has given grants to Teesta’s NGO runs contra to India’s National interests. The leader, like Canidus believed in Antonio and Cleopatra, is led. That the CBI’s general understanding is, to say the least, in the realm of the ridiculous is evident from the response of its spokesperson on Teesta and her supporters’ allegation that the agency is ‘hounding’ her : “And what is the charge of being hounded ? Have we misbehaved with her, slapped her, torn off her clothes ?”. But try and say this on social media and you will be abused, battered and accused of sedition and treason (though technically even this abuse and battering would not constitute ‘hounding’; after all, it does not involve slapping and tearing off clothes !).

Similarly, the case of Yakub Memon. After some recent factual revelations about promises made by the State to Memon in lieu of his cooperation with investigation came to light in the form of comments by the very officer who was responsible for bringing him back, some eminent citizens petitioned the Supreme Court to at least consider these newly revealed facts. Two former judges of that very court openly supported the demand in press. What are these people saying ? Simply that, in accordance with the settled principles of natural justice and the law of the land, if a judgment has been delivered without the court having been told all the facts, it deserves a re-look. The Court is, obviously, free to deliver the same judgment again after considering the hitherto suppressed facts. But, elementary canons of justice delivery mandate that the judgment must be reconsidered. However, in the case of Yakub Memon, you cannot dare to invoke this settled principle of law. If you do, you will be asked to relocate to Pakistan – the Rightists’ favourite destination for those who venture to question them. A sitting Member of Parliament (who has, incidentally, sworn to uphold the Constitution) tweeted that those who seek to invoke this settled Constitutional doctrine are as guilty as Memon himself ! Recently, actor Salman Khan was not only forced to retract his tweet and apologize for having hinted at this suggestion, the local ruling party leaders threatened to ask the Bombay High Court to cancel his bail in an unrelated hit and run case for having so tweeted. The realm of ridiculous, in typical Alice in Wonderland style, gets ‘curiouser and curiouser’.

The Hijab case is even more distressing. In an ostensible measure to check instances of cheating, the State decided that this time female students appearing at the national pre-medical test will not be permitted to enter the examination hall in headgear. Some Muslim students assailed this ban before the Supreme Court. The learned Chief Justice refused to hear them commenting, somewhat casually, that “faith won’t disappear if you don’t wear hijab for one day”. Perhaps the Bench was of the view that wearing Hijab is not an ‘essential’ religious practice in Islam and, since the Constitution protected only ‘essential’ religious practices, the one-day ban was sustainable. The questionability of this argument apart (wearing of the Kirpan is an essential religious practice of the Sikhs, categorically protected by the Constitution; yet Sikh students were not allowed to wear Kirpans in the examination hall), the fact that cultural practices or more simply, the right to wear what you want, are equally protected and that the State’s directive constituted an unreasonable and irrational restriction on them was not even considered. That the directive was not required is yet another issue. However, what is painful and anguishing is not that the Supreme Court dismissed the petitions but the intemperate language it used while doing so. Of course the Muslim girl’s “faith won’t disappear” if she does not wear the Hijab for one day, just as the Hindu Brahmin’s faith would not have disappeared if beef was being sold in the same State in which he was living. But that is not the question. The question, with due respect to their Lordships, is whether such comments behoove the dignity and majesty of the apex court, the pinnacle of justice and the chief protector of the rights of the people ? In a secular, pluralist society, such comments, even on twitter and facebook are disagreeable. But if they get sanctified by the Supreme Court, things have certainly changed.

The past one year has slowly changed my hitherto unassailable belief that India’s secular character is unimpeachable. It is not simply a case where the State, like Nero, is fiddling while Rome incinerates. The past one year has established, quite demonstrably, that we are in the midst of a systematic shift from a secular democracy to an autocratic theocracy where Constitutional undertakings, promises and agreements are being methodically violated. Traumatic as it is to someone who has always been proud of his grandparents’ decision to live as a minority in a secular nation, I still survive on hope.

As an Advocate of the Supreme Court, as a student of Constitutional law, as a conscientious citizen who still believes in the rule of law and the independence of judiciary,  I am of the opinion that :

• Teesta Setalvad should be granted anticipatory bail.
• Yakub Memon shoud be granted a fresh hearing.
• Those who want to wear the Hijab or grow a beard should be left to decide for themselves.

and I further believe that, for holding these opinions, I should not be asked to prove my nationalist credentials to anyone.

Disclaimers :

1. I know Teesta personally and have great regard for her work.
2. I have no personal sympathy with Yakub Memon but my views on his case would not have changed had his name been Babu Bajrangi.
3. I do not support the practice of purdah and no one in my family observes it which, by the way is very different from wearing a hijab.

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Saif Mahmood is Advocate, Supreme Court of India and Founder of the South Asian Alliance for Literature, Art and Culture (SAALARC). He holds a doctorate in Comparative Constitutional Law in South Asia.