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Show the Law: First, Show the Person!

A. J. Philip A. J. Philip
19 Sep 2022
It needs to be pointed out that the 1991 Places of Worship Act was enacted mainly to prevent converting Varanasi and Mathura into another Ayodhya.

A relative was granted unconditional bail by the CBI judge on the first day the case came up before her. The case was that he “received” two Rs 500 notes as bribe. Those in the judge’s office demanded a bribe of Rs 2500 to prepare the order for his release immediately without which he would have stayed in the jail for three more days. To cut the story short, I was happy to receive him when he was released the same evening.

For once I realised that a humble stenographer could be more powerful than a mighty judge. He knew that if the judgement was not typed and the judge’s signature not obtained in time, the release order would not reach the jail in time. 

Under a British-era law, prisoners were not released after sunset. The stenographer also knew that time was of the essence as the next day was a holiday, succeeded by Saturday and Sunday.

I remembered this incident in the context of the Siddique Kappan case in which despite getting bail from the Supreme Court, the Kerala journalist remained in jail. The crime he committed was that he went to Hathras in Uttar Pradesh to report the gang-rape and “murder” of a 19-year-old Dalit woman. Usually, journalists are punished for what they report or write. In his case, he was arrested on the way and he has remained in jail so far.

I got a very clear idea of the baselessness of the charges against Kappan when the prosecution failed to answer clearly and convincingly the series of questions the Supreme Court judges asked him when the bail application came up for hearing. An RSS leader, who wants Kappan to remain in jail for as long as possible, tweeted that the prosecutor was not in “form” that day.

It is the same Supreme Court which had been asking Kappan’s lawyers to seek bail from the lower court in Uttar Pradesh. Why is he in jail even after getting bail? While ordering his release, based on the SC decision, a local court in Lucknow imposed additional conditions for his release. He should produce two sureties of Rs 1 lakh each and a personal bond of the same amount.

What’s worse, the sureties should be by two residents of Lucknow. It was a tall order for the Kerala journalist who does not have any connections worth the name in the state, as is clear from the fact that he has been languishing in jail for more than two years. My hope that he would get bail was dashed to the ground when I read that he would remain in jail till he got bail in another case against him being investigated by the Enforcement Directorate. His struggle for bail will have to begin again.

On September 13, Umar Khalid completed two years in jail. Once, I visited Shaheenbagh where women were protesting against the new citizenship law that discriminated against Muslims. Khalid was addressing the women that day. I heard him speak for a while. He spoke from the heart and it made an impact on the people present. Let me add, my knowledge of Urdu and colloquial Hindi was not sufficient to follow him.

Recently, I read Khalid’s open reply to an open letter he received in jail. He wrote about how he was subjected to a media trial in which truth became the casualty. He is accused of trying to instigate the riots in northeast Delhi. I had visited the area after the riots and had done a column. The fact of the matter is that an overwhelming majority of the victims were Muslims. How could Khalid even think of organising a riot which will harm his own community?

The police know that whatever be the size of his case file — 11,000 pages — such cooked-up charges will not stand judicial scrutiny. The effort, therefore, is to keep the Kappans and Khalids in jail for as long as possible. While renaming Rajpath, which was Kingsway during the British period, as Kartavya Path (Path of Duty), Prime Minister Narendra Modi claimed that the last vestiges of the British era have been erased. Two days later, he ordered the national flag to fly at half mast to mourn the death of Queen Elizabeth!

I wish Modi was more truthful. Students of history know that the worst law enacted by the British was the Anarchical and Revolutionary Crimes Act of 1919, known popularly as the Rowlatt Act, named after Sir Sidney Rowlatt. Under the Act, anyone suspected of having terrorist links or inclinations, could be detained without trial. Do you know how long? For a maximum of two years.

Under the Rowlatt Act, both Kappan and Khalid would have been released once they completed two years of detention. However, there are laws in our statute that would not grant freedom even to a person like Stan Swamy who spent his life with the tribals and was judiciously done to death. It is easy to rename a road a thousand times but difficult to remove the colonial mindset that sees the rebel as unworthy of a dignified life and should, therefore, rot in jail.

Something in Khalid’s letter made me a little happy. In jail, he quit smoking. He also ended his mobile addiction, the urge to check social media every now and then. Instead, he has been able to read dozens of books, including fiction, that will keep him sane. 

I have in my possession an autobiographical book written by a “jailbird” in the US who was released after nearly 30 years. He had got so used to jail life that he had adjustment problems when he was released.

Khalid wonders if he would have such a problem if he is released now. He thinks that it is because he is a Muslim that he is treated in this manner. He is not that right. Recently, a police officer, who was part of the High Court-appointed Special Investigation Team that had concluded in 2011 that 19-year-old Ishrat Jahan along with Javed Shaikh alias Pranesh Pillai, Amjadali Akbarali Rana and Zeeshan Johar were killed in a staged encounter with security forces on the outskirts of Ahmedabad on June 15, 2004, was dismissed from service.

He is Satish Chandra Verma, who can spend the rest of his life fighting against the Home Ministry order dismissing him from service. Meanwhile, he will not even be entitled to his pension and other pecuniary benefits. As I read about him, I remembered Gopinathan Pillai (78), father of Javed Shaikh, from Nooranad in Alappuzha district in Kerala, who wanted justice for his son, who converted for love, not hatred.

Verma is luckier than former Director-General of Police R B Sreekumar, who is in jail as he and others like Teesta Setalvad — now on interim bail — are responsible for keeping “the pot boiling” over the past 16 years and “need to be in the dock and proceeded with in accordance with law.” Do these words send shivers down the spine of those who feel that injustice is intolerable? They are the words of the apex court. Yes, it is a crime to fight for justice!

I began this column mentioning how a stenographer proved more powerful than his boss. That necessitates telling an apocryphal story. A king was tired of receiving complaints about one of his officials, who extracted money from the people on one pretext or another. The king transferred him from his position of power. He was asked to spend his time on the beach counting the waves. 

He hit upon an idea. He stopped fishermen from going out to the sea for fishing as it would break the waves. How would he correctly count the waves? Soon, the fishermen started paying him bribes to let them fish in the deep sea. The poor king did not know the resourcefulness of a humble government servant.

In 1991, the Narasimha Rao government enacted what is known as the Places of Worship Act. Under this law, the status of all mosques and temples was frozen as on August 15, 1947. Of course, the Babri Masjid was exempted from the Act to allow the two sides to reach a negotiated settlement on its status. In any case, litigation had been going on about the status of the masjid. 

The Act declared “that all suits, appeals or any other proceedings regarding converting the character of a place of worship, which are pending before any court or authority on August 15, 1947, will abate as soon as the law comes into force”. No further legal proceedings can be instituted. The Act also specified punishment for those violating it.

It can be said without fear of contradiction that the law had stood the test of time. In fact, the Supreme Court verdict on Ayodhya that allows the construction of a “magnificent” temple at the disputed site, which has wholly gone to the Hindus with the Muslims getting an alternative site outside of Ayodhya, pays tribute to the Act.

Let me quote an article by K. Venkataramanan in The Hindu: “The Supreme Court commended the enactment as one that preserved the constitutional value of secularism by not permitting the status of a place of worship to be changed. 

“The state has, by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism, which is a part of the basic features of the Constitution. 

“It said the Places of Worship Act ‘imposes a non-derogable obligation towards enforcing our commitment to secularism.’ The court observed that ‘non-retrogression is a foundational feature of the fundamental constitutional principles, of which secularism is a core component’”. 

Here it needs to be pointed out that the 1991 Places of Worship Act was enacted mainly to prevent converting Varanasi and Mathura into another Ayodhya. There were disputes about the mosques adjacent to the Shiva temple at Varanasi and the Sri Krishna temple at Mathura. Some believe that they were erected by “destroying” the temples during the reign of Emperor Aurangzeb. Be that as it may, the two have co-existed for hundreds of years!

All this did not prevent a local court in Varanasi to entertain a plea from five Hindu women that they be allowed to worship the deities on the outer wall of the masjid at Varanasi. They had the right to do so once a year. Now, they wanted to worship every day. As usual, they also claimed that the mosque was built on the precincts of a temple.

The 1991 Act did not prevent the local judge from ordering a video-graphic survey of the mosque premises. It reportedly found an object that resembled a Shivling, which the Muslims say was part of a fountain system that existed in the pond. When the matter reached the Supreme Court, it transferred the case to the district judge to decide the matter.

Early this week, the district judge ordered that the case filed by the five women was maintainable. This means that there will be a trial and witnesses will be called upon to give evidence for or against the claim that the object was religious. The Hindu side has celebrated the verdict as vindication of its stand that the mosque was built on the debris of a temple. The Muslim side has announced its decision to challenge the verdict in the High Court.

There is increasing evidence that institutions and individuals holding power tend to reflect the mood of the ruling dispensation. If some judges see the Places of Worship Act, 1991, as an example of William Blake’s “one law for the lion and the ox” they can’t be blamed.

That is why it is a verdict by the Supreme Court that allowed the arrest and detention of persons like R.B. Sreekumar and Teesta Setalvad, whose only fault is that they tried to give voice to the voiceless. Alas, they took the side of David, against the mighty, gigantic Goliath!

ajphilip@gmail.com

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