In the immediate aftermath of the horrific display of majoritarian violence in Delhi last month in which Muslims were the primary targets, oddly enough it is judicial conduct that has come to occupy centre stage.

The question before the court (and importantly before every one of us in this country) is: Do we stand by the people protesting against the controversial Citizenship Amendment Act and their right to protest? Do we stand with those who have suffered enormously this past fortnight in Delhi, before that in Uttar Pradesh, and before that in Assam – all on account of this one law that threatens to dispossess us?

The CAA introduces religious denomination as a basis for granting citizenship status to non-Muslim migrants from neighbouring Islamic countries alone. As scholar Mahmood Mamdani has argued, this exposes “the CAA [as] a demonic rather than a benign legislation” that refuses to acknowledge Muslims as anything other than as perpetrators of violence: “The official discourse thus seeks to present Muslims as a politically and morally legitimate target for persecution by a government-mobilised majority”.

The CAA and its implementing arm, the National Register of Citizens, sparked widespread protests in which Muslim women came out on the streets in unprecedented fashion. Inspired by the protest in New Delhi’s Shaheen Bagh, the demonstrations challenged the government through peaceful civil disobedience centred on the public reading of the Constitution. Unable to move the protestors from the streets of Shaheen Bagh and other places and infuriated by the courage of conviction that ordinary Indians demonstrated in the face of state coercion, Bharatiya Janata Party leaders Kapil Mishra, Anurag Thakur and others resorted to hate speech and incitement to violence against the protestors.

Orchestrated violence

On the night of February 23, North East Delhi witnessed the beginnings of orchestrated violence clearly targeted against Muslims, with the police standing by in some places, participating alongside Hindu mobs in others. There was no state intervention to control the mobs. Ambulances were obstructed from carrying the injured to hospitals. Clearly, it was only the judiciary that could step in to provide immediate remedies to victims and to force state action.

In one instance, we have the stellar display of courage and judicial empathy by Justice S Muralidhar and Justice Bhambani. Shortly past midnight on February 23, hearing a PIL at Justice Muralidhar’s residence, they issued directions to the police to provide safe passage for ambulances carrying the injured victims of the violence. Justice Muralidhar later described this as his longest working day as a judge of the Delhi High Court. Continuing the following day in similar vein, the judges played videos of the hate speeches in Delhi delivered by BJP leaders Kapil Mishra and Anurag Thakur, among others, and demanded to know why FIRs had not been registered against them for inciting violence.

There was a clear connection between the incendiary speeches by the BJP leaders (in the presence of police officers), the murders and destruction that followed, and the morphing of the speech into anti-Muslim war cries by a mob in a Delhi metro station in broad daylight even while the violence was just beginning to abate. The court gave the state 24 hours to respond.

In a trice, Muralidhar’s transfer was notified, and the Delhi High Court gave the state four weeks to respond to the judge’s questions about the FIRs against Kapil Mishra et al.

This speedy rollback from judicial empathy calls to mind the words of Late Justice Leila Seth: “To show exaggerated deference to a majoritarian Parliament when the matter is one of fundamental rights is to display judicial pusillanimity, for there is no doubt, that in the constitutional scheme, it is the judiciary that is the ultimate interpreter.”

Police guard a mosque in a violence-hit area in Delhi. Credit: Rupak De Chowdhuri/Reuters

When the matter came up before the Supreme Court, there was still no sight of empathy from the court for the victims of unspeakable violence. We cannot forget that there is an expectation of judicial empathy from victims’ families especially in terms of providing immediate reliefs. On the other side, there is a strident claim to impunity by those accused of incitement to violence. It is clear whose side the court ought to weigh in on. Tellingly, however, Chief Justice SA Bobde was quoted as saying, “We are not saying that people should die. That kind of pressure we are not equipped to handle. We cannot stop things from happening. We cannot give preventive reliefs. We feel a kind of pressure on us.

In his farewell speech, Justice Muralidhar had noted: “I am often asked, ‘are judges under pressure?’ My answer to that is: Not unless they acknowledge it.” The question before us now is, what is the source, the root of the pressure that Justice Bobde feels?

At a critical juncture like this, in the aftermath of gruesome, unspeakable violence, and entire neighbourhoods in Delhi were laid waste, can the Supreme Court even afford to feel pressure? The judicial prevarication on the matter of the FIRs against Kapil Mishra et al was purportedly sealed by the state producing a recording of a December 2019 speech of social activist Harsh Mander, accusing him of inciting violence during a speech at Delhi’s Jamia Millia Islamia and being guilty of contempt because he had criticised the court’s actions in some matters.

Majoritarian mobilisation

Solicitor General Tushar Mehta accused Mander of inciting violence in Jamia, of criticising Parliament for passing the Citizenship Amendment Act and of criticising the court for not intervening on behalf of the students of Jamia who were attacked by the police and therefore being guilty of contempt. As it turns out, Mander had actually urged students and protestors to reject provocation of any kind, to meet violence with non-violence, to assert the right to citizenship as a birthright and draw strength for resistance from the Constitution. Clearly, this enraged the ruling dispensation, which has consistently undermined basic constitutional tenets.

The strengthening of movements of protest against the unjust Citizenship Amendment Act strikes at the root of majoritarian mobilisation. That Indian Muslims in the largest numbers (and Muslim women, especially) were in the leadership of this protest challenged the agenda of the Sangh Parivar in unprecedented ways. Seen in this light, what in fact the Solicitor General has admitted is that collective violence was the weapon in the arsenal of the state deployed to silence the peace work of hundreds of thousands of ordinary Indians across the country. The targeting of Harsh Mander only serves to deflect attention from the grave injuries and harms visited on the people of North East Delhi.

Even while this case is being heard, we have the case of the Allahabad High Court order directing the state to remove the “name and shame” hoardings of people labelled as rioters put up at traffic intersections in Lucknow by the state; and the Adityanath government’s response questioning the jurisdiction of the High Court and then challenging the order in the Supreme Court.

The police with a poster of wanted protestors in Lucknow. Credit: PTI

The expectations from the Supreme Court are very high, tasked as it is with the onerous responsibility of keeping the Constitution within easy reach of every citizen. The protests against the Citizenship Amendment Act are closely intertwined with the inflammatory speeches of BJP leaders in Delhi and the police firings on protestors, large-scale arrests and now hoardings in UP.

The immediate expectation is that the constitutional court will act with a sense of urgency. Extraordinary times call for extraordinary remedies. The Puttaswamy court – with the present Chief Justice on the bench – ruled in 2017 that the right to privacy is protected as a fundamental right, and guarantees the right to life with dignity, the right to personal liberty and importantly the right to move the court against unconstitutional actions by the state.

When the chief justice, as if on cue from the Solicitor General, said in the nature of a verbal duel to Harsh Mander, “If this is what you feel about Supreme Court then we have to decide what to do with you,” he was veering dangerously close to the trap of what political scientist Nissim Mannathukkaren so aptly terms “the barbarity of false equivalence”, where “to cover up ghastly crimes committed by a people… two incomparable things are compared and declared to be equal because there are always two sides to the story”.

The incomparable things in this instance are the hate speech of Kapil Mishra and incitement to collective violence and the speech to peaceful protestors by Harsh Mander, By this token, will people whose photographs are up on hoardings first have to prove that they were “law-abiding” citizens (read pro CAA) before the court hears the matter of manifestly unjust state action that has placed these people at immediate risk?

The price of dissent

Is this the price we pay for dissent? Justice DY Chandrachud has often asserted that “dissent is the safety valve of democracy”. An important part of dissent is the right to differ with the opinions of judges, with judicial conduct and with jurisprudence. As Justice Muralidhar stated so clearly in his farewell speech, judges, like the rest of us are fallible. The Supreme Court itself, in Puttuswamy, acknowledged that the court had erred, and resurrected what it called the “Three Great Dissents”, reinstating Justice HR Khanna’s opinion in the ADM Jabalpur case of 1976, that even during Emergency, the fundamental right of a citizen to move the court shall not be suspended.

Whether individual judges agree with my view or not, I have a right to civil disobedience under the Constitution that no judge in the country, nor any government can dispossess me of. It is the foremost duty of the judge to protect my fundamental rights, especially in the face of onslaught from the government. There cannot be even a suggestion of the convergence of interests between constitutional courts and the executive. Is that not the essence of what this very court upheld in the Puttaswamy case?

Kalpana Kannabiran is a professor and director of the Council for Social Development, Hyderabad.