MillenniumPost
Opinion

The locus of justice

Arguably, India's two best (the plurality of the best is by choice because the shining brilliance of the two cannot be differentiated, may be for the limitation of English language) political theorists, Rajeev Bhargava and Pratap Bhanu Mehta have expressed their opinions in columns of two leading newspapers of the country in the recent past. Both belong to the liberal school of thought in political theory. But Mehta has disagreed on subtle differentiation with Bhargava on what can be argued as nuances of the Constitution's basic character and its interaction with the functioning of the Indian State.

Their approach has been to test one of the central tenets of the Indian Republic – its promise of being secular. Mehta has essentially argued about the institutional lapses – especially those upholding law and order – that nullify the diktat of the Constitution. And Bhargava argued how Indian secularism, by accommodating the State's right of intervention on religious issues actually facilitates affirmative action in favour of the minorities, and occasionally even the majorities.

This is where also the central contradiction of the Indian liberal school's central contradiction lies. While Bhargava is strongly Nehruvian in his vision, Mehta is more secular in his choices of our founding fathers. And we know that Bhargava's Nehru often disagreed in the Constituent Assembly with Mehta's Ambedkar and Co.

Mehta rightly points out the failure of the Indian State when Art 25 of the Constitution impinges on the far more important Art 21 that promises the fundamental right of life and liberty. While Mehta has been a sophist in raising the endemic contest between the two rights, this column and its humble author had been more direct in raising the issue in the piece that was published on January 5, 2017.

What happens when a religious riot breaks out and members of a community are killed? How should justice, which is supposed to be blind according to the Western school of jurisprudence, differentiate between basic character of the Constitution and fundamental rights that both promise life and right to religion? Let's take the case of vandalisation of the Babri Masjid?

Here was a crowd of people that considered they were upholding their right to religion by destroying the mosque, which they believed was on the land of Ram, a character in one of the epics of the majority community. A large number of lives were lost in the wake of that act.

Of course, we know that Allahabad High Court has winked at the basic character of the Constitution and have found Ram a juridical person who, it has ascribed, had an inalienable right on the land where Babri Masjid stood. But then we know that this judgment (an example of the contradiction that should exist in the book of Mehta) has been challenged in the Supreme Court. We also know the Supreme Court's docket is possibly so full that it has not been able to take up the appeal yet.

But did the act by the Hindus, supposedly guaranteed by Art 25, of course with well-meaning caveats, not impinge on the Art 21 rights of the Muslims? Considering that the mosque was destroyed even under the watch of the law enforcers – the ones detailed to maintain in what the anodyne legalese describes as public order, should the Court rule against those law enforcers who had been found to be derelict?

In short order, with this as a precedent, should Prime Minister Narendra Modi then being in–charge of all that happened in Gujarat, be considered a derelict in terms of upholding the Constitutional rights of both Articles 21 and 25 for ignoring the plaintive telephone calls of the former Congress member of Parliament, Ehsan Jafri? Were Mehta and Bhargava to be members of the judiciary, where should the locus of justice lie?

Or should we choose the words of then Prime Minister Atal Behari Vajpayee and talk about Chanakyan concept of 'Raj Dharma' that is in no way an absolute duty but should the 'tired words' of complete separation of religion and State – to quote Bhargava – be also considered a separation of the State from the Constitution that talks about absolutist secularism as its basic character? Relative virtue? In other words, is the Indian Constitution to be read with real politik in mind, couched in the words Bhargava as a passive virtue?

Let's pose these questions to our learned educators and jurists. And when they pass their edict, I promise that we, from the unofficial Left (considered left-out sometimes!), shall follow it to a T.

(The views expressed are strictly personal.)

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