Eroding Democratic Values

6 Aug 2018 6:20 AM GMT
Eroding Democratic Values
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Supreme Court has recently said ‘lynching is an affront to the rule of law and to the exalted values of the Constitution itself’. The Rule of law is one of the basic features of the Constitution of India and the same reflects everywhere in it. Similarly, the Supreme Court has declared ‘Secularism’ as a basic feature of the Constitution. Hence, Secularism cannot be taken away from the Constitution even after its amendment. The principle of secularism, as stated and understood, would not only apply to the government but also to the political parties not only in their action but also in their thought process.

In the year 1996, in the famous Hindutva judgment, Justice J S Verma had rightly stated that misuse of the words ‘Hinduism’ or ‘Hindutva’ to promote communalism cannot alter the true meaning of these terms and misuse of these terms should be dealt with strictly. However, at the same time, the said judge emphasised that ‘Hindutva is understood as way of life or state of mind and it is not to be equated with or understood as religious Hindu fundamentalism’. This was not a well-considered and far-sighted observation of the highest court. Today we see, a huge amount of mischief and fundamentalism being spread under the protection of this term. Undoubtedly, it is harming the very secular ethos of the country and if it continues like this, it will shake the foundation of basic tenets of democratic values.

From the recent past, it is evident that, for the political class, democracy means nothing more than achieving the target of the number of elected candidates to form the government. For them, democracy is nothing more, nothing less. The result of the 2014 general election gave the numbers to form a government with a substantial majority in favour of a party which espoused a substantial part of its agenda in the name of Hindutva.

Today, the judiciary has to spend much of its time to repeat the same democratic principles again and again. Many of them are trivial issues and could be tackled at the administrative level. Cow vigilantism, Love Jihad are few of such issues. These issues have created serious insecurity in society. The government does not treat them as a serious internal security issue in society at large. In the year 2002, we stood up to enact Prevention of Terrorism Act by saying that if the acts disturbed the internal security and integrity of the nation then the said act would amount to ‘terrorist attack’. Now for a similar type of security issues, the Supreme Court has to issue direction for bringing the appropriate law. How much that law, if brought, shall work is not known because the victims of these attacks are very a vulnerable class of the society and, unlike terrorist acts, the police is also complicit in many instances of lynching and love jihad-related crimes.

So far, only one trial in a lynching case has resulted in convictions. The High Court granted bail to the convicts and they were felicitated by a union minister by garlanding.  Another union minister visited the jail to pay respect to the accused in communal riots. Two ministers openly supported Kathua rape accused. Have they not breached their oath for their ‘true faith and allegiance to the Constitution of India as by law established’?

The Supreme Court has stated that it is the duty of the State that the machinery of law and order functions efficiently. As reflected in the judgment, at the time of chaos, the state has to act positively and responsibly as the mobocracy cannot be permitted. The state cannot turn deaf ear to growing rumbling. Now at this stage, we need to consider, whether we need a specific law to this effect, as the Supreme Court has recommended?

For example, there is liquor ban in many states. If a person is caught carrying liquor, nobody kills the accused. Similarly, drugs and narcotics are prohibited throughout the country. Hardly people kill the accused carrying them.  We already have a law against cow slaughter in the larger part of the country. Hence, if anybody commits an offence of killing a cow, people against it should invoke appropriate law but they become the custodian of law and order and kill the citizens. Here it makes the crime altogether different. That difference is because the level of prejudice and hate has trickled down in the middle and poor class and has spread over as hate crimes. This was an opportunity for the Supreme Court to discuss the issue of hate crimes in details but it has only passingly referred to ‘hate crime’ as a product of intolerance, ideological dominance and prejudice and said that it ought not to be tolerated.

Undoubtedly, this mob violence is attack on ‘rule of law’ where the accused of violence take pride in committing lynching. They do it in organised manner in a large group. In recent instances of lynching, bystanders have only proved to be spectators of crime by their free will. That does not happen even in crimes of terror, robbery, rape etc. Most of the witnesses turn hostile and police become complicit in the crime of lynching.  Hence, the question is, whether a law like anti-terror law or other harsh law shall work as deterrent or not is a big question. Reason being, the criminal investigation system of the country is in serious doubt. Most of the cases fail because either the investigating agencies are incompetent, biased, prejudiced or work under some or the other influence. Any new law shall be implemented through the same investigating agencies with the same people, working in the same culture without understanding the sensitivity of the cases. However, despite everything, as we do quite frequently, a new strict legislation would be necessary at least to show that political class is also equally serious about the issue as the Supreme Court has shown.

M.R.Shamshad is an Advocate-on-Record at Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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