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“UPSC Jihad”: A tale of ignominious judicial capriciousness

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Samved Iyer
I am but a college student with profound interest in current affairs.

A layperson’s cynicism if not complete distrust with regard to the Indian judicial system could be attributed to, inter alia, the proclivity of the judiciary to exhibit capriciousness to an alarming extent. The inconsistency of the judiciary is ostensibly its only consistent characteristic. Its judgment with regard to the series “UPSC Jihad” aired by Sudarshan TV chief editor Suresh Chavhanke is evincive of the same.

The context behind this series is the illustration of government schemes for religious minorities securing employment in the civil services. The inordinate advantages enjoyed by the Muslim community, such as higher number of attempts, higher upper age limit, suspicious rate of success in a particular language etc. having been conceded, have already been reported.

Given the phenomenal competition that exists for the UPSC examinations, a difference of mere 1% could indicate a plethoric difference. As Suresh Chavhanke reported, the difference in the marks for interviews between Muslims and non-Muslims in 2018 was as high as 9.5 per cent. It is beyond anyone’s comprehension as to why such figures must not engender skepticism and how the mere reportage thereof could be construed as slanderous to the Muslim community.

The true controversy, however, was not with regard to the State’s endeavours, but those of an organization named Zakat Foundation of India, an NGO that has also sought to groom Muslim candidates for the civil services. Here is a document prepared by the NGO that evidently champions concerning prospects of a takeover of Indian bureaucracy by Muslim candidates. It would not have been so disquieting had the iniquitous links between the Zakat Foundation and radical Islamist organizations not surfaced.

The disquieting paradigm adopted by the Zakat is already a source of consternation. That it upholds the notion of there being institutionalized oppression of the Muslims in India is amply evident. Not surprisingly, it is opposed to the the Citizenship Amendment Act (CAA) that was passed by the government in December 2019. With eminent lawyers like Harish Salve having demonstrated the constitutionality of the Act based on historical precedent, any opposition to the CAA — with the contention not only that it is unconstitutional but is also an instance of institutionalized discrimination against Muslims — can justifiably be suspected of malice prepense against the nation. Manifestly not sufficient to prosecute an individual who harbours such views, it is of utmost essence to discern possible execrable notions that may have engendered such views. For what objection could it possibly have to India offering sanctuary to persecuted minorities of our neighbouring theocracies who suffer no fault of their own — verily a righteously corrective measure — but verily India’s own legacy of the Partition?

Perhaps the most outrageous instance of the Foundation meddling with the process of justice was its set of demands to the Hindu community, fulfilling which the Muslims would be prepared to concede the Ram Janmabhoomi to the Hindus. This, when the case was already being heard at the Supreme Court. One of the atrocious points was a demand of extending reservations to the Muslims, in the same manner as done for Scheduled Castes and Scheduled Tribes. None other than the Members of the Constituent Assembly summarily rejected such a proposition. Their observations receive much more credence when one realizes that the Jains and the Buddhists, phenomenally smaller in numbers when compared to the Musalmans, did not demand such proportional representation.

That having been illustrated, the NGO’s possibly links with iniquitous organizations now become the gravest grounds for considerations of national security. By its own admission, it received Rs. 13,64,694.00 from the Madina Trust based in the United Kingdom during the financial year 2018–19. The Madina Trust-UK is known for anti-India activities. On the 15th of August and the 3rd of September, 2019, there were attacks on the Indian High Commission in the United Kingdom by unruly mobs. The Economic Times reported on the groups and leaders that were present at the violent protests, one of them was Madina Trust-UK, a trust evidently sympathetic to Pakistan. An article by Sam Westrop on FirstPost is quite revealing of the sheer extent of nefarious activities.

Given the existence of such diabolical plots, how would one view the attempt to scuttle such voices as seek to expose Zakat’s possible iniquitous intentions? As K Bhattacharjee rightly notes, “attempts that are being made to silence such criticism are borne of a misplaced sense of righteousness that could pose a serious threat to the national security of India.”

It must then be a source of profound misfortune and concern that none less than the Supreme Court of India be liable for the same.

Justice D.Y. Chandrachud’s observations with particularly appalling. He contends:

The anchor’s grievance is that a particular group is gaining entry into the civil services. How insidious is this?…Such insidious charges also put a question mark on the UPSC exams. Aspersions have been cast on UPSC. Such allegations without any factual basis, how can this be allowed? Can such programs be allowed in a free society?

Justice Chandrachud is a highly erudite judge. For him to make such specious observations is indeed surprising, particularly so given that Sudarshan TV could not have made its position any clearer, as reported by Bar and Bench:

Sudarshan TV maintains that it has “no ill will against any community or any individual and it does not oppose the selection of any meritorious candidate in the service of the Union or the States.”

The channel made further particularly apt points in its representation:

UPSC is an open competitive examination and members of every community may participate in the entrance examination and qualify. The thrust of the programme is that there appears to be a conspiracy which needs to be investigated by NIA or CBI. It appears that terror linked organizations are funding the Zakat Foundation of India, which in turn is supporting the UPSC aspirants.

What is profoundly interesting as well as confounding, is that while Justice Chandrachud recognizes that injunctions would set a terrible precedent and that “there will be injunctions galore”, which the judges do not want to be law of the land, his concern for the cohesion of India’s diversity is not quite relevant to the case. He observed, “Let a message go to media that a particular community cannot be targeted.” and that “We recognize national security, but we need to have individual respect too.”

While the observations by themselves are valid, they appear erroneous insofar as the case is concerned. The following questions must be posed to the Supreme Court:

  1. Why must Muslims not be mentioned, given that the Zakat Foundation’s own report aims to groom Muslims exclusively? How could facts be reported otherwise?
  2. How does the revelation of such facts constitute hate speech against Muslims, when Suresh Chavhanke never called for any action that could target Muslims exclusively on account of their religion, either institutionally or otherwise? How could it be inimical to Muslims given that none of his statements evinced contempt for Muslims as a religious group, but only the nefarious activities of Zakat?
  3. Does the Supreme Court, by means of its understanding that the nation’s plural fabric could be negatively impacted, indirectly admit that the Muslim sentiment is eminently frail and ergo cannot tolerate even a truthful report? Does it indicate the judiciary’s capitulation to radical elements of society who could potentially hold society at gunpoint? Is that also why the Honourable Court has yet not declared the Government of India’s ban on Salman Rushdie’s The Satanic Verses unconstitutional?
  4. Where was the conscience of the Supreme Court when the narrative of “Hindu Terror” was deliberately disseminated? Why did it not express concern when a book, “26/11: RSS ki saazish” effectively exonerating a foreign terrorist group and implicating a reputed sociocultural organization of the worst terror attack in Indian history, was released? Given that the Supreme Court views truthful and non-hateful reporting as detrimental to the nation’s plural fabric, it could certainly have viewed such an insidious book as covert support to a foreign terrorist group, thereby a threat to national security.
  5. Why did the Supreme Court not bother about the integrity of journalism and “individual respect” as Justice Chandrachud observes and considers important, when a media trial declared Narendra Modi a murderer of Muslims courtesy of the 2002 riots in Gujarat while he was the state’s Chief Minister? Why did the Honourable Court never compel the iniquitous protesters at Shaheen Bagh from clarifying their provocative sloganeering against Hindutva?
  6. Why did the Supreme Court not express concern when eminent voices along with a foreign national, Twitter CEO Jack Dorsey, propounded, “Smash Brahmanical Patriarchy”?
  7. In the event that the Supreme Court is so concerned about banning hate speech, shall it be so dutiful as to ban some religious scriptures that are replete with such language?

Judicial capriciousness is evidence of a dysfunctional law and order system. Such a judgment sets terrible precedent.

While the Court agreed that a pre-telecast ban was an extreme recourse, Justice Chandrachud confoundingly justified it saying so:

We are very conscious of the fact that pre-publication, pre-telecast ban by us is a matter of extreme recourse. We do not do it easily. It could take us down a slippery slope… This court is circumspect about clamping down on any news/opinions. Only in certain narrow range of issues is it [pre-telecast ban] done, like child sexual abuse cases, gender violence or cases regarding matrimonial or even any personal relationship.

It is beyond one’s comprehension how the Court could not discern that Suresh Chavhanke could be categorized under none of the foregoing range of issues. Exposing a national security threat could possibly not have constituted a justifiable ground for the Court to impose a ban. This case has only evinced the sheer hollowness of the judicial system, which Their Honours artfully conceal beneath their ability to quote philosophy and poetry in their judgments and articulation skills rivalling those of Dr. Shashi Tharoor. Such capriciousness by the judiciary cements the unfortunate impression that the judiciary is an elitist institution in its own echo chamber, whose members are lost amidst the sea of abstract theoretical jurisprudence, severely disconnected from ground reality, and who appear to not discern nuances of reality.

The Indian judiciary appears to lose all semblance of nuance so soon as the word, “minority” appears. This is yet another problem in the Hollow Republic of India — and I use that term after prodigious consideration. So soon as the term “minority” is used, the intelligentsia forthwith feels an unfettered passion to protect them from majoritarianism even in the event that there exists none. It does not discern the distinction between protection and indulgence. It shuts off ears to possible contraventions of law and order by the minority community and almost conforming to an unwritten decree, shall philosophize it. It appears that the judiciary is a mere extension of that disposition.

The solution is to either micromanage and introduce curbs against all thoughts, which would be in grave contravention of principles of free speech, or to permit all forms of speech save, say, those which would be subjected to prosecution under the U.S. Brandenburg precedent or an Indian equivalent thereof. Hopefully, the judiciary does not set a precedent that may prove itself to be an ossified, biased institution that could conform to a paradigm potentially detrimental to national interest out of a misplaced sense of righteousness, for such an impression would be inimical to its own reputation.

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Samved Iyer
I am but a college student with profound interest in current affairs.

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