Uploaded on April 16, 2022



Dr. Mohammad Manzoor Alam

The main objectives of government formation for building the country and establishment of democracy revolve around giving rights to people, creating equality in society, ensuring justice to every individual and guaranteeing people’s freedom. Several departments are established to implement this basic agenda; such departments are kept apart from each other and are given functional autonomy. Comprehensive and flexible constitutions are framed, taking cognizance of every aspect. There is talk about giving equal rights to the poor, oppressed, weak and minorities. It is written manifestly in the constitution that law shall treat all equally; everyone will come under the jurisdiction of law; no one will be exempt from the law. Then, this constitution guarantees equality to all citizens, stressing that no one will get preferential treatment on any ground; all deserve equal rights; freedom, justice, equality, and fraternity get fundamental position in the constitution. The Indian Constitution, too, has in its preamble the distinction of having justice, equality, freedom and fraternity as the fundamental rights. From the very first day of India’s independence, it has been aimed that while implementing the Constitution, it should be ascertained that all the people, including Dalits, Adivasis, weaker sections, oppressed, and minorities get justice; everyone should enjoy the status of a free citizen; all people should be treated justly on the ground of equality. It is also evident in the Constitution that different institutions will have freedom of action and will enjoy autonomy; no institution will be brought to act under pressure of some other institution; the executive and Judiciary will stay apart; the executive will address its responsibility, while Election Commission will function autonomously, and police force will do its duty honestly. Likewise, the judiciary will act freely and impartially to do justice to all.

There will be no discrimination in a court of justice between rulers and public, rich and poor, Hindu and Muslim, Brahman and Dalit; distinction will not be made between a minister and an ordinary citizen; whoever is found guilty shall have to suffer punishment. The judiciary will pronounce judgement on the basis of facts and evidence; it will consider a crime as an offence and will set the innocent free. This is the basic characteristic of a judiciary and this is what justice means. History witnessed incidents when a court of justice had found the reigning king guilty against an ordinary plaintiff, and the Qazi had subsequently passed a judgement accordingly without any fear. History of Islam provides testimony to several such instances of which one will be cited here. This is related to the Commander of the Faithful, the most revered Ali RA, who had lost his armour, which was later found in possession of a Jew, but the Qazi pronounced the judgement in the favour of that Jew as against Ali RA. The episode runs like this: once, Ali RA, the Commander of the Faithful, had lost his armour which, after a few days, he saw in possession of a Jew. He told the Jew that the armour was his and he had lost one day at a particular place. The Jew denied his claim and said that this armour is mine and is right now in my possession, and if you are right, the Muslim Qazi will decide the matter between us. The whole episode revolves around three people— Ali RA, the Jew, and the Qazi—is being narrated below:

Shuraih ibn al-Harith ibn Qays ibn al-Jahm al-Kindiwas a tabi‘, who had embraced Islam in Yemen during the lifetime of Prophet Muhammad PBUH, but he had never met him. He had served as Qazi al-Quzat during the caliphate of Hazrat Abu Bakr, Hazrat Umar Farooq, Hazrat Ali bin Abi Talib and Amir Muawiya RA. He lived a long life and passed away in Kufa in 87 A.H. at the age of 108 years. The episode is related to the missing armour of Hazrat Ali RA. The reigning Caliph Hazrat Ali RA and the Jew reached the court of Qazi Shuraih. When the Qazi saw the Commander of the Father, he rose on his feet, but the Commander of the Faithful told the Qazi to take his seat. The Commander of the Faithful Hazrat Ali then presented his case, telling him that he had lost his armour and that day he saw the same armour in possession of the Jew who had accompanied him to the court of the Qazi. The Qazi asked the Jew how he would respond to this representation. The Jew answered that the armour belonged to him, and it was in his possession. The Qazi saw the armour and said, “By Allah, O Commander of the Faithful! This armour is really yours and you are right, but according to the law, you have to produce witnesses. Thereupon, Hazrat Ali produced his freed slave Qambar as a witness, who gave his statement in favour of Hazrat Ali. Then, Hazrat Ali produced his sons, Hasan and Husain RA, as witnesses who also supported the claim of Hazrat Ali. The Qazi said, “O Commander of the Faithful, while I accept the testimony of your freed slave, but you bring another witness because I can’t accept the testimony of both your sons since they are your sons.” Hazrat Ali then said, “By Allah! I heard Umar bin Khattab RA relating a hadith of the Holy Prophet PBUH that Hasan and Husain are the leaders of the youth of Jannah”.

Listening to this Qazi, Shuraih said, “By Allah, it is true, but according to law, the testimony of your sons can’t be accepted.” Then the Qazi passed his judgement in favour of the Jew and allowed him to keep the armour with him. The Jew was astonished to hear the judgement of a Muslim Qazi against the Commander of the Faithful, who accepted the judgement unquestioningly. Then, the Jew looked up at the face of the Commander of the Faithful Hazrat Ali and said, “O Commander of the Faithful! Your claim is true; this armour is really yours; on that day, it had fallen down from you, and I had picked it. You can get back your possession.” Following this episode and impressed with the supremacy of law and the significance of justice in Islam, the Jew embraced Islam. The inference drawn from this episode is that the supremacy of law is indispensable for the progress of society and the country’s stability, peace and security, the responsibility of which rests with the judiciary. Once the guilt is proved beyond doubt, the court should not evade punishment as per law, without discrimination on the basis of one’s status as a minister or citizen. If the distinction is made in some country between a person holding a high position and an ordinary citizen, or if a court in some country considers a person’s high position and does not pay heed to the supremacy of law, then that country slowly passes into a jungle raj; anarchy spreads, and society gets ruined. In recent times, our country’s judiciary has given some verdicts, ignoring the supremacy of law. To make the guilt of a central minister unaffected and declare him not guilty, the Court said there is no criminality involved if something is said with a smile and that the minister who made hate speech does not make him a criminal.

Another matter is related to setting two criminals scot-free because the Court held that they had committed the crime for the first time, so they must be set free, and if in future they commit a crime, they will be prosecuted. For now, the crime of putting Muslim women for online auction openly has been committed for the first time, so it is insignificant and should be ignored. The attempt by Honourable Judges to regard the crime with no seriousness and the tradition of giving the verdict by considering the background of criminals certainly violates the principles of the judiciary. The verdict destroys justice and amounts to an insult to the Constitutional values. All are equal before the supremacy of law; no one is above law. So, if in a democratic country, a clear-cut crime is interpreted to declare a criminal not guilty and set off scot-free, the country, in this case, will turn into a jungle raj while people and next generations will suffer retribution on account of the trend set by the judiciary, irrespective of whether the reigning king issues proclamation with a smile on his face or with a serious stance; his order will be considered as applicable and the action is implemented accordingly. In any case, whether the judge makes a verdict smilingly or on a serious note, the verdict will be taken as final. There is no provision to the effect that if the judge is making a verdict with a broad smile on his face, it will be dubbed as humour and not a final word. It is obvious that persons in authority issue their decree smilingly and not seriously; their smile betrays hate, contempt, and bias. This smile carries a message. The message conveys how a statement made by the ruling king and his minister is to be forwarded and put into effect. The case related to a verdict made by the judiciary, as spelled above, is quite complex and deserves serious consideration. The weak, oppressed, and minorities in this country pin their hope on the judiciary as a last resort to get justice. But if the judiciary makes verdicts favouring oppression, new routes of interpretation will be adopted to protect the oppressors; anarchy will certainly set in; the wicked will be emboldened, and law will be torn into shreds; Constitution, judiciary and law will be rendered as meaningless institutions. Therefore, it is a primary function of the judiciary to establish the supremacy of law. The trend of trampling justice must stop because the judiciary is the last ray of hope for people, especially the weaker sections of society. Prosperity comes to a country only after setting up a just system of imparting justice; this is a condition that also leads to multidimensional progress and contributes to maintaining peace and security in society.

(The writer is General Secretary of All India Milli Council)


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