Intellectuals Concerned About Threat to Constitution (December 04, 2010)



L-R: Justice AS Qureshi, Dr M Manzoor Alam, Justice AM Ahmadi, Justice Fakhruddin, Advocate Yusuf Hatim Muchhala and Justice BA Khan

New Delhi, Dec. 4: Supposing one of the original litigants of the Babri Masjid dispute decides not to go to the Supreme Court in appeal, can a citizen or group of citizens, not related to the dispute so far, go in appeal against the Allahabad High Court’s verdict?

This question was raised by Prof. K.M. Shrimali at a seminar held here today on “Save the Constitution: Role of Civil Society”, organised by the Institute of Objective Studies (IOS). Prof. Shrimali said the “civil society as a victim and sufferer” of erosion of constitutional values should perhaps have the right to appeal.

He termed the Babri Masjid verdict as “destructive” of constitutional values as it vindicated and legalised the destruction of Babri Masjid on December 6, 1992. “The mosque was destroyed on December 6, 1992, the spirit of law was demolished on September 30, 2010.”

He came down heavily on the media for tomtoming and legitimising the twin destructions. “The civil society is gradually getting numbed”, he lamented, adding that the judiciary had begun to distance itself from human rights concerns, thus promoting the numbing process. As a member of Delhi University Teachers Association he narrated how a part of the judiciary had distanced itself from trade union issues.

A number of retired judges of high courts as well as former Chief Justice of India, Justice A.M. Ahmadi, were sitting on the dais and the audience had a number of lawyers.

In his presidential address Justice Ahmadi partly answered Prof. Shirmali’s question with the argument that the Ayodhya judgment was not a “question between Hindus and Muslims, but an issue of the integrity of the Constitution.”

The placing of idols in the Babri Masjid in 1949 was “an act of trespass” and the destruction of the mosque was an “act of mischief”. The Ayodhya verdict, by legitimising the two had jeopardised the rule of law and the supremacy of the Constitution.

Justice Ahmadi said that as “We, the People of India” had given ourselves the Constitution which was now in jeopardy. The civil society {broadly “We, the People”} being thus aggrieved had the right and responsibility to seek redress against the anomaly.

Eminent lawyer of the Supreme Court of India, Mr. P.P. Rao pointed out that people behind the destruction of Babri Masjid were not promoting fraternity, which was an important goal of the Constitution. Of late, the law, too, had not been of great help.

Senior lawyer of the Bombay High Court, Mr. Yusuf Hatim Muchhala said the judiciary had gradually withdrawan itself from human rights concerns like food and shelter. “Even though the Narmada dam’s height has been further increased, the tribals displaced by it are yet to be resettled”. He saw it as another evidence of judiciary’s decline, which was a terrible omen for liberty.

Mr. Muchhala concluded with the famous remark of Hobbes: “If liberty dies in the heart of men, no constitution or court can revive it.” Introducing the theme, Justice Fakhruddin, former Justice of Ahmedabad High Court, observed that by introducing a point of faith in its judgment the Allahabad High Court had sidelined the issues of law. That had created an anomaly, which had to be addressed.

Justice A S Qureishi, also a retired Justice of Ahmedabad High Court, said the “Constitution has been under attack right from day one”. It was never implemented in full, and had been consistently violated, not only in letter, but in spirit as well.

He regretted that “small-minded people” had been running India, people who were not of the stature demanded by the Constitution. Justice Qureishi also took note of the decline in judicial standards. However, every now and then the Supreme Court of India had safeguarded constitutional values with injunctions like no alterations could be made to the secular character of the Constitution without harming the whole edifice.

Prof. A.S. Narang of Indira Gandhi National Open University observed that Indian secularism was deeply flawed because it had been excluded from the “socialisation process” right from the home and school to university and professional life. “We learn at home that Muslims are mlechha (dirty) and marry four women, that they created Pakistan, that Sikhs go mad at noon (12 O’clock) every day.

We grow with such stereotypes to bring those prejudices to our adult life. A report by the Bureau of Police Research said 60 percent of policemen in two states read the Saamna daily (edited by Bal Thackeray), which is full of anti-Muslim venom. Policemen brought up on a steady dose of so such hatred cannot be expected to be neutral in an anti-Muslim riot.

Prof. T.K. Oomien of JNU said that the three pillars of contemporary democracy were state, market and civil society. He refrained from commenting on the Ayodhya judgment, adding that the Constitution originally did not have much to say on secularism. Secularism was more clearly added to it in 1976 in an amendment under Indian Gandhi’s Emergency rule. “Secularism has sad connections”, he said alluding to the Emergency. “Until the collective sentiment supports law, Constitution would not work”, he concluded.


A number of leaders from India’s religious minorities addressed the seminar from their own particular perspective. Mr Sudip Jain said that the Jain community had been struggling to get back more than a hundred Jain temples captured by others. None of them by a Muslim, Christian or Sikh. The civil society did not seem to be interested.

He recounted an interesting episode from the days of Partition. When a number of Jain leaders asked Mahatma Gandhi as to why was he trying to protect Muslims, the Mahatma replied that when Jains would be in danger Muslims would come out to protect them.

Sikh leader Dr A.S. Sidhu said that the civil society did not come foreward to protect them in 1984. Even later, no witnesses came foreward to testify before the CBI although many had seen Sikhs being massacred.

About the demolition of Babri Masjid and the court verdict virtually justifying it, he said it presented a stark contrast with Gurudwara Shaheedganj in Lahore. There was a dispute over it between Sikhs and Muslims, the latter claiming that it was built on the debris of a mosque.

In 1935, the Privy Council ruled that it had been a gurudwara for decades, hence the claim of a former mosque was invalid. “Muslims accepted that, and the gurudwara is still there in Lahore”, he said, showing the contrast between Babri Masjid and the gurudwara.

Christian leader Dr M.D. Thomas observed that India had to go a long way in becoming truly secular. For that we would have to take the Constitution as a “holy text” for the citizenry.

General Secretary of IOS, Prof Z M Khan, said that some of the problems stemmed from the fact of the “highly ambitious” Constitution having to operate in a backward society. The relationship pattern established by the Constitution for the Executive, Judiciary, Legislature and the civil society to operate within was not being observed.

Quoting Rafeeq Zakaria, he said victims of mass violence were denied a hearing in the police stations and courts, and media did not allow them access. “Media is not a neutral agency as only the line of a party or lobby is peddled, excluding sincere discourse”.

IOS Chairman Dr. Mohammad Manzoor Alam, trying to add an element of humour in the grave discussion, said in his vote of thanks, “Our ‘gantantra’ (republic) is on way to becoming a combination of ‘gun and tantra. This ‘gun-tantra’ was run by the mafia and tantriks. That was, by the way, not a laughing matter.

Dr. Alam stated that this was the second in the series of seminars on the issue, the third to take place in Chennai on December 18 and the fourth on December 26 in Chandigarh.

Supreme Court lawyer Mushtaq Ahmad conducted the proceedings.


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