Justice in Transformation

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“Men are born ignorant, not stupid; they are made stupid by education.” (The History of Western Philosophy, while Russell talks about Helvetius, an eighteenth-century French philosopher.)

As the societies we live in continue to be mob ruled, it becomes imperative to highlight the role of a progressive judicial system in imparting public education and improving societal standards. Recently, the Supreme Courts of India and Pakistan pronounced two historical judgments – Sabarimala by the Indian Supreme Court and Asia Bibi by the Supreme Court of Pakistan. The facts and the ensuing verdicts may differ in their design but the situation that followed the two verdicts in India and Pakistan is essentially the same. The religious persecutors in both the countries turned violent after the top courts made their effort in liberating human beings of the orthodox beliefs held high by the clergy. They resorted to their favorite language – vandalism and death threats.

The orthodox theology sets the base for the blasphemy law in Pakistan, as it remained a moot point in the Asia Bibi judgment. I am not a theologian and do not want to raise contentions with respect to the religious base of the law, but I have had the honor of listening to Javed Ahmad Ghamidi, a public intellectual of Pakistan, on the issue. Ghamidi says that the law on blasphemy is a baseless law as it finds no support in the Quran, Hadith or Fiqh. How it became a part of the law of Pakistan is nothing but an emotional propaganda. Similarly, in the Sabarimala case, the ‘social exclusion’ of women from temples based on menstruation-based taboos, or subordination of women that emanates from religion and patriarchy became the contentious issues. The aftermath of both these judgments was a violent one (as is the attribute of a failed state) considering their role in the emancipation of the citizens and improvement of public education. Who takes the responsibility of a failed state like this? The answer lies in the fact that both countries are far from providing their citizens with political freedoms, civil rights, criminal justice, and collective safety. A political system has no legitimization if it does not provide its citizens the rights in a just way. The absence of these rights often leads to state failures and vice-versa. When a legislature is silent on this, the judiciary must take the lead.

We can only hope that Asia Bibi serves as a precedent to the religious bias that is now normal in Pakistan. Similarly, we hope that a new law is formulated in India that serves as a stern message to the lynch mobs and their supporters.

In the year 1973, the Supreme Court of India reached its creative best in arguably the best constitutional judgment in its history that spanned nearly 800 pages. In Kesavananda Bharati (1973), the Supreme Court formulated the ‘basic structure’ doctrine. It was said that the Parliament could amend any part of the Constitution but was prevented from altering the ‘basic structure’ of the Constitution. Secularism, the supremacy of the Constitution, and democracy, among other features were taken to be the basic features of the Constitution. More than four decades after the passing of the judgment, when the right-wing BJP threatens the minority of making India a Hindu nation, ‘the common people’ (by Plato’s division of citizens) argue on this point confidently that they (legislators) cannot alter the constitution or make the country a Hindu nation as it goes against the ‘basic structure’ doctrine, envisaged by the highest court of the country. Kesavananda foresaw the situation in 1973 and became a part of the public discourse to make the citizens ready and show the political right its way.      
This is not the only facet of justice vis-à-vis public education. When the emergency was imposed in India in 1975, people were left abandoned not only by the judiciary but almost all the major institutions of the state. But the resurgence of the judiciary was such that it produced one of the most creative periods in its entire history. The lead was taken by Maneka Gandhi (1978). It was said that a law has to satisfy the requirements of all the fundamental rights and any procedure established by law would have to be ‘fair, just and reasonable’ and could not be arbitrary. The court also stated: ‘…Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial.’

The constitutional developments that followed Maneka Gandhi (1978) truly changed the mode of public education in India. For example, in Godavarman Thirumalpad (2003), the right to a healthy environment was taken to be a part of the right to life under Article 21. In Unni Krishnan (1993), the right to free education up to the age of fourteen years became a part of the right to life. Similarly, the right to treatment with dignity (Sunil Batra (1980)) and protection from custodial violence (Sheela Barse (1983)) also became the part of the right to life under Article 21.

It was due to a significant development of public education that we were able to develop the theory of rights step by step. Today when the Supreme Courts of the two countries are doing their best in improving the society, there seems no end to the people’s madness. In 2014, Shahzad Masih and Shama Bibi, a Pakistani Christian couple, were burned alive by a mob on allegations of blasphemy. It was later revealed that they were falsely accused of blasphemy and five people were given capital punishment in the case. Their lives were taken by an errant mob rule that takes lives every day in India and Pakistan- the mobs that want to prove their loyalty to their clerics and the organizations and to set propaganda through their actions where media gives them a heavy coverage. We can only hope that Asia Bibi serves as a precedent to the religious bias that is now normal in Pakistan. Similarly, we hope that a new law is formulated in India that serves as a stern message to the lynch mobs and their supporters.

I want to end this with a quotation by JJ Rousseau: ‘Religious persecutors are not believers, they are rascals.’

Aurif Muzafar is a lawyer, currently serving at District and Sessions Court, Bandipora, Kashmir.