Judicial
Absurdity: Recent Ruling On Muslims In UP
By Yoginder Sikand
& Nigar Ataulla
13 April, 2007
Countercurrents.org
A
recent ruling by Justice S.N. Srivastava of the Allahabad High Court
declaring that Muslims in Uttar Pradesh could no longer be considered
a minority, has, predictably, stirred up a hornet's nest. Although the
ruling was stayed by a two-member bench of the same court the next day,
it raised crucial questions that pertain to minority rights, secularism
and democracy and the impartiality of the judiciary.
Muslim leaders were aghast
and indignant at the ruling. Hamid Ansari, Chairman of the National
Minorities Commission, critiqued it the as 'absurd', and pointed out
that the illogicality of the ruling is evident from the fact that the
same High Court put a stay on it the next day. As Zafarul Islam Khan,
editor of the New Delhi-based Mili Gazette, India's leading Muslim paper
in English, put it, 'It is a very disturbing aspect of the current judicial
activism that a single judge of a lower court can go against the judgment
of a much larger bench of the Supreme Court. If the judge is not aware
of the earlier verdict, he seems unfit for his post and if he chose
to disregard that judgment he should be sacked right away. It is clear
that the judge had some agenda of his own, as the case in front of him
did not relate to the minority-majority issue'. 'Instead', he added,
'it was a case against the rampant corruption in a certain government
department where a certain educational institution says that it did
not get government aid
because it refused to pay a bribe'.
Logically, the ruling, as
critics have pointed out, is deeply flawed. Firstly, it is for the government,
rather than the courts, to decide which community can be officially
considered as a minority. Secondly, the case that Srivastava was hearing
did not require him to pass judgment on whether or not Muslims in Uttar
Pradesh could be considered a minority. Thirdly, Srivastava has clearly
got his mathematics wrong. Muslims, according to the most recent Census,
form less than a fifth of Uttar Pradesh's population. A clear numerical
minority in the state, Muslims are also a minority in the sense of being
a marginalized community vis-à-vis the dominant caste Hindus,
lagging considerably behind them on almost all social indicators. Hence,
there is no merit in Srivastava's ruling that Muslims in Uttar Pradesh
can no longer be considered a minority.
Some critics have argued
that Srivastava's ruling reflects the right-wing Hindutva worldview,
in which minorities are denied any separate identity of their own. This,
in turn, is part of the Hindutva agenda of absorbing Indian Muslims
into the amorphous Hindu fold. That Srivastava's ruling plays directly
into the hands of the Hindutva lobby, which has warmly welcomed his
pronouncement, is obvious. Hamid Ansari of the National Minorities Commission
argues that Hindutva forces have consistently denied the fact of Muslim
deprivation, fiercely opposed minority rights and have condemned any
measure on the part of the state for the amelioration of the pathetic
conditions of the Muslims as unwarranted 'minority appeasement'. He
opines that Srivastava's ruling must be seen in the light of the fact
that following the recent release of the Sachar Commission report that
investigated the conditions of Muslims in India, there is much talk
about the high levels of deprivation that Muslims suffer in large parts
of the country. The report led to demands by Muslim organizations for
urgent steps to be taken by the state to make special provision for
the educational and economic empowerment of Muslims. 'In response to
this', Ansari says, 'Hindutva forces are now trying to confuse the whole
debate engendered by the Sachar Commission report by bringing in specious
arguments about who should be considered a minority. The controversial
ruling should be seen in this light, as a considered approach, rather
than an accidental or stray comment'.
In other words, if Muslims
were not to be considered as a minority by the state, the recommendations
of the Sachara Commission report would be scuttled and the limited state-funded
schemes for Muslim welfare might be ended forthwith. The rights of Muslims
as a minority, too, would be seriously curtailed. Says Syed Qasim Rasul
Ilyas, member of the governing council of the All-India Muslim Personal
Law Board, 'If Muslims are not treated as minorities, their right as
minorities to run educational institutions of their own choice would
be denied them. So too would the few government schemes meant particularly
for minorities'. Clearly, Srivastava's ruling is a serious blow to democratic
rights.
Clearly, Srivastava's ruling
exposes what some critics have pointed out as the creeping saffronisation
of the judiciary, which, in theory, is meant to be impartial. If today
Muslims are sought to be denied their rights as minorities through such
controversial rulings, it could soon be the turn of other marginalized
communities, such as Dalits, Adivasis and Other Backward Classes. The
ominous portents this has for the struggle for democracy and secularism
in India are obvious.
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