Judicial Absurdity: Recent Ruling on Muslims in UP
Yoginder Sikand
A recent ruling by Justice S.N. Srivastava of
theAllahabad High Court declaring that Muslims in
UttarPradesh 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,
formless 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-ą-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 eprivation, 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.
'Inresponse 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 criticshave 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.
