March 1999

Judicious act

A judge cries a halt, suo moto, to the Gujarat police’s attempt at a communal census

A pro–active judiciary defending the values of justice and equality before law as enshrined in the secular Indian Constitution seemed the need of the hour, as these very values were under serious assault by contingents of the sangh parivar, especially in Gujarat over the past year. Justice M.R. Calla of the Gujarat high court lived up to these expectations from the judiciary, when on February 16, 1999 he sent a suo moto notice to the BJP–ruled Gujarat government, questioning recent circulars by the state’s police for a selective census in the state.

The judge ruled in his order that the attempt of the Gujarat police to collect information, on criminal links, etc. (see Communalism Combat, Feb. ’99) selectively about certain Christian and Muslim individuals and organisations was clearly violative of the Indian Constitution. He referred the matter of examination of the violative government directive to a division bench of the same court.

The state police, thanks to this timely intervention by the judiciary, has since suspended action on the circular sent to individual police stations for gathering information about Gujarat’s Christians and Muslims. The clearly discriminatory and offensive content of the circular had generated fear and insecurity among the state’s minorities. Now, the real task for citizens and the court will be to ensure that this government directive, blatantly violative of the Indian Constitution, is formally withdrawn, not merely kept in cold storage.

In his suo moto notice to the government, Justice Calla has observed: "In the opinion of this Court, gone are the days of laissez–faire when there used to be criminal tribes of the days of regimentation when there used to be law relating to criminal tribes. Once this country has adopted the Constitution, we have to abide by the same, which is the fountain source of law. No part of the Constitution permits any sort of classification of criminals on any communal basis. A criminal is a criminal, whether he is a Muslim or a Hindu or a Sikh or a Christian. A criminal has no caste or community and, therefore, if any survey or census is to be made or any information is sought to be gathered with regard to the criminal activities or for other allied purposes, such survey or census or the move to seek information may be as a part of routine exercise, cannot be based on a communal footing.

"Here the messages clearly show that they have been issued with reference to the communities such as Christians or Muslims. In any case, such exercise can not proceed with orientation based on a classification with reference to any particular caste, creed or community. May it be a routine exercise for any purpose including the purpose of collecting information on the items mentioned in the fax messages in question, there cannot be a religion or community wise classification to identify the criminals, from amongst the members of the Indian society. It is, therefore, clearly a matter, which is essentially in the nature of a public interest litigation and in the opinion of this Court it will be in the fitness of the things and will be appropriate, even otherwise looking to the gravity of the issues, if the main matter being Special Civil Application No. 1000 of 1999 is listed before the Division Bench dealing with the Public Interest Litigation Cases….."

The entire text of the circular sent out by Gujarat’s director general of police (intelligence) to all DSPs and police commissioners in the state was directed against all Christians and Muslims and was in tune with the RSS–VHP led diatribes of "conversions", apparently seeking to unearth the motives and agency behind these. The argument of "such conversions" by these two communities has been used by proponents of Hindutva to justify violent attacks on them in past months, particularly in Gujarat.

The police, instead of providing security and protection to those sections of the population who had been victimised and threatened by such aggressive diatribes and physical attacks — by RSS–VHP–Bajrang Dal squads — had instead launched its own offensive, based on the government resolution, against the victims of these attacks. Following this circular, the police had begun questioning both Christians and Muslims in remote corners of the state, generating a further sense of insecurity among them.

The language of the circular and the assumptions made therein reflected entirely the distorted campaign being run by saffron squads to justify their violence against the state minorities. Distortions based on their "missionary activity" and the "alleged conversions that were the motives of these," "the foreign funds being used" etc. While the first circular was aimed at Gujarat’s Christians, a second circular identical to the first and directed at Muslims soon followed.

The Indian judiciary has been approached on several occasions, by concerned citizens and groups, over the past decade, when sections of the Indian Constitution that uphold the citizens fundamental right to equality irrespective of their faith, equal treatment before the law, the right to life and property, have been directly violated.

While being very pro–active on questions related to cases of human rights abuse in general (child labour, torture of persons in police custody, etc.), environmental violations and corruption charges, the Indian judiciary, on the whole, has not been as alert in its response to the threats to democracy posed by the agents of the sangh parivar as also the acts of omission and commission of certain institutions of the state.

Justice M.R. Calla has lived up to the high expectations of the judiciary by assuming a pro-active role and demanding an explanation from the executive when it has violated the writ of the Indian Constitution. Under saffron–ruled Hindustan, and in states where the BJP and its allies have been elected to power, the tenets of the Indian Constitution have in the past year been abused with impunity. It is to be hoped that Justice Calla’s role will show the path to many more.


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