Speaking in the Constituent Assembly, Dr BR Ambedkar said, “…however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.”
If we observe the achievement of the constitution in the country, it will become clear in the last few years that what Dr. Ambedkar has said seems to be true, especially since the BJP came to power.
Governments have been changing since then and they have often made decisions according to their agenda but their decisions seem to be in conflict with the constitution. The job of the judiciary is to protect the democratic rights given by the constitution but seeing the way the judiciary is issuing decisions in the present times, it is sad to say that the judiciary is also following the worries voiced by Dr. Ambedkar.
It seems to be that the decisions of the judiciary and the government are in harmony with each other; which is not only violative of our constitutional rights but further, the image of the country’s courts is being badly affected and the decisions of the judiciary are being criticized.
Babri Masjid verdict
In the Babri Masjid case, the judiciary killed the constitutional rights and upheld the verdict in favour of the government. Surprisingly, the court itself said that it was not proved from anywhere that the temple was demolished and the mosque was built illegally. It was an illegal act to martyr the mosque but still, the judiciary used its special power to replace the mosque with the temple.
Following the expiration of the term of the Chief Justice under whom the case was pending in the Supreme Court, the Central government made him a member of the Rajya Sabha. The Supreme Court had allowed women to enter the Sabarimala temple on the basis of gender equality, on which the Sangh Parivar lamp was found, and the country’s Home Minister Amit Shah told the court. Expressing displeasure over the verdict, he said that the court should refrain from interfering in religious affairs. A petition against the decision had to be accepted.
Hijab row
One of India’s most highly regarded Supreme Court lawyers has said that in applying the “so-called” essentiality test to the question of whether hijab is an integral part of Islam, the Karnataka high court has misunderstood the Supreme Court’s 1954 Shirur Mutt judgment (which established the test) and, therefore, wrongly applied this test.
Advocate Dushyant Dave, who is also the former president of the Supreme Court Bar Association, says that the 1954 judgment also contains a definition of religion that is so wide and all-embracing that it includes different types of food and dress that believers consider essential to their faith.
He says that if Muslim girls consider the hijab as integral to their faith, then it is. The hijab is clearly covered by the 1954 judgment’s definition of religion. Dave pointed out that if the Karnataka high court sought to apply the essentiality test contained in the 1954 Shirur Mutt judgment, then it should also have applied the definition of religion contained in that same judgment.
He also pointed out that this definition of religion has been repeatedly accepted by the Supreme Court over the roughly 70 years since the judgment was delivered. “Advocate Gautam Bhatia is an excellent writer and expert in constitutional law. Bhatia, in an article titled, Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment said that it is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself.
In today’s judgment by the Karnataka High Court upholding a ban on the wearing of the hijab within classrooms, that giveaway can be seen on page 39 of the judgment, where the Full Bench frames four questions for consideration. He further writes that it is notable that the Court asks itself a question that nobody else had asked.
The English newspaper The Hindu has written in its editorial on the subject of Essentially flawed: On the Karnataka High Court’s hijab verdict. In the editorial, it was argued that the Karnataka High Court verdict upholding the ban on the wearing of headscarves by students in educational institutions is wrong on many levels. The manner in which it framed the questions arising from the controversy over Muslim girl students wearing the hijab undermines constitutional principles. The court failed to examine whether the wearing of the hijab, in addition to the prescribed uniform, but without any variation in colour, was a ground to refuse entry into a school or college.
Religious freedom includes the ability to choose one’s religious attire. The Indian state of Karnataka should not determine permissibility of religious clothing. Hijab bans in schools violate religious freedom and stigmatize and marginalize women and girls. The United States Commission on International Religious Freedom on Thursday said that the Karnataka High Court’s decision to uphold the ban on wearing hijab in state’s educational institutions was a violation of religious freedom.
The ruling is a grave injustice and indignity to women and girls seeking an education in accordance with their faith.” In a press conference, one journalist asked Miss Universe 2021 Harnaaz Kaur Sandhu about hijab she said “why do you always target girls? You are still targeting me. Like, girls are being targeted on the issue of hijab. They (girls) should live as they wish. Give them, let them reach their destination, let them fly. Don’t cut their wings. If you want to bite, cut your wings.” We are women of different cultures and we need to respect each other”.
I was surprised when the students would take the decision of the Karnataka Court to the Supreme Court and their lawyer asked the court to stay the decision of the Karnataka High Court and hear the matter as soon as possible. If the decision is not taken soon, the year of the students will be ruined, which the Chief Justice of the Supreme Court denied and said that the matter should not be made sensational by dragging it out.
However, during his visit to the United Arab Emirates, he had said that “Trust in the globalised world can only be built by creating institutions with a strong emphasis on the rule of law,”.
In the light of the above few facts, the harmony between the government and the judiciary has become clear to you, regarding which the judiciary has come under the target of a responsible person who is conscious of every section of the society.
Shiv Sena leader Sanjay Raut, while commenting on the recent court decision, said that in today’s environment he has lost confidence in the judiciary while history has shown that this was the court which had the most powerful Prime Minister of the time. Her election was declared null and void by a court ruling. Some time ago, the French government had enacted a law against hijab and niqab, but the court there repealed the law and allowed the wearing of hijab.
Friendship between judiciary and executive
But the decisions of the present court seem to be in favor of the government of our country which is not only violating the constitutional rights of the citizens but also endangering the democracy of the country. Lastly, I would like to quote just a few words of Justice Qureshi here. In his speech, on the occasion of his resignation, Chief Justice of Rajasthan High Court Qureshi said that the negative opinion of the government about me proves my independence.
I am shocked at the alleged drastic reduction in the list of lawyers sent by the Supreme Court to the High Court for the appointment of judges. This will reduce the bright judicial intelligence in the bench. He goes on to say that he was surprised to see the list of lawyers recommended by the High Court for appointment in the middle by the Supreme Court.
It should be noted that Justice Qureshi’s name was repeatedly ignored for promotion in the Supreme Court even though he has been the most senior judge of the High Court in India. It may be recalled that Justice Qureshi was the same judge who had sent Amit Shah (now Union Home Minister) in the custody of CBI in 2010 in the Sohrabuddin Sheikh fake encounter case in Gujarat.
In addition, the silence of secular parties in the current situation is saying a lot about the oppression of minorities. Especially when the Sangh (RSS) spread in the states under his rule, and turned a blind eye to anti-Muslim riots.
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