Silence of the Supreme Court is fraught with dangers

Shafeeq R. Mahajir

Saifuddin Soz says the SC was told a blatant lie that he is a free man. Read between the lines. If someone lied to the SC, it must take notice and respond harshly sending a salutary message. If not, Soz must be called to account, sending a different, but equally salutary, message. The matter, meddling with justice, diverting its course, causing loss of judicial prestige and majesty, raises serious questions and cannot be allowed to just rest. Someone actually lied to the SC, and nothing happened?

In Rajasthan, CM Gehlot says horse trading rates have gone up since session dates were announced. Read, again, between the lines. Horse trading is now the new normal. Only rising rates are the problem. Who are we electing to govern us?

Now read between actions: our actions. We elect some people, they are found to be self-serving individuals with personal advancement as against national interest being their prime motivation. A person who puts his own interest ahead of that for which he is a trustee, commits breach of trust. If it is for personal monetary gain, it could be aggravated for criminal breach of trust. So, we find we have elected the wrong types. What do we do next election time? We elect the same people back again.

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If we don’t learn, do the same moronic thing repeatedly yet mysteriously expect a different result, vishw guru status is a mirage. If such elected people can be neither patriots nor nationalists, what are we who re-elect them again and again? Next time we wish to call someone a deshdrohi, we ought to visualise the mob wanting to stone the adulteress being told “Let him who is without sin among you cast the first stone!” Analyse whether we are not in participiscriminis, shareholders in the crime of letting such elected people take the nation downhill. Shame…on us.

We live in sensitive times, and excitable people prone to arrogate to themselves a vigilante-at-large status pose problems: places of worship have frequently been vandalised, shaming the country, the law enforcement machinery’s malfunctioning open for all to see and pronounce upon. Therefore, words must be weighed carefully, and words of people boasting followers require to be weighed even more carefully before launch: judicious, they soothe anger, quench flames; injudicious, they light fires. As the poet said,

“The word we had not sense to hold,

Who knows how hard it bit and stung?

The word we had not sense to say,

Who knows how grandly it had rung!”

29 May 1453, Sultan Muhammad II (Muhammad Al-Fateh) conquered Constantinople. Church of Hagia Sophia was converted to a mosque.

Built 537in Constantinople, it was Roman Empire’s largest Christian church. 1204 it was converted to Roman Catholic cathedral. 1261 it was reverted to original status. 1453, after Constantinople fell to Ottoman Empire, it was converted to Muslim mosque. 1935 Turkish Republic established it as a museum. July 2020 saw its reincarnation as a mosque.

27 July 2020, I hear Zakir Naik say it was justified.He says if there is surrender and a treaty between conquering Muslims and previous rulers, places of worship must be protected, but absent surrender following war, then local places of worship in conquered territory can be converted to mosques. One version is Hagia Sophiawas purchased from the Christians, Muhammad Al-Fateh apparently offered to buy it, a deal documented through a purchase and waiver contract. As the deal was struck, it says, the call for prayer was announced and congregational prayers held. The question asked is, was the subjugated ex-Ruler a free agent to be able to choose whether to agree or decline, or, vanquished, was paying the price to seek peace and an end to hostility?

Whether the Hyderabad, Goa and Kashmir integration “under compelling circumstances” was based on free choice of rulers is still debated.

Be that as it may, Naik’s comparative precedent-based justification statement surprised me: he makes a comparison with Prophet Mohammed (pbuhremoving the idols inside the Kaaba after conquering Makkah. In doing so, he denigrates the status of the Prophet (pbuh). Naik is doubtless aware the Prophet (pbuh)was not creating a new status at the Kaaba, but restoring its original status, removing the idols that were later placed there defiling the sanctity of the place. To say that because the Prophet (pbuhafter conquering Makkah removed idols which ought not to have been in the Kaaba at all, and were not till later installed, it is somehow a precedent for a conqueror’s later conversion of places of worship such as Hagia Sophia, is attributing to the Prophet (pbuhaction and intent he himself, I submit, would have been the first to condemn. Nothing could be further from both, the truth as well as Islamic teachings.

Such aberrations in statements of otherwise authoritative knowledgeable public figures can not only mislead, they can provide a false basis for emotionally charged, intellectually fragile, short-fused followers of such people to use their less-than-carefully-calibrated words as authority or justification for actions that would otherwise perhaps not be contemplated. It is, therefore, essential that when you reach a position, you calibrate your words with circumspection.

That brings me to the issue of Fatwas. Fatwa is an opinion of an erudite scholar of Islam in answer to a query posed by a seeker of information on an issue that is not clear from the sources of Islamic Law: Quran, Sunnah, Ijma (consensus of learned scholars of the past), Qiyas (analytical conclusions emerging from application of inductive and deductive logic). Fatwas are issue-specific, not sweeping generalisations. Each contains the potential for misinterpretation and become a cause for misleading people. For instance, after the revelation came regarding intoxicants, and a trader in liquor wanted to revert, he was told reverting to Islam did not require surrendering your assets, and he could sell his stock of liquor. That statement later became the basis for many Muslims who willingly deal in liquor, claiming Islam does not allow consuming intoxicants but sale is permitted. It is not. Sale was in that instance, subject of an issue-specific fatwa, permitted, which is different from sale generally being permitted.

The letter of the law is the form that clothes its spirit. All those who resort to devices (hilaa, in Islamic Law) to circumnavigate legal obstructions must know these steps erode the spirit of the law. So too, courts must know ignoring a seemingly innocuous statement that is loaded with potential to damage their credibility is hardly possible without actual damage to such credibility. Faced with this, if the SC chooses not to act, that too then sends a message. Only, this wordless, formless message of inaction, of nonfeasance, is not only non salutary, it is fraught with danger, and carries subtle but lethal destructive risk for the majesty and the rule of law.

If I have the power and duty to act to prevent damage to my institution, and choose not to, am I in participiscriminis in its eventual destruction?

Readers can perhaps grapple with this sobering thought, because others don’t seem to.

Shafeeq R. Mahajir is a well-known lawyer based in Hyderabad

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