Your Law, My Law!!

By Sandeep Sahu

You say something to oppose the selective and evidently vindictive arrest of Prof Ali Khan Mahmudabad and out come howls of protest from the right wing loudmouths. "Where were you when Kanhaiya Lal was beheaded by Muslims?' "Where were you when Nupur Sharma was being given death threats?" "Where you when .....?" And thus goes the procession of whataboutery. But who will explain to these dimwits the subtle but all too important distinction between an act of religious fanaticism by an individual - or even a group - and an act by the state where someone is being targetted purely for his religious identity. Acts of vengeance born out of religious hatred have been part of the Indian society for as long as one can remember. And both sides (Hindus and Muslims) have been guilty of the most horrific acts of violence against each other. While reprehensible and condemnable, such acts should never be equated with the malicious acts of a government, sworn under oath not to discriminate between people on grounds of caste, creed, religion, sex and so on; with acts based not on evidence, but solely on the religious profile of the person arraigned. When the state acts out of malice and religious hatred, it should sound warning bells for the democracy we all love.

I have gone through Prof Khan's allegedly offensive post repeatedly and still couldn't find any evidence to warrant the slapping of serious criminal charges against him. As I have pointed out in an earlier post, many right thinking Hindus have said much worse about the excesses of Hindu right wing groups and have got away with it. No one has been arrested and no case has been filed against any of them. The reason: they were Hindus.

Nothing drives home the contrast better than the case of Madhya Pradesh minister Vijay Shah, which happened around the same time. Shah has not been arrested so far despite the fact that he has said something far more sinister, far more despicable and far more derogatory (to women and the armed forces). Even the FIR was filed against him only after the High Court rapped the police on the knuckles. And when it was reluctantly filed, it was drafted in a way to ensure that the case is thrown out, requiring another severe reprimand and a directive to redraft it from the HC.

That's where the problem comes in. When the state discriminates between citizens on the grounds of their religion (or position), it not only violates the basic principles on which the republic is founded and negates the Rule of Law. It also has the potential of tearing apart the already perforated social fabric that has survived through the ages.

The charges pressed against Prof Khan are preposterous, bordering on the laughable: Sec 353 (statements amounting to public mischief), Sec 79 (word, gesture or act intended to insult the modesty of a woman) and, the most outrageous of them all, Sec 152 (act endangering the sovereignty, unity and integrity of India) of the newly minted Bharatiya Nyay Sanhita (BNS) !! One of the two FIRs based on which Prof Khan was arrested was filed on the basis of a compliant by the Haryana State Women's Commission (HSWC). Among other things, the complaint accused him of "disparaging women officers in the Indian armed forces' and 'promoting communal disharmony'. But asked repeatedly during a TV interview to specify the sentence(s) in Khan's post that 'insulted the modesty of a woman", HSWC chairperson Renu Bhatia cut a sorry figure, desperately trying to wriggle out of the hole by beating around the bush. (Soon after the interview was aired, an old TV interview of the same Renu Bhatia surfaced on social media where she stubbornly refuses to call Ram Rahim a 'rapist' (after his conviction in a rape case) during which a typically aggressive Arnab Goswami harangues her, repeatedly prodding her to utter the word.)

The other two charges too don't have legs to stand on. And yet, the local court had no hesitation in rejecting his bail plea and sending him on a two-day police remand. The district court too had no compunction in sending him to judicial custody. Now the Supreme Court has taken cognisance of Prof Khan's bail plea and has listed it for hearing on Wednesday. I have no doubt that the apex court would grant bail to Prof Khan as the case stands on extremely shaky grounds. And I have no doubt either that the right wing zealots would then start shouting from the rooftops ""The Supreme Court is biased against Hindus", deliberately and mischievously ignoring the Rule of Law which the apex court is duty bound to uphold under the constitution.

There are some questions that keep coming back to haunt me everytime a person wrongly prosecuted by a government has to reach the Supreme Court to get relief. Why can't our lower courts show the same adherence to the Rule of Law? Do they operate under a separate set of laws or Constitution? Why is it that more often than not, our lower courts work like an extension of the state government, ready to bend over backwards to obey the latter's diktat?? Why do they keep routinely flouting the apex court guideline that "bail is the norm, jail and exception'???

It's time for our legal luminaries to ponder over these questions and come up with the required reforms of the lower judiciary. After all, the Rule of Law can be upheld only when all echelons of the judicial hierarchy are on the same page.