Ibad Mushtaq examines the propriety of a judicial Order including an apprehension of the majority population of the country becoming a minority one day.
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A July 1 Order of the Allahabad High Court rejecting a bail application would have otherwise been an innocuous event had it not been for the additional comments included in the Order.
The single judge, while refusing bail to the applicant accused of taking the complainant's brother to Delhi for a Christian congregation, has asserted that if conversions, or even such congregations, are permitted to continue, "the majority population of this country would be in minority one day".
This apprehension of the majority population becoming a minority by 'rampant' conversions is, however, nothing new and that 'one day' has been threatened to arrive at least since Independence without its actual arrival.
“This apprehension of the majority population becoming a minority by 'rampant' conversions is, however, nothing new and that 'one day' has been threatened to arrive at least since Independence without its actual arrival.
The same threat was echoed in the Constituent Assembly, on December 6, 1948, when it considered the draft Article 19— presently Article 25 of the Indian Constitution.
Lokanath Misra, a Congress member from Orissa (now Odisha), had termed the inclusion of the "right to propagate" as "a device to swallow the majority in the long run", a charge which is not far from the threat of the majority turning into a minority "one day" as has been now raised by the Allahabad High Court, more than three-quarters of a century later.
On the other hand, voices such as that of Drafting Committee member T.T. Krishnamachari had wholeheartedly supported the article giving his own example of having studied in Christian institutions for about fourteen years and no attempt having been made to convert him.
Krishnamachari had, in fact, completely rejected such communal views and had stated: "I have no doubt, sir, we have come to a stage when it does not matter to what religion a man belongs, it does not matter to what sub-sect or community in a particular religion a man belongs, he will be equal in the eyes of law and society and in regard to the exercise of all rights that are given to those who are more fortunately placed."
Similarly, K.M. Munshi reminded the house of the compromise with the Christian community which had given up the demand for reservations but had insisted on the inclusion of the right to propagate, being fundamental to their tenets.
In his opinion, even if the word "propagate" were to be dropped, the freedom of expression granted by the Constitution would guarantee that it would be open to any religious community to persuade other people to join their faith.
Amidst such alarmist threats, the draft Article 19 passed through the Constituent Assembly with the right to propagate intact.
If the 75 years of Independence should have taught us anything, it is that such demographic assumptions which are based on imagined threats to the majority in the future have seldom come true.
However, the absolute falsity of these assumptions apart, a larger question emerges— that of courts making such comments in litigations where such assumptions can be avoided. More so, since such alarmist assumptions in judicial Orders that are unrelated to the basic question before the courts neither serve the cause of justice nor serve to build the confidence of the litigant upon the courts.
Rather, such unnecessary remarks result in a chilling effect for litigants and lawyers alike who, in turn, prefer or avoid a Bench that they see as conservative or liberal on a certain issue.
“Similarly, K.M. Munshi reminded the house of the compromise with the Christian community which had given up the demand for reservations but had insisted on the inclusion of the right to propagate, being fundamental to their tenets.
Over 20 years ago, a Bench of the Supreme Court, armed with a 1998 report of the then governor of Assam— Lt Gen. S.K. Sinha— declared the issue of illegal migration as being a situation of "internal disturbance" and "external aggression".
The report, which the judgment relied on, had shown unbelievably high figures of illegal migrants coming to Assam from Bangladesh and had asserted that this influx "threatens to reduce the Assamese people to a minority in their own state".
This report, again relying on an unverified statement of the home minister, had assumed that over a crore migrants had been living in India with 40 lakh alone in the state of Assam.
While the judgment resulted in the striking down of the Illegal Migrants (Determination Tribunals) Act, 1983, and the petitioner— Sarbananda Sonowal— then a member of the Assam Gana Parishad, was hailed as "Jatiyonayak" (caste-hero), when the National Register of Citizens (NRC) for Assam was actually prepared under the monitoring of the very Supreme Court, and 19 lakh persons were identified as illegal migrants, puncturing the bogey of demographic shifts and inflated numbers of migrants that were included in the report.
The judgment of the Supreme Court, however, still stands and serves as a reminder of the risks involved in courts making, or relying on, assumptions that remain to be tested. On the other hand, the Jatiyonayak has lived on to become the chief minister and then a member of Parliament.
While the Allahabad High Court's observations with regard to conversions are part of the Order, even though unnecessary for the eventual outcome, it was mere oral remarks by the Madras High Court against the Election Commission during the Covid pandemic, which had prompted the Supreme Court to hold that judicial restraint must be exercised before using strong and scathing language to criticise any individual or institution.
The court had further emphasised the "need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation".
Language, both on the Bench and in judgments, must comport with judicial propriety, the Supreme Court had held. The court had also held that language, being an important instrument of a judicial process that is sensitive to constitutional values, judicial language is a window to a conscience sensitive to constitutional ethos, and bereft of its understated balance, language risks losing its symbolism as a protector of human dignity.
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It is this caution and restraint that ought to be exercised not just by the Allahabad High Court's single judge in the present context but also by every court in order to avoid making statements based merely on presumptions or an alarmist approach, that end up lowering the dignity of the individual or a community.
“The court had further emphasised the "need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation".
This author is also reminded of the words of Dr Rajendra Prasad who, in his seminal work India Divided, though talking of the scheme for Partition, argued thus: "A man is a member of a community; but he is also a man— perhaps a man more than a member of a community.
"No scheme, however elaborate, which satisfies all communal claims most meticulously but leaves man as man uncared and unprovided for, will be worth the paper it will be written on. That scheme alone will be worthy of the people of this great country which enables its humblest citizen to live a happier and nobler life than it has been his lot to live in the past."