Why Muslims feel let down by Supreme Court

The new campus of the Supreme Court of India in March 2022. Representation pic

The Delhi and Chandigarh elite read the same newspapers. Yet it were two judges of the Punjab and Haryana High Court, G S Sandhawalia and H R Jeewan, who took suo motu notice of media reports and halted the demolition spree at Nuh, where establishments owned by Muslims were bulldozed to punish them for allegedly triggering the recent riots there. The judges wondered whether the demolition was akin to "ethnic cleansing."

Their intervention underscores, ironically, why Muslims feel let down by the Supreme Court.

Consider this: Former Rajya Sabha MP Mohd Adeeb petitioned the Supreme Court, charging the Haryana chief secretary and the director-general of police of being in contempt of the apex court. The backdrop to Adeeb's petition was State inaction against Hindutva groups regularly disrupting the Friday prayers of Muslims in Gurugram. The inaction was in violation of the Supreme Court's direction, in the Tehseen Poonawalla case, that the administration must pre-empt those who foment an atmosphere conducive for lynching.

Adeeb's petition, filed in January 2021, is yet to be heard. Recently, in Gurugram, a mosque was burnt down and its naib imam killed.

Nothing upset Muslims more than the 2019 Supreme Court judgment in the Ayodhya title suit. The court said there was no evidence to show that the Babri Masjid was built after destroying a Hindu temple; it said the mosque was built over a structure that likely fell into disuse 400 years before. These observations established that Hindutva's bloody campaign over Ayodhya was based on a lie.

Yet, the Supreme Court awarded the Babri Masjid site to its demolishers, saying, "there is evidence on a preponderance of probabilities to establish worship by the Hindus" before 1857 than there is for Muslims. The court, however, granted five acres of land to Muslims in lieu of the Babri Masjid.

The Ram Temple is due for inauguration next January. The proposed mosque at Dhannipur, where the five acres were allocated, is still on paper.

The Ayodhya judgment described the Places of Worship Act, 1991, as a "legislative instrument designed to protect the secular features of the Indian polity". This Act freezes the religious character of all places of worship as it was on August 15, 1947. It was this provision Muslims cited to challenge a civil court order allowing a survey of Varanasi's Gyanvapi mosque.

But the Supreme Court did not stop the survey, with Justice D Y Chandrachud saying the Act does not bar the "ascertainment of the religious character of a place of worship". To what avail the ascertainment when the mosque cannot change hands?

The survey will mount pressure on Muslims to relinquish their control of the Gyanvapi mosque.

The Union government, in 2019, enacted a law prescribing three years of imprisonment to men who divorce their wives by pronouncing talaq three times at one go. This form of divorce was outlawed in 2017.

Are non-Muslim men sent to prison for following an incorrect method of divorcing their wives? The Supreme Court has yet to hear the petitions challenging the criminalisation of triple talaq.

The Delhi High Court, through a finely argued order, gave bail to three of the student leaders booked under the Unlawful Activities (Prevention) Act for allegedly sparking the 2020 Delhi riots. The Supreme Court declared the order could not be cited as a precedent, and that it had national implications requiring scrutiny. But the scrutiny has yet to happen, and bright Muslim youth leaders rot in jail.

The Supreme Court delivered a split judgment on the Karnataka High Court upholding the state government's order disallowing Muslim women to wear the hijab in classrooms. The matter has to be now considered by a three-member bench, which is yet to be constituted. The ban on the hijab remains in force.

The Supreme Court has often gratuitously talked about having a uniform civil code, which is the season's flavour. Below are two examples.

In the 1995 Sarla Mudgal case, three women claimed they had been abandoned by their husbands, who had converted to Islam and married Hindu women who, too, embraced Islam. The court ruled that marriages under Hindu Personal Law subsist even after one of the spouses adopts another faith. Although not pertinent to the case, the judges wondered why a UCC had not been formulated when 82 per cent of Indians live under it.

It is a falsehood that there is uniformity in Hindu Personal Law.

In the 2015 Phulavati vs Prakash case, the Supreme Court was asked to determine whether the 2005 amendment to the Hindu Succession Act, 1955, could be applied retrospectively. The amendment gave women a share equal to that of men in a joint family property. The court said Phulavati cannot be given an equal share as the property dispute involving her pre-dated 2005. The case had nothing to do with Muslims, yet the judges critiqued the Muslim Personal Law - and asked that a public interest litigation regarding UCC be filed.

Such bewildering activism!

For all these reasons, whenever the Supreme Court now hears a case involving the community rights of Muslims, they think the verdict would go against them. I leave it to the readers to write their conclusion to this piece.

The writer is a senior journalist.
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The views expressed in this column are the individual's and don't represent those of the paper.