Amit Kushari IAS (Retd)
The Supreme Court of India is one of the most fundamental and strong pillars of our freedom enshrined in the constitution of India. Without the Supreme Court and its protective umbrella we would be reduced to slaves of the executive. We must, therefore, be very vigilant and resist vigorously all attempts made by the executive to reduce its halo of glory and supreme power. We are pained to note that quite often attempts are made by the executive/government to bypass the glory and finality of a Supreme Court order to satisfy the whims and fancies of groups of people. Since we have a democracy it is quite natural that our government, which is elected by the people, would be forced to bow down before groups of people raising unreasonable demands and would pass laws/ordinances to nullify a Supreme Court order passed by the Supreme Court after carefully hearing arguments from both sides.
We came across such an attempt by the government for the first time when Rajiv Gandhi passed a law undoing the rights given to divorced Muslim women to get maintenance from their oppressor husbands who had driven them out of their homes by triple talaq. The Supreme Court had wanted to ensure that there should be no discrimination between women of different religions and since Hindu Sikh and Christian women get the maintenance, Muslim women should also get the same. There was so much pressure on Prime Minister, Rajiv Gandhi, from fundamentalist Muslim male groups that Rajiv Gandhi succumbed to these pressures and passed a law in Parliament undoing the Supreme Court verdict. Because of unreasonable popular pressures from big groups, the Government of India, so far, could not do anything to bring about a uniform civil code—or on a smaller scale, make Muslim polygamy and triple talaq illegal. The government apprehends that if it interferes with anti women unfair Sharia laws there could be major upheavals in many parts of India which may go beyond control. Muslims are 14% of the Indian population and in a number of important big states their population density is much higher. In UP they are 20% , in Bihar 18%, in Bengal 28%, in Assam 35% in Jammu and Kashmir 68%, in Lakshadeep Islands 95%, in Kerala 25%.
Since there was no democracy in British India, the British rulers could take bold decisions fearlessly without bothering about its repercussions. Democratic India is so helpless that it cannot even prevent inhuman customs of bull fighting because large groups of people, who are voters in the government, feel that it is their traditional right, even though the Supreme Court has given a judgement to the contrary. Before leaving India the British had helped the Indians by abolishing the custom of Sati — burning Hindu widows on the pyres of their husbands. There was a huge outcry from traditional Hindus who felt that the Government was encroaching on their traditional culture and customs. Raja Ram Mohan Roy and Ishwar Chandra Vidyasagar were in the forefront demanding reforms and there were huge demonstrations against these two reformers. They were termed anti Hindu, colluding with the British rulers to destroy the Hindu society. With great difficulty they could get the Hindu widow remarriage bill passed, and the Sati Abolition Bill was also passed. Violent protesters threw stones at the houses of the reformers, but the British could control the crowds with the police since they did not expect votes from the rioting mobs. Even today mobs are demanding cruel games to continue in the name of tradition and culture and our helpless Government is trying to save the situation by passing laws compromising with cruelty to animals. I shudder to think what would have happened to Indian women if the British had left without banning inhuman practices in the name of tradition.
We were also very lucky that our first Prime Minister was an English educated, liberal person and that his party (Congress) could get a sweeping majority in the Lok Sabha elections of 1952. He could make many bold decisions regarding the Hindu society in his Hindu Act of 1956. Hindu women could divorce their husbands and remarry after divorce or widowhood. They could also marry Hindu men of other castes under the Hindu Marriage Act. Before 1956, if a Hindu wanted to go in for an inter caste marriage he would have to compulsorily marry under the Special Marriage Act. Since no Muslim leader came forward for abolition of Sharia laws, either before the British or during the tenure of Pandit Nehru, their community was left high and dry and they continue to be so today also— since no Ram Mohan Roy or Vidya Sagar was born in their community.
Democracy is undoubtedly a big boon for us because we get the Government that we ourselves elect, but there could be huge aberrations also for which the Constitution gave us a Supreme Court to guard our interests in those exceptional situations. The government should protect the Supreme Court umbrella with full might. They should never give in to groups of people and mobs and bypass the verdicts of the Supreme Court. If they do so one day they will find themselves at the receiving end.
(The author is former Financial Commissioner, J&K Feedback to the author at 09748635185 or amitkus@hotmail.com )
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