The Law of Lawlessness
The Chief Justice,
Supreme Court of India
Honorable Justice Ramana,
1. Very soon your court will be hearing the case of contempt of court about use of public places for Namaz prayers by a group of people in Haryana. I submit to your Lordship that the issue before you is much bigger than the contempt of court or conflict between two communities about use of public land for Namaz. The core issue before you is of hierarchy of fundamental rights and the basis of authority of the state in giving primacy to the rights of one group of citizens over another. Does the fundamental right to practice religion extend to a fundamental right to block roads, claim primacy to use of public lands, lynch anyone for blasphemy, and over-ride the fundamental rights of others?
2. What you decide in this case will become a precedent for the entire country and will decide: (a) whether we will be a democracy or a mobocracy, (b) whether the state functions according to the rule of law or whims and fancy of the state administrators, (c) whether the state owns the public lands or is a custodian and an agent of public which is the owner. What are the limits of authority of the agent in usurping and bartering away the use of public, as against government-owned, lands?
3. Key questions the Honorable Court has before it are:
(i) Under what law and authority does the Haryana government empower itself to allow regular use of public lands, held “in trust”, for namaz?
(ii) Is there a law that gives the state unbridled powers to do whatever it may over the lands it does not own but manages as agent of the public?
(iii) Has Haryana government adopted and notified any policy about use of such public lands by various groups and users, types of uses, duration of use, restoration of public land to its original state after the permitted use is over, procedure for permitting its use, priority and primacy of use between different users, and procedure for resolving conflicts?
(iv) Does Haryana government have the authority to give away public lands for regular, recurrent, predictable (e.g. Fridays), use and by default establish customary rights in favor of one group?
(v) How does it ensure that regular and frequent use does not become a creeping land grab?
4. Other than an occasional, short-term use of passageways to allow passage of processions or observance of occasional festivals, can public lands be simply given away for regular, frequent, predictable, uses by one group to the exclusion of others for that period? What if another religious group want to use the same ground for its prayers, or children want to use it for sports, or any other group needs it for a legitimate purpose with a conflicting schedule?
5. Coming to the specifics, why is it an obligation of the State government to provide public space for namaz? If any religious group needs infrastructure for regular use for religious rituals, is it the obligation of the State to make it available? Muslims have a Waqf Board. It is alleged that after Railways and Ministry of Defense, Waqf Board is the third largest owner of real estate in India and it has very substantial sources of income. Should it not be the responsibility of the Waqf Board to buy whatever space or infrastructure it needs for use of the Muslim community for which this Board has been created, some powers vested in it that are even violative of the Constitution, and bestowed significant sources of income and assets?
6. The conduct of the governments in recent agitations such as anti-CAA protests, farmer agitation, has given a message that mobs can hold the citizens to ransom. Regrettably, this august Court has reinforced that message that it shall not only remain a mute spectator but give legitimacy to the mob behavior by sending its emissaries to negotiate with offenders. That the blocking of roads and railways to inflict daily punishment on the ordinary citizens obstructing them from going to work to earn their livelihood, children to go to school, patients to get to hospital, shopkeepers to run their business, shall be considered a democratic right is a travesty of justice and abdication of responsibility by this august Court and the State. And you have a responsibility, and an opportunity, to set it right.
7. This petitioner is aware of the recent public announcement by Justice Chandrachud that the Supreme Court must “play the role of a counter majoritarian institution”. Is it a judicial doctrine in our constitution? Do our laws and constitutions provide for favorable treatment for crime and punishment based on the “minority” status of the plaintiff or defendant in front of it? This is not a judicial doctrine, it is a political ideology and should have no place in the Indian jurisprudence or that of any civilized society and a non-theocratic state. Shouldn’t the Court be blind to the color, ethnicity, religion, and the political ideology of the dispensation in power? Adoption of a “counter majoritarian” or a “counter minority” doctrine would put a time bomb under the foundation of this tottering democracy and crumbling judiciary. I shudder at the thought that when Justice Chandrachud becomes the Chief Justice, it will send a chill down the spine of the judicial system, police, and bureaucracy that everything will have to stand the test of “counter majoritarianism”. This will sow the poisonous seeds of an avoidable civil conflict with disastrous consequences.
I appeal to the honorable Court to think beyond the narrow question of contempt of court or trivial issue of exercise of administrative authority by the State and carefully consider the potential impact of its decision. You have a historic opportunity to pull back our democracy from the brink of becoming a mobocracy, remove the blot of “normalized lawlessness” from the rule of law, and restore the majesty of this Court which is still considered the pole star of our pluralist society.
former Chief Operating Officer,
United Nations Sustainable Energy for All, and
former Advisor, World Bank.
14th February 2022