India’s judiciary stands guardian against authoritarian tendencies

By Amulya Ganguli

Rashtriya Swayamsevak Sangh (RSS) chief Mohan Bhagwat's advice to cow vigilantes not to bother over much about judicial strictures shows a measure of annoyance with the roadblocks which the Hindutva lobby is facing in a secular polity.

The dissatisfaction may have increased in the saffron camp in view of two more Supreme Court pronouncements relating to inter-faith marriages and the fate of the Rohingyas, the hapless refugees from Myanmar who have aroused the saffron brotherhood's ire presumably because they are Muslims.

On inter-faith marriages, the court has wanted to know in the context of a Kerala High Court judgement whether the judiciary can annul a wedding between two adults belonging to two different religions.

It is a rhetorical question which strikes at the root of a Sangh Parivar agenda which seeks to prohibit by fair means and foul any love affair or marriage between a Hindu woman and Muslim man and, by implication, between Hindus and Christians as well or any other religious community.

The Parivar's argument is that such nuptials are no more than a ploy to lure the woman into a familial arrangement to facilitate her conversion.

Hence, the phrase "love jehad", depicting a hapless Hindu woman who is the victim of a predatory Muslim male.

The apex court's intervention is in a case in Kerala where the High Court has nullified the marriage of a 24-year-old woman with a Muslim while the Supreme Court had earlier ordered a National Investigation Agency (NIA) probe in the matter although the NIA is supposed to look into only acts of terror.

Irrespective of the final outcome of the Supreme Court's examination of the case, the arguments that have already been aired such as whether the two prominent Bharatiya Janata Party (BJP) politicians who have Hindu wives can be accused of "love jehad" are bound to be awkward for the Parivar.

But what must be no less disconcerting for the latter is that the undermining of some of the programmes, which the saffron camp has pursued diligently, can raise questions about other divisive initiatives like ghar wapsi or converting Muslims to Hinduism.

This is all the more so because the saffron objections to inter-faith marriages are not unlike the often violent disapproval of the antediluvian khap panchayats to connubial ties between grown-ups belonging to different castes and communities or for being members of the same gotra.

As is known, one of the main proponents of the "love jehad" campaign was Uttar Pradesh Chief Minister Yogi Adityanath before he took office.

Of late, his ardour to keep marriages within the confines of each community has been dampened by the Centre's unease about a rise in communal temperature lest it should affect Narendra Modi's development agenda.

Besides, the Chief Minister has come under growing criticism because of his focus on erasing Muslim names such as that of Mughalsarai railway junction and omitting to mention the Taj Mahal in a tourist brochure rather than on saving babies in hospitals or ensuring that the police show a modicum of respect for girl students in Banaras Hindu University.

Clearly, at a time when Yogi Adityanath is proving to be as ineffective a Chief Minister as Suresh Prabhu was a Railway Minister, judicial reprimands are the last thing which the BJP wants, whether in internal affairs or in matters which have an external dimension.

If the judicial diktats on checking the gau rakshaks (cow vigilantes) and on "love jehad" have a domestic angle, the pronouncements on the Rohingyas impinge on issues of national security and international law and obligations.

Among the latter is the principle of "non-refoulement" which rules against sending back refugees to places where they are not wanted.

There is little doubt that if the government resorts to a forcible eviction of the Rohingyas, it will face considerable international opprobrium.

Considering, however, that the RSS chief has lambasted the refugees as vehemently as the government and BJP spokesmen have done, it is clear that the Parivar's political and "cultural" wings are on the same page.

The Supreme Court's verdict on the petition filed before it by two Rohingya refugees will be known after some time. But what the Hindutva group is likely to find disturbing is how the checks and balances built into the constitutional system can stall its efforts to take the country in a certain direction.

The only saving grace is the independence of the judiciary, especially at the higher levels, although this institution, too, experienced a troubling period during the emergency of June 1975 to March 1977, when even the principle of habeas corpus, the cornerstone of individual freedom, was suspended.

Interestingly, Justice D.Y. Chandrachud, while upholding the right to privacy in August overturned the verdict on the habeas corpus case which was delivered four decades ago by, among others, his father, Justice Y.V. Chandrachud.

In the case on gau rakshaks, love jehad and Rohingyas, the differences between the judiciary and the saffron Parivar are obvious.

For the average person, however, the judiciary continues to stand as a guardian against authoritarian and intolerant tendencies in the absence of an effective opposition.

(Amulya Ganguli is a political analyst. The views expressed are personal. He can be reached at amulyaganguli@gmail.com)