The Paralysis of Justice in India
Apprentice Lawyer

The Paralysis of Justice in India

Sambhav Sharma

India is a country belonging to manifold communities. At face value, such heterogeneity is what distinguishes it from the rest of the world. However, in reality, it is the ill-treatment of these communities that makes India unique.

A land of many religions and varied ethnic groups, India is often wrongly hailed as the flag bearer of love and diversity, whereas, the truth suggests that our country is a silent watchdog of oppression and persecution of minorities.

Article 14 of the Constitution of India declares equality and equal protection of the law within the territory of India. Consequently, individuals are made to believe that they have fundamental rights to enjoy, particularly the right to freedom of speech, freedom to practice a religion of one’s choosing and protection of life and personal liberty. However, reality suggests the contrary.

There is a rising trend of hatred, brewing in the minds of self-righteous men who believe themselves to be above the law. What is appalling is the unrestricted freedom that such disgruntled elements of society enjoy to not only voice their discontent against the minorities, but bring it to fruition by mercilessly abusing them. Communalism is a term often talked about, but seldom understood for how dangerous it is. Lynching at the hands of ‘virtuous’ beings has become so common, that we hardly bat an eye anymore.

This is not to call out those who fear raising their voices against the tyrannical system, but to recall the idea of justice that was once promised by our forefathers.

“The real meaning of secularism is ‘Sarva Dharma Sambhav’ meaning equal treatment and respect for all religions. But we have misunderstood its meaning as ‘Sarva Dharma Abhav’ meaning negation of all religions."

These words by Mahatma Gandhi, unfortunately, hold relevance even today.

In Aruna Roy v. Union of India, the Supreme Court observed that after more than 50 years of adopting the Constitution, there still exists a mutual misunderstanding and intolerance between different religious groups. How can we attain justice when our society refuses to learn from history and endeavors to repeat the follies of the past?

The Phantom of Social Justice

The Supreme Court in Air India Statutory Corporation v. United Labour Union stressed the idea of “Social Justice”. As observed,

“The concept of ‘Social Justice’ consists of diverse principles that are an integral part of justice in the generic sense. It is a dynamic device to mitigate the sufferings of the minority. Social justice and equality are complementary to each other, and therefore, Rule of Law is a potent instrument of social justice to bring about equality".

The aim is to analyse whether such ideals of justice exist in India.

Religious Fanaticism and Communalism

Fanaticism is over-enthusiasm and zealousness that leaves little room for reasoning. Religious fanatics feel self-righteous and superior to other religions. They believe that truth is the sole monopoly of their religion, thereby setting the foundation for prejudice and hatred. Accordingly, this emotion is exploited by politicians.

The political weaponisation and a narrow definition of religion is the appalling reality of India today. Minorities, especially Muslims, are made to face the brunt of discrimination on all fronts, thereby taking away their rights on multiple counts. We have harboured an arbitrary prejudice against particular communities in India which somehow appears to have institutional backing.

Indian Muslims: An Oxymoron?

Communalism in India seems to be premised majorly on the crystallization of national allegiance. The advertent correlation of nationality and religion is poisonous to say the least, and the idea of a ‘Hindu Rajya’ serves directly against the constitutional guarantee of secularism. Consequently, the instilled Islamophobia is brought to the surface by pitting the communities against each other.

The False Garb of Threat to Hindus

A rather ludicrous narrative that has birthed in our society is that the Islamic community poses a grave threat to the identity of Hindus across India. Using this as an arsenal, certain members of the community justify their offensive approach against Muslims. Politicians often encourage Islamophobia by fabricating a communal threat. They implant a false sense of fear of losing a figmental war against the other religions, which allows them to chant inflammatory slogans like “shoot the traitors” as ‘retaliation’. By this logic, any act against Muslims becomes an interest of the Hindus and any opposition to such acts makes one their enemy.

Moreover, those who incite hate often backtrack and play the victim when they feel an unfavourable act is committed against Hindus, thereby furthering the “threat to Hindus” narrative. A recent example is the Palghar lynching that resulted in the killing of two Hindu godmen. What followed was a mass uprising against Islam and a call for Hindus to unite and defend their religion, only to find out later that there was no communal angle involved.

India’s Failure to Transform Niti to Nyaya

Amartya Sen in his book “The Idea of Justice” expressed his views against transcendental institutionalism. He noted that justice can only be achieved if the policies aimed to benefit the minorities are implemented in reality. Here, the policies are Niti’, which are futile in the absence of ‘Nyaya’, their social realization. It revolves around the aphorism, “Justice must not only be done, but should manifestly and undoubtedly be seen to be done”.

The ground reality of India, however, suggests that the Indian justice system has turned a deaf ear to Sen’s Nyaya. Be it an inherent contempt for the Muslim community or a targeted attempt to silence them in times of a pandemic, communal harmony in India is a distant reality. While there exist provisions in the Constitution that advocate the secular fabric of our country, the government fails to serve Nyaya as mandated by the letter of the law. Consequently, the tumult of mighty disharmonies rocking the ship of the Indian secular State may soon lead to the excavation of its foundations.

Is Justice Really Served in India?

Coming to the fundamental question of whether the ideals enshrined in our Constitution regarding equality and freedom have been met with. A simple comprehension of the political and social environment in India gives us an answer in the negative. Where Muslims and other minorities are forced to live in a constant fear of subjugation, the scope of justice seems to be bleak.

In a society that believes in the suppression of minority voices and where the police assists the disgruntled elements in furthering the aggressive Hindutva ideology by punishing students for rightfully protesting, the idea of justice appears to be desolate. While we take pride in ourjJudicial system, we must hang our heads in shame for letting our religious fanaticism overpower our conscience, and for allowing those in power to exploit us on religious grounds, only to further their own interests.

In St. Xavier’s College v. State of Gujarat, the Apex Court observed,

“Secularism is neither anti-God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion”.

The apparent confusion that follows is that if India is secular, and yet there exists persecution of minorities and a denial of rights, is justice really being served?

The author is a student at Amity Law School, Delhi (GGSIPU).

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