[Reader-list] Judicial Absurdity: Recent Ruling on Muslims in UP

[Yogi Sikand]

Judicial Absurdity: Recent Ruling on Muslims in UP

Yoginder Sikand & Nigar Ataulla



A recent ruling by Justice S.N. Srivastava of the
Allahabad High Court declaring that Muslims in Uttar
Pradesh could no longer be considered a minority, has,
predictably, stirred up a hornet's nest. Although the
ruling was stayed by a two-member bench of the same
court the next day, it raised crucial questions that
pertain to minority rights, secularism and democracy
and the impartiality of the judiciary.

Muslim leaders were aghast and indignant at the
ruling. Hamid Ansari, Chairman of the National
Minorities Commission, critiqued it the as 'absurd',
and pointed out that the illogicality of the ruling is
evident from the fact that the same High Court put a
stay on it the next day. As Zafarul Islam Khan, editor
of the New Delhi-based Mili Gazette, India's leading
Muslim paper in English, put it,  'It is a very
disturbing aspect of the current judicial activism
that a single judge of a lower court can go against
the judgment of a much larger bench of the Supreme
Court. If the judge is not aware of the earlier
verdict, he seems unfit for his post and if he chose
to disregard that judgment he should be sacked right
away. It is clear that the judge had some agenda of
his own, as the case in front of him did not relate to
the minority-majority issue'. 'Instead', he added, 'it
was a case against the rampant corruption in a certain
government department where a certain educational
institution says that it did not get government aid
because it refused to pay a bribe'.

Logically, the ruling, as critics have pointed out, is
deeply flawed. Firstly, it is for the government,
rather than the courts, to decide which community can
be officially considered as a minority. Secondly, the
case that Srivastava was hearing did not require him
to pass judgment on whether or not Muslims in Uttar
Pradesh could be considered a minority. Thirdly,
Srivastava has clearly got his mathematics wrong.
Muslims, according to the most recent Census, form
less than a fifth of Uttar Pradesh's population. A
clear numerical minority in the state, Muslims are
also a minority in the sense of being a marginalized
community vis-à-vis the dominant caste Hindus, lagging
considerably behind them on almost all social
indicators. Hence, there is no merit in Srivastava's
ruling that Muslims in Uttar Pradesh can no longer be
considered a minority.

Some critics have argued that Srivastava's ruling
reflects the right-wing Hindutva worldview, in which
minorities are denied any separate identity of their
own. This, in turn, is part of the Hindutva agenda of
absorbing Indian Muslims into the amorphous Hindu
fold. That Srivastava's ruling plays directly into the
hands of the Hindutva lobby, which has warmly welcomed
his pronouncement, is obvious. Hamid Ansari of the
National Minorities Commission argues that Hindutva
forces have consistently denied the fact of Muslim
deprivation, fiercely opposed minority rights and have
condemned any measure on the part of the state for the
amelioration of the pathetic conditions of the Muslims
as unwarranted 'minority appeasement'.  He opines that
Srivastava's ruling must be seen in the light of the
fact that following the recent release of the Sachar
Commission report that investigated the conditions of
Muslims in India, there is much talk about the high
levels of deprivation that Muslims suffer in large
parts of the country. The report led to demands by
Muslim organizations for urgent steps to be taken by
the state to make special provision for the
educational and economic empowerment of Muslims. 'In
response to this', Ansari says, 'Hindutva forces are
now trying to confuse the whole debate engendered by
the Sachar Commission report by bringing in specious
arguments about who should be considered a minority.
The controversial ruling should be seen in this light,
as a considered approach, rather than an accidental or
stray comment'.

In other words, if Muslims were not to be considered
as a minority by the state, the recommendations of the
Sachara Commission report would be scuttled and the
limited state-funded schemes for Muslim welfare might
be ended forthwith. The rights of Muslims as a
minority, too, would be seriously curtailed. Says Syed
Qasim Rasul Ilyas, member of the governing council of
the All-India Muslim Personal Law Board, 'If Muslims
are not treated as minorities, their right as
minorities to run educational institutions of their
own choice would be denied them. So too would the few
government schemes meant particularly for minorities'.
Clearly, Srivastava's ruling is a serious blow to
democratic rights.

Clearly, Srivastava's ruling exposes what some critics
have pointed out as the creeping saffronisation of the
judiciary, which, in theory, is meant to be impartial.
If today Muslims are sought to be denied their rights
as minorities through such controversial rulings, it
could soon be the turn of other marginalized
communities, such as Dalits, Adivasis and Other
Backward Classes. The ominous portents this has for
the struggle for democracy and secularism in India are
obvious.
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