‘Supreme Court has more important concerns than ensuring smooth traffic’

Harsh Mander feels the anti-CAA protests across the country, which he terms as a movement that’s unparalleled since the Freedom Struggle, have rattled the government enough to order a police crackdown

Harsh Mander (File photo)
Harsh Mander (File photo)

Rahul Gul

If Gandhiji had been alive today, he would have told anti-CAA protestors that it was their right as well as their duty not to cooperate with the government, Harsh Mander tells Rahul Gul in a conversation following the riots in Delhi

What explains the conduct of Delhi Police in light of what transpired in JNU, Jamia Millia Islamia and now North-East Delhi?

I have been part of the civil service and more than a layperson, I understand what the police is supposed to do and what actually it has done. And therefore my sense of anguish and outrage at how the Delhi Police has conducted itself in recent months is even greater than an average lay person may have.

The action of the police in entering a university and beating up students in the library, the arrest and detaining of those very students and the condition of those students— I had forced my way into the police station that night – with their ribs and hands broken; this is not what a police force is supposed to do.

Equally shameful was its conduct in permitting mobs to riot almost under their protection in JNU and giving them safe passage. And then registering criminal charges against the student leader who had herself been injured. Their complete silence at hate speeches throughout this period…the Delhi Police has completely lost its moral compass.

Even in terms of sheer professionalism, what it has done and what it has not done is a matter of intense shame. And all of this has led to a situation in which we find ourselves in today. We’re all aware that peaceful protests had broken out indifferent parts of the country on a scale that is unmatched in any agitation that we’ve seen since independence.

People are protesting against legal provisions that threaten to strip them of their citizenship rights. The Indian government has acted with arrogance and hubris and refused to legitimately allay these fears. They have used the police to try and crush all of this dissent. The large scale application of Section 144 is worrisome. In any number of judgments, the courts have upheld the citizens’ right to protest peacefully. If it has to be curtailed, there have to be exceptions. There cannot be blanket imposition of the Section; it has to be for specific areas,for specific times, for very express, particular purposes.

A lot has been talked about Shaheen Bagh. The Supreme Court has intervened on the specific question of traffic, but on the other hand are apprehensions of crores of Indians about their citizenship and their rights. Even here the role of the police is suspect.

If they wanted, they could have opened that stretch of the road and made it two-way. It was a very simple traffic problem to solve. They did not do it and instead erected barriers on all sides to actually aggravate many times over the traffic in convenience. Once again in complicity with the ruling establishment, they tried to discredit
the protestors.

Could the Delhi Police Commissioner have acted on his own in all these situations?

The Police Commissioner is clearly acting to advance the extremely malafide political objectives of the Union Home Minister. That is not why an independent civil service was created. In India’s constitutional framework, the reason it was called a steel framework, the idea was for it to adhere to the protection of constitutional propriety and rules and laws. And resist and stand firm when the situations of the kind we’re seeing unfold.

It has not played that role, it has spectacularly failed us. And the fact that we see Police Commissioner Amulya Patnaik rewarded with an extension – there isn’t even any kind of pretence – about whose orders are being followed. When I was in civil service, I was on the faculty of the LBSNAA, and it was taught that being in civil service could never be construed to obey any illegal and unjust orders.We’re first the servants of the Constitution, then the servants of the poorest and most vulnerable people who live within our jurisdiction. Only then we’re servants of the elected government. It’s not the other way around.

What in your opinion were the compulsions of the Delhi LG in the wake of the violence that rocked North-East Delhi?

All of this has led us to a situation today where even as we talk, we’re hearing frightening stories of the kind of communal violence that Delhi has not seen since the 1984 riots. It is terrifying to think about where we might be heading if the police still do not perform their duty with the professionalism and the integrity and the courage that it is expected to have.

Now, the police does not come under the Delhi Chief Minister. It comes under the LG. The LG as much as the Home Minister have to take primary responsibility. I would underline that even given the political compulsion of his superiors, the Police Commissioner had the powers, the right and the constitutional duty to disobey such orders and stand by his duties as envisaged under the Constitution.

I don’t think he has an alibi that he was following instructions. His duties, his job description don’t allow any scope to follow unjust orders. Quite the reverse in fact: It is his express duty to resist unjust orders, particularly if they lead to the kind of consequences we’ve seen unfold in Delhi.

Who benefits politically from the kind of situation we have seen in North-East Delhi?

It is quite clear that the amendments to the citizenship law and the plan to have the NRIC exercise preceded by the NPR, is an extremely central ideological project for the ruling establishment. In the second term, the BJP with its expanded presence, saw it as a mandate to implement its core agenda of transforming India into a Hindu Rashtra.

When it made changes in laws and the Constitution – there have been a series of steps in very rapid succession – since there was no resistance to each of those, they believed that there was a consensus in the majority Hindu community for what they were doing,and that the Muslim community had been battered into fear and submission and was of no political relevance. Then suddenly (after enactment of CAA), all these protests broke out; in fact, it would be more appropriate to call it a movement.

It’s a movement that’s extraordinary and without parallel since the Freedom Struggle. It’s a movement that has demonstrated, above all, Hindu-Muslim unity, in fact Hindu-Muslim-Sikh-Christian unity which is visible in all the protests. It has led to a reclaiming of the Constitution. It has given a reassurance to the Muslims that they are in fact equal citizens in the country. It has led to politicisation of students in the universities, who have started coming out and standing up for what they believed was right. It has led to working class Muslim women speaking out.

Collectively, all this has deeply rattled the government. Now, how do they deal with dissent?They have some very clear things in their playlist. The first is to communalise, reduce everything into a Hindu-Muslim narrative.

The second, if that doesn’t work, is to lie and deny, and confuse the issue, with someone saying one thing, another one saying a different thing. And the third is to crush with brutal force.

In the last few months, we’ve seen all this playing out. initially, what they perceived in Jamia and AMU was a sort of Muslim dispute. The two universities are associated with Muslims, and they used brutal force there. They thought there would be a lot of anguish there but no one else would care. But then young people came out across the country in protest, and Hindu-Muslim unity became visible.

The PM then came outwith a statement that they had never even thought about NRC, when the President himself in his address to Parliament had spoken about it, the Home Minister has spoken about it in Parliament many times. The PM said there are no detention centres, but I have personally been inside one such centre. 

But when the lying doesn’t work, they try to crush it with force. What we’re seeing unfold in North-East Delhi is an even more concerted attempt to use all of these three methods in order to have a decisive assault on the movement, starting with Delhi and then across the country.

Is it going to work?

Well, time will tell. Brute force can temporarily succeed in forcing people to vacate the sites where they are holding sit-ins. The rise of some degree of violence by lumpen elements on both sides of religious communities is extremely unfortunate. The death of a police official has saddened all of us. But I believe the basic fabric of the religious unity has not been broken. In the coming days, weeks and months, we have to assert this religious unity, and come back together again to continue the battle.

Why do you think the ruling party did not bother to speak to the states and political parties before they amended the citizenship law?

For many reasons, but the most important is simple hubris, arrogance and riding roughshod over other opinions. They were also able to get support of some parties and leaders with which they don’t have a formal alliance, like Naveen Patnaik, Jagan Reddy,etc., who just lined up behind something that ordinary Indians saw as destructive of the Constitution.

See, this is a very decisive step in an ideological battle that the Hindu Mahasabha and the RSS and BJP have been fighting for more than a hundred years. It would be misleading to see it as simply the hubris of these two leaders, or something for an immediate electoral benefit to them. It is much deeper than all that.

The SC has been sitting over the challenge to the CAA. It seems to be in no hurry to deal with the matter. What do you make of that?

The protests could have reached a successful conclusion if the Supreme Court had fulfilled its duties. If they could hear the Ayodhya petition on a daily basis, there is no reason why they could not have heard a matter which is causing so much anguish and anxiety to people across the country.

A record number of petitions have been filed against this law. In a democracy, for the majority not to become majoritarian, the role of the SC is particularly critical. Also,for the protection of minorities. In that sense it shares the culpability for the erosion of faith in the rule of law for people across the country. In that sense, the SC has an indirect responsibility for the violence that has broken out today.

The SC recently appointed interlocutors to talk to the Shaheen Bagh protesters. But do you think any protest can be held without pain?

See, whether they should have blocked the road or not is something we can debate. The question that I would like to ask is why the SC thought it fit to use this very unusual device of appointing interlocutors to clear traffic. Why did they not find it necessary to deal with what has brought this group of working class, poor Muslim women  out of their home to sit night and day in one of the coldest winters in 115 years.

And in their support,156 Shaheen Baghs have come up across the country. The SC did not think it fit to appoint interlocutors to address their concerns. They just wanted to clear traffic.

I find this extraordinary.The SC exists to defend the Constitution. It does not exist to fulfill a minor executive function like ensuring smooth traffic.

What would Gandhi ji have done in today’s situation?

This is a very important question. Firstly, Gandhiji’s name has been used and misused. It was said that Gandhiji wished that Hindus be given safe haven in India. Rajmohan Gandhi, who is his grandson, says that is a brazen lie. In fact, Gandhiji wished the exact opposite. He wanted a 50-mile line of Hindus and Sikhs who had come to India during partition to go back to Pakistan, and likewise of Muslims to come back to India. He never wanted to see India and Pakistan divided on the basis of religion.

Gandhiji had taught us that if there was an unjust law, you had both the right and duty to non-cooperate. The refusal to allow to cooperate with the NPR and the NRC is both the right and duty of every Indian citizen within the constitutional framework, and that is what Gandhiji would have told us. He would have also reminded us about the importance of non-violence, and refusing to be provoked under any circumstance.

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