SC's 'boiling pot' metaphor has opened up new questions instead of putting old ones to rest

No matter what senior judges assert in lectures abroad, it is impossible to promote a “constitutional culture” in India when constitutional institutions themselves do not uphold their core duties

(Left) Teesta Setalvad & (right) Mohammed Zubair
(Left) Teesta Setalvad & (right) Mohammed Zubair
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Ranjona Banerji

Ever since the arrests of journalists Mohammed Zubair and Teesta Setalvad a pall of gloom and fear has crept up on some of us. Should we be silent? Should we step back and be very careful when and if we criticise the government and its ruling party? Should we just start to applaud every masterstroke so that us and our loved ones are not targeted?

The reasons for the arrests of Zubair and Setalvad are different and the same. The same is easy: both opposed/exposed the lies, sophistry and dangers of the Hindutva ideology. And how it damaged Indian democracy.

Zubair annoyed the authorities because he factchecked lies and false claims. Does it need to be stated that Zubair and Alt News, the fact-checking website of which he is a co-founder with Pratik Sinha, exposed lies told by all political parties, by the media and by governments of all persuasions? Because it was only when they highlight Hindutva’s anti-Islamic posts and anti-Muslim actions that they fall foul of the authorities.

Zubair’s arrest was imminent, given how vociferously he linked the BJP with the bulldozing of Muslim properties after BJP spokesperson Nupur Sharma’s comments on the Prophet Mohammed.

Teesta Setalvad? Now she is an old, old thorn in the side of the BJP and RSS and one particular Indian state. Since the demolition of the Babri Masjid by Hindutva and Hindu majoritarian forces. Communalism Combat, the magazine that she and her husband Javed Anand founded in August 1993, the organisation Sabrang and her role in the Citizens for Justice and Peace, formed after the Gujarat riots of 2002 have all marked her out.

The moment she became a champion and a support structure for some riot victims, particularly Zakia Jafri, the bullseye was painted on.

So where is this all leading to?

Maybe some of us know all this.

Maybe some of us have forgotten.

Maybe some of us buried all this deep within, hoping economic prosperity would smooth over the boulders of hatred and sectarian divisions.

And there are those who are so young that they have no idea what’s going on.

Therefore, a reminder.

Who is Zakia Jafri?

She saw her family and friends being burnt to death in Ahmedabad by angry mobs in 2002. Her husband, Ehsan Jafri, a former MP and a member of the Congress Party, called everyone he knew to save his neighbourhood. No one came to help. He too died in the conflagration. All Zakia Jafri wanted was justice and accountability from an elected government.

What the Supreme Court did say when it dismissed her plea for accountability is that she had been misled by Setalvad, that Setalvad and “others” had “kept the pot boiling” for “ulterior design” and “all those involved in such abuse of process need to be in the dock and proceeded with in accordance with the law”.

So, what is the law?

That a fight for justice keeps a “pot boiling”?

That you cannot demand accountability from an elected government?

That you cannot assist someone in fight for justice?

And what is this mysterious “pot”?

Is that a reference to the riots in Gujarat in 2002? If any riot victim asks for justice, does the apex court mean that this victim is unfairly targeting elected governments or political parties?

Or must we now forget that these riots not happen?

Where does the pot end and reality begin?

I quote Justice Madan Lokur (retd) from an interview he gave to Karan Thapar for The Wire: “I don’t think any person would have expected this from the Supreme Court… Particularly, that paragraph… about these people being put in the dock. It’s very, very unexpected.”

Interestingly, the Chief Justice of the Supreme Court, N.V. Ramana, said this recently at a lecture in the USA: “Let me make it clear that we (judiciary) are answerable to the Constitution and Constitution alone. To ensure checks and balances envisaged in constitution we need to promote constitutional culture in India.”

He also said that political parties wrongly assume that the judiciary exists to advance their causes.

It is however impossible to promote a “constitutional culture” in India when constitutional institutions themselves do not uphold their core duties.

To reference boiling pots in a search for justice from boiling pots, is a travesty of human dignity, of constitutional safeguards and of the essence of democracy.

At the end, let us not forget what Zubair and Setalvad have in common. Zubair is a Muslim. Setalvad is married to one. And thus, their temerity to take on a strong government and a stronger supremacist force, means that they need every ounce of constitutional protection. Because I haven’t even mentioned the chief minister of a state and the prime minister of a nation.

That justice ball is now in the courts.

Don’t hold your breath.

And be careful. Very careful.

(Ranjona Banerji is a senior journalist. Views are personal)

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