By SHAHNAWAZ AHMAD ANSARI

Pogroms, communal strife and massacre have been cultural blots in the garb of reflex action ever since independence because these are ingrained in the bedrock of divided India. But lately, the emergence of ‘spontaneous-mob-lynching’ with a tinge of pride-pouring Hindutva superseded by the enlightened spirit to safeguard its sanctity is, of late, anew craft in the attire of democratic subversion, scripting unveiled snarls. The ‘new-lynching-normal’ of the trivial kind in ceaseless series conceived in the last five years might be a subtle attempt to let the people feel the sought-after-transition of India from a ‘Secular State’ to a ‘Theocratic State’.

What we can call this new dispensation? It’s armed with an ideology and a socio-political programme that are diverse with what we have been accustomed to for most of India’s independent career. It is important to realise that a silent proclamation that India is a ‘Hindu nation’ and ‘Hindutva’ is its identity — strikes a massive blow at the secular concept of Indian citizenship and at the Constitution itself.

Needless to say that the spraying of anti-Muslim venom into society, which has resulted in the formation of lynch-culture, the over-enthusiastic fanatic crusaders are pretty confident to desert and decry secularism — tattooing it — ‘an outdated, formulaic and hack concept’ — presuming to replace it with trending Hindutva.  

Observably, functional Hindutva, steering the legitimacy of majoritarianism as an imperative of electoral democracy and calling for an authoritarian ‘National Unity’ and ‘Patriotism’ on this divisive and reactionary basis is what ‘Pseudo-Nationalism’ seeks to achieve for the communalists. Moreover, this experiment is all set to carve out a barren plain for ‘Real-Nationalism’ undermining the edifice of age-old communal harmony in tandem.

Trending Melodrama of Muslim’s Mob-Lynching

As per the data revealed from an authentic source, 86% of those dead in cow-coated violence since 2010 are Muslim. Of them, 97% of the attacks took place after 2014. Almost 122 incidents of cow-coated violence took place in India between 2014 and 2019.

Although lynching is not a new phenomenon, yet the meticulously designed and trending new-craft of lynching took an aggravated turn since 2014. And in 2015 when Mohammed Akhlaq was lynched in UP’s Dadri for allegedly storing and consuming beef in his house, it gathered scrupulous storm, setting a new plot for lynching as the Akhlaq’s assailants were acquitted followed by felicitation rather than bringing them to book.

Since then, there is no looking back as the brutality turned out experimental in every nook and corner of the country, strengthening the belief of the fanatics that whatever they did were righteous, spicing up the religious verve as the majoritarian society as well as the state machinery — whether it’s judiciary or executive — protected them like holy war crusaders.

That orchestrated mob-lynching paved the royal road to the ‘right-wing-lynch-squad’, boosting their morale to cling to communal sprawling and looking for a slide to making ‘lynching’ — an ethos of sorts and a routinely telecast ‘serial’ alike. In fact, the aftermath of mob-lynching persuaded the assailants that lynching was no longer a crime as it got a thematic approval from the ‘Social-Naxals’ as well as the ‘Governmental-Smugglers’, thereby invigorating them to conspire for these incidents consistently.

Now look at the chronology of lynching since 2014.

Tabrez Ansari’s Recent Lynching and Police Charge-Sheet

Surprisingly, the Jharkhand police have diluted the charges of the assailants by writing down that the 11 men arrested for Tabrez lynching, which was a culpable homicide that does not amount to murder. Doesn’t it sound strange that those who labelled Ansari a thief tied him to a pole and assaulted him for hours at night are not going to be prosecuted for his murder? Whether the police are going to include accounts, which claim that he was forced to chant ‘Jai Shri Ram’ or not, is unrevealed.

Doesn’t it establish a clear sectarian motive on the part of the crowd to turn into a lynch mob and attack him? Then, how the police have chosen to prosecute them for culpable homicide? What does it show? Is the causal link between the assault on the person and his death has been established? There is a volley of questions revolving around this brutal murder, which has been transmogrified to homicide.

Notwithstanding, the line between culpable homicide and murder is thin, yet it is the jurisdiction of courts to establish, but, here the police have given its report, which seems like a judicial verdict in the format of charge-sheet. Murder is punishable under Section-302 with death or life imprisonment, while forms of culpable homicide attract either a life term or 10 years in prison under Section-304 of the IPC.

Let aside the Police findings. Isn’t it obvious that merely attributing death to a heart attack is meaningless without referring to the trauma caused by physical assault? The narrative in recent lynching incidents that it was the victim who was at fault may come in for needless reiteration unless the prosecution resolutely makes a case of murder. The suspicion that the charge is being diluted underscores the need to legislate a special anti-lynching law like the UAPA.

Such a law could cover acts of group violence, whether spontaneous or planned so that those who join lynch mobs do not gain from any ambiguity about their intentions. But this seems a utopian dream at least in the current scenario where the prism of review sets on the launch pad of the individual’s whim. By and large, nothing can happen towards the restoration of communal harmony unless the camouflaged social-political hypocrisy is exposed.

The police charge-sheet tried to justify the mob crime by charging Ansari with the “intention” of stealing. They ignored the evidence on a video of this being a religious hate crime. Ansari’s uncle, who went to the lynching site in the morning, records in his statement that he heard a member of the mob shout, “Beat him so much that he dies”. And it happened. Eventually, he was beaten to death with the same intensity — an apparent fact that even the flora & fauna, sky and the blowing wind of that region witness.

Surprisingly, the paradox of the police charge-sheet and the deliberate attempt of manipulation indicate the prevalence of ‘Fascism-Fusion’, reminding me of one of the assertions of Adolf Hitler: “The receptivity of the masses is very limited, their intelligence is small, but their power of forgetting is enormous. In consequence of these facts, all effective propaganda must be limited to a very few points and must harp on these in slogans until the last member of the public understands what you want him to understand by your slogan.” Here ‘Jai Sri Ram’ – a credulous buzz word – driving the ‘Subliminal-Slogan’.

In the troubled times, can we hope the upkeep of our age-old unity in diversity when the Vedantic tradition of once tolerant Hindutva is undermining the secular stature of the country and bulldozing all other traditions under the juggernaut of ‘Jai Sri Ram’? Is there anything left that might uphold the liberal values of Hinduism and maintains the communal harmony of the country?

I, being an Indian am a bit confused! Is the divine slogan — ‘Jai Sri Ram’ bears the brand of ‘New India’ — unfolding the trio-manifesto of the government in power — Sabka Sath, Sabka Vikash, Sabka Vishwash or ‘Bharat Mata Ki Jai’ or ‘Vande Matram’? What should a common man perceive in secular Indian where the Muslim minority is brutally murdered routinely for not chanting the magical ‘Jai Sri Ram’? Such questions are innumerable to ask with the state! However, answers available with the state are either negligible or ineligible! Let’s hope for the BEST, but simultaneously be prepared for the WORST!

By SHAHNAWAZ AHMAD ANSARI

The bubbles of the hullabaloo created after the abrogation of Article 370 and the government’s actions taken in Jammu and Kashmir are still swimming on the surface as it has triggered the rage towards the internationalisation of Kashmir. The house arrest and trivial detention of so many leaders and the civic restrictions has stirred a hornets’ nest. Voices are being raised from across the world against the actions taken by the government in J&K, post-annulment of special status, and the issue is doing the rounds in the UN and in the other countries.  

Speculatively, the consequences of the government’s actions might be appalling to tourism, to the economy, to national security and to India’s international standing. But, shockingly, the government’s stand is glorifying.

Observably, the public, which has warmly welcomed the stance of the government, has in fact been wilfully misled about the process, and that the government has successfully eluded the issue tactfully of its own legal sleight of hand to meet its larger partisan ends under the garb of the uniformity of states. The government has outgone in legislative subterfuge to achieving its objective of ending “one country, two constitutions, and two flags”.

Article-370: Fact File…

Article 370 was conceived as a temporary measure until the Constituent Assembly of Jammu and Kashmir was formed, and it was left to the Constituent Assembly of J&K to determine the constitutional relationship between India and the state. It is because of the primacy in such matters lies with the people of J&K, that Article 370 (3) states that Article 370 can only cease to exist through a Presidential order after obtaining the recommendation of the Constituent Assembly of J&K to end the operation of the article.

The Constituent Assembly of J&K enacted the Constitution of J&K, whose Article 147 (c) places a bar on the legislative assembly from affecting the constitutional relationship with India, as provided in the Constitution of India. So, they accepted Article 370 as the permanent constitutional relationship between the Union and the State, an interpretation upheld in successive Supreme Court judgments. 

The permission of the people of J&K through an elected body is a condition precedent to interfere with its special status under Article 370.  Clause 3 of Article 370 makes it clear that you cannot amend the article without the recommendation of the Constituent Assembly.

Government Outwitted Legalities

There is a shrewd turn of the government, which has indirectly amended Article 370 by amending Article 367, asserting that the Constituent Assembly shall mean the legislative assembly. What is the grey matter hidden over here in this amendment? It’s razor-sharp and tricky! How? The government can then argue that due to the operation of the President’s rule in the state, the role of the legislative assembly has devolved upon Parliament in New Delhi, which can recommend on behalf of the legislative assembly on account of the dissolution of the assembly.

This way the government has completely ignored the well-established position in law that whatever is not done pervasively can be accomplished indirectly. Constitutionality restricts to amend Article 370 without obtaining the consent of the people; one cannot indirectly amend it in the absence of their consent. But, you see, it has been already done!

The Supreme Court has recognised that while something can be formally legal, the substance of it can be a fraud on the Constitution. There is a possibility to argue from this set of facts that this entire exercise is a fraud on the Constitution of India and a betrayal of the promise our founders made to the people of J&K. It’s eccentric indeed!

Another important point to be taken into account is that the government also claims that the concurrence of the government of the state of Jammu and Kashmir has been received. However, J&K has been under President’s rule for many months now. So, the consent of the state is that of the governor, who is in fact the appointee and representative of the Centre. We can say in other words that the Centre has taken its own consent via governor to fulfil its agenda. The government knows that it’s very hard and lingering to get the consent of Kashmiris for this cause. So, it chose the royal road to butter its bread smoothly.

Succinctly, President’s rule is a temporary mechanism, meant for situations in which there is a breakdown of constitutional machinery and meant to cover exigencies that may arise during the period before fresh elections are held and a new assembly constituted. Yet, permanent measures are now being taken under the cover of President’s rule – in the absence of a state government and a legislative assembly, the Central Govt. is using its powers to split the state and downgrade it into a union territory.

The centre has completely ignored the letter and spirit of Article-3 of Indian Constitution, which requires the government to consult the state assembly on such matters. Again, the claim is that since Parliament is, for all practical purposes, “the legislature”, the legislature is being consulted. However, the spirit of Article-3 was clearly intended to involve consultation with the elected legislature of J&K, who represent the people of that state. The government might yet be able to persuade the Supreme Court that they have adhered to the letter of the law, but its action has deceived the spirit of the Constitution.

Worrying Move

Precisely, the government has changed the basic constitutional relationship of the people of J&K to the Republic of India without consulting them or their elected representatives. This casual disregard for Article 370 (3) and Article-3 is overwhelming treachery with our democracy and nothing short of legislative totalitarianism.

The concurrence of the state of Jammu and Kashmir has been obtained, when it is under President’s rule; by translating “State” to mean the Governor they themselves have appointed, and by interpreting “legislature” to mean Parliament in New Delhi rather than the body elected to represent the views of the people of J&K, our government has acted in absolute contempt of the people of the state and of the value of democratic decorum that is meant to add flesh and blood to our political culture.

Ironically, the masses in general unaware of the complexities and the outwitting loopholes of the constitutionality have warmly applauded the ‘bold’, the historic national step taken by their popular leader. However, for a functional democracy, this must not be the precedent, as it’s threatening and upsetting in its spirit. This sort of legislative exercise similar to leaking the faith and confidence of the founding fathers of the Indian constitution, who were also our forefathers, envisioned a new India.

This move simply tarnish the spirit of our constitution, however, this is not entirely a new practice as the previous governments have also amended so many undesirables in the event of the major mandate. History repeats itself: whenever there is an absolute majority in the parliament, such authoritarian decisions are taken under the umbrella of the constitution, though by stratagem! Let’s look forward to bringing solace to the bewailing hearts of the architect of the Indian constitution.

~~Shahnawaz Ahmad Ansari

By SHAHNAWAZ AHMAD ANSARI

Triple Talaq: A Conventional Perspective

Amidst the pretentious opposition of the opposition & the proposition lawmakers and a usual hullabaloo, the highly politicised Triple Talaq Bill turned out the law, making the husband criminal if he wishes to dissolve the troubled marriage.  As per the spirit of Qur’an – Talaq is the most incongruous phrase amongst all the approved phrases.

It turns out a curse to a happy family, but simultaneously it’s a boon for those whose life becomes hell – either wife or husband. It’s a legitimate means provided by Islamic Sharia and the Holy Qur’an to come out from a troubled marriage to lead another peaceful happy married life. But more often than not, it is misused for trivial reasons ignoring the real teachings of the Holy Qur’an and the Prophet Mohammad – founder of Islam.

Although a stringent law to curb its ugly upsurge – the way it was practised was very much required for long, yet criminalising it is nothing short of a political stroke. There is no logic behind criminalising it, and converting a husband even he is a ‘Good Samaritan’ into a legalised criminal at the spur of the moment only when he utters the three-word Talaq! Talaq! Talaq, even if he is in an angry mood!

As per Islamic Sharia and the Holy Qur’an, instant Triple Talaq in a one-go is not justifiable, more so if you are in anger, it’s absolutely null. However, cent per cent of cases of Talaq is the consequence of anger. Moreover, there is a systematic process of Talaq if the couple has decided not to accommodate together. Even after the couple’s decision, the husband is supposed to utter a Talaq, which serves as a warning for the wife to mend her ways and traits for which the scene of separation has been evinced. And wait for a month watching whether his wife mends herself or not, which is the cause of the discord.

If she is adamant not to mend her ways, again utter the 2^nd Talaq and wait for another month. Still, she is found to be obdurate not to mend her ways – then utter the 3^rd and the final Talaq to dissolve the marriage. However, if the wife gets counselled to mend herself, then the couple can continue to live happily together as they were living earlier and the Talaq would be revoked. In the long process, interlocutors from both sides are allowed to convince the couple not to dissolve the marriage.

Ideally, the majority do not follow the aforementioned algorithm to sustain or dissolve a marriage via Talaq or no Talaq. Moreover, no denying the fact that there has been a gross misuse of Talaq in our society since time immemorial, which needs to be plugged, and protection or economic security to the divorcee should be ensured. And the lawmakers should legislate to make it hard to part with rather than criminalising. The Supreme Court has already directed an outline for the legislation on this contentious social issue. However, her directive has been lost in political jugglery.

Judicial Take on Triple Talaq 

The landmark judgement of Supreme Court on Triple Talaq in 2017 paved a transparent path for the lawmakers to make law in tandem with Islamic jurisprudence intending to curb the exploitation and oppression of women in the male-dominated society. And the resultant bill was: Muslim Women (Protection of Rights on Marriage) Bill, 2018, which was not in any way congruent to the purpose it conceived. The legislation that was supposed to ensure equality and protection of women’s rights, unfortunately, turned out to be a legal arsenal for detaining Muslim men and devouring the concern of the aggrieved women.

Now the bill has become law on passing in Rajya Sabha, which was speculated to be troublesome, but the tricky ruling managed to sail through the adverse stream. However, it has fundamental absurdity as it stands on the ledge of divorce by voiding instant Triple Talaq as per the direction of Supreme Court, but simultaneously and effectively legitimising it by directing about custody and maintenance, which does not come into the picture if the Talaq does not happen.

In other words, the criminalisation i.e., the prison term for the man pronouncing Triple Talaq is again a logical fallacy with serious consequences on the future of the aggrieved woman. See, if the dissolution of marriage never takes place, since Triple Talaq is deemed ‘void’, then what actually does the legislation criminalise? And, why does a ‘Triple Talaq’ pronouncing person to be put behind the bars? What’s the logic behind this farce criminalisation?

Triple Talaq: Its Aftermath

Do the lawmakers or the civil society, who are blindly supporting the bill without knowing its repercussion in our society ever thought of it, that what would be the lot of the family members whose head is behind the bars? I don’t think so! Let’s cite a case study: If a husband is sent to jail as per the bill’s adherence leaving the wife and his three children in lurch, and he was the only breadwinner of the family. Then what would be the consequences? Who will look after his three school-going children and bear the household expenditure because his wife is a homemaker?  What probable consequence may be expected in this circumstance? Speculatively, the family might be on the verge of numerous adversities prompting to suicide!  

Unfortunately, in Muslim Women (Protection of Rights on Marriage) Bill, 2018, there is an intermingling of the Law-making and the politics, while both should remain two separate entities. This was supposed to be a legislation to safeguard the women’s rights in the light of the Supreme Court’s decision. However, it seems to be pivoted towards electoral gains for the ruling party as they might have speculated to get all Muslim women’s votes by this historic milestone.

Now turning towards legislation — what’s the significance for the people of electing parliamentarians, who, when reaching the house makes themselves, loyal to their parties rather than safeguarding the interest of the people, who have elected them as lawmakers?

This bill is not intended to empower the women rather make them revengeful, inciting their emotional vibes to take erroneous steps and bring disaster for themselves and to their families. Simply put, criminalising the bill means declaring undeclared emergency in both the families of the husband and the wife, bringing mayhem around, making every member of the family chaotic. Thus, what springs up as the food for thought, which in fact, is the eternal truth:  That marriage is a pious bonding between two individuals, which can’t be retained or flourished without love and affection? Implementing such laws will distract rather than attracting the partners towards each other to live a graceful life together. Civil society must think of curbing such bills further that do more harm than good to the people at the altar of meeting the partisan ends of the respective political parties.

~~Shahnawaz Ahmad Ansari