Courts Remain Silent Spectators As Minorities Remain In Fear Amidst Rise Of Illiberal, Communal Forces: Justice(Retired) AP Shah

“Now, I see the rise of illiberal and communal forces in India that is made possible, in part, by disillusionment with successive governments. This is compounded by a legal architecture that is permissive of abuse, and prejudices inherent in society. This worrying resurgence of communalism, a deeply divisive form of religious nationalism, has powerful political backing, seeking to realise Vinayak Sarvakar’s ideal of Hindu rashtra, Hindu jati, and Hindu sanskriti. That the Savarkar vision is outrageously outdated is putting it mildly. People are not defined by geography or religion, just as democratic nations are not chambers of rigid uniformity or isolation. Nevertheless, this clamorous view is being propounded in India today still, to a point where minorities are living lives in fear, and with some truth, that their citizenship has been reduced to second-class existence. Incidents like those that took place in Nuh and even in Delhi, perpetuate this feeling. Extrajudicial tools like encounter killings, panchayat bans on traders from minority communities, and ‘bulldozer politics’ have exacerbated this situation.”

Justice Shah, who formerly served as Delhi High Court’s chief justice and Law Commission chairperson – was delivering the 25^th DS Borker Memorial Lecture on the topic ‘My Vision of India: 2047 AD’. Also in attendance were Supreme Court judge Sanjay Kishan Kaul, who chaired the event, and National Law University Delhi professor Anup Surendranath. In his address, Justice Shah critically evaluated the trajectory of India’s governance and democracy, raising alarm over the emergence of what he termed an ‘elected autocracy’. He asserted that despite electoral legitimacy, the ruling Bharatiya Janata Party’s actions have displayed increasingly authoritarian tendencies that undermine democratic principles. The erosion of checks and balances, co-option of watchdog institutions, stifling of dissent, and weakening of media and the courts are noted as key indicators of this shift.

Even while decrying the rise of Hindutva nationalism, which he asserted, ran contrary to the very essence of Hinduism as a liberal and tolerant religion, Justice Shah revealed his own familial ties with the Hindu Mahasabha, a leading figure of which was Vinayak Damodar Savarkar.

“My grandfather was the president of the Hindu Mahasabha in the 1940s. The earliest literature I read as a young boy in school was VD Savarkar’s, when I fell in love with his initial poetry, though his later poems became highly Sanskritised and tedious to read. Savarkar’s poetry was one of my subjects in graduation… I feel that the idea of Hindutva, as we have received it today, challenges the Hindu faith itself, which many consider a liberal, tolerant, and generous religion. Why Hindu society is largely silent about what is being perpetrated in the name of their religion against minorities is a question many of us might well ask today. Recall Vivekananda’s memorable words from his 1893 Chicago address, where he said, “We believe not only in universal toleration, but we accept all religions as true,” and that he was “proud to belong to a nation which had sheltered the persecuted and the refugees of all religions and all nations of the world”. Should we not want to feel that pride always?”

The former judge explained that this ideology, which existed on the fringes during the Independence struggle and the framing of our Constitution, has now gained prominence, leading to democratic backsliding and the creation of a climate of fear among minorities. With respect to the demolition of the houses of people suspected of being involved in riots or other crimes, Justice Shah said that judicial response has been deficient and lacklustre. 

He cited the reassignment of a suo motu action against demolition drives in Haryana’s Nuh following the communal clashes earlier this month to a bench of the Punjab and Haryana High Court other than the one led by Justice GS Sandhawalia that had taken cognisance of the situation, questioning whether the State was targeting one particular community and if its action amounted to 'ethnic cleansing'. Justice Shah said –

“The bulldozer today has become a symbol of power that is wielded without legal sanction or authority. Innocent lives and livelihoods are lost, with no respite in sight. Beyond the act of demolition, there are devastating consequences for entire families and communities. Who will help them rebuild their destroyed lives – not just their homes? Does the state realise the grave implications of its machismo display? Those responsible for maintaining the rule of law, like courts, remain silent spectators. If I am not mistaken, there has not been a single case where innocent victims have found justice. When, occasionally, a bench, like in the Punjab and Haryana High Court, suo moto questions the strong arm of the state, the case itself is taken away.”

On hate speech, the judge said that despite the Supreme Court’s effort to address the problem, the cycle of ‘violence and hatred’ has continued –

“The same story has played out in the case of hate speeches as well. Politicians and politically-backed media outlets routinely foster communal hate. State and local governments are either complicit or inert. The Supreme Court tried to curb hate speech, but to no avail, and the cycle of violence and hatred continues.”

The role of the judiciary has, Justice Shah insisted, emerged as a critical point of concern, as it navigates challenges posed by a shifting social and political landscape. While commending recent Supreme Court rulings, such as the right to privacy judgment, orders granting bail to activists accused in the Bhima Koregaon-Elgar Parishad case, and those passed in response to the communal violence in Haryana, or the ethnic clashes in Manipur, Justice Shah shared his anxieties regarding the apex court’s inability to counter executive overreach effectively. The court’s reluctance to delve into contentious matters like the Citizenship Amendment Act and electoral bonds further heightened his concern.

Another issue the former judge highlighted is the ‘perceptible targeting’ of human rights defenders without following due process, often under the Unlawful Activities (Prevention) Act. In this connection, Justice Shah also referred to the Supreme Court’s Zahood Ahmad Watali judgment, which narrowly interpreted the court’s bail-granting powers under the UAPA –

“Teesta Setalvad’s case is a classic example of this. Courts seem to be not only dismissing cases, but practically supporting the government in going after activists. Human rights defenders are regularly persecuted by employing anti-terror laws, and specifically the Unlawful Activities (Prevention) Act. In particular, the Supreme Court’s interpretation of the grant of bail in the UAPA cases has upended the principle of presumption of innocence under the law in Watali. Now, courts are to presume the prosecution case to be true and then determine whether a prima facie case is made out. As a result, for anyone unfortunate to have been charged under UAPA, a period of indefinite incarceration lies ahead. The UAPA has been particularly used and abused in many cases, including the Bhima Koregaon and Delhi riots cases. Some who were accused and arrested, such as Sudha Bharadwaj, were eventually granted bail, whereas others like Stan Swamy died in custody, without any incriminating evidence having been clearly identified.”

Notably, the functioning of high courts also faced scrutiny from the former chief justice, who pointed to their inability to discharge the ‘kind of truly independent role they had in the past’. He also lamented how difficult it has become to get relief in civil liberties cases in some high courts, leaving citizens with no option but to approach the Supreme Court for even the most ‘ridiculous’ instances executive overreach or rights violation. Equally troubling, he said, was judges praising divisive narratives and aligning with majoritarian viewpoints –

“The high courts were once the most vibrant institutions in the country. Indeed, high courts have an enviable legacy of being among the only democratic institutions that stood with and for the citizens in the country’s darkest days during the Emergency, when the Supreme Court failed India’s people. But, like so much of history, that legacy seems to have been forgotten. On occasion, such as during the COVID-19 pandemic, and the plight of migrant workers, high courts showed their mettle through some bold orders and directions, but it seems that this was only a momentary ray of hope. Today, it is virtually impossible to get relief in civil liberties cases in some high courts, and for even the most blatantly ridiculous instances of a misuse or arbitrary application of a draconian law, individuals have to approach the Supreme Court for any redress. It is also troubling to see judges praising the benefits of cow urine and cow dung, invoking the Manusmriti, and speaking the majoritarian language.”

Despite these concerns, it is evident, Justice Shah insisted, that the executive perceives the judiciary as ‘the last bastion it has to overcome’, which is reflected in the revival of the discourse surrounding the Keshavananda Bharati ruling which gave the Indian Constitution its famous ‘basic structure’ doctrine –

“Despite all this, though, the executive realises that the judiciary is the last bastion it has to overcome. In that respect, without a formal change in the constitution, it might be almost impossible to establish a Hindu rashtra. This is also perhaps why a conversation has suddenly resumed around the Keshvananda Bharati decision. The statesmanship exhibited by the 13-judge constitution bench, where the basic structure doctrine was laid down, and judicial custody of the Constitution reclaimed, is but one shining example of what the court is capable of. The judgment spoke of six crucial, unalterable elements that made up the basic structure, that is, democracy, secularism, rule of law, equality, federalism, and judicial independence. As the Chief Justice of India has rightly said, this decision is a ‘north star’ for India. Granville Austin said that the court had established itself as ‘the logical, primary custodian’ of the Constitution, and ‘its interpreter and guardian’. There was a promise, decades ago, by the Supreme Court itself, that it would be the sentinel on the qui vive, the watchful guardian protecting citizens’ fundamental rights. Whatever happened to that promise, I often wonder, with great disappointment.”

However, not all is lost, Justice Shah insisted. The year 2023, he explained, is a critical juncture for evaluating India's progress as a constitutional democracy because while we have seen notable advancements in science and technology, infrastructure, and space exploration, the country has also witnessed democratic backsliding. While divisive trends have gained recent prominence, communalism, the judge assured, had a ‘limited shelf life’, drawing lessons from history to illustrate its eventual decline. Highlighting how societies naturally gravitate towards peace and equilibrium after transient periods of unrest, Shah stressed that it was important to not lose sight of the certainly that the nation will inevitably return to a path of peace, which fosters genuine progress –

“The situation that we are in today is not irreversible. To reverse this, we must jolt ourselves awake with a few realisations. We need to recognise that communalism is ‘not only the badge of a backward nation’, as Nehru had famously once said, but also that it has a limited shelf life. History has taught us, time and again, that hatred and divisiveness, whether in politics or society, cannot survive for long. Religion and religious groups might be having their day in the sun, when it comes to influencing politics, and economics. This is happening the world over, but this is also only a temporary phenomenon. Peacefulness and a peaceful society are the natural equilibrium for human society. Periods of war and instability have mostly been sporadic, we have, as humankind, reverted to peace as the default. In India too, we must never let go of that certitude that we will return to peace, sooner than later. For every statue of Gandhi or Tagore being defaced or pulled down or their thoughts and ideas being otherwise devalued by the extremist right wing, there is a movement that reminds us and reinforces that peace is the only path to real progress.”

The full video of the 25th DS Borker Memorial Lecture can be found here and Justice Shah's speech can be found here.