Constitutional Breakdown

The scorching indictment of the Gujarat government by the Supreme Court in the Best Bakery judgementprovides judicial confirmation of a fact which has been known by all secular activists who have visitedGujarat in the last 2 years- that there is a complete breakdown of the constitutional machinery in the stateand that the Modi government cannot be carried on in accordance with the Constitution.

Even if one forgets the complicity of Modi and his ministers and police officers in the organised andbrutal genocide of hundreds of Muslims, particularly women and children in Gujarat after Godhara; even if onewere to neglect that the Modi government, far from providing any relief to the victims of the massacre, closeddown the relief camps which were being run by voluntary organisations; even if one were to forget the mannerin which the government has not allowed conditions to be created for the return of several thousands ofMuslims who were driven out of their homes; even if one were to ignore the manner in which the stateadministration, right from the police who investigated the massacre to the public prosecutors who not onlydeliberately messed up the investigations and prosecutions, but even conspired to destroy the evidence of thehorrendous crimes (as was shown by the CBI report in the Bilkis Bano rape case); there is almost dailyevidence of the complete breakdown of the law enforcement machinery in Gujarat from the manner in which theVHP, Bajrang Dal and other Sangh Parivar thugs go around openly, threatening, assaulting and battering notjust the minorities, but anyone who speaks against religious fundamentalism in that state.

Just a few days ago, the group of 20 students who were in Gujarat on a mission to spread the message ofpeace and secularism were assaulted, beaten up, and their vehicles damaged by goons of the VHP, while theywere trying to hold a press conference in Baroda. Shabnam Hashmi of Anhad who was accompanying them wasthreatened that she would meet the fate of other Muslim women in Gujarat if she dared to enter Gujarat again.Immediately after the Supreme Court judgement in the Best Bakery case became known, a number of thugs of theParivar barged into the office of Father Cedric Prakash (who has been working with other peace activists inGujarat), looking for Teesta Setalvad of Citizens for Justice and Peace who was instrumental in pursuing theBest Bakery case on behalf of Zahira Sheikh. The unhindered manner in which goons of the Parivar stalk thestreets of Gujarat, assaulting and intimidating even those who talk of peace and secularism clearly indicatesthe protection and indeed encouragement from the state and its instrumentalities, which is not surprising,considering that the leaders of these organisations are in charge of the Modi government.

The Togadias and their ilk roam freely in Gujarat, openly spewing venom not merely on the minorities, butalso anyone who stands up for them. The administration does nothing though these are serious offences underthe Indian penal code. Even the election campaign of Mr Modi and his ministers is openly communal. This is notonly a violation of the model code of conduct, but also a corrupt practice and electoral offence. On the otherhand, the storm troopers of the Parivar pop-up to disrupt almost every meeting of any group of citizens whoraise their voice against this hate campaign. Clearly, the conditions in Gujarat today are not different fromthose that existed in Nazi Germany when storm troopers of the Nazi party with the active support of the SSwould set upon not merely the Jews but also those who stood up for them.

It is in these circumstances, that the Supreme Court while ordering a reinvestigation and retrial in theBest Bakery case, has been forced to remark that 

"the modern-day Neros were looking elsewhere when BestBakery and innocent children and helpless women were burning, and were probably deliberating how theperpetrators of the crime can be saved or protected. Law and justice became flies on in the hands of these ‘wantonboys’. When the fences start to swallow the crops, no scope will be left for survival of law and order ortruth and justice." 

They have been forced to order the retrial to take place outside Gujarat because theyfound "ample evidence on record, glaringly demonstrating subversion of the justice delivery system withno congeal or conducive atmosphere still prevailing". The court’s horror at the manner in which theinvestigative agencies, the public prosecutors, and even the courts in Gujarat had virtually conspired tosubvert justice, is evident from the following remarks:

"If one even cursorily glances through the records of the case, one gets the feeling that the justicedelivery system was being taken for a ride and literally allowed to be abused, misused and mutilated bysubterfuge."

Article 356 of the Constitution empowers and indeed obligates the Central government to bring a state underPresident's rule if the government of the state cannot be carried on in accordance with the Constitution. Whenthe state governments of Madhya Pradesh, Rajasthan and Himachal Pradesh were dismissed and President's ruleimposed in the wake of the demolition of the Babri Masjid, a nine judge bench of the Supreme Court upheld thedismissals holding that,

"Secularism is a part of the basic structure of the Constitution. The acts of the state governmentwhich are calculated to subvert or sabotage secularism as enshrined in the Constitution, can lawfully bedeemed to give rise to a situation in which the government of the state cannot be carried on in accordancewith the provisions of the Constitution."

The acts of the state governments which prompted the court to say this were:

• The BJP manifesto whichpromised the construction of the Ram temple at the Babri Masjid site. 
  
  
• Speeches of leaders of the BJP to thesame effect. 
  
  
• Some of the Chief ministers and ministers belonged to the RSS which was a banned organisationat the relevant time. 
  
  
• The ministers in the ministries concerned, exhorted people to join Kar seva inAyodhya on 6 Dec 1992. 
  
  
• Ministers had given public sendoff to the Karsevaks and had also welcomed them totheir return after the destruction of the mosque. 
  
  
• The implementation of the policy pursuant to the ban ofthe RSS was to be implemented by the ministers who were themselves members of the banned organisation. 
  
  
• Atleast in two states, viz. Madhya Pradesh and Rajasthan, there were atrocities against the Muslims.

The situation in Gujarat today is far worse than what existed in the states of Madhya Pradesh, Rajasthanand Himachal Pradesh in December 1992. There is not only no rule of law in Gujarat today, what we arewitnessing is naked fascism of the kind seen in Nazi Germany in the 1930s. 

By abetting the storm troopersof the Sangh Parivar who intimidate the minorities and those who stand up for them, by poisoning the minds ofinnocent children and other citizens with communal propaganda through state textbooks with fictionalized,bigoted and communalised histories, with every agency of the state being used to divide people on communallines, it is not surprising that Modi has succeeded in not only poisoning the minds of common citizens buteven of members of the judiciary in the state, as is evident from the observations of the Supreme Court in theBest Bakery case. The Supreme Court has remarked that, 

"the fanatics who spread violence in the name ofreligion are worse than terrorists and more dangerous than an alien enemy." 

It is true that the battlefor secularism must be fought in the hearts and minds of people, but how does one reach out to the hearts andminds in a fascist state? If we do not stop these fanatics now, we risk not only our Constitution but ourDemocracy and indeed civilization itself in this country. The dismissal of the Modi government must be onlythe first step to deal with this cancer which threatens to overwhelm us.

Prashant Bhushan is a public interest lawyer in the Supreme Court.