Calcutta HC Durga Puja order: your honour, what exactly is minority appeasement?
The Calcutta High Court recently passed an order relaxing the deadline to immerse Durga idols in Kolkata after the ongoing Puja. While the merits of the order can be debated, some observations made by the court are problematic, especially the way it used the term 'minority appeasement'.
The subject itself, as well as the order, might be misunderstood to be mundane, but the reality is that both are political in nature.
While it is the job of the political leadership to deal with political concerns, when the courts start adopting a political approach to the pursuit of justice, it is time to raise a red flag.
The order came on a writ petition filed against the West Bengal government's order that no Durga Puja idol immersions will be allowed in Kolkata after 4 pm on 11 October. The rationale behind the order was apparently to ensure that the security apparatus was not overstretched, given that the city would also witness Muharram processions or tazias on 12 October, and the evening of 11 October.
The petitioners' appeal to the court was that these restrictions will force them to break age-old traditions, as the immersion of Durga idols usually happens after sunset.
Handing out its order, the High Court held the time-limit restrictions as 'arbitrary', and relaxed the timings till 6 pm, and even 8 pm, in specific cases. So far, so good. The government's order, reportedly, wasn't even a written order, and the charge of arbitrariness may easily apply.
But the court order didn't just stop there. The judge went on to record a detailed sermon on how the government order showed the state was indulging in 'minority appeasement'.
Minority appeasement? Really, your honour? Since when did a political neologism enter judicial lexicon? Are high court court judgements now going to be delivered on religious lines? Will judges now give orders in the light of which faith has more numbers to support?
The single-member bench of Justice Dipankar Datta had everything going for it, till the point it limited itself to say that no decision should be taken that could pit "one community against another", and that "intolerance would rise in the event of such arbitrary decision" of the government.
After that, a key line of propriety was crossed, as the court went on to observe: "There has been a clear endeavour on the part of the state government to pamper and appease the minority section of the public at the cost of the majority section without there being any plausible justification."
In other words, the court accused the state government of indulging Muslims at the cost of Hindus' interests. This makes the court sound like a defender of Hindu interests.
Shouldn't the court, as a neutral arbiter of multiple competing concerns, avoid this kind of a projection? This is exactly what any majoritarian political outfit would have accused the government of.
Take a look at some of Justice Datta's other observations:
- 'No effort' had been made to 'satisfy' the Bench that "processions on the eve of Muharram are an inseparable part of the mourning" associated with Muharram.
- "There has never been a holiday" declared by the state or Centre on the eve of Muharram, to "facilitate processions (tazia)".
- "The administration has failed to take note of the fact that Muharram is also not the most important festival of people having faith in Islam".
- "The state government has been irresponsibly brazen in its conduct of being partial to one community, thereby infringing upon the fundamental rights of people worshipping Maa Durga".
- "Immersion on Bijoya Dashami is such a ritual for puritan Hindus that the same cannot be postponed to a day beyond Bijoya Dashami or preponed at the whims and caprices of the state government".
Questions that arise from the order
Justice Datta's statements give rise to so many questions that his order is silent on. Why is it, for example, that he seems to be significantly aware of the details of celebrating "Bijoya Dashami" but requires to be 'satisfied' that Muharram processions are an intrinsic part of the mourning associated with it? Or, if indeed "there has never been a holiday" on the eve of Muharram to "facilitate processions (tazia)", why is that the case?
How did the court assume the responsibility of deciding which is "the most important festival of people having faith in Islam"? Where exactly does the Constitution of India, the guide book for all our courts, talk about "the fundamental rights of people worshipping Maa Durga"? Which statute gives so much importance to the ritualism of "puritan Hindus" that it becomes the basis for setting aside a government order?
The tone and tenor of the high court order, the choice of words and the phraseology used are heavily loaded. The order is the oxygen that the majoritarian frenzy currently sweeping the country thrives on.
West Bengal has not been left untouched by this frenzy as the ambition of the political right wing grows. The state has all that it needs to burst into the kind of flames that have singed many other states earlier, with the riots of western Uttar Pradesh in 2013 being the most recent example.
Political forces have vested interest in fanning these flames. Competing political forces also have equally vested interests in dousing them. The courts should not venture into this territory, because if a judicial observation strengthens sectarian forces, that will not just be a disservice to the Constitution, but simply dangerous.
Edited by Shreyas Sharma
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