“UPSC Jihad”: How the Supreme Court promoted judicial capriciousness out of a misplaced sense of righteousness.

A layperson’s cynicism if not complete distrust with regard to the Indian judicial system could be attributed to, inter alia, the proclivity of the judiciary to exhibit capriciousness to an alarming extent. The inconsistency of the judiciary is ostensibly its only consistent characteristic. Its judgment with regard to the series “UPSC Jihad” aired by Sudarshan TV chief editor Suresh Chavhanke is evincive of the same.

The context behind the series is the illustration of government schemes for religious minorities securing employment in the civil services. Following are the observations of Sudarshan TV as reported by the news portal OpIndia.com:

[An amount of] Rs. 1 lakh is granted to members of the minority community through the Udaan Yojana to crack entrance exams for UPSC while Hindus do not receive any such benefits. Similarly, for gazetted posts in state public service commission (PSC), the minority community receives Rs. 50,000 and for non-gazetted posts in state PSC and SSC exams, they receive Rs. 25,000.

…the overwhelming majority of those availing the benefits of the schemes for the minority community are Muslims. After the Muslim community, Christians come a distinct second; followed by Sikhs, Buddhists and Parsis respectively.

The other unfair advantages that Muslim candidates appearing for civil services receive are higher number of attempts and higher upper limit for the age of candidates.

…some Muslims take advantage of OBC categories and are included in them. Consequently, a Hindu can appear for the civil services till 32 years of age, Chavhanke said, while Muslims can appear for the exams till 35 years of age. Also, Hindus can make only 6 attempts while Muslims can make 9.

…the rate of success for candidates who opt for Urdu is disproportionately high when compared to other languages. For instance, in the year 2011, the success rate for Urdu candidates was 40.9% while the same for Sanskrit and Hindu were 11.8% and 13.1% respectively. In 2017, the success rates for Urdu, Sanskrit and Hindu were 19.2%, 7.1% and 7.1% respectively.

…in Urdu, the question paper is prepared by people from the same community, the answer sheets are checked by the same community and those who choose the language also belong to the same community. Suresh Chavhanke also revealed that Muslims on an average score higher than non-Muslims in interviews, which is bound to attract suspicion as assessment during interviews can be highly subjective.

In 2018, the difference in the marks for interviews between Muslims and non-Muslims was as high as 9.5 per cent. A similar trend has followed since 2013. Suresh Chavhanke also gave the example of Shah Faesal, the infamous Kashmiri bureaucrat who had quit in protest against the Modi government, who had secured the top rank solely due to his superior marks in interviews.

The government considers it a beholden duty to ensure adequate representation of the Muslim community in the civil services. It is true that given the large number of Muslims in India, their representation in the civil services is abysmally low.

However, the foregoing points having been taken into consideration, it would be natural to conclude that the State has taken measures in order to not let any laxity affect its endeavour, so much so that it has bequeathed inordinate advantages to the Muslim community.

The true controversy, however, was not with regard to the State’s endeavours, but those of an organization named Zakat Foundation of India, an NGO that has also sought to groom Muslim candidates for the civil services. Here is a document prepared by the NGO that evidently champions concerning prospects of a takeover of Indian bureaucracy by Muslim candidates. It would not have been so disquieting had the iniquitous links between the Zakat Foundation and radical Islamist organizations not surfaced. But prior to examining this pernicious angle, it is of the essence to understand the paradigm of this NGO.

Following is an OpIndia report with regard to the Zakat Foundation:

In the recently declared final results of recruitment into the UPSC, Zakat Foundation announced that 27 candidates it had supported had been selected for the civil services. The ZFI has as its President Dr Syed Zafar Mahmood and the organisation prepares Muslim students for recruitment into various government jobs.

Under such circumstances, it is pertinent to note the ideological dispositions of the Zakat Foundation considering the fact that a significant section of individuals are gaining entry into government jobs under the influence of their ideology.

Opposition to Citizenship Amendment Act and Uniform Civil Code: It is claimed that the CAA is “Unconstitutional faith-based discrimination against Muslims”. The ZFI also says that there is too much emphasis on the UCC. It also claims that the Constitutional order which mandated that only Hindus, Buddhists and Sikhs could be recognised as Scheduled Castes is “patently unconstitutional”. Thus, quite clearly, it wants the State to recognise Muslims as ‘Scheduled caste’ as well, despite Muslims claiming continuously that Islam does not have the concept of caste.

Enough debate has been generated around the Citizenship Amendment Act (CAA) that was passed by the government in December 2019. With eminent lawyers like Harish Salve having demonstrated the constitutionality of the Act based on historical precedent, any opposition to the CAA — with the contention not only that it is unconstitutional but is also an instance of institutionalized discrimination against Muslims — can justifiably be suspected of malice prepense against the nation. Manifestly not sufficient to prosecute an individual who harbours such views, it is of utmost essence to discern possible execrable notions that may have engendered such views. For what objection could it possibly have to India offering sanctuary to persecuted minorities of our neighbouring theocracies who suffer no fault of their own — a righteously corrective measure — but verily India’s own legacy of the Partition?

Perhaps the most outrageous instance of the Foundation meddling with the process of justice was its set of demands to the Hindu community, fulfilling which the Muslims would be prepared to concede the Ram Janmabhoomi to the Hindus. This, when the case was already being heard at the Supreme Court. One of the atrocious points was a demand of extending reservations to the Muslims, in the same manner as done for Scheduled Castes and Scheduled Tribes.

The deleterious impact such a move would have on India cannot be understated. With the competition for college enrollments and government posts already extreme and with the ever-compounding reservations, an extension of the same to the Muslim community would negatively impact merit in ways unimaginable in the long-term. There are significant reasons why none other than the Members of the Constituent Assembly of India, full of percipient stalwarts, summarily rejected the very proposition of such representation to the Musalmans.

Jawaharlal Nehru said:

As soon as you get something that can be called political democracy, then this kind of reservation, instead of helping the party to be safeguarded and aided, is likely actually to turn against it. But where there is a third party, or where there is a n autocratic monarch, or some other ruler, it is possible that these safeguards may be good. Perhaps the monarch may play one off against the other or the foreign ruler. But where you are up against a full-blooded democracy, if you seek to give safeguards to minority, and a relatively small minority, you isolate it. May be you protect it to a slight extent, but at what cost? At the cost of isolating it and keeping it away from the main current in which the majority is going.

It is a bad thing for any small group or minority to make it appear to the world and to the majority that “we wish to keep apart from you, that we do not trust you, that we look to ourselves and that therefore we want safeguards and other things.

Sardar Patel said:

Those who claim that in this country there are two nations and that there is nothing common between the two, and “that we must have our homeland where we can breather freely”, let them do so. I do not blame them. But those who still have that idea that they have worked for it, that they have got it and therefore they should follow the same path here, to them I respectfully appeal to go and enjoy the fruits of that freedom and to leave us in peace. There is no place here for those who claim separate representation.

For a community to think that its interests are different from that of the country in which it lives, is a great mistake. Assuming that we agreed today to the reservation of seats, I would consider myself to be the greatest enemy of the Muslim community, because of the consequences of that step in a secular and democratic State. Assume that you have separate electorates on a communal basis. Will you ever find a place in any of the Ministers in the Provinces or in the Centre? You have a separate interest. Here is a Ministry or a Government based on joint responsibility, where people who do not trust us, or who do not trust the majority cannot obviously come into the Government itself. Accordingly, you will have no share in the Government. You will exclude yourselves and remain perpetually in a minority.

Their observations receive much more credence when one realizes that the Jains and the Buddhists, phenomenally smaller in numbers when compared to the Musalmans, did not demand such proportional representation.

The most prudent observation by Sardar Patel is, perhaps, as given hereunder:

I remember that the gentleman who moved the motion here last time, in August 1947, when asking for separate electorates, I believe, said that the Muslims today were a very strong, well-knit and well-organised minority. Very good. A minority that could force the partition of the country is not a minority at all. Why do you think that you are a minority? If you are a strong, well-knit and well-organised minority, why do you want to claim safeguards, why do you want to claim privileges? It was all right when there was a third party: but that is all over. That dream is a mad dream and it should be forgotten altogether. Never think about that, do not imagine that anybody will come here to hold the scales and manipulate them continuously. All that is gone. So the future of a minority, any minority, is to trust the majority.

That having being illustrated, it is now expedient that the Foundation’s links with iniquitous organizations be examined.

The Zakat Foundation, in its submission to the Ministry of Home Affairs, has stated that it received Rs. 13,64,694.00 from the Madina Trust based in the United Kingdom during the financial year 2018–19. The Madina Trust-UK is known for anti-India activities. On the 15th of August and the 3rd of September, 2019, there were attacks on the Indian High Commission in the United Kingdom by unruly mobs. The Economic Times reported on the groups and leaders that were present at the violent protests, one of them was Madina Trust-UK, a trust evidently sympathetic to Pakistan.

OpIndia reports:

Dr. Mohammad Jafer Qureshi is a director at the Zakat Foundation of India (International). He has a deep links with the Islamist preacher Zakir Naik. Between 2012 and 2016, he was a director at both the Islamic Research Foundation International (IRFI), an organisation of Zakir Naik and Zakatr Foundation of India (International). He resigned from his position at IRFI in 2016.

Sam Westrop, director at Islamist Watch, wrote in an article for FirstPost, “One of the companies previously registered to Qureshi’s address is Universal Broadcasting Corporation Limited, a key component of Zakir Naik’s network, and which serves as the umbrella organisation for Naik’s infamous Peace TV media outlets and various companies.” Qureshi resigned from the UBCL in 2016.

Sam Westrop notes:

From the beginning, Muslim Aid’s officials have been tied closely to Jamaat-e-Islami (JI). In 2013, a Bangladeshi war crimes tribunal sentenced to death in absentia one of the charity’s early leaders, Chowdhury Mueen-Uddin, for his role leading a JI killing squad that abducted and murdered 18 people during the country’s 1971 Liberation War.

Muslim Aid board chairmen have included Manazir Ahsan, a leading British Islamist who helped to coordinate Islamist riots in the UK against novelist Salman Rushdie over his book, The Satanic Verses; and Iqbal Sacranie, another infamous British Islamist who said of Rushdie: “Death, perhaps, is a bit too easy for him.”

With this violence-tied management, it comes as little surprise that Muslim Aid has repeatedly been found involved with a number of terror networks. In 2010, following investigative work by British media and an inquiry by Britain’s charity regulator, Muslim Aid was found (and admitted) to have been funding a number of front organizations for the terrorist groups Hamas and Palestinian Islamic Jihad.

Muslim Aid’s terror links are not limited just to the Palestinian territories. Counter-terrorism analyst Chris Blackburn notes that Muslim Aid’s Australian branch has supported jihadist-funding organizations in Indonesia; government agencies in Bangladesh included Muslim Aid in a list of ten Islamic charities supporting Islamist terrorism; and Spanish police have declared that Muslim Aid financed jihadists in Bosnia in the 1990s.

In the United States, documents acquired by the Middle East Forum show that in 2015, the Treasury Department’s Office of Foreign Asset Control (which is tasked with stopping the flow of monies to terrorist groups) looked into Muslim Aid as a potential terror financer.

For the ones curious about the possible connection between Zakat and Muslim Aid, Mohammad Jafer Qureshi was also a trustee at Muslim Aid-UK between 2005–15.

Given the existence of such diabolical plots, how would one view the attempt to scuttle such voices as seek to expose Zakat’s possible iniquitous intentions? As K Bhattacharjee rightly notes, “attempts that are being made to silence such criticism are borne of a misplaced sense of righteousness that could pose a serious threat to the national security of India.”

It must then be a source of profound misfortune and concern that none less than the Supreme Court of India be liable for the same.

Justice D.Y. Chandrachud’s observations are particularly appalling:

The anchor’s grievance is that a particular group is gaining entry into the civil services. How insidious is this?…Such insidious charges also put a question mark on the UPSC exams. Aspersions have been cast on UPSC. Such allegations without any factual basis, how can this be allowed? Can such programs be allowed in a free society?

(To Shyam Divan appearing for Sudarshan TV) Your client is doing a disservice to the nation and is not accepting that India is a melting point of diverse culture. Your client needs to exercise his freedom with caution.

As the Supreme Court of the nation, we cannot allow you to say that Muslims are infiltrating civil services. You cannot say that the journalist has absolute freedom doing this.

The edifice of a stable democratic society and observance of constitutional rights and duties is based on the coexistence of communities. Any attempt to vilify a community must be viewed with disfavour.

Justice Chandrachud is a highly erudite judge. For him to make such specious observations is indeed surprising, particularly so given that Sudarshan TV could not have made its position any clearer, as reported by Bar and Bench:

Sudarshan TV maintains that it has “no ill will against any community or any individual and it does not oppose the selection of any meritorious candidate in the service of the Union or the States.”

However, some of the contributors to ZFI are linked to organizations that fund extremist groups, the channel has submitted.

These funds received by the Zakat Foundation, in turn, are used to support aspirants for IAS, IPS or UPSC, claims Sudarshan TV.

The channel maintains that the show concerns a matter of grave public interest and national security.

The channel adds that Syed Zafar Mahmood of Zakat Foundation of India was invited to participate in the debate. Even a TV unit was sent to his ZFI’s office and Mahmood’s residence. Despite this, there was no participation from their end, as per the counter.

In an attempt to showcase a link of the UPSC Coaching institute with that of “terror-linked organizations” the channel has stated that ZFI had recieved donations from Madina Trust, UK.

As per records of the Charity Commission for England and Wales, Dr.Zahid Ali Parvez, Trustee of Madina Trust, is also a trustee with the Islamic Foundation. The Times, UK had reported that two Islamic Foundation trustees were on the UN sanctions list of people associated with banned terror organizations, Taliban and Al-Qaeda.

The channel states that “according to reports, Madina Trust was also involved in an attack on Indian High Commission, London in September,2019.”

The channel made further particularly apt points:

UPSC is an open competitive examination and members of every community may participate in the entrance examination and qualify. The thrust of the programme is that there appears to be a conspiracy which needs to be investigated by NIA or CBI. It appears that terror linked organizations are funding the Zakat Foundation of India, which in turn is supporting the UPSC aspirants.

…the thrust and endeavour are to expose anti-national activities and the manner in which some persons are being recruited in All India Civil Service under a design to induct persons with the financial support of international fundamentalists and to achieve their oblique motives in India, which may pose a serious threat to the security of India.

In an unfortunate turn of events, the Justice Chandrachud-led bench stayed the airing of the programme.

What is profoundly interesting as well as confounding, is that while Justice Chandrachud recognizes that injunctions would set a terrible precedent and that “there will be injunctions galore” thereafter, which the judges do not want to be law of the land, his concern for the cohesion of India’s diversity is not quite relevant to the case. He observed, “Let a message go to media that a particular community cannot be targeted.” and that “We recognize national security, but we need to have individual respect too.”

While the observations by themselves are valid, they appear erroneous insofar as the case is concerned.

Following are the pertinent questions that must be posed to the Supreme Court:

1. Why must Muslims not be mentioned, given that the Zakat Foundation’s own report aims to groom Muslims exclusively? How could facts be reported otherwise?
2. How does the revelation of such facts constitute hate speech against Muslims, when Suresh Chavhanke never called for any action that could target Muslims exclusively on account of their religion, either institutionally or otherwise? How could it be inimical to Muslims given that none of his statements evinced contempt for Muslims, but only the nefarious activities of Zakat?
3. Does the Supreme Court, by means of its understanding that the nation’s plural fabric could be negatively impacted, indirectly admit that the Muslim sentiment is eminently frail and ergo cannot tolerate even a truthful report? Does it indicate the judiciary’s capitulation to radical elements of society who could potentially hold society at gunpoint? Is that also why the Honourable Court has yet not declared the Government of India’s ban on Salman Rushdie’s The Satanic Verses unconstitutional?
4. Where was the conscience of the Supreme Court when the narrative of “Hindu Terror” was deliberately disseminated? Why did it not express concern when a book, “26/11: RSS ki saazish” exonerating a foreign terrorist group and implicating a reputed sociocultural organization of the worst terror attack in Indian history, was released? Given that the Supreme Court views truthful and unhateful reporting as detrimental to the nation’s plural fabric, it could certainly have viewed such an insidious book as covert support to a foreign terrorist group, thereby a threat to national security.
5. Why did the Supreme Court not bother about the integrity of journalism and “individual respect”, with which Justice Chandrachud is ostensibly very concerned, when a media trial declared Narendra Modi a murderer of Muslims courtesy of the 2002 riots in Gujarat while he was the state’s Chief Minister? Why did the Honourable Court never compel the iniquitous protesters at Shaheen Bagh from clarifying their provocative sloganeering against Hindutva?
6. Why did the Supreme Court not express concern when eminent voices along with a foreign national, Twitter CEO Jack Dorsey, propounded, “Smash Brahmanical Patriarchy”?
7. In the event that the Supreme Court is so concerned about banning hate speech, shall it be so dutiful as to ban some religious scriptures that are replete with such language?

Judicial capriciousness is evidence of a dysfunctional law and order system. Such a judgment sets terrible precedent.

While the Court agreed that a pre-telecast ban was an extreme recourse, Justice Chandrachud confoundingly justified it saying so:

We are very conscious of the fact that pre-publication, pre-telecast ban by us is a matter of extreme recourse. We do not do it easily. It could take us down a slippery slope… This court is circumspect about clamping down on any news/opinions. Only in certain narrow range of issues is it [pre-telecast ban] done, like child sexual abuse cases, gender violence or cases regarding matrimonial or even any personal relationship.

It is beyond me how the Court could not discern that Suresh Chavhanke could be categorized under none of the foregoing range of issues. Exposing a national security threat could possibly not have constituted a justifiable ground for the Court to impose a ban. This case has only evinced the sheer hollowness of the judicial system, which Their Honours artfully conceal beneath their ability to quote philosophy and poetry in their judgments and articulation skills rivalling those of Dr. Shashi Tharoor. Such capriciousness by the judiciary cements the unfortunate impression that the judiciary is an elitist institution in its own echo chamber, whose members are lost amidst the sea of abstract theoretical jurisprudence, severely disconnected from ground reality, and who appear to not discern nuances of reality.

The Indian judiciary appears to lose all semblance of nuance so soon as the word, “minority” appears. This is yet another problem in the Hollow Republic of India — and I use that term after prodigious consideration. So soon as the term “minority” is used, the intelligentsia forthwith feels an unfettered passion to protect them from majoritarianism even in the event that there exists none. It does not discern the distinction between protection and indulgence. It shuts off ears to possible contraventions of law and order by the minority community and almost conforming to an unwritten decree, shall philosophize it. It appears that the judiciary is a mere extension of that disposition.

The solution is to either micromanage and introduce curbs against all thoughts, which would be in grave contravention of principles of free speech, or to permit all forms of speech save, say, those which would be subjected to prosecution under the U.S. Brandenburg precedent or an Indian equivalent thereof. Lamentably, it has proven itself to be an ossified, biased institution that could conform to a paradigm potentially detrimental to national interest out of a misplaced sense of righteousness. I now resonate with the general distrust the masses have for the judiciary: it is simply not consistent enough.

It is evident that the judiciary is an unelected institution that is inordinately powerful and ergo not as accountable to the masses as would be the legislature. Should it continue to disappoint further, there would be no doubt among the minds of rational individuals that the proclivities of the judiciary would lamentably have become an impediment to patriotic thought, or worse, a threat to national security. In that event, such judges as would be culpable in passing verdicts inimical to national interest out of a misguided sense of jurisprudence and righteousness would necessarily have to be impeached for the greater good. Yet, given that no impeachment motion could ever be initiated by the legislature unless the government had a political inducement, and given that the opposition is likely to veto such a move, the judiciary shall perhaps continue to remain omnipotent. What can the layperson do but lament the ossification of his nation’s democratic ideals?