Daily Times

When I was a judge in Allahabad High Court a petition came before me (Mohd Sharif Saifi, writ petition 43403 of 1998 decided on 28.1.1999 ) filed by some Muslims who had a grievance that they were not being allowed to construct a mosque on their own land by the authorities, and because of that Muslims in UP cities had often to offer their Friday namaz in open public places like roadsides.

At that time there was a BJP govt both in the Centre (Vajpayee’s govt ) as well as in UP. It is well known that the BJP is dominated by the RSS which is rabidly anti-Muslim. Despite that, I ordered that since we have a secular Constitution and freedom of religion guaranteed by Article 25, Muslims in UP had a right to construct mosques on their land, and no permission from the authorities was needed for this ( because of this judgment there was a strong move to transfer me out of UP, which fortunately failed ).

In another case I ordered that Muslims had a right to take out Muharram processions ( though of course the authorities could regulate it so that there was no inconvenience to the public ).

When a petition was filed before me seeking ban on buffalo slaughter during Eid ul Zoha ( Bakrid ) as it allegedly hurt Hindu sentiment since buffalo was the sawari ( carriage ) of Lord Yamraj, I dismissed it saying there was no law against buffalo slaughter ( as there is against cow slaughter ).

When I was Chief Justice of Madras High Court I ruled ( in Mohd Ganivs Supdt of Police, writ petition 5202 of 1998 decided on 14.7.2005 ) that Muslims have a right to take out funeral processions, and the fact that there was a Hindu temple on the path was no valid ground to prohibit them.

Whenever there were atrocities against Muslims I raised my voice, the latest being lynching by go rakshaks.

There were two reasons for my belief.

Firstly, I strongly believe in secularism. Although I am an atheist, and regard all religions as superstitions, I am also a strong supporter of religious freedom ( provided it is not taken to extremes ).

Secondly, since India is a country of great diversity, as it is broadly a country of immigrants ( see my article ‘ What is India ‘ online and on my blog Satyam Bruyat ), the only way to hold it together and take it forward is by giving equal respect to all communities. This was the policy ( suleh-e-kul ) of the great Emperor Akbar, whom I regard as the real Father of the Indian Nation.

I also objected to the statement of a Supreme Court judge who said that Gita should be made compulsory in all schools. In a country professing to be secular, how can a book perceived to be religious be forced on non Hindus?

Nevertheless, I am not a blind supporter of all that many Indian Muslims do. For instance, I have repeatedly called for abolition of sharia law and banning of burqa. Sharia was a law made in the 7th century Arabia, how can it apply in the 21st century ? Law reflects social relations in society, and when society changes the law too must change. Can we apply Manusmriti, made 2000 years ago, today ?

As for burqa, it is a backward, outdated feudal custom, and has no place in today’s world. Some say that Muslim women should have the choice of wearing it or not, but I disagree. It should be legally banned, and those wearing it should be heavily fined, as was done by Mustafa Kemal in Turkey, and as is done in France and some other European countries today.

I may point out that sharia and burqa are not part of core Islam. If someone tries to ban Muslims going to mosques or offering namaz I will strongly oppose that, as that is part of core Islam.

I also objected to the statement of a Supreme Court judge who said that Gita should be made compulsory in all schools. In a country professing to be secular, how can a book perceived to be religious be forced on non Hindus?

The coming to power of the BJP govt in the Centre with absolute majority in the LokSabha in 2014 instilled a sense of insecurity among Muslims due to hate speeches, gharwapasi, lynching of Muslims, etc

But out of bad things sometimes good things also come out.

Unfortunately before the BJP came to power, the so-called secular political parties were often catering to Muslim vote banks, and these vote banks were often controlled by reactionary feudal minded Muslim clerics, who took advantage of their hold on the Muslim masses. The result was that a large section of Muslims were kept backward and poor by most of these clerics. So as long as these ‘secular’ political parties were in power the plight of most Muslims could not improve.

The coming to power of the BJP in the Centre, particularly from 2014, has changed all that. Due to the aggressive communal politics of the BJP leaders, and the denial by them of any political space to Muslims ( the BJP did not give a single ticket in LokSabha or state Assembly elections to  Muslims ), Muslims are now gradually realising the danger of isolationism, and how their clerics and some Muslim political leaders had kept them backward for their own benefit as they had a vested interest in doing so. So while the BJP rule has terrified Muslims, and in that sense it is bad, it has also benefited Muslims in the sense that they are now gradually realising the evils of the hold of clerics and some Muslim political leaders on them, and of remaining with a feudal mindset. This shock treatment will be beneficial to Muslims.

At one time, before the BJP came to power, Muslim clerics and some Muslim leaders were behaving like king makers, thinking that no govt could be formed without their support. They would issue fatwas, announce a reward of 50 crore rupees to whoever brings the head of anyone who spoke against the Prophet, insist on retaining stupid laws like triple talaq and nikahhalala, etc. They compelled Prime Minister Rajiv Gandhi to legislatively nullify the progressive and humanitarian Shah Bano judgment of the Supreme Court granting maintenance to divorced Muslim wives.

Now we don’t hear much of that. The clerics, and most Muslim political leaders who treated Muslims as sheep and cattle and their vote bank, are these days largely silent.

The Pakistan Prime Minister Imran Khan said recently that the treatment of Muslims in India shows that Partition in 1947 was justified. The truth is just the contrary. It is Partition, on the basis of the bogus two nation theory, which has largely contributed to the plight of minorities in India and Pakistan today. Muslims in India have realised this. I am sure many Muslims in Pakistan have also done so, though they may not be able to say so openly

Justice Markandey Katju, former Judge, Supreme Court of India

Published in Daily Times, December 17^th 2018.