Obiter dicta by a judge has little legal value. It does not even suggest what is in the mind of the judge. It can even be wrong to conclude what kind of judgement the judge will ultimately give. He may even use it to provoke the Bar to hear an alternative version. What the Supreme Court heard on Wednesday in the court, presided over by Justice KM Joseph, was a spar between him and Solicitor General Tushar Mehta. The court was hearing a petition against the increasing resort to spreading of hatred in political rallies in Maharashtra and elsewhere. Judges Joseph and BV Nagarathna mentioned that there was a time when the political discourse in the country was set by statesmen like Jawaharlal Nehru and Atal Bihari Vajpayee. Today, at the slightest provocation, people are asked to “go to Pakistan”, though they had clearly forsaken that option in 1947.
Mehta certainly had a point when he said that the apex court should not reduce itself to a court of first hearing. And then he argued against his own line of thinking when he asked what the court did when a child was seen shouting provocative slogans against Hindus and Christians from the shoulder of a middle-aged person at a PFI rally in Kerala. The video clipping had so much impact that it could even silence the Bench. What Mehta did not mention was that the child’s father was arrested by the police. Not only that, the incident went a long way in strengthening the hands of the Central government, of which he is the chief legal functionary, to ban the PFI, arrest its top leadership and prevent it from operating its bank accounts. The boy, who was tutored, could only be dealt with under the Juvenile Justice Act.
The SG also mentioned a comment by a Dravid Munnetra Kazhagam spokesman last year, which purportedly advocated genocide against the Brahmins. The spokesman was quoting a 1973 speech by Erode Venkatappa Ramasamy, known popularly as Periyar. No, he was not allowed to go scot-free, as he was arrested by the police the same day he made the controversial speech. He was released on bail and the case against him could not proceed, as he died the same year. Mehta surely knows that once the accused in a criminal case dies, the case against him ends. As regards the spokesman’s guilt, BJP leader and former minister Subramanian Swamy has already approached the Election Commission of India demanding action against his party. In the two cases Mehta mentioned, action had either been taken or was being taken.
As the court said, the rule of law is the cornerstone of Indian polity. Any action that undermines the common man’s belief in the supremacy of law, which treats everyone — the rich and the poor, the mighty and the meek — equally, will undermine democracy itself. Had the SG looked around, he would have found umpteen cases where even those who preached genocide have escaped because the state did not have the courage of conviction to move against them.
One of them, who was heard publicly exhorting the police to “goli maaro saxxxn ko”, is today holding a constitutional post. Worse, nobody is bothered when lynchers and gang-rapists are publicly honoured by ministers and MLAs when they are released from jail. What is the kind of message that such actions send out? Nobody argues that only one community is to blame. The rule of law dictates that the state should act sternly against all those who take the law into their own hands. Alas, the problem arises when the law is selectively used against some, while the guilt of those who wield power is simply overlooked.
History bears proof that the people of India believe in communal harmony and peaceful coexistence. When it was under alien rule, the rulers used religion to keep them separated. Seventy-six years after India attained Independence, it is a tragedy that the political discourse continues to be dominated by sectarian issues. This will take the nation backward, not forward.
