“A day might come when the rule of law will stand reduced to a rope of sand.”– Justice SH Kapadia

A passing comment, especially from an anchor, seldom sparks outrage. This one did.

During her interview of the British MP, Barry Gardiner, Nidhi Razdan, anchor of NDTV’s prime-time show Left, Right and Centre, said the following: “Well, we, we are a democracy that has the right to question even the country’s Supreme Court”.

The bulk of the interview aside, it was this seemingly innocuous comment that garnered undue affection, and before we knew it a surging wave had swept over vast tracts of Twitterland drowning all semblance of a considered debate. “Sacrilege!” “How can she?” “Ridiculous!” were just some of the words bandied about. The rest were a little difficult to decipher given the liberal sprinkling of @, &, %, and # in-between the bookends. All sections of the society – U, U/A, A – were of the opinion that Nidhi was living in a parallel world, one where the mind is without fear and the head is held high and the Supreme Court verdict can be questioned freely.

Well, to many this may come as a surprise, but the fact is that this parallel world exists. It orbits the sun just as regularly as it is orbited by the moon. It has trees and roads and TV studios and stuff. The parallel world is, in fact, our world!

Indeed, Nidhi has never been more right. Not only can we question the Supreme Court verdict, we can damn well overturn it. Of course, by “we” I mean not “we the people”, but rather the people who we, the people have elected. Confused? Don’t be. Allow me to explain.

The word Supreme is meant to convey a message. It may have many synonyms but “High”, “Magistrate” and “District” are not among them. Our founding fathers went to great lengths to establish a court so supreme, and then filled it with such exalted luminaries of law, that it became almost mandatory for the rest of us to respect, follow and accept its verdicts and judgments.

Any republic, if it needs to function satisfactorily, must allow its citizens to question everything but only up to a point. Mobile republics are for those who vow never to carry mobiles.

Supreme Court is that point. Its judgments are supreme. To overturn them is to deny a nation the accolade of having accomplished something magnificent: the construction of a temple where Gods of Law deliberate on issues of national concern and without political expediency or religious fervour or caste prejudice, deliver a just verdict. Yatodharmastato Jaya reads the inscription under the Supreme Court seal. Where there is Dharma, there is Victory.

Call it a quirk of fate, or a simple misreading of what professionals do, that our politicians are allowed to turn these victories into defeats. Yes, they have a right to fix the only thing in this country that ain’t broke. Can anyone in his right mind tell me they don’t do this out of political expediency or religious fervour or caste prejudice?

Let us, then, wander into the parallel world and discover when, how, and why, did our politicians overturn so many of our Supreme Court’s verdicts. What were their reasons? Why did they disregard so brazenly the work of supreme professionals when, on another day and in another subject, they were only too happy to accept the verdict of a different set of supreme professionals, be it nuclear scientists or neurosurgeons. Did these politicians have our interests in mind? Or was it because, on each occasion, the verdict went against their self-interest?

Mohd. Ahmed Khan vs Shah Bano Begum & Others

Date of Judgment: April 24, 1985

Citation: SCR (3) 844

Bench: Justices YV Chandrachud, Rangnath Misra, DA Desai, Chinnappa Reddy, and ES Venkataramiah.

In 1975, a 62 year old mother of five, Shah Bano Begum, was thrown out of her house and onto the streets of Indore. She had been married for 43 years, to Mohd Ahmed Khan who earned Rs 5000 a month – a princely sum in those days. Three years later, destitute and without a roof over her head, Shah Bano approached the lower courts asking for a maintenance sum of Rs 500 a month under section 125 (1) (a) of the Code of Criminal Procedure. What she got instead was a talaq.

In his defence, her husband told the court that he had already provided maintenance totalling Rs 5000 during the interim, in addition to Rs 3000 as mehr (dowry) during iddat (a period of waiting that a divorced woman must adhere to before she can remarry). The court sided with the wife and asked the husband to pay a reduced maintenance sum of Rs 25 per month. The husband refused, stating the rights given to him under the Muslim Personal Law statutes. The case went to the High Court. This time, the husband was directed to pay a maintenance sum of Rs 179.20 per month under Section 125. The husband said nothing doing and appealed to the Supreme Court.

In a landmark judgment, the Supreme Court dismissed Mohd. Ahmed Khan’s appeal and directed him to pay the maintenance to his ex-wife as laid down by the High Court.

“Does the Muslim Personal Law”, asked the court, “impose no obligation upon the husband to provide for the maintenance of his divorced wife? Undoubtedly, the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed, for no reason at all. It is a matter of deep regret that some of the interveners who supported the husband, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves.”

It is not clear who among the bench penned the concluding words of the judgment. What is clear is that whoever he was, is worthy of unbound praise deserving of a righteous, literary, impartial, humanist, brilliant and compassionate Indian.

Read! “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform, but a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.”

To utter these words takes barely a minute, to write them down perhaps a little longer. But to think them through takes decades of learning and scholarship, and a degree of objectivity that demands detachment. And you know you’ve failed when it all comes to nought.

“Section 125”, the court concluded, “is truly secular in character. Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these provisions…It would make no difference as to what is the religion professed by the neglected wife, child or parent.”

That was the one blunder our Supreme Court committed. Who or what is secular is not to be decided by learned men and women of the highest court in the land. It is, instead, the sole prerogative of the politicians. Only they have the sacrosanct right to deliver this verdict.

Exactly a year later, deliver they did. The Rajiv Gandhi-led Congress government, beset with issues of corruption, nepotism, and mismanagement, chose the well-travelled route to political expediency and passed The Muslim Women (Protection of Rights on Divorce) Act 1986. In one fell-swoop the Supreme Court judgment was overturned.

The wording of the 1986 Act conveys to the citizens something the politicians thought had been overlooked, perhaps disregarded: who rules whom.

An extract:

“Every application by a divorced woman under section 125 pending before a Magistrate shall be disposed of by such Magistrate in accordance with the provisions of this Act.”

Henceforth, the husband was to pay the ex-wife maintenance only during the iddat period (clause 4). The liability beyond the iddat rested not on the husband but on those relatives who would receive the ex-wife’s property upon her death, failing which the Wakf board was to take responsibility.

Shah Bano was on the streets again and India was back to being secular.

In the coming days and weeks I shall aim to elaborate on many such landmark judgments of the Supreme Court, judgments which were overturned or nullified ruthlessly by our politicians for their narrow political gains, perhaps even vested interests. The series would conclude with an analysis of the nullification which hasn’t happened yet, but is sure to: of the recent Supreme Court ruling that convicted politicians stand disqualified and can no longer fight elections.  In his speech on the floor of the Rajya Sabha today (September 5, 2013), Arun Jaitley, the Leader of the Opposition in the Upper house said: “Supreme Court is not infallible but it is final. Above it is only god; only god can overturn the Supreme Court judgment”. It is up to the citizens of this country to make Jaitley hold true to these words, unless of course by “god” he meant those he was addressing.

What use is a drawn out sword when it is sheathed? What use the blind-folded eyes when there is darkness everywhere? The parallel world is unjust and it is ours, and under its insignia of a spinning globe clutched tight by the talons of a Diclofenac-fed vulture, reads the inscription: Where there is Dharma, there is Defeat.

Overturning of verdicts pertaining to Bank Nationalisation, Raj Narain judgement, Shah Bano verdict, or Retrospective Taxation, to name a few, has chipped away slowly at the very bedrock upon which our nation wobbles. But our leaders don’t seem to care. We handed them the chisel after all.

This article first appeared in newslaundry on Sep. 05, 2013.