Speaking at a townhall hosted by The Indian Express, senior advocate Yusuf Muchhala, who represented victims of the riots, about the gradual erosion of constitutional values and the judiciary’s “failure to pull its own weight”. (Express Photo by Ganesh Shirsekar)The Supreme Court earlier this month said the Maharashtra government had failed to maintain law and order and protect people’s rights during the 1992-93 Mumbai riots. Speaking at a townhall hosted by The Indian Express, senior advocate Yusuf Muchhala, who represented victims of the riots, about the gradual erosion of constitutional values and the judiciary’s “failure to pull its own weight”.
Q. How do you look at the recent Supreme Court judgment on the Bombay riots. Have the victims of these riots received justice?
Muchhala: This is a classic case of justice delayed being justice denied. Why couldn’t the Supreme Court do anything about this earlier? Why justice cannot be done expeditiously particularly in the cases where large-scale violations of human rights have happened? To award compensation now is like giving first-aid treatment to a patient who is already dead.
Q. What more do you think needs to be done by the judiciary and the state to ensure there is closure for victims?
Muchhala: One positive thing about the judgment is that they have interpreted section 2 of the Legal Services Authorities Act and they did not restrict the meaning of “ethnic violence” to mean only racial discrimination but expanded it to say that any kind of civil strife will be included… Otherwise, the attempt was [to claim] that communal violence is not covered and that there is no statutory obligation to render any legal aid for the victims of communal violence. The state’s duty is to maintain law and order and it was breached and therefore the victims must be given legal aid. That is a positive aspect of the judgment as I see it.
Why has the delay occurred, who is responsible for the delay and how do we remedy the situation? Due to the delay and a lapse of 30 years, it may be difficult to give victims tangible benefits. In 2008, we tried our best to identify the missing persons and their legal representatives for compensation. We came to a dead end. In 2022, things have not improved.
They say everything is because of delay, then it is the judiciary’s delay as well. This matter remained pending in the Supreme Court for nearly 20 years. Why have they allowed it? Why did the judiciary drag its feet? They should be bold enough to say ‘yes, we are responsible for that’.
Q. Apart from the BJP-Shiv Sena, parties like the Congress and the NCP that claim to be secular also governed Maharashtra and had the chance to implement the recommendations of the Srikrishna Commission report to bring justice to the victims. Where did they falter?
Muchhala: As far as previous governments are concerned, they were taking decisions for political considerations and not on the basis of constitutional values. When the Srikrishna Commission report was submitted, the then Shiv Sena- BJP government rejected it. Later the Congress-NCP government was elected in Maharashtra. Did they implement it? They did not. In one case, of the Suleiman Bakery riot incident, we had to approach courts and seek their intervention for the then Congress government to quash a false case filed against the victims.
So the criticism is applicable to all parties which have not followed the basic values of the Constitution after coming to power. They have got narrow political aims. It is in such situations that civil society needs to intervene. This intervention should be in the form of a politically conscious pressure group within society. The pressure groups are totally apolitical but see to it that your representatives really work according to the Constitution. Here the fault lies in our society. We think it is just enough to vote once in five years, that’s all.
Q: You have pleaded the hijab case too. How do you foresee it panning out and what’s your take on the verdict?
Muchhala: I argued the case and felt that the Karnataka High Court had got it totally wrong. The matter came to a division bench of the Supreme Court, which delivered a split verdict. I felt that the entire focus of the question was wrong. The question is not whether the hijab is an essential part of the religion. The question, after the K S Puttaswamy Vs Union of India case, is that everyone of us must have personal liberty on how to dress. Somebody believes in modesty. Why can’t they have the right to say this is the way I will protect my modesty? And I want to keep one extra piece of cloth to cover my head up to my neck and my bosom. Why can’t they have the right? And why do you feel that once you enter a school’s premises you have to keep your fundamental rights outside the classroom? Fundamental rights are all-pervasive.
Q. Does the HC order go against the principles of secularism?
Yes, courts have got institutional incapacity to decide what is an essential part of a religion. All our scriptures are written in ancient languages—Hebrew, Latin, Sanskrit, Ardhamagadhi—with which none of the judges have any familiarity. How can you sit in judgement on scriptures whose languages we do not know how to read or understand? I have been arguing for many years that we are a court of law and not a court of religion.
In the hijab case, for instance, I may have no religion but my conscience tells me I must be modest, and therefore I am wearing it. And another fault is that you cannot assess the character of any individual by what clothes they wear. If we say that because the lady is wearing a hijab, she is backward, not modern or independent, that is wrong. Another argument is that young girls wear the hijab because of patriarchy. It may be so; we cannot rule it out. But you are punishing her for it, and denying her the right of education. So who is the victim—the girl? It is a matter of double jeopardy for her. So, is the right of education or enforced uniformity more important?
Q. Maybe as a society we are not yet ready for this debate. Can we argue that modesty should have nothing to do with clothing?
It is about individual choice. You are entitled to say this is not necessary for modesty. But how can you impose the choice on others? It is the right of choice. A woman has a right to wear a bikini as much as she has a right to wear a hijab. My body, my right.