The Law and the Mob
On January 16, 2018, the Supreme Court assured us that our choice of spouse could not be questioned by a khap panchayat. On January 23, 2018, the Supreme Court told Hadiya that they could not question an adult woman’s choice of husband. But first we had to endure the tragic drama enacted by many in court, who felt they were seriously advocating a cause when they said that Hadiya suffered from “Stockholm syndrome” or that a khap was, in fact, entitled to challenge a marriage. It’s cringe-inducing that such legal pronouncements of freedom to marry are still necessary after 70 years of constitutionally elected governments in the world’s largest democracy.
Our Constitution is based on the principle of inclusiveness. It was hoped that the dialogue over the years would smoothen the edges of discord as a nation evolved to a harmonious whole without compromising its pluralistic ethos. Instead, as we now know with the benefit of hindsight, many of the conservative elements in India’s polity have degenerated into extreme reactionary groups, keepers of the flame of primitive identity politics.
Last week, Haryana’s streak of violent headlines was extended as the brutal story of the rape and murder of a 15-year-old girl began to unfold as a possible double honour killing involving two antagonistic Dalit communities. Such stories are examples of the close relationship between law, politics and society, which is fraught as never before because the intellectual base of a politically significant multitude is now so far removed from the refinement of our Constitution and the rule of law under it.
This political base has been fanned and fuelled by self-serving leaders to take positions that are brazenly unconstitutional. Thus, it is our leaders who obstruct our already overburdened courts, forcing judges to laboriously uphold constitutional ideals while being constrained by a social reality that the political class does nothing to improve. The Hadiya case alone involved nine court dates of jammed proceedings in the Supreme Court (never mind the Kerala High Court bench that originally annulled the marriage). And, of course, the National Investigation Agency inquiry into the sensationalist chimera of ‘love jihad’ in Kerala remains in place.
It was the 18th century English conservative Edmund Burke who cautioned the electors of Bristol that “your representative owes you, not his industry only, but his judgement; and he betrays instead of serving you if he sacrifices it to your opinion”. Such inherited wisdom seems to be lost in our political climate where regressive movements have gathered momentum under populist leaders who pander to the lowest common denominator. It is the failure of elected representatives to honorably discharge this constitutional duty that has forced the apex court to make its tragically trite statements.
No member of government is telling us what they are doing about the violence in the name of identity politics. No one is telling us how they will compensate us for the havoc wreaked by divisive politics invoking regressive and repressive traditions that have no place in the Constitution. The intellectuals in government, or those who agree with them, talk of the stock market and economic power, but their silence on the clear and dangerous symptoms of a deep social malaise makes them complicit in the problem, which, in fact, feeds their power.
Rapes ordered by a khap panchayat (as happened in Baghpat, Uttar Pradesh, in 2015), mob lynching by gau rakshaks; political differences leading to murder, death threats (some of which have been followed through on) to professionals, actors and writers, not to mention young couples: this seems to be a defining trend of our society. And there are not enough people writing about it in a language that will reach the lowest common denominator and their leaders. This is a scenario when intellectuals fade into the mob.
Malavika Rajkotia is an advocate and author of Intimacy Undone, a book on the law of marriage and divorce in India
It’s cringeinducing that legal rulings invoking an adult’s freedom to choose their own spouse are still necessary after 70 years of constitutional democracy