The end of reason: When judges and courts fail, can ideas of justice be found in our everyday?

Three loosely connected events took place in the days around Gandhi’s 155th birth anniversary on October 2 this year.

In gleeful violation of the Supreme Court’s directives on hate speech, a controversial priest – a habitual offender – indulged again in his routine abuse of Muslims, and, this time joined by sundry lackeys, also of their Prophet. Done without any apparent context or reason, it was evidently meant to hurt, humiliate and incite.

The perpetrator was briefly detained. Some Muslims proved themselves incited, and assembled in protest and in petty violence, thereby managing to get themselves arrested. This is in fine contrast to the other prominent case that has occupied the legal landscape for the last five years: the prosecution, and detention without trial of community organisers responsible for having led widespread protests against the Citizenship Amendment Act.

The prosecution accuses them of having conspired, through their protests and public speeches, to provoke those in favour of the new law to counter-mobilise and give more immediately inciteful counter-speeches, which then resulted in violence.

Even though the protestors’ speeches were not in themselves incendiary, the state places the burden of the “provoked people” and their violent retaliation on the protestors.

The primary case, which has resulted in detention without trial of these protest organisers, deals with this “devious conspiracy to provoke” and not with those who directly incited people against the protestors; nor does it analyse the actual violence in terms of who the victims were, and who the likely perpetrators.

The second incident pertains to the suicide of a Dalit man after he was allegedly humiliated and physically attacked for having taken a chair at a local Ramlila, as opposed to finding a seat more in keeping with his social position.

If we consider the two incidents from the perspective of the constitutional court’s directions on hate speech and lynchings especially, it would seem that, of late, they have been honoured more in the breach, than in the observance. We could assess individual legacies of retiring judges, or write about the constitutional courts generally, and still be left with the arbitrariness with which the state has been allowed to treat some citizens differently from others.

It is a criminal justice roulette, really: will the state treat commonplace “protest speech” as a terror act for its potential to cause instability and violence by agitating others, calling it “embers in the wind”, in order to encompass the most indirect relationship between dissenting speech and violence, and laying the burden of all subsequent violence on the dissenters?

Or will it absolve aggressive rabble-rousers indulging in vile, hateful and explicit incitement (akin more to a spark in a powder keg), which often also results in subsequent violence and harm to life and property, as in the many “hate speech cases”, of any responsibility? It would be something if the constitutional courts were able to ensure consistency of treatment, at least.

All of this has already been said in the last five years, in which time we have witnessed a crisis of hate speech while the protestors against the Citizenship Amendment Act have remained in jail. It does not seem to have initiated a lot of debate, much less any actual correction. But how else does one traverse this fractured public landscape if not by appealing to the constitutional courts and to reason?

Which brings me to the third event: a series of discussions in Delhi around a new novel called Thank You, Gandhi by Professor Krishna Kumar. The book tells the story of a retired bureaucrat who finds that his years of service have not equipped him to respond to the various crises that face the country today. Once he becomes an outsider after retirement, there are no easy ways to access institutions for answers or to expect responsive governance.

He starts to reminisce about his Gandhian school and the lessons of truth, non-violence and affective engagement with people he learned there and, in the process, makes an argument for working amongst the people to build consensus for change, rather than making claims for justice exclusively from the state or from the courts.

If people remain apathetic, then orders from above will have only so much effect. In this regard, Kumar’s protagonist lays great store by everyday, affective practices and relationships between people.

It is precisely on this theme of everyday, affective practices that Neeti Nair writes in her book Hurt Sentiments, using the example of Gandhi’s prayer meetings and how they helped construct the nation. She writes that, in the last days of his life, in the midst of violence unleashed by Partition, Gandhi turned to prayers that always included “the name for God in Islam, or a verse from the Quran”.

Gandhi’s prayer meetings were “a pedagogical exercise in civility”, with special relevance in the post-partition months, when all arguments tended towards turn violence. This “parable of the prayer meetings” speaks particularly to the tendency to push Muslim religious and cultural markers out of public spaces, as well as to the alleged assault on the Dalit man for claiming an equal footing during a religious gathering.

The Mahatma’s prayer meetings, on the other hand, were an attempt at keeping the marginalised visible by giving them equal social, cultural and religious space.

Nair argues that in Gandhi’s India, even after Partition, “Indian Muslims belonged… with dignity and on terms of absolute equality”, which is why the inclusion of Muslim prayers in his prayer meetings was non-negotiable. It was to be a place of equality, respect and visibility. Gandhi indicated that “without the Muslim prayer, the prayer meeting would not be complete; ergo without the Muslims, India would not be India – a land where people of all religions could live with equality, and freely belong”.

Of course, this stance was not without its detractors, one such being his assassin, Nathuram Godse. He found this act of affording equality an unnecessary appeasement of Muslims and hurtful to Hindu sentiments.

We are faced with similar sentiments today. We might look for resolutions in those imaginative, everyday practices again. The outgoing chief justice of India has spoken of his prayers as a form of private communion with God, and as a personal, inward, moral compass; Gandhi’s prayer meetings sought a more participatory and collective outward public morality.

Helpfully, there is an impressive statue of Gandhi just beyond the chief justice’s forecourt in the Supreme Court of India.

Shahrukh Alam practices law at the Supreme Court of India and likes to write about law, society and politics.