CNBC TV18 Column: Judicial overreach and fundamental rights: What the Richa Bharati case teaches us

This appeared on CNBC-TV18 on the 18th of July

We often speak about judicial overreach, and most times it is in relation with the justice system overturning the orders of the executive. And, that is a tussle that has been going on for quite a few years. But there is another area where there is judicial overreach – and that comes through in judges trying to change a person’s innate nature, rather than deliver justice. Examples include judges suggesting a rapist to marry his victim; Judges suggesting that a wife follow her husband to another town because Sita followed Ram. And, it is not just a problem in India – an American judge sentenced a boy to attend church for 10 years – for a drunken driving manslaughter charge. And, there are many such cases But, the role of judges is not to change behaviour but to uphold the law. And, this is what strikes you when you read about the Jharkhand District Magistrate’s Court that has released a young college student, Richa Bharti, accused of making a communal post on social media,  on the condition that she will distribute 5 copies of the Quran to Government recognised institutions.  

Richa Bharti, like many others on social media, shared a post that was liked by some, and deemed by one person to be detrimental to communal harmony.   She was arrested for this and put in jail. The case came up before the district magistrate, who set her terms of bail as the distribution of the Holy Book. While one can assume that the Judicial Magistrate Manish Singh was trying for some sort of behavioural change, he has possibly overstepped his brief, and stepped on the toes of the fundamental right to practise one’s religion as one see fit.

The Old Testament story of King Solomon delivering justice to two women fighting about a child is fairly well known. After hearing both their claims and not being able to adjudicate whose baby it is, he suggests that the baby be cut in two, half given to each woman claiming to be the mother. The woman who agrees to the proposal, is declared the non-mother. This is often held up as an example of ‘justice’, despite the many flaws in the way the judgment was arrived at. In a modern world we don’t rely on Kings to tell us to split our child in two, rather we follow a judicial process that is supposed to deliver a judgement based on laws laid down. And, this judgement seems to contradict some of the most fundamental rights that we have – that is the right to profess your faith, the way you see fit. And, if that means not distributing the religious books of another faith, then it means the right not to do undertake that activity.

For those of us who have been appalled by the spate of reports of incidents when random Muslims are roughed up and made to chant Hindu religious chants, this is even more scary. A District Magistrate’s court mandating that you carry out a religious activity that you don’t believe in.  

There are two major issues with this case, both of which impact her, and our, most fundamental rights. The first is should people be arrested for social media posts? What constitutes hate – and how many sentiments do we protect before we realise we have bound ourselves mute with all this protection.? And, this is a question that does not just arise in the case of Richa Bharti, but in every case where people find their social media posts leading to their introduction to the criminal justice system- first-hand. The second is can you be forced to hand out religious books or participate in any form of religious activity? And, if Richa Bharti can be, what does it mean for the rights of all of us?

The defence of rights is binary – you either support everyone’s rights, or over a period, most of us will end up with curtailed rights. I haven’t read what Richa Bharti had written. But it shouldn’t matter. Does she have the right to have fundamental rights? That is what matters. Because if her rights don’t matter, all of our rights get compromised.

News Reporter

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