- Who was Tanaji Malusare?
- Favouring public order over justice
Malusare is known for his role in the Battle of Sinhagad (1670), which he fought under the Maratha flag against the Mughals, losing his life in the campaign.
What was the Battle of Sinhagad, and why is Tanaji Malusare remembered?
- In 1665, as Mughal forces led by the Rajput commander Jai Sinh-I besieged Shivaji at the Purandar fort in Deccan, the latter was forced to sign the Treaty of Purandar.
- Under the agreement, Shivaji had to hand over important forts to the Mughals, including Purandar, Lohagad, Tung, Tikona, and Sinhagad (then called Kondhana- Known for Critically endangered Mammal Konadana Rat).
- As part of the treaty, Shivaji had agreed to visit Agra to meet the Mughal emperor Aurangzeb, which he did in 1666.
- Here, Shivaji was placed under house arrest, but was able to make a daring escape back to Maharashtra. Upon his return, Shivaji began to recapture the forts ceded to the Mughals under the treaty.
- To retake Kondhana (Sinhagad), the Marathas deputed Tanaji Malusare, a trusted general of Shivaji, and his brother Suryaji. The fort at the time was held by the Mughal commander Uday Bhan Rathod.
- In the early hours of February 4, 1670, Tanaji with around 300 soldiers successfully captured the fort, but lost his own life.
- It is said “A large number headed by Suryaji remained concealed near the main gate and Tanaji himself with his selected followers scaled the walls by means of an iguana and opened the gates by putting to the sword the few sentries that came out to oppose him… “
- A sanguinary action ensued in which both sides lost heavily including their leaders Tanaji and Uday Bhan.
- The fort was captured and a huge bonfire announced the result to Shivaji at Rajgad.
- Shivaji, who is known to have grieved Tanaji’s loss heavily, had the fort Kondhana renamed ‘Sinhagad’ in the general’s honour (‘Sinh’ meaning ‘lion’).
- A bard named Tulsidas was commissioned to write a ‘powada’ (ballad) for Tanaji, and this literary work continues to be popular in Maharashtra.
FAVOURING PUBLIC ORDER OVER JUSTICE
Why in news?
Last week, the Supreme Court gave its much-awaited judgment on the legality of the telecommunications and Internet shutdown orders in Jammu and Kashmir (J&K), in place for more than 160 days now.
What was the verdict?
- The verdict came across more as one premised on legal centrism than one advancing fundamental rights.
- After acknowledging in the first paragraph that India is a “land of inherent contradictions”, the court immediately assumed the role of an acrobat which had to “strike a balance between the liberty and security concerns” rather than rule in favour of citizens’ rights.
What do we need to understand?
- It is important to understand that the scope of the constitutional challenge before the court was narrow by design.
- The petitioners, with considered and strategic thought, did not challenge the underlying power of the Central government to turn off telecommunications and Internet connectivity.
- The focus of their challenge was not the Telegraph Act and the Internet Suspension Rules that enabled the government to shut down the Internet, but squarely on the orders passed under these laws.
Reluctance to furnish orders
- The government had not made the shutdown orders publicly available.
- Pressed for disclosure, the Centre initially cited national security concerns and, only after persistent arguments over multiple hearings, filed some sample orders.
- The apex court rejected the government’s secrecy claims and directed the publication of orders recognising that, without them, litigants would not be able to seek judicial remedy.
Question of fundamental rights
- The principal job of the court in such writ challenges is to review the administrative and executive action.
- In this case, the decision charted the link between fundamental rights and access to the Internet and sought to apply it when it came to prohibition in place in J&K.
- While doing so, the court rejected the government’s arguments emerging from extreme positions of national security.
- It applied the proportionality doctrine to reason that “complete blocking/prohibition perpetually cannot be accepted”.
- The judicial response followed clear precedents and did not fashion anything novel. For instance, on the surface, the directions for the right to access the Internet may seem to be a victory for the litigants.
- However, this was already a well-established position flowing from various previous verdicts such as the Section 66A decision in the Shreya Singhal case and administrative policies and orders such as National Telecom Policy and Net Neutrality Rules.
- The Supreme Court applied a limited rights doctrine and removed the anxiety among a section of the Indian public concerning drastic constitutional regression.
An act of judicial centrism
- The ruling may be termed as an act of judicial centrism. The court clutched on to the basic constitutional norms to maintain legality, while showing reluctance to expand upon rights.
- An end product of such a posture is that it may not extend the true spirit of our fundamental rights and would perpetuate a status quo.
- The court further avoided any comment on the legality of such orders given in the past, even those furnished by the government before it.
- Martin Luther King admonished this kind of centrism when he said that it was “more devoted to ‘order’ than to justice; [that] prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice”.
- On the whole, the judgment was a statist expression of the law, neither conservative nor radical.
- Today, “We the people” is not a mere phrase of our constitutional preamble but a call for action to Indians. They must encourage our institutions to shift from centrism to a progressive assertion of our fundamental rights.