Friday 2 November 2018

NERO FIDDLED WHILE ROME BURNT…

Remembering the above quip in the context of the events that have unfolded in Kerala during the last week, post the Sabarimala verdict of the apex court on 28 Sep 2018, is not just coincidental.

It was a 4:1 judgment of a bench headed by the then Chief Justice of India, Dipak Misra, himself. The majority opted to rule in favour of a cosmetic notion, touted as gender equality. Cosmetic, because the restriction in Sabarimala is not a matter of gender discrimination as girls below 10 years of age and women above 50 years of age are permitted and they have been visiting the temple since ages. And, more importantly, there are more fundamental issues which are required to be viewed from the point of gender discrimination.

In our country women have been demanding 33 percent (I wonder why only 33 and not 50 percent) reservation in Parliament and state legislatures for many, many years now. And, shouldn’t such reservation be there in the judiciary too? 

In fact the very composition of the Constitution bench needs to be challenged on this ground of gender discrimination.

The only woman member of the bench had given a dissenting judgment which is acclaimed by even many former judges and legal luminaries as a more balanced and acceptable one in a plural society like ours.

Various reports in the media, sharing views by legal experts tend to suggest that there is an apparent conflict between Article 25(2) (b) and Article 26 of the Constitution.

Article 25(2)(b) mandates the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. But Article 26 provides the right to every religious denomination: (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.

The conflict is apparently in identifying Hindu religious institutions of a public character and religious denomination.

Just because public are allowed to visit a temple it doesn’t mean that it is a public place, like, say a park or a theatre. (In fact couldn’t the Chamber of the CJI be considered to be a public place being funded by the tax payers’ money? Well, I can almost hear some legal pundit shouting blasphemous!)   


Coming to denomination, here are a few definitions of the term from various dictionaries/thesauruses.
*(Theology) a group having a distinctive interpretation of a religious faith and usually its own organization- Collins English Dictionary
*A class of persons or things distinguished by a specific name-Random House Kernerman Webster's College Dictionary
*A set of the same persons, called by the same name and therefore of the same views.-Dictionary of Collective Nouns and Group Terms
*Religious group, belief, sect, persuasion, creed, school-Collins Thesaurus of the English Language
*A religious group that has slightly different beliefs from other groups that share the same religion- Cambridge Advanced Learner's Dictionary & Thesaurus

I am sure that we need not leave it to the judiciary to give any new meaning to this term. (Remember how the judges did that to the term ‘consultation’ used in Article 124(2) and usurped the powers of the President to appoint judges?)

By no stretch of imagination can the temple of Lord Ayyappa at Sabarimala be considered a public place nor can the rights of the denomination of Ayyappa devotees to manage its own affairs in matters of religion be abrogated.

While on these two articles of the Constitution, one glaring inequality, nay, blatant discrimination, needs to be highlighted.

While the rights under Article 26 is provided to every religious denomination, the mandate of Article 25(2) (b) is to throw open Hindu religious institutions of a public character to all classes and sections of Hindus only.

Now even hard core rationalists cannot deny that if any change has to be made it is to be made for Article 25(2)(b) by making it non-religion specific.

Coming to matters of equality, the apex court itself needs to answer some simple questions with respect to its own functioning.

One, forgetting the lack of equality in the number of women judges in our courts, do the courts treat the litigants themselves as equal? Here, let us not forget that it is the litigants who are the raison d'etre of the judiciary.

Two, what have the judges been doing to reduce the massive back log of cases which have reduced justice to a farce in our courts?

Three, given that the judiciary is only another organ created by the Constitution, why is it that the judiciary has long vacations that are not available to the other organs?

An article dated 23 May 2014 in Live Law had the title: Justice Delivery System Working 365 Days; Pressing Needs of the Indian Judiciary. And this was not the author’s imagination taking wings. It was a need articulated by the then CJI while addressing the legal fraternity during the foundation stone laying ceremony of the building for Rajasthan Bar Council at Jodhpur. But the only requirement projected by him to enable this was to improve the judge to population ratio by increasing the number of judges to at least 3 to 4 times the present strength.

I will hold anybody who talks of judge to population ratio instead of the judge to case/docket ratio as incompetent to be a judge at all. I have with me a Power Point Presentation, authored by Adv KTS Tulsi, on the subject ‘Justice Delayed in India’ for a program of the Supreme Court Bar Association on 24 Aug 2004. Here are some statistics presented by him:
Cases filed in one year (1999): India - 13.6 Million (13,668,073); USA- 93.81 Million
Docket’s per judge: India - 987; USA- 3235
He had quoted these figures to demolish the judge to population ratio quoted by Malimath in his report.

The judiciary is also known to propagate another preposterous theory- that even if the judgment is wrong it has to be complied with. Is there any wonder, that the crime rate is increasing the way it is and people are taking law into their own hands? Even advocates, quite often, seem to prefer to take to the streets rather that pursue the judicial process.

Coming back to Sabarimala, while there is no room for doubt that the present situation is the creation of the apex court, the role of Pinarayi Vijayan led government in Kerala in handling the events have been no less abominable. In the name of enforcing the judicial order the police, driven by the government, has been almost on a murderous spree. Devotees protesting peacefully on the routes to the temple have been brutally assaulted and photographs of them being lathi charged, bleeding profusely and dragged through roads have flooded social media. The rampaging police, in riot gear, and some doubted to be even hired or party hooligans in uniform, can be seen wantonly kicking and hitting with lathis, parked vehicles and causing them unwarranted damage. A few hundred cases, some even non bailable, have also been registered against protestors. Rahul Easwar, a strong defender of the faith and the rituals and a peaceful protestor, was arrested and allegedly taken to the police station wrapped in a tarpaulin. He was apparently given third degree treatment by the police and is currently admitted in the Medical College Hospital at Thiruvananthapuram with a slip disc in the spine.

Interestingly there were no devotees from the newly permitted age group who visited Sabarimala during the five days from 17 to 22 Oct 2018 when the temple had opened for the monthly rituals. The intelligence agencies had warned the state government of terror outfits and naxalites exploiting the opportunity for nefarious reasons. But, as it turned out, it was the state government that arranged for a posse of about 250 police personnel led by an IG of Police to escort two women- Rehana Fathima, an activist notorious for her involvement in Kiss of Love protests that had rocked the State more than a year back, and Kavitha Jakkal, a Christian reporter based at Hydrabad- to the temple. Even while emotions ran high amoung the helpless devotees the police managed to take them up to 200 meters short of the temple. It was then that the employees of the temple also joined the protestors. Finally, the activists and their escorts had to retreat when the trustees of the temple and the thanthri, the ultimate authority on religious matters and the rituals of the temple, threatened to close the temple. There were a few other women too, mostly in the role of activists, who tried to use the opportunity provided by the apex court to visit the temple, but were dissuaded by the protesting devotees.

I cannot say if the apex court judgment in the hands of Pinarayi led Government can be compared to a bouquet of flowers in the hands of a monkey or a murderous weapon in the hands of a serial murderer. The fact remains that the fear of their rights related to their faith being violated was writ large and there were reports of protests from devotees even in far away Australia, Canada and the US of A.

In any case it is fact on record now that the Government did not do anything to avert the untoward events. The option to file a review petition was rejected in spite of the persistent demand from devotees ever since the judgment was out. It was almost as if Pinarayi Vijayan was taking it out on the innocent devotees his rabid hatred for Modi. The fact that he had been exposed in a 700 crore non promised aid from UAE and that the Union Government had denied permission to 17 of his ministers to visit foreign countries to seek help from non-resident Keralites for ‘reconstructing the flood ravaged state’ had also added to the grouse of the CM and consequent misery of the devotees determined to protect their faith and traditions.

If anybody thinks that Team Pinarayi cannot be faulted for their decision to enforce a court verdict there is a need to recapitulate how they had treated many a court verdict in the past.

When the apex court ordered closing of all liquor vends within 500 meters of the highways, the government downgraded many of them to enable their Beverages Corporation outlets to do business as usual. (Incidentally this also provided an occasion to expose how shoddy the record keeping of the public authorities were because the existing status of most roads were not even available.)

There was an order banning admission for medical courses in two colleges and the government went to the extent of issuing an ordinance to enable them to circumvent the court order.

There is an order directing handing over a church at Piravom from one faction to another. It has also not been implemented for more than year now.

The order on minimum wages for nurses in private hospitals and nursing homes also remains to be implemented.

Not only has the government led by Pinarayi Vijayan slept over these orders their reaction to the order banning triple talaq was that it was a challenge to the minorities.

And when there was an order to regulate the slaughtering of animals, the party cadres spread the canard that it was a ban on beef and went to the extent of conducting beef festivals even in colleges owned by the Dewaswam Boards.

Pinarayi Vijayan is leading the only Marxist party led government in the country. Apparently he and his ministers are themselves convinced that they will be the last communist ministers of this country.  That could be the only reason why they have taken their prime duty, of governance, out of their agenda.  More than two months after the floods there were reportedly 66 relief camps still in operation with 1848 persons in them. Even the meager compensation of Rs 10,000/- has not been distributed fully.

It was during the peak of relief operations that one of his ministers caused a controversy with a visit to Germany to participate in a social event. This was followed by the visit of the Chief Minister himself to the US of A for 21 days for treatment of an undisclosed ailment. Since reports of ministers being ill disposed are often reported by the media, speculation is ripe amoung the public about the nature of ailment which had taken the hard core Marxist, Pinarayi Vijayan, to the epicenter of capitalism in the world. The Lavlin scam, of the times when he had been the Electricity Minister more than a decade back, is still making the rounds of the courts.

And more recently, it was reported that the CM and 17 of the remaining 20 ministers were going abroad with paraphernalia of 190 public servants, to beg for aid from NRKs for the reconstruction of the flood ravaged state. One wonders that if during crisis the ministers can go on foreign jaunts, under whatever pretext, do the state need these ministers at all. It was thanks to the firm stand of the Union Government that only the CM could go (to the UAE). And he did it with his family at the cost to the already broke public exchequer.

The temple at Sabarimala has closed today after the monthly rituals. The peak pilgrimage season is just another month away. It remains to be seen how the lack of basic amenities and the controversies are going to affect the flow of devotees visiting the shrine from mid November to mid January. But the campaign not to offer any money or buy prasadams at Dewaswam controlled temples has already started making an impact. Hundis are getting filled with chits inscribed with ‘Swaminye saranam’ (the chant of Ayyappa devotees) instead of money. For those who are ignorant about culture and its values, it may not matter. But there is also a campaign to boycott lotteries, which, apart from its liquor vends, is the biggest source of income for the government.  Ultimately, citizens are learning where to hit and hurt.

Swami Saranam!


22 Oct 2018

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