THE NATION AND ITS SOLDIERS

 

‘To have peace you must have intimate friends or outright enemies’ is wisdom from the ages. And I am recollecting it here in the context of our nation and its relationship with its soldiers.

 

Soldiers do have an outright enemy only during wars. And they haven’t had one since 1971. So, their peace, when not at war, necessarily depend on intimate friends. And here is the rub.

 

Since 2014, every year during Diwali, the prime Minister of the Nation does religiously take time out to be with soldiers, sharing sweets with them, exuding care and bonhomie. But it is time some hard questions were asked: will the soldier who is fed sweets with the Prime Minister’s own hands be able to spend enough quality time with his family? Will he be able to send his children to good schools? Will he be able to provide enough security to his family back in his village while he is securing the nation in the most difficult terrains under the most trying conditions? The answer is a big no.

 

Even in peace locations, a soldier hardly gets family accommodation for about a year. And once his children start going to school, he has no choice but to forego even this little facility because of the problems of getting admission even in Kendriya Vidhyalayas, if ever they are available both at his place of posting and within accessible distance from his village.

 

Even these problems fade into insignificance when compared to the prospect of loss of employment (read, livelihood) when his commitments are at its peak, when he is in his thirties.

 

Till a few years back he used to get recruited at 16-17 years of age and serve for 15-17 years. The minimum age of recruitment was raised to 18 years only because of human rights considerations which barred non-adults from bearing arms.

 

The proposal to re-employ them in civil, after a pre-release training cum reorientation, has been in the pipeline for ages but has not moved an inch from that stage, in all these years. This is one of the four requirements that has been projected by the Indian Ex Services Movement, spearheading the protest at Jantar Mantar since 2008.

 

Though currently only One Rank, One Pension (OROP) is making the headlines, the three other proposals include- re employment of released soldiers till 60 years of age, a Commission for the welfare of veteran soldiers on the lines of Women’s Commission, SC/ST Commission and Minority Commission and including representatives of veteran soldiers in all bodies dealing with veteran’s affairs.

 

While it is difficult to imagine why these simple proposals cannot be implemented, it is totally impossible to reconcile with the injustices perpetrated on soldiers, who, it can be said unequivocally, are the only ones who really perform their job on a do or die basis.

 

It all had begun with India’s first Prime Minister, Nehru, who believed that the nation got its freedom through ahimsa and we could do without an army, at least not more than a ceremonial one. He did not even learn any lesson from the military operations in J&K in 1947-48. When the then C-in-C, Gen Butcher, had approached him with a security plan for the newly independent nation, he had reportedly been dismissive. Gen Butcher put in his papers and returned to Britain.

 

And then came the debacle in 1962, when China just walked in up to Tezpur in the eastern sector and walked off. Our soldiers deployed on those borders were not even properly clothed, leave alone equipped and armed. Many died after resisting till the last man, last bullet. More died due to inclement weather.

 

Many army officers got court martialed. The Defense Minister resigned. But nothing has been heard of the then Defense Secretary, who even now is officially responsible for the defense of the nation. Videos are viral on social media of how Nehru failed to even use the available Air Force to stop the aggressors in their tracks.

 

Her father’s trauma prevented Indira Gandy from repeating the mistake in 1971. She had wanted the then Chief of Army Staff, General S H F J Manekshaw, to resolve the Bangladesh crisis militarily in April that year. As Manekshaw himself repeated many times later, he had assured her of certain defeat then. He had even told her he would opt to resign than get the army into a no-win situation. The rest is history.

 

But politicians would eulogize Indira as Durga and condemn the soldier who crafted the historical victory. Sam, as he was popularly known as, was given the rank of a Field Marshal but denied the pay and perks that went with it. The arrears were given to him in his deathbed, on the intervention of the then President of India, Dr A P J Abdul Kalam in 2007.

 

Manekshaw is the only officer of the Indian Armed Forces who had been given the 5-star rank while in service. The other two were K M Cariappa, the first Indian Commander in Chief of free India, who was given the rank of Field Marshal in 1986, 33 years after his retirement and Arjan Singh Aulakh was given the rank of Marshal of the Air Force in 2002, 33 years after he had demitted the office of the Chief of Air Staff in 1969.

 

Since Field Marshals and their equivalents hold the office for life, they are entitled to pay and perks of that rank and not pension. But it took the government 36 years to take a decision on this. But even then, it was limited to the pay equivalent to the Service Chiefs only. (https://www.outlookindia.com/newswire/story/manekshaw-gets-cheque-of-rs-116-crore-for-back-wages/466337, 18 Apr 2007) And therein lies another rub.

 

The Service Chiefs were held equivalent to the Cabinet Secretary. (In the Warrant of Precedence, 2007, the Cabinet Secretary is at Serial 11 while the Service Chiefs are at Serial 12) But there is no military officer of the rank of Field Marshal or equivalent figuring in that list. (https://soldier2ndlife.com/card/order-of-precedence). So, if a Field Marshal or equivalent must be placed in the list it will necessarily have to be at Ser 11 or above. And this would not be acceptable to the bureaucrats. It is the same reason why General Bipin Rawat has been appointed as the first Chief of Defense Staff (CDS) in the same rank as the Chief of Army Staff.

 

General Bipin Rawat has been a disaster for the morale of the soldiers ever since he superseded two officers and took over as the Chief of Army Staff. Even when the share of defense expenditure as a share of GDP had reduced to 2 percent, the level as in 1962, and defense preparedness had been languishing, he had been indulging in pettifogging on issues like free rations for officers in peace stations, taxing disability pension of soldiers etc.

Now, as in 1962, it was left to the Chinese to wake up both the bureaucrats and the politicians from their slumber. Post Galvan, there is a spree on buying, off the shelf, items from personal arms and winter clothing to high altitude tents and drones at seller decided prices.

 

Even amidst this alarming situation, threatening the very integrity of the nation, and the debilitating pandemic, the office of the CDS has found time to move a proposal to increase the retirement age for soldiers, including officers up to the rank of Colonel, to 57 years, with the rider that the pension of those who opt to retire earlier will be reduced proportionately. The proposal is to give only 50 percent of ENTITLED pension to those who opt to retire after 20 years of service, with 35 years of service needed to get full pension.

 

The absurdity of the proposal needs no elaboration. The point is that as it stands the entitled pension is 50 percent of the last pay drawn. And if you retire at a lower rank or with lesser service you get only 50 percent of the pay you have drawn in that rank and with that service. Now it is this low pension that is sought to be further reduced by up to 50 percent.

 

There is a piece of information that has gained ground after the veterans were forced to take to open form of protest at Jantar Mantar in 2008. That is, post 1971 ops, when the 3^rd Central Pay Commission (CPC) awards were implemented the pension of soldiers, which had been 70 percent of his last pay drawn (rightly so, because of his early age of retirement and no prospect for gainful employment thereafter) had been reduced to 50 percent on the ground of economic hardship. But unknown to most soldiers, except may be to those at the top level of the hierarchy, the pension of civilians had been hiked from 33 percent to 50 percent. But that was not all. Full pension (50 percent of last pay drawn) would be available only to those who complete 33 years of service. In effect, most soldiers who retired as sepoys with 15 years of service, got only less than 25 percent of their last pay as pension. And this was the genesis of the OROP movement.

 

Lieutenant Colonel Inderjit Singh (who passed away recently) was the first one to sit on a hunger strike at India Gate on 22 Feb 1982, demanding OROP. Even when the bureaucrats said, ‘over my dead body’, Mrs Indira Gandy had agreed to the demand but failed to fulfill it. All the governments that followed promised to implement it but ultimately ditched the soldiers. Not only was OROP not implemented, the status and compensation given to those who had taken an oath to give up their lives in the line of their duty, were systematically brought down with every pay commission.

 

The 4^th CPC had introduced a running pay scale for officers from Captains to Brigadiers and given an additional rank pay to compensate for different ranks. The bureaucrats while fixing the new pay reduced the rank pay from the newly fixed pay and then gave the rank pay, effectively denying the rank pay. An officer, Major Dhanapalan, working on the new pay for civilians in Military Engineering Service, brought it to the notice of the then CoAS, General K Sundarji who simply snubbed him. It was in 1998 when Dhanapalan got posted to Kochi he could approach the High Court and demand his dues. While he got a favorable verdict at the High Court, the Central Government went to the Supreme Court. Finally, Dhanapalan got all his dues.

 

Based on the Dhanapalan verdict many groups of officers approached the high courts for similar relief. The apex court got all the cases pooled together and gave a verdict in favor of the officers. But many appeals, revisions and Special Leave Petitions later, almost a decade after, the court succumbed to the pleas of the government and directed that the arrears from 01 Jan 1986 to 31 Dec 2005 need not be paid and only the arrears from 01 Jan 2006 to be paid with a simple interest of 6 percent.

 

Now look at how the bureaucrats and politicians (MLAs, MPs and ministers) have given themselves OROP.  

 

While for all the lower levels there is a scale of pay with annual increments, at the top there is only fixed pay for the bureaucrats. This ensures that all the bureaucrats who retire at those levels automatically get the same pension, always. And in IAS, almost all direct recruits retire at the level of Secretaries to the Govt of India or their equivalent.

 

The 6^th CPC in 2006 introduced another bizarre scheme- Non-Functional Financial Upgradation NFFU)- for the bureaucrats of the IAS and IPS cadres. By this any member of a batch getting promoted anywhere in India would entitle all the members of that batch to get the same pay and perks irrespective of their current tasking. Now, interestingly, even though the other Group A services also pass through the same process of recruitment, even the members of the IPS got only 2^nd rate treatment in that they got the same status and perks only 2 years after their parallel batchmate in the IAS.

 

The 7^th CPC has extended this NFFU to all Group A cadres. Military officers, who should, logically, be the only ones eligible for such a privilege because of the steeple pyramid nature of their structure and dearth of vacancies at the top, have been denied this simply because they are a class apart and do not come under the classification of Group A.  

 

For the MLAs, MPs and ministers, there is no minimum service required to be eligible for pension. For example, as per information received under the RTI Act in 2013, an MP who has served for ANY period is entitled to Rs 20,000/- as pension from 18/5/2009. After 5 years, he is entitled to additional Rs 1500/- for every extra year of service. And this system has been in vogue since 09/09/1976.

 

Similarly, in Kerala, the MLAs were eligible for a minimum pension of Rs 6000/- for LESS THAN 2 years of service and full pension of Rs 10,000/- on completion of a full term of 5 years. Thereafter, for every year or part thereof, they get a fixed amount as additional pension.

 

Interestingly, while Rs 129,094,352/- (approximately 13 crores) had been paid as pension/family pension to 3857 MPs/family pensioners, during Dec 2012-Feb 2013, an amount of Rs 2,645/- crores had been paid by the Lok Sabha Secretariat towards the rail travel of ex-MPs during the quarter Jan- Mar 2013. (Letter No 1(556)/IC/13 dated 31/05/2013 of the Lok Sabha Secretariat)

 

Back to Kerala again, each minister in Kerala is entitled to have a personal staff of 25 of his own choice, no qualifications, competence prescribed. And they also become eligible for life long pension/family pension after just 30 months of service. There was this Minister for Health, Srimathi, who had employed her own daughter in law as a cook in her house, as her personal staff.

 

Kerala government, which had stopped statutory pension to its employees who have joined after 01 Jan 2014, has introduced pension for even the elected members of local bodies recently.

 

The betrayal of soldiers is not limited to pay and pensions. The Armed Forces Tribunals (AFT) and Ex Servicemen Contributory Health Scheme (ECHS) were introduced long, long after the Central Administrative Tribunal (CAT) and Central Government Health Scheme (CGHS) had been in place.

 

While there are 17 benches for CAT, there are only 9 benches for the AFT. As per a list dated 23 Sep 2020, there are only 23 vacant positions out of 65 posts of members sanctioned for CATs. But all the benches are functional.

 

In the case of AFTs, there are only the Principal Bench at Delhi that has the full quorum of Judicial and Administrative members (2 each). While Chandigarh bench has a judicial member, Chennai bench has only an administrative member. The other benches are defunct as per data available at http://aftdelhi.nic.in/regional_benches1.html on 23 Nov 2020.

 

While I hold the Contempt of Court Act as anathema in a democracy, the fact remains that the CATs have this power which makes their decisions more implementable. The AFTs do not have this power and hence their orders are often dumped with impunity.

 

The disparity between CGHS and ECHS is also baffling.

 

The ECHS introduced in 2003-04 with great fanfare has also proved to be a damp squib. With a smart card having biometric identification features, one was supposed to walk in and out of empaneled hospitals without any hassles in getting the required medical care. Funds were not supposed to be a problem at all. But a decade and a half later, there are many hospitals, who had once been empaneled, refusing to renew the contract. The bills of private hospitals pending with ECHS are preventing many hospitals from joining the scheme. Some are taking the cost from beneficiaries promising to refund it once their bills get cleared.

 

CGHS has also facilities for non-allopathic modes of health care. ECHS doesn’t.

 

To illustrate how awkward things are for old soldiers, during the pandemic it was announced that beneficiaries could buy medicines prescribed by ECHS or empaneled hospitals from outside pharmacies. While submitting claims, observations have been raised that when substitute medicines are bought the cost must be the lowest. Just imagine the plight of a poor soldier who, in good faith, buys whatever his next-door pharmacist provides him. How is he to know whether the medicine provided to him is the cheapest? Should he go from pharmacy to pharmacy enquiring how much a Metformin tablet would cost? And how can he be sure that, after such a strenuous exercise, whatever he has bought is still the cheapest?

 

One has heard of being penny wise, pound foolish. But don’t our procedures show how our systems cheat our own?

 

Let me conclude with a humorous anecdote that is viral in veteran circles.

 

A General had a light stroke while swimming in the Army pool. As luck would have it, only a young lieutenant was around who promptly jumped and saved him...Once out of the pool, the General, after gaining his breath said @look son, I am the CDS ....tell me anything you want from the Army...and you will get it...The youngster hurriedly thanked him for the nice offer and wanted to leave....The General was too grateful and repeated his offer...

The youngster slowly said, if you really want to do me a favor... PLEASE DO NOT TELL ANYONE THAT I SAVED YOU.

 

Further reading:

 

A NATION AND ITS ARMED FORCES

http://raviforjustice.blogspot.com/2012/01/nation-and-its-armed-forces.html

 

WILL THE ARMY CHIEF GET JUSTICE?

http://raviforjustice.blogspot.com/2012/01/will-army-chief-get-justice.html

 

(This is about the then CoAS Gen V K Singh’s Date of Birth controversy and case. In the event the General did not get justice even in this simple case of official date of birth. The General himself expressed this view when he was threatened with a Contempt of Court case.)

 

CIVIL-MILITARY CONFRONTATION at

http://raviforjustice.blogspot.in/2012/06/civil-military-confrontation.html

 

FOR WHOM THE SOLDIERS SACRIFICE THEIR LIVES AND LIFES…

http://raviforjustice.blogspot.in/2014/02/for-whom-soldiers-sacrifice-their-lives.html

THE LAW OF LAWLESSNESS

 

On Vijayadasami Day, that is 26 Oct, I went to the nearby temple dedicated to Lord Siva. The temple is managed by the Malabar Devaswam Board. Though the temples under the Board open quite early for the regular rituals, darsan is allowed only after 7 am. Devotees are required to get their name and mobile number registered at the counter set up at the entrance. The time was 06.59 am. On approaching the counter I was told that entry would be permitted only at 7 am. And the next minute the employee opened the register and started the registrations process. Wow, what punctuality!

 

I normally do not go to any government offices before 10.30 am or after 4 pm, though the working hours begin at 10 am and end only at 5 pm. The only reason is that most of the employees start trickling in only after 10 and many of them trickle out after 4.

 

Once I was at the Treasury to encash a cheque. The time was 10.45. The cashier was still not available. Around 11, I walked into the cabin of the Assistant Treasury Officer as enquired about the cashier’s counter which was still not open. He responded nonchalantly that the cashier had gone to the bank, next door, to collect cash. Another 15 minutes passed and the crowd waiting for the cashier began to get restive. I suggested that we meet the District Collector as a group and bring the matter to his notice. There weren’t anybody willing to do that. So I went back to the ATO and asked him, with due agitation, why the cashier was not at his counter even after one and half hours of the scheduled time. Suddenly another employee came up from behind and blocked the exit, simultaneously shouting ‘call the police, this guy has manhandled our officer’. I just brushed past him and made my way out. Commotion followed, and police came. Fortunately, the crowd was with me and the police left after taking down my personal details. By then the cashier had come and opened the counter. My formal complaints did not elicit any positive response from the concerned authorities.

 

And there was this Personal Assistant to the Secretary of the Municipality who would go early on Fridays (practically after noon off) and come late on Mondays (by 11.30). This was because her home was away in a different district and she could not commute daily. So, the long weekends were enjoyed almost as a right with the tacit approval of her boss. I am sure this PA was not the only such case.

 

Once there was a siege of the Collectorate. It started well before working hours so that no employee could get into the complex. It lasted till 3 pm or so. An application under the RTI Act for inspecting the attendance registers revealed that all employees had been marked present, both in the forenoon and afternoon. On further query, I was informed that all the employees had waited patiently outside in the scorching sun and on the siege being called off had entered their offices. They had marked their attendance with the permission of the Collector. On seeking a copy of the permission and the authority of the Collector to give such permission, there was no response.

 

Same day, the District Consumer ‘Court’ working in the same premises had also marked all their employees present. But in the dockets of the cases posted for that day, it had been recorded that the cases were being adjourned due to non-availability of the staff. Complaint to the then Chief Minister elicited no action.

 

Kerala is known as a consumer state. Right from the milk and vegetables we consume, everything comes from neighboring states. Kerala has also proved to be one of the best markets for luxury cars. However, as far as the government is concerned it is truly said that all the tax collected by it isn’t enough to even pay its employees. Whatever little is done towards constructing and maintaining roads or paying social security pensions, the money must come from sale of liquor and lottery tickets. But with Covid, even commerce has taken a beating here. So, now even the Motor Vehicle Act is being extensively used to collect fines.

 

A report on social media (https://www.youtube.com/watch?v=v0nMjQG5GnM, it is in Malayalam) states that for everything and anything- using alloy wheels to names written the on glasses- the motor vehicles department is levying fines. The reporter had only two requests- one, the rules should be enforced without fear or favor and, two, those who are required to maintain the roads should also be penalized for their failures.

 

And that brings me to the issue of members of the IAS using flags with the emblem of their alma mater- the Lal Bahadur Sastri National Institute of Administration- on their cars. A member of the IPS, when appointed as the Transport Commissioner, ordered these to be removed as they were held illegal. The IAS lobby prevailed on the political leadership to make it legal.

 

I have always wondered if between enforcing road rules and enforcing cleanliness of public spaces which should get priority. I for one, have no doubt that it should be the latter because the unhygienic surroundings affect the whole community adversely, health wise. But that is not the case.

 

The floods of 2018 had cleaned the river Bharathapuzha like never before. But soon one could see people defecating on the rocks in the river bed. A complaint to the municipality followed by an application under the RTI Act revealed that a Health Inspector had visited the place and a board had been put up there warning people of penalties for defiling the river.

 

On 31 Oct 2020, The Statesman reported a ruling of the Allahabad High Court (https://www.thestatesman.com/india/religious-conversion-just-for-purpose-of-marriage-is-not-acceptable-allahabad-hc-1502932769.html)

in a case where a Muslim girl had converted to Hinduism on 29/06/2020 and married a Hindu boy on 31/07/2020. The couple had sought direction of the court to their relatives not to interfere with their married life coercively. The judge had dismissed the petition on 23/09/2020 observing that the said conversion has taken place only for the purpose of marriage.

 

Since the question in this case was not of the validity of marriage per se and was only of being left to live their life in peace, I got a copy of the order (WRIT - C No. - 14288 of 2020) and studied it. The learned judge had quoted a case law (Writ-C No.57068 of 2014) where the case of a Hindu girl who had converted to Islam at the behest of a Muslim youth who had married her after conversion and a few similar cases had been decided. The girls did not know anything about Islamic faith, Koran or the prophet had been quoted as the reason to hold the marriage void. 

 

Now there is a report dated 23 Jan 2019 of Deccan Chronicle where in a Hindu girl (Valliamma) had married a Muslim man (Mohammed Illias) without converting. A division bench of the apex court had held that the marriage was irregular and the effect of such a marriage is that the wife is entitled to get dower but cannot inherit the husband’s property. However, the son born of that marriage was entitled to inherit the property of the father.

 

And here is an even more weird case. ‘SBI says husband can't use wife's debit card, court agrees’ (https://m.timesofindia.com/city/bengaluru/woman-at-fault-for-sharing-debit-card-with-spouse-court/amp_articleshow/64485320.cms).

 

The gist of the case is like this. A pregnant lady gave her ATM Card to her husband to draw money from an SBI ATM. The machine delivered a slip showing the money was debited, but the amount was never released. He reported the matter to the bank and was told the amount would be credited into the account within 24 hours. But it did not happen. The bank thereafter denied responsibility stating that the transaction had been completed correctly. The couple obtained CCTV footage confirming that the cash was not dispensed. They also obtained a cash verification report of the ATM for that day, which showed excess cash of Rs 25,000 in the machine. The Banking Ombudsman closed their case by simply observing that the ATM PIN had been shared. The Bangalore IVth Additional District Consumer Disputes Redressal Forum upheld the Ombudsman’s decision, after almost four years, on 29 May 2018.

 

The case of a young widow trying to get a medical insurance claim of her late husband is yet another study of this law of lawlessness. The husband had died of cancer in the brain. While under treatment, he had undergone chemotherapy through tablets taken orally. This did not need hospitalization due to advancement in medical science. But every course of oral tablets needed prescription from the Oncologist, before which certain other related procedures like MRI Scan had to be undergone. Each course cost Rs 25000/- and there were 6 courses for one cycle of treatment, lasting 6 months. The terms and conditions of the policy also explicitly stated:

 

Hospitalisation shall mean admission in any hospital/ nursing home in India upon the written advice of a Medical Practitioner for a minimum period of 24 consecutive hours. The time limit of 24 hours will not be applicable for the following surgeries/procedures.

xxx

Or, any other surgeries/procedures agreed by TPA/Company which require less than 24 hours hospitalization due to advancement in Medical Technology.

 

So, the only question involved before the Insurance Ombudsman and subsequently the High Court was: what were the conditions that needed to be fulfilled for the TPA/Company to agree for procedures that needed less than 24 hours hospitalization? Suffice to say both, the Ombudsman and the Court, did not give her the required relief, or more precisely, justice.

 

A week ago, I had posted a query at Quora: When judges are required to know the law and the parties to any case are expected to know the facts, why should we have advocates representing parties before judges? I had tagged a few lawyers and activists suggested by the site. There were 6 responses in as many days. And all of them were harping on the same old points of knowing the laws, procedure, format et al. I had only one reply. And that was a quote from the book 'India's Legal system: Can it be saved? by Fali S Nariman, a renowned jurist. He had stated unambiguously that ‘For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skillful (which tends to become also the more costly), will invariably win.’ In other words, the richer of the contenders will (invariably) win in our courts.

 

Long back I came across two judgments of the apex court, quoted by the respondent to an appeal being pursued in the National Consumer Disputes Redressal Commission:

 

In Ittavira Vs Varkey (A 1964 SC 907) the court had ruled that 'courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities'. And,

 

In Misrilal Vs Sadasiviah (A 1965 SC 553) the apex court had ruled that 'there can be no interference in revision merely because the decision is erroneous in law or in fact where there is no error pertaining to jurisdiction'.

 

And we saw how many times P Chidambaram had approached the apex court for bail.

 

I have been writing on how even the simplest of laws, the Right to Information Act, has been subverted by the very people tasked, empowered, equipped and paid to enforce it. I will not dwell on it for now. But the question needs to be asked: who deserves to be punished more severely- the ordinary folks who are not too conversant with our complicated laws or those who are tasked, empowered, equipped and paid to enforce them?

 

04 Nov 2020

POLITICS OF/AND RELIGION

 

Secular means not connected with spiritual or religious matters. And secularism is defined as the belief that religion should not be involved with the ordinary social and political activities of a country. (https://dictionary.cambridge.org/dictionary/english/secularism) How far is this true? In India and the world at large?

 

We all know that Sanathana Dharma (the eternal religious and moral laws governing individual conduct), which is the foundation of Hinduism, as a religion, as we know it now, is possibly the only one that has exhortations like Vasudeva kudumbakam (the world is one family) or loka samastha sukhino bhavantho (let the whole world enjoy comfort and happiness). And as Dr Shashi Tharoor said while explaining why he is a Hindu, a Hindu can even be an atheist (or, may be, vice versa too, at least to the extent of being accepted by Hindus as one among them).

 

And history is replete with examples that we have lived by these tenets throughout the period preceding the Mohammeden conquests in the north or the advent of Europeans as mercenaries ever after Vasco da Gama landed in the Kerala coast at Kozhikkode in 1948. It is recorded at https://www.history.com/this-day-in-history/vasco-da-gama-reaches-india that on 20 May 1948, he was not greeted warmly by the Muslim merchants of Calicut, and in 1499 he had to fight his way out of the harbor on his return trip home. In 1502, he led a squadron of ships to Calicut to avenge the massacre of Portuguese explorers there and succeeded in subduing the inhabitants. In 1524, he was sent as viceroy to India, but he fell ill and died in Cochin.

 

It is not that we gave up living by those tenets after the mohammedans and European (read Christian) mercenaries established their rule here for many centuries. Even as late as at the commencement of World War II it has been reported (https://en.wikipedia.org/wiki/India%E2%80%93Poland_relations) that a ship load of Poles consisting mostly of women and children had been deported from there. None of the countries enroute had permitted them entry, including the Britons in Mumbai then. Finally, they had found refuge in Jamnagar under the then Maharaja Digvijaysinhji Ranjitsinhji. His unparalleled act of generosity, saw him become patron of the first public school complex founded in Poland after the Second World War, located in the capital of Warsaw, and named Jam Saheba Digvijay Sinhji in his honour. In 2012, the Sejm ( lower house of the bicameral parliament of Poland) honoured the 50th anniversary of his death, posthumously awarding the Commander's Cross of the Order of Merit of the Republic of Poland, and the Warsaw City Council named one of its city park squares in Ochota district after him - the 'Square of the Good Maharaja' .

 

How Parsis and Jews came here and were accepted with open arms and how they continue to live amicably and prosperously in this country is well known that there is no need for repeating it here.

The history of Mahmuds of Ghori and Ghazni raiding this country, looting and destroying temples and the Mughals establishing their rule, persecuting the locals, imposing jaziya or killing those unwilling to convert are also adequately documented and well known. An interesting video I would recommend is at https://www.youtube.com/watch?v=t_Qpy0mXg8Y.

How the Europeans, who came as mercenaries, established their rule is also adequately known. Divide and rule has continued to be a part of our politics even after the last of them had left our shores way back in 1947. Only worse.

And they left only after dividing the country into three parts and two countries in August 1947. A Hindu majority India and Muslim majority Pakistan in two parts- one on the West and another, literally surrounded by India on all three sides and the Bay of Bengal on the fourth, towards the East.

Then we adopted a Constitution declaring ourselves to be a Sovereign Democratic Republic. Interestingly, ‘Secular’ and ‘Socialist’ were not part of the Constitution then. The architects of the Constitution probably took the secularism of Hindu majority India for granted. In retrospect, there is also reason to doubt if they could have explicitly used those terms given the actual contents of the Constitution.

So where did things go wrong between 1950 and 1976 when these two terms were included in the Preamble through the 42^nd amendment of 1976, without any changes to the contents? And what is the situation now?

 

The Constitution of India is touted as one of the largest volumes of its kind in the world. It has a very flowery preamble promising the citizens utopia. (JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation). But the apex court wouldn’t even accept it as a part of the Constitution initially. The Directive Principles of State Policy are just there on paper, except possibly Article 50 which states that ‘The State shall take steps to separate the judiciary from the executive in the public services of the State’ (Now, please do not ask me who is this State. My guess is as good as yours.) They cannot be legally enforced. Of the 395 articles, only 24 articles deal with fundamental rights of citizens that can be enforced through courts, and that is theoretically.

 

Now, let us look at these fundamental rights and how they go against the letter and spirit of the Preamble (which we need to accept as laying the frame work for the interpretation of the provisions of this Holy Book of our democracy).

 

On laws inconsistent with or in derogation of the fundamental rights, Art 13(2) lays down that The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

 

But in 1971, by the 24th Amendment to the Constitution, Art 13(4) was inserted as Nothing in this article shall apply to any amendment of this Constitution made under article 368. This was on the eve of the 1971 war which liberated Bangladesh. The war clouds had been gathering since the summer of that year with the PM, Mrs Indira Gandi, asking the then Chief of Army Staff, General (later Field Marshal) Sam Manekshaw, to sort out the refugee problem by intervening in the then East Pakistan militarily. (I have spelt the surname as Gandi to differentiate it from the surname of the Father of the Nation, which is Gandhi)

 

And what is it that had been laid down in Art 368? It is about making amendments to the Constitution. Without going into the nitty-gritties, the fact that stands out is that, by the same 24^th amendment, the Parliament took upon itself to add, vary or repeal any provision of the Constitution, dealing the first blow to Art 13(2). Also, the power of the President was cut down. Originally, the Bill passed by the Parliament had to be presented to the President for his assent and upon such assent being given to the Bill, it would become law. Now, the Bill presented to the President had to be given assent. He was left with no discretion.

 

It should be noted that these were periods when the Congress had absolute majority in Parliament and Indira Gandi was the Prime Minister, with authoritarianism as a prominent streak in her character. (She had been hailed as the only man in her Cabinet.)

 

Through the 42nd amendment to the Constitution, during the Emergency in 1976, even the fundamental rights were made amendable. Sec 55 of this amendment had made it unambiguous that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article (368)." And that No amendment under this article shall be called in question in any court on any ground.

 

This led to even the apex court declaring (in ADM Jabalpur case, 28 Apr 1976) that even right to life was not a fundamental right during the Emergency. Thankfully, these amendments were held invalid in 1980 by the same apex court.

 

Since we are discussing secularism, we shall straight away have a look at articles 25 to 28 which deal with the Right to Freedom of Religion.

 

Article 25(1) provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Nail one on this right is that there are no reasonable restrictions on propagating religion. There is no need to elaborate on what has been the consequences of this lapse. The basic premise of any right- your liberty ends where my nose begins-had been given the by. Is it difficult to comprehend that proselytization has been one of the greatest curses of mankind and the root of much of the disharmony that exists in the world today?

 

The next sub clause is worse. Article 25(2) provides for regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice and throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. While the first part may look fair the issue is with implementation. Except for the Hindu religious or religion related institutions, it appears that the governments in the country do not find any need to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practices of other religions. The bigotry in the second part is obvious.

 

In fact, even the apex court messed it up, in its 2018 Sabarimala verdict, while interpreting this provision for opening Hindu religious institutions of a public character to all classes and sections of Hindus. Does gender and age figure anywhere here? And who were the women whom the Kerala Police tried to escort to the temple at Sabarimala in 2018? Were all of them Hindus? Not.

 

The next article, 26, provides the freedom to manage religious affairs, that is, to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law. Here again, wasn’t the apex court order in the case of Sabarimala, violative of the freedom guaranteed to Hindus to manage its own affairs in matters of religion?

 

Article 27 provides for tax exemption on expenses for the promotion or maintenance of any particular religion or religious denomination. Here again there are reports of misappropriation of Hindu temple funds by the government agencies entrusted with the management of the funds as well as the institutions. There are other resources like land owned by temples being encroached upon and these agencies not taking any action to retrieve it. Recently there were reports in the local media in Kerala of Devaswom Boards interfering even with the rituals of temples under their charge. Curiously, these Boards have been taking over and administering only temples with high income from donations by devotees.  

 

Article 28 bans religious instructions in schools. But it applies only to fully state funded schools and not to state administered or state aided schools. Why? Or let me ask it differently. Why should there be religious teachings in regular schools where students from all religious faiths could be studying? And, if there are exclusive schools for teaching religion why should they be aided by the state?  

 

If this is the state with rights provided exclusively under freedom of religion, religion-based biases are available in plenty elsewhere also.

 

Take the Right to Equality. Art 15(1) states that The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. And in Art 15(3) goes on to create an exception, stating that Nothing in this article shall prevent the State from making any special provision for women and children. Wouldn’t it have been better if those who had drafted and approved the Constitution had simply left out ‘sex’ from Art 15(1)? But that is not all. In what all forms that we are asked to fill up by the government on various occasions, right from the time of joining a school, are we required to mention our religion and caste?  

 

In less than a year of the Constitution coming into force the 1^st amendment was made to make special provisions for the advancement of Scheduled Castes and the Scheduled Tribes too. As an aside, should I point out it was not for SC/ ST women and children only?

 

Similarly, Art 16(2) states that No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. And, in Art 16(4) goes on to create an exception, stating that Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

 

To be blunt, with the kind of success of the political demand for ‘sons of the soil’, do these articles have any more relevance? It is to be noted that even reservation is allowed only for backward classes. But what do we have on the ground? Isn’t it a joke on the nation that this is a country where everyone is vying to be backward? And how is backward defined? Caste wise? Religion wise? And there is the continuing challenge of defining a creamy layer among the, yes, backward classes. Not to forget the backward among the forward classes.

 

The question that one needs to ask is why is it that even after 70 years we have not been able to define what backwardness is and evolve a formula for its quantification ? It need not be to continue with reservations but to provide training to develop competence to those in need of it.

 

Art 16 was further amended in 1995 (77^th amendment) to extent the reservation to promotions also for SC and ST. The 81^st amendment of 2000 provided for carrying forward vacancies of reserved seats and the 85^th amendment of 2002 provided for protecting seniority of such promotees also (with retrospective effect from 17 Jun 1995).

  

Coming to Cultural and Educational Rights, Art 29(2) states that No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. We must presume that these educational institutions are teaching subject as per syllabi approved by the competent authority of the government. And, presumably, they do not include educational institutions meant purely for teaching religion.

 

But the question arises, can the state interfere with the religious beliefs of the students studying in regular educational institutions? Kerala recently witnessed the case of the Director of Medical Education, Remla Beevi, banning tying of raakhi, on Raksha Bandhan, in Medical Colleges in the State. This when all schools have extended lunch breaks on Fridays to enable muslim students to attend Friday prayers at mosques. And, to the best of my knowledge and belief, even muslim employees in government offices get such extended breaks of Fridays for the same purpose.

 

Art 30 is a bundle of discriminations based only on religion and language. It gives minorities, based on religion or language, the right to establish and administer educational institutions of their choice, restriction on acquiring their property by the State and right to get grants from the State. The hitch is that these rights are given specifically to minorities as the article does not mention of these rights being applicable to the religious or linguistic majority. If it is presumed that these rights are there for the religious or linguistic majority too by default, then the question arises why these rights must be specifically given to the minorities explicitly. Worse, it does not differentiate between regular education and religious education.

 

As per media reports, quoting the Minority Welfare Minister of Kerala in the Legislative Assembly, there are 204683 teachers spread over 21683 madrassas in Kerala and they are being paid salary from tax payer’s money. Now they are also eligible for pension after 60 years of age. Interestingly, in Kerala, most (almost 80%) of the educational and health care institutions, including professional colleges, are owned and managed by the minorities.

 

The Central Government also has schemes for minorities exclusively. Two of them are: Scheme for Providing Quality Education in Madrasas and Infrastructure Development (of)  Minority Institutions.

 

Yogi Adityanath, the CM of Uttar Pradesh, is not a favorite of muslim leaders; but a report in Hindustan Times dated 17 Feb 2018, stated that his government had allotted Rs 2,757 crore for minorities’ development and welfare schemes, of which Rs 404 crore has been set aside for the modernisation scheme for Arabi-Farsi madarsas and Rs 1500 crore for various scholarships and fee shortfall, for minority students.

 

To a query under the RTI Act, a few years back, the office of an Assistant Educational Officer, in Kerala, had provided the following information: Malayalam, English, Arabic and Urdu are taught at LP Schools, there are 33 LP Schools (22 of the government and 11 aided by the government) within its jurisdiction, having between them 16 teachers for Arabic/Urdu. Their authorization is 1 part time teacher for less than 15 students, 1 full time teacher for 15 to 28 students and 1 additional full-time teacher for every additional 25 students. English and Malayalam are taught by teachers who are teaching other subjects too. Three language formula is implemented only from UP stage.

 

To conclude, recently it has been reported that the Assam government has decided to convert all government (owned? / managed? / aided?) Madrassas into regular schools and no religious teachings would be imparted at tax payers’ cost. While religious groups can establish and manage their own institutions for teaching religion, there will not be an equation of qualifications from such institutions with the qualifications acquired through regular educational institutions.

 

Some hope at the end of the tunnel, finally.

 

23 Oct 2020