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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