By Sanjay Hegde
On the streets of India and Pakistan, a frightening message is being sent out: that courts must not rush in where politicians fear to tread. In matters of faith, courts must simply sit on their hands and pray for divine intervention to resolve the petition before them. The public and political responses to Supreme Court judgments in two instances — Sabarimala in India and the Asia Bibi case in Pakistan — bear striking similarities. What is different, however, is the ability of the two states to enforce their writ.
Sabarimala is considered to be one of the holiest temples in Hinduism, with one of the largest annual pilgrimages in the world. The faithful believe that the deity’s powers derive from his asceticism, and in particular from his being celibate. Women between the ages of 10 and 50 are barred from participating in the rituals.
The exclusion was given legal sanction by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. The validity of the rule and other provisions restricting the entry of women was decided by the Supreme Court last month. The Court, by a majority of 4:1, held that the exclusion of women between these ages was violative of the Constitution.
Then Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar held that the practice of excluding women did not constitute an “essential religious practice”. Crucially, the judges also relied on Section 3 of the Act mentioned above which stipulates that places of public worship must be open to all sections and classes of Hindus, notwithstanding any custom or usage to the contrary. It was held that Rule 3(b) prohibiting the entry of women was directly contrary to this. A concurring judge, Justice R.F. Nariman, further held that the right of women (in the age bracket in question) to enter Sabarimala was guaranteed under Article 25(1). This provision states that all persons are “equally entitled” to practise religion. According to him, Rule 3 prohibiting the entry of women, was violative of Article 15(1) of the Constitution.
Justice D.Y. Chandrachud, also concurring, emphasised the transformative nature of the Constitution which was designed to bring about a quantum change in the structure of governance. More crucially, it was a founding document, designed to “transform Indian society by remedying centuries of discrimination against Dalits, women and the marginalised”. ‘Morality’ used in Articles 25 and 26, the judge held, referred to constitutional morality which includes the values of justice, liberty, equality and fraternity.
He also held that barring menstruating women from entering the shrine is violative of Article 17 (the constitutional provision prohibiting untouchability). The judge held that the concept of untouchability is grounded in the ideas of ‘purity and pollution’. These same notions form the basis for excluding the entry of menstruating women into religious shrines.
The sole woman judge, Justice Indu Malhotra, who dissented, reasoned, “Issues of deep religious sentiments should not be ordinarily be interfered by the court. The Sabarimala shrine and the deity is protected by Article 25 of the Constitution of India and the religious practices cannot be solely tested on the basis of Article 14… Notions of rationality cannot be invoked in matters of religion… What constitutes essential religious practice is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would allow all to practise their beliefs. The court should not interfere unless if there is any aggrieved person from that section or religion.”
While the Bharatiya Janata Party has seen the judgment as an attack on the Hindu religion, the Congress too has not lagged behind. Even an “instinctive liberal” such as Shashi Tharoor has said, “abstract notions of constitutional principle also have to pass the test of societal acceptance — all the more so when they are applied to matters of faith… In religious matters, beliefs must prevail; in a pluralistic democracy, legal principles and cultural autonomy must both be respected…”
In 1929, the funeral of a killer, Ilmuddin, took place in Lahore, executed for the murder of Rampal, a publisher, who had published an allegedly unsavoury reference to the life of Prophet Muhammad. Ilmuddin had been buried without funeral prayers as the authorities anticipated further trouble. But some eminent personalities, who included M.D. Taseer, assured the British authorities that there would be no trouble if there was a proper burial with a procession and Islamic prayers. The British relented and at the public mourning, the funeral prayer had to be read thrice before the surging crowds. The upshot of these events was that Section 295A was introduced into the Indian Penal Code to punish a deliberate insult to religious feelings.
In this Nov. 20, 2010, file photo, Asia Bibi, a Pakistani Christian woman, listens to officials at a prison in Sheikhupura near Lahore, Pakistan. Italy is working to help relocate the family of a Pakistani Christian woman acquitted eight years after being sentenced to death for blasphemy, amid warnings from her husband that their life is in danger in Pakistan.
Years later, in Zia-ul-Haq’s Pakistan, Sections 295B and 295C were added to the Pakistan Penal Code which criminalised blasphemy against Islam and even made it punishable with death. In 2009, Asia Bibi, a Christian woman, was accused of blasphemy by her neighbours and jailed pending trial. She was sentenced to death in 2010 by a trial court.
Her case became a cause célèbre and Salman Taseer, the Governor of Pakistan’s Punjab province, visited her in prison to express support. This act by Taseer, who was the son of M.D. Taseer who had negotiated Ilmuddin’s burial, did not go down well. So enraged was his bodyguard MumtazQadri, that he assassinated Taseer in 2011. When Qadri was produced in court for trial, he was showered with rose petals by lawyers. He was tried and hanged in 2016, and his funeral attracted a crowd that rivalled the one at Ilmuddin’s.
Last month, the Supreme Court of Pakistan allowed Asia Bibi’s appeal and declared her innocent of the charges. She has now been released and expected to be granted asylum in Europe. Her lawyer has fled Pakistan and the judges now fear for their lives. Pakistan faced the threat of mob violence led by the radical Tehreek-e-Labbaik Pakistan party. Despite Prime Minister Imran Khan’s initial bluster, an agreement has been signed with mob leaders to end the violence.
The Chief Justice of Pakistan, SaqibNisar, has reportedly defended himself by saying, “No one should have the doubt that the Supreme Court judges are not lovers of Prophet Muhammad… How can we punish someone in the absence of evidence?”
It is easy to dismiss the Sabarimala and Asia Bibi cases as being unconnected and belonging to different jurisdictions and contexts. But both belong to the same region and trajectory of history. India was built on a secular foundation while Pakistan was built on a majoritarian Muslim agenda. However, both countries profess at least lip service to the rule of law. Years of majoritarianism have brought Pakistan to the point where its institutions have had to defend themselves before doing justice to minorities. India is at a stage, where its majority is seeking to bring its institutions to acquiesce in majoritarian instincts. A majority whose forebears had committed themselves to a magnificent constitutional compact now has elements who seek to regress from those values.
The question is whether the people and the institutions succumb to pressure or adhere to principle. Each individual, regardless of birth ascribed identity, is a minority of one entitled to an individual guarantee of rights protected by the Constitution. It is in the adherence to individual rights that the greater public good rests. Those who sacrifice a little man or woman’s liberty for the security of the many will find neither liberty, nor security.
Let us keep this in mind, as the Supreme Court agrees to hear in open court a review petition against its Sabarima judgment.
War or peace?
By Dr Akmal Hussain
Foreign Minister Shah Mahmud Qureshi on Sunday, April 7, in a press briefing in Multan, announced that the government had “reliable” information that India was planning another attack on Pakistan. He revealed that during a meeting of the Indian Cabinet Committee on Security, the three service chiefs had indicated that they were ready with plans of multiple strikes against Pakistan across a wide front and were awaiting a “political nod”, which was duly given by PM Modi during the meeting.
After the political boomerang of the failed Balakot strike, simple statistical theory would suggest to the military mind that the larger the number of strikes next time the higher the probability of at least one succeeding. The chances of partial success would increase if the air attack is across a wide front: the defending air force would have to spread itself thin and so the number of intercepting aircraft that could be fielded against any one group of attackers would be reduced.
Such a military adventure by India would not simply be a repeat strike after Balakot. It would be a precipitous escalation, fraught with the risk of full-scale conventional war that could quickly lead to a catastrophic nuclear exchange. When India suffered a setback in the Balakot engagement, they reportedly readied themselves for a missile strike against three Pakistani cities on the night of February 27.
There is no technology in existence that can determine whether or not incoming missiles have a nuclear payload. So Pakistan’s declaration that they would launch triple the number of missiles in retaliation, as soon as Indian missiles left their launch pads, carried the grim possibility of a nuclear war in the Subcontinent. If we had come so close to Armageddon soon after even a single abortive strike, imagine how much greater would be the risk of escalation to the nuclear level during a full-scale conventional war.
At present, and in the foreseeable future, two aspects of the structure of the India-Pakistan relationship create a hair trigger that can quickly and repeatedly bring the two countries to flashpoint. First, a popular freedom movement in Kashmir that, despite their protracted coercion, Indian security forces have been unable to suppress. It has instead produced a pantheon of martyrs and a new generation of militant youths willing to sacrifice themselves for freedom. Under these circumstances the internal dynamics of the Kashmiri movement can generate acts of violent rebellion against Indian troops at any time.
Second, on the other side of the border for many years non-state groups of militant extremists who have off and on received patronage continue to exist. The toxic mix of these two elements creates an environment in which spectacular acts of violence by Kashmiri youth could be blamed on “Pakistan-based terrorists” by India. This could intensify tensions, precipitating another military conflict. The past cannot be taken as a guide to say how it will end, whether in peace or nuclear war.
Given the firepower of modern conventional weaponry, significant loss of territory can occur during the initial onslaught that could escalate to the use of battlefield nuclear weapons. Once nuclear weapons are used on enemy troops, all-out nuclear war would follow. The recent history of India-Pakistan military conflict however has shown that even before a full-scale conventional war, a limited, localised battle can bring the two sides to the nuclear precipice.
For example, during the Kargil conflict in 1999 when the then prime minister Nawaz Sharif flew to Washington to ask the then US president Clinton to help end the conflict, he was shown satellite pictures of nuclear weapons being loaded onto F16s as evidence for a shocked PM of how close the two countries were to a nuclear war. Then again during the first two days of the February 2019 conflict involving limited Air Force engagements, nuclear missiles were reportedly readied on the night of February 27 for use by both sides.
So far these confrontations have induced timely intercession by the international community and peoples of the Subcontinent have survived by the skin of their teeth. But what a future confrontation will bring, whether we live or die in a nuclear war is inherently uncertain. Its probability cannot be estimated.
Some take comfort in the fact that seven confrontations in the past did not result in full-scale war as international pressure to defuse tensions worked. However, this 100 percent success in preventing war in the past cannot be used as a basis for saying it will not occur the next time around. This is because in society as much as in the relationship between states the averages of the past do not necessarily hold into the future. This is unlike natural phenomena where averages of the past as expressed in natural laws do hold into the future.
For example, take the law of gravity: if you had dropped an object and it fell to the ground yesterday, there is a high probability that it would fall again if you dropped it tomorrow. But in society, probability estimates which are essentially based on projecting the past into the future are not possible in principle. The pattern of social phenomena and human behaviour observed in the past can in the future be shattered by unique events or a combination of unique events.
As the preceding discussion argues, even a limited conventional conflict following a terrorist incident can quickly escalate to the nuclear threshold. It is vital, therefore, for the two countries supported by the world community to address the explosive structure of a situation that leads to repeated military confrontation.
Millions of citizens in both countries are mired in poverty, illiteracy and disease. Thousands of children are dying at birth every day; of those who survive birth, thousands die before they are five years old. Of the children who live beyond five years, millions are suffering from malnutrition, their bodies stunted, their brains dulled. Millions of children roam the streets and alleys, deprived of quality education, abandoned by society and state and living without hope. Instead of halting this massacre of innocents together, the two states are marching in lockstep to a nuclear catastrophe.
It is time for the leaderships of both India and Pakistan to reflect on the irrationality and inhumanity of using proxy wars or ‘surgical strikes’ as a means of achieving national security. The power of a nation lies not in following the course of mutual annihilation but pursuing the path of peace for the welfare of its citizens. The leaderships of the two countries should dip their cupped hands into their shared civilisational well-springs. Imbibe the sense of compassion and human solidarity to care for our children rather than killing them.
Rubbing salt on the wounds:
By Aleem Faizee
Another assault on the people of Malegaon – this is how a shopkeeper in Malegaon reacted to the news of the BJP fielding Sadhvi Pragya Singh Thakur from Bhopal against Congress’ Digvijaya Singh in this Lok Sabha election.
It’s like rubbing salt on our wounds, another Malegaon resident said.
For the people in Malegaon, the announcement of Pragya Thakur’s candidature has brought back the ghastly memories of 29 September 2008, when the city was rocked by a bomb blast. Thakur is facing trial in the case.
On the night of the blast, it was about 9.40 pm and people were about to finish Salaat-ut-Taraweeh – special night prayers offered during the month of Ramadan – when they heard a loud sound of explosion. At first, they thought it could be a cylinder blast accident. But it soon emerged that it was a bomb blast.
The blast spot was just metres away from the Ladies Fashion Market at Anjuman Chowk where a huge crowd of women and children were busy shopping for Eid al Fitr. There was chaos near Bhikku Chowk – the site of the blast. People carried the bleeding victims, more than a hundred, to hospitals using whatever means they could find.
The blast claimed six lives. One of them was 5-year-old Farheen Shaikh who was out to buy some snacks and was on her way back home to have Ramadan dinner with her grandmother.
Among the injured was Abdullah Jamaluddin Ansari of Shakeel Transport. The 75-year-old man, during initial investigation, had said he had noticed the LML Freedom motorcycle, which was later traced to Sadhvi Pragya Singh Thakur and led to her arrest, parked in front of his office since afternoon that day. He had also informed the police chowki, a stone’s throw away from the blast site, but claimed that no action was taken.
Javed Ansari, owner of a photocopier shop, was also injured in the Malegaon blast. It took him over three years to recover and resume work.
But for these blast victims, life has never been the same since that September night.
While Javed Ansari and the family of Farheen Shaikh left the locality after the blast, Shakeel Transport’s Abdullah Ansari died last year. Following the blast, Ansari often looked at the wall clock in his shop, which had stopped working at 9.37 pm – the time of the blast – and waited for justice.
One doesn’t know how he would have reacted to the news of Sadhvi Pragya Singh Thakur joining the Bharatiya Janata Party (BJP) and contesting the Lok Sabha election.
By fielding Sadhvi Pragya, the Bharatiya Janata Party (BJP) wants people to believe that she and other accused arrested in various blast cases were ‘framed in fabricated cases’ and that ‘saffron terror’ is a myth.
But while doing so the, BJP has undermined the fact that Sadhvi Pragya Singh Thakur still remains a key accused in the 2008 Malegaon blast case. As per court papers, the first evidence that led to her arrest was the LML Freedom motorcycle that was registered in her name and was used to plant the bomb. There are also some audio tapes and visuals too. Based on these evidences, the Bombay trial court judge had observed that there was enough ground to establish Sadhvi Pragya Singh Thakur’s role in the blast.
Ironically, while nominating Sadhvi Pragya Singh Thakur as the party candidate, the BJP did not think about the kind of message this would send to all the world leaders with whom Narendra Modi has often taken up the issue of terrorism.
The people of Malegaon, who had been hearing about the pressure on some officers and public prosecutor Rohini Salian ‘to go soft’ in the case, have almost lost all hope of getting justice. Wife of Mumbai ATS chief Hemant Karkare – the officer who initially investigated the case – had turned down then-Gujarat chief minister Narendra Modi’s monetary compensation after 26/11 attacks.
Therefore, the BJP’s decision to field Sadhvi Pragya Singh Thakur in this election is neither shocking nor surprising for most people in Malegaon. But it is painful, especially for the blast victims and their families.
Majboot Sarkars Overrated?
Prior to the 1990s, coalition governments in Indian politics were considered to be an aberration and not particularly desirable. The lack of coalitions in India was clearly tied to the one-party preponderance of the Congress. So, when the party sensed defeat in the 1989 Lok Sabha election, it tried to remind voters of how shambolic the 1977 Janata government had been.
The VP Singh-led National Front government formed in 1989 was perhaps the strangest political entity that people had witnessed in Indian politics. Propped up by the Left parties on one side, and the right-wing BJP that provided support with its 86 seats on the other – the government proved to be short lived.
The grand old party then supported the Chandrashekhar Singh government for four months, after which it decided to withdraw support and elections in 1991 brought back a Congress-led coalition government in the country. With that, the era of coalition politics was well and truly upon us.
Coalition governments were the new normal in Indian politics and would continue to be so until 2014, when the Narendra Modi-led government became the first in three decades since 1984, to win a clear majority.
In 1996, there was a short-lived Vajpayee-led BJP government for 13 days, followed by the rather soporific one led by HD Deve Gowda that lasted until 1997. After that, IK Gujral led the United Front coalition government that lasted from April 1997 to March 1998.
By then, the political scenario of the country was beginning to look a bit like a game of musical chairs. However, things stabilised with Atal Bihari Vajpayee returning in 1998, hanging on for a year and then getting re-elected in 1999 to finally last a whole term.
After that, with a full decade of the Congress led United Progressive Alliance leading the way, Indian politics developed a version of the two party system, rather, a two coalition system. Numerous political parties have coalesced around BJP and the Congress in the form of the National Democratic Alliance and the United Progressive Alliance, respectively.
Congress governments in coalition have brought about some of the most momentous and far-reaching changes. It was the Narasimha Rao-led government that introduced the economic reforms, which for better or worse, changed the country tremendously.
One simple indicator of the worth of coalitions is the fact that many thought that the UPA-I government was too hobbled by the presence of the Left, as it was a hindrance to the economic reforms associated with Congress governments since 1991.
The withdrawal of Left support, followed by the more emphatic victory that led to UPA-II in 2009, was supposed to bring in a more decisive and unfettered government. Yet, it is the UPA-I government that is remembered for the succession of rights-based legislation it introduced, while UPA II has come to be associated with crony capitalism.
Similarly, the NDA-I government of Vajpayee, with all of its coalition pulls and pressures ensured two things. First, the core and often contentious BJP issues, which are Article 370, Babri Masjid and Uniform Civil Code, were relegated to the back-burner.
Second, the Vajpayee-led BJP government could well and truly be said to have a fringe and a centre, with the fringe remaining where any fringe should belong.
However, the ruling BJP government of the day has once again brought the core contentious issues to the forefront. It has also ensured that the fringe encompasses the party uniformly, leaving no hint of nuance or differentiation.
What this suggests is that weaker coalitions may actually perform better. More importantly, coalitions are able to more naturally weave in the vital regional parties that act as breakwaters in the path of potentially elective despotism.
Are majority governments over-rated?
What have supposedly strong and stable majority governments been able to do? Have they taken decisive measures or brought about ‘big-ticket economic reforms’, untroubled by the petty pulls of coalition partners?
Take the 1984 Rajiv Gandhi government with its mammoth majority of above 400 hundred seats. In less than two years, it started playing communally divisive politics around the Babri Masjid and Shah Bano issues.
The Congress thought it was being cleverly even handed by dealing out both majority and minority communal cards. The drift in the Rajiv Gandhi government could be sensed right in the middle of its term when it lost badly in the Haryana assembly elections of 1987. It lost the hugely symbolic Allahabad by-election in 1988 to V.P. Singh, and the rest we are prone to saying, is history.
The question then is this: Could the supposed strength and stability provided by majority governments be overrated? What has the Modi government achieved on the back of its huge mandate? Has it squandered that majority much like the Rajiv Gandhi led government of 1984-89? Can Modi return to power? This has been a bit of a see-saw question.
When Modi’s government came to power with a huge landslide, or ‘tsunami’ if you will, conventional wisdom was that he was here to stay for at least two terms. The UP assembly elections in 2017 seemed to confirm this. After that, it has been more of a will he/won’t he guessing game. The jury is well and truly out on this one.