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Dissenting opinions enrich public discourse

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By Manini Chatterjee

The Supreme Court delivered a flurry of verdicts last week, coinciding with the final working days of the Chief Justice of India, Dipak Misra, who retires tomorrow. Four of them stood out.
On September 26, the apex court upheld the constitutional validity of the Aadhaar Act with significant riders. While it upheld the use of Aadhaar for availing government subsidies and benefits, it struck down the requirement of linking it to bank accounts and mobile phone numbers, or for pensions, school admissions and entrance examinations.
The following day, dealing with a case which has a bearing on the long-pending Ayodhya dispute, it rejected a plea to refer to a larger bench its 1994 ruling in which the court had observed that “a mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in the open”.
And on September 28, the Supreme Court ended the ban on the entry of women between the ages of 10 and 50 into the Sabarimala shrine in Kerala. It held that the centuries-old bar on menstruating women from entering the doors of a temple dedicated to a celibate deity was “unconstitutional” and a form of “untouchability” prohibited by the Constitution of India.
On the same day, another bench delivered another key verdict. It dismissed the plea for a court monitored special investigation team probe into the arrests of the five human rights activists on August 28 by the Pune police for their alleged links with Maoists plotting to overthrow the government. The Supreme Court extended the house arrest of the five activists for four weeks and asked them to approach the appropriate courts for remedy.
All four judgments dealt with issues that have caused much public debate and controversy. They were significant for another reason too. None of these four “landmark” decisions were unanimous. In each case, the majority verdict was powerfully and eloquently countered by a dissenting view.
In the Aadhaar case which was heard by a five-judge Constitution bench, the chief justice, Dipak Misra, and the judges A.K. Sikri, Ashok Bhushan and A.M. Khanwilkar upheld the validity of the unique identity card, while the judge, D.Y. Chandrachud, strongly dissented from the majority view.
In his widely quoted verdict, Chandrachud said the Aadhaar project suffered from “constitutional infirmities and violations of fundamental rights,” that “[c]onstitutional guarantees cannot be subject to the vicissitudes of technology,” that the “[d]enial of benefits arising out of any social security scheme which promotes socio-economic rights of citizens is violative of human dignity and impermissible under our constitutional scheme” and that the Aadhaar Act was unconstitutional for “failing to meet the necessary requirements to have been certified as a Money Bill under Article 110(1)”.
In words that will echo for a long time to come, Chandrachud also said: “Dignity and rights of individuals cannot be made to depend on algorithms or probabilities.” He also noted: “Unless the law mandates an effective data protection framework, the quest for liberty and dignity would be as ephemeral as the wind.”
In a 2:1 verdict in the Ayodhya-related case the next day, Dipak Misra and Ashok Bhushan rejected the plea to refer an earlier verdict to a larger bench while the third judge, S. Abdul Nazeer, gave a contrary judgment. The majority view was that the observation made on the relevance of a mosque to Islam was only in the context of land acquisition and was not relevant in deciding the pending Ayodhya suit. But in a 42-page dissenting view, Nazeer said the issue deserved to be heard by a larger Constitution bench in order to decide whether “an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question” and whether Article 25 (which protects the right to practise and propagate religion) “only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential”.
He also pointed out that in recent rulings, the Supreme Court has referred to a larger bench a range of similar issues such as polygamy in Islam; the permission to hold Ram Leela and Puja once a year in public parks; and on the practice of female genital mutilation. The 1994 verdict stating that a mosque was not essential to Islam had been arrived at without undertaking “a comprehensive examination”, and therefore ought to be heard by a larger bench, Nazeer asserted.
Another delicate issue concerning faith came up before a five-judge Constitution bench in the Sabarimala case. Here too, it was a 4:1 verdict: the Chief Justice, Dipak Misra, and the judges, D.Y. Chandrachud, R.F. Nariman and A.M. Khanwilkar, refused to accept the argument that the ban on allowing menstruating women into the temple was an essential and integral part of the religion. But the lone woman judge on the bench, Indu Malhotra, differed from the majority view.
In her cogently argued minority judgment, Malhotra said “what constitutes an essential religious practice is for the religious community to decide” and “notions of rationality cannot be invoked in matters of religion by courts”.
Pointing out that the petitioners in this case did not state they were devotees of Lord Ayyappa and were aggrieved by the practices followed by the temple, she noted: “In the present case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practices followed by this Temple, based on the essential characteristics of the deity. The right to practise one’s religion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practices are rational or not.”
In matters of faith, she added, the courts should intervene only if the practices are “pernicious, oppressive, or a social evil, like Sati”.
In the case of the activists, D.Y. Chandrachud, once again, offered a strong dissenting judgment while the Chief Justice, Misra, and the judge, A.M. Khanwilkar, refused to intervene in the arrests. Much like his judgment on Aadhaar, here too Chandrachud upheld the rights of the individual and sharply attacked the Pune police for holding press briefings against the accused even while investigations were on.
It seemed entirely apposite that a dissenting judgment should uphold the right to dissent. “Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in the opposition cannot be muzzled by persecuting those who take up unpopular causes,” he noted.
Majority verdicts alone are binding but dissenting views are significant too. In legal parlance, minority judgments have a “persuasive value” which can be cited as a view of the courts by advocates while arguing other cases.
But more than the substance of the arguments made, all four dissenting judgments (notable for their cogency and articulation) underline much needed principles. They show that the higher judiciary is not one monolithic entity but comprises fiercely independent judges with minds of their own. Unlike the United States of America, where a judge is usually known to be “conservative” or “liberal” in advance and their judgments are along predictable lines, it is difficult to make any such calculations here.
For instance, D.Y. Chandrachud’s judgment dismissing the petition calling for a thorough investigation into the mysterious death of the judge, B.H. Loya, had dismayed the same activists who are today hailing his views on Aadhaar and his scathing criticism of the Pune police. Similarly, Indu Malhotra did not allow her gender to come in the way of her interpretation of the Constitution in sensitive matters concerning faith and religious practice to deliver a thoughtful dissenting judgment.
But most of all, at a time when a majoritarian ideology threatens to crush all alternative views as “anti-national”, the fact that learned judges of the highest court of the land can hold sharply divergent views on crucial matters of State is deeply reassuring. The dissenting judgments not only enrich our public discourse — they also renew the ordinary citizen’s faith in India’s constitutional democracy.

 

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Opinion

INDESCRIBABLE JOHN ELI

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By Shabbir Aariz

This indeed is proverbially a herculean task to describe or define John Elia in any particular frame. Whosoever while mentioning him, is either trapped in contradictions of one’s own opinion or is able to confine to a few verses of John Elia to judge him. But the more one tries to understand John, the more confused one is and I believe that you need another John Elia to explain him. He is a phenomenon, a thing like a live fish to hold in your hand or an elephant amongst blinds to be described. Wusatullah Khan, a noted broadcaster, holds that knowing John is as good as dating with a liberated lady. And it is quite obvious that a man who in him is a philosopher, a scholar, a biographer, a linguist with command over Urdu, Arabic, English, Persian, Sanskrit and Hebrew and needless to say that the Ismaili sect of the subcontinent could not find anyone other than John to translate Ismaili treatises from Hebrew, it becomes a tedious affair to be conclusive about John. Common perception though with an element of truth is that John is a progressive Marxist, an unconventional poet and always in denial of everything including himself while himself saying in three line verse,

“KISKO FUSAT K MUJSAY BAHAS KARAY…..

 

OOR SABIT KARAY K MERA WAJOOD….

ZINDZGI K LIYAY ZARORI HAY

(Anyone prepared to argue and prove that my existence is imperative for life). His poetry is admittedly very close to life and his verses in the words of a legendry poet, Majrooh Sultanpuri, are like a dialogue which no other poet has the distinction to be capable of. John has an extra-ordinary craft of connecting with his audience that has created an unprecedented fan following which no other contemporary poet can claim to have. So magical is his poetry and its rendition that it has created a cult of his admirers with such an obsession and longing for the life of melancholy lead by John Elia himself. It is no secret that he was never a happy man with defiance and protest against everything and anything around. Loudly a nonconformist when he says
“unjaman main mayri khamooshi…..

burdabari nahin hay wehshat hay”.

His style made him famous and popular. He appears to be disgusted even with creation when he says … “HASILE KUN HAY YEH JAHANE KHARAAB….

YAHI MUMKIN THA AYSI UJLAT MAIN”.

His admirers strangely wish to pass through the same pain and despair that is hallmark of John’s poetry besides satire and the disdain for the system which contributed to his sadness in life. He has so glorified and romanticized the pain and sadness that it leaves his audience in frenzied ecstasy.

John Elia was born in the year 1931 and died in 2002. He originally belonged to Amroha in the state of Uttar Pradesh, younger brother of Rayees Amrohi, a known journalist and writer. John migrated to Pakistan in the year 1957 and settled in Karachi where he is buried now. But Amroha never left his heart and mind. He never felt comfortable after leaving Amroha partly because his stay in Karachi brought him in conflict with the system too. Many other things have also contributed to his sadness in life. He was married to a well-known writer of Pakistan, Zahida Hina but in mid-80’s , the relation between the two became bumpy and ended up in divorce which left John devastated and for ten long years thereafter went in depression without writing a word.

As is true about many in the history of literature, John earned his name and fame more after his death than in his life time while he was not received well and felt a strange type of suffocation when he says,

“AAP APNAY SAY HUMSUKHAN REHNA…..

HUMNISHEEN SAANS PHOOL JATI HAY”.

Thanks to the electronic boom and You Tube that brought him to the lime light and enabled audience to reach him and his works. As if this was not enough that his first poetic collection only came to be published when he reached the age of 60. It is worthwhile mention that he has as many as seven poetic collections to his credit namely SHAYAD, YANI, LEKIN, GUMAAN, GOYA, FARMOD and RAMOOZ. Except one, all other are published posthumously. This is besides his scholarly works in prose which may require greater insight to go into.

John all his life remained honest, direct and straightforward in expressing his views on matters of public interest. He also never demonstrated any pretentions or reservations while expressing the truth of his personal life. He never made any secret of his fantasies, love affairs or drinking habits. Yet he was never at peace either with the times or with himself. John Elia, in my humble opinion lived ahead of times and even the desire of dying young without being bed ridden was not granted to him except that he strangely enough wanted to die of tuberculosis and which he did.

(The author, a senior lawyers, is a well known poet and writer. Feedback at: [email protected])

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Manto: Why I wanted to read a ‘lewd’ writer

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By Naveed Hussain

I first read Saadat Hasan Manto as a teenager and the spirit of what I’m writing now was etched on my memory in those years.

I was too young to understand the intricacies of his stories but I enjoyed what I read and craved for more. Back then, Manto wasn’t available in the small town of Haripur where I lived. A friend introduced me to a schoolteacher, a bibliophile who had a modest collection of Manto in his personal library.

 

“Why do you want to read Manto, he’s a ribald, lewd writer,” he quipped. “This is exactly why I want to read him,” I replied, almost impulsively. He smiled and agreed to lend me Manto’s books. Thus began my journey to explore Manto. The more I read, the deeper my love for him became.

Manto was a nonconformist, an unorthodox and ruthlessly bold writer. He didn’t believe in the so-called literary norms of ‘decency’ and ‘civility’ set by didactic writers of his time. For him, truth is truth. No matter how bitter and despicable the reality, Manto never dilutes the truth. Like a muckraker, he pokes his nose into the muck, rakes it, and then holds it up to the reader – in all its profound ugliness and twisted beauty. “If you don’t know your society, read my stories. If you find a defect, it’s the defect of your society, not my stories,” he says.

Manto wrote on socially taboo topics like sex, incest and prostitution, which earned him the wrath of contemporary traditionalists, conservatives and even progressives. For some of his ‘lewd’ and ‘obscene’ stories he had to face lawsuits – among them were great stories such as Thanda Gosht, Bu, Khol Do, Dhuan and Kali Shalwar.

But it is to miss the point to simply say that Manto wrote about sex. He wrote about the sexual debauchery of men and the sexual exploitation of women; about our patriarchal society where women are often treated as a ‘sex toy’, not a human being. Unlike many, I don’t compare Manto with DH Lawrence, because Manto is not lustful, even though he explicitly writes about the female anatomy. He’s more like Guy de Maupassant, who sees the throbbing heart, not the sensuous body, of the prostitute.

Manto blames the ‘diseased mind’ for reading ‘ribaldry’ into his stories. If a sex maniac derives morbid gratification from Venus De Milo, should we blame Alexandros of Antioch for chiselling such a ‘graphic’ sculpture? No, certainly not.

For contemporary literary pundits, Manto was also unacceptable because he wrote ‘indecent’ language. “They [the critics] criticise me when my characters verbally abuse one another – but why don’t they criticise their society instead where hundreds of thousands of profanities are hurled on the streets, every day,” he wonders.

I also love Manto because he was honest. He was an unflinchingly true writer who believed in calling a spade a spade. Sketch-writing was introduced as a genre in Urdu literature much earlier, but Manto created his own peculiar tell-all style. He didn’t write only the good qualities of his characters. “In my bathroom, everyone is naked. I don’t clothe them because it’s the tailor’s job,” he writes.

Manto’s sketches, which he initially wrote for the Lahore-based Daily Afaq newspaper, were later collected and published as Ganjay Farishtay. Manto wasn’t a hypocrite. He minced no words while writing about his dead friends. “I curse a thousand times a so-called civilised society where a man’s character is cleansed of all its ills and tagged as ‘May-God-Bless Him’,” Manto wrote in Ganjay Farishtay. Manto wrote sketches of filmstars Ashok Kumar, Shyam, Noor Jahan, literary figures such as Meera Ji, Agha Hashar and Ismat Chughtai and some politicians. “I have no camera that could have washed smallpox marks off the face of Agha Hashar or change obscenities uttered by him in his flowery style.”

Before embarking on his literary career, Manto had read Russian, French and English masters like Chekhov, Gorky, Victor Hugo, de Maupassant and Oscar Wilde and translated some of their works into Urdu. Surprisingly enough, despite his love for revolutionaries, Manto was not a Marxist ideologue. He was a humanist who was pained to see social injustices, economic disparities and exploitation of the underprivileged. He hated the obscurantist clergy and parasitic elites alike.

Although Manto had migrated to Pakistan after 1947, he couldn’t understand the rationale of partitioning a land along religious lines. His stories of bloodshed and cross-border migration, such as Teetwaal Ka Kutta and Toba Tek Singh, made him unpopular with ‘patriotic’ Pakistanis. To this day he remains a shadowy figure on the official literary lists of Pakistan: our school curricula, our national awards, our drawing room conversations.

Manto was acknowledged as a creative genius even by his detractors. And he knew this, which is perhaps why he wanted these words to mark his grave: “Here lies Saadat Hasan Manto and with him lie all the secrets and mysteries of the art of short story writing. Under tons of earth he lies, still wondering who among the two is the greater short story writer: he or God.”

Manto’s family feared his self-written epitaph would attract the unwanted attention of the ignorantly religious, so on his grave one finds a Ghalib couplet. He faced censorship all his life and even now has chunks of his stories taken out by the authorities. But as we mark his centenary year, I can say this with the instant certainty I felt as a young man in Haripur: the words and stories of Saadat Hasan Manto will outlive us all.

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Gauhar Raza: Giving Poetry the Power to Protest

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By Asheesh Mamgain

If things were different his poems would have been different, or maybe he would not have been a poet at all. But things are what they are. And that is why Gauhar Raza, the poet is writing, and it is why he writes his poetry of protest.

“Maybe I would have written about love, the beauty of nature and science. But as things stand my poetry is predominantly about resistance and protest,” said Raza, who is faithful to the tradition of resistance poetry to the extent that he has throttled, without much difficulty, the romantic and the scientist in him. “The need to write poetry always arose when something happened around me which affected me, to the core. I have never written and will never write poetry just for the sake of it.”

 

“The murder of Safdar Hashmi, the breaking up of the Soviet Union, the demolition of the Babri Masjid, the killing of an activist in Afghanistan, the death of Rohith Vemula are some of those things,” he said.

Raza’s second published collection of ghazals and nazms (71 in all) came out in November 2017 and is titled Khamoshi, or Silence.

Is there a lot of anger in his poems? Yes, there is definitely a lot of anger. But then there is also hope. That is where Raza becomes special.

“For me, a poem that merely complains or rants about the injustice, violence and persecution happening all around is not enough. A poet has to go beyond this; he has to give a vision. The vision of an alternative world, of a better world. Only then will his poetry be successful and meaningful. A poet has to show the consciousness he wants to bring into society.”

So how does he define good poetry? “Well, a good poem should be able to raise the level of the reader at least one notch higher, and also give him a fresh perspective about the aspect being dealt in the poem. Something new to dwell upon,” said Raza.

The influences that shaped his poetic thought came pretty early, at home and at the Aligarh Muslim University where he studied. Raza’s father, Wizarat Hussain, worked in the education department there and was a second-generation Leftist.

“The question about the existence of God came up very early in my life and soon I became an atheist for life,” said Raza. Literature was read with passion at home and by the time he was 15 he had read all the Urdu literature available at the AMU library as well as a solid portion of Russian literature.

“During my growing years, Leftist thought had a major presence in the university. On the other hand, the fundamental forces were also steadily getting stronger. I was smitten by the leftist idea. I was part of a literary study circle, we served tea at the secret meetings of leftist groups and listened to discussions at home between my father and other intellectuals such as Irfan Habib and Iqtidar Alam Khan.”

There was a lot of churning in his mind and soon he started pouring the remnants of all that into his poems. When it comes to poetry some of Raza’s major influences have been Ghalib, Faiz Ahmad Faiz and Sahir Ludhianvi. He is often seen reciting their work at length during his various lectures, with Sahir Ludhianvi’s long poem ‘Parchhaiyan’ or Shadows one of his favourites.

“Writing the kind of poetry I do is not easy. Each time a write a poem I must relive all the pain and emotion I went through when the particular incident happened that forced me to write. All those disturbing images come rushing back to me. It is a difficult thing to undergo.”

Nor is poetry Raza’s only means of reaching the people. He recently retired as chief scientist from the Council of Scientific and Industrial Research. He is also into documentary filmmaking, his documentaries on Bhagat Singh and the 2002 Gujarat genocide being very well known.

Where does poetry stand today, as a means of communication with the reader? According to Raza, “for one, social media has helped. It has helped poets reach a wider audience. Also, the tradition of musharias and kavi sammelans (poetry meets) is still very strong in India. So even if a poet is competing with the multimedia world, it is easy to reach one’s audience with one’s poetry, provided you have something pertinent to say.”

More broadly speaking, however, “I have to say that things have progressed in a disturbing direction. A poem I wrote 20 years ago, I could rededicate it to Rohith Vemula and then to Gauri Lankesh. This disturbing trend is seen all over the world. I believe that the fall of the USSR has been a major turning point in the way our World has evolved.”

A few lines from one of his poems brings out his concern and struggle.

Mein phool khilata hoon jab bhi,
Woh baad e khizan le aate hain,
Mein geet sunata hoon jab bhi,
Yeh aag se ji bahlate hain.

Whenever I make a flower blossom
They bring the autumn wind
Whenever I sing a song
They give the soul succour with flame.

But Raza is still hopeful. “There has been a resurgence of resistance poetry in Urdu in the recent past. The trend of religious poetry in Urdu has also reduced in recent times. The youth today has become more involved in this attempt to bring a positive change. I have seen young people reading protest poetry and reacting to it. Once again universities have become a place of resistance and struggle for change.”

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