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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

The Sri Lanka attacks: New front, old wounds

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By Mario Arulthas

The attacks in Sri Lanka on Easter Sunday for many brought back memories of the long ethnic war, which came to a bloody conclusion 10 years ago in May. Although the Sri Lankan authorities are yet to identify the perpetrators, it appears the attacks are of a different nature, one fuelled by global dynamics, rather than a response to local communal grievances. Despite this, the violence is bound to exacerbate already-deep ethnic and religious fault lines, increasing existing tensions and possibly fuelling further violence.

After 1948, newly independent Sri Lanka embedded a virulent form of Sinhala Buddhist nationalism in the formation of the state. This ethos, in simple terms, holds that the entire island is home to Sinhala Theravada Buddhism and that minorities are invaders, who will be tolerated if they accept Sinhala hegemony. Any threats (perceived or real) to the Sinhala identity of the country are attacked resolutely.

 

This revealed itself in racially and linguistically discriminatory policies as constitutions were written, making non-Sinhala communities second-class citizens. To this day, Sri Lanka’s constitution places Buddhism above other religions, assigning the state the responsibility “to protect and foster” Buddhism.

The entrenched Sinhala Buddhist nature of the state manifests itself in its institutions, particularly those linked to security. For example, the military rank and file is almost entirely Sinhala Buddhist. Some of its units, like the Vijayabahu Infantry Regiment, are named after ancient Sinhala kings, famed for defeating Tamil “invaders”.

Increasingly violent reprisals by the state against peaceful demands for autonomy and equal rights by Tamils from the 1950s to the 1970s eventually led the Tamil population to seek an independent homeland in the island’s northeast, home to the Tamil Hindu and Christian populations and the Tamil-speaking Muslim groups.
A low-level trench war escalated into a full-blown war in 1983, after the Black July pogroms, in which Sinhala mobs killed thousands of Tamils, looting and burning their properties in the Sinhala-majority south of the country.

During the war, the Sri Lankan military routinely targeted civilians, killing tens of thousands. The Liberation Tigers of Tamil Eelam (LTTE), the Tamil group that emerged most prominently and enjoyed widespread support, deployed suicide bombers in the south of the country with devastating effects.

Meanwhile, tensions between Tamils and the Muslim Tamil-speaking community, who, in many cases, do not identify as ethnic Tamils, increased, marked by violence and massacres by both the LTTE and Muslim paramilitaries. In 1990, the LTTE expelled some 100,000 Muslims from the Northern Province, furthering the divide between the communities.

Throughout the war the Sri Lankan military repeatedly bombed churches and Hindu temples sheltering Tamil civilians; in 1995 an air attack on a church in Jaffna killed around 147 people. While those attacks were not religiously motivated per se, they portrayed the state’s willingness to attack places of worship.

After three decades, during which the LTTE was able to establish a de facto state, the Sri Lankan military crushed the movement, in a brutal crescendo of violence. The United Nations says there could have been over 40,000 deaths during this last phase, while some activists say the figure is closer to 140,000.

To this day, impunity reigns for the crimes committed during the war, despite international pressure for an accountability mechanism and demands by the Tamil community for an international war crimes tribunal. Hundreds of family members of Tamils forcibly disappeared during and after the war by state forces have been protesting and demanding answers. UN officials have warned that impunity may further increase violence in Sri Lanka.

Since 2009, the attention of the Sinhala Buddhist nationalists turned to the minority Muslim and Christian communities. While the security forces maintained an iron grip on the Tamil population, Sinhala Buddhist mobs started attacking Muslim and Christian populations repeatedly. In 2018, there were anti-Muslim riots in Kandy and dozens of attacks against Christians. A report by the National Christian Evangelical Alliance of Sri Lanka (NCEASL) said extremist elements were able to influence entire communities and lead violent attacks against places of worship and people. Only last week, a church was attacked during Palm Sunday mass.

Muslim and Christian communities in Sri Lanka have responded with remarkable restraint to Sinhala nationalist violence in the past – also because they saw the potential repercussions to them in the brutality unleashed on Tamils by the state in response to their own resistance.

However, the attacks on Easter Sunday do not appear to be a response to past Sinhala Buddhist violence. The perpetrators did not target Sinhala Buddhist, but Christian institutions and tourism infrastructure.

While many Tamil Christians were supportive and sympathetic to the Tamil armed movement, as a whole, Christians as a religious community were not antagonistic to other communities. As such, to see this in the vein of an escalation of existing violence against the Christian community in Sri Lanka would be a mistake. These attacks are likely a hitherto unseen dimension to tensions, a new front of violence in Sri Lanka.

After the Sunday attacks, the tensions that already exist are likely to deepen. Already hate speech is circulating on Sinhala-language social media. There are also reports of reprisals against Muslims, as a number of Sri Lankan officials have said that a little known Muslim fighter group might be responsible for the attacks.

Relations between Tamils and Muslims are also likely to suffer. The choice to conduct an attack in Batticaloa, a Tamil-majority town on the east coast, far from Colombo, may not be a coincidence. The town, and the district it is located in, saw some of the worst Tamil-Muslim violence during the war years. The St Anthony church in Colombo is also one that is frequented by a large Tamil congregation. Consequently, there are serious concerns among Tamil and Muslim civil society in Batticaloa of a flare-up of violence.

While tensions are high in the aftermath of the attack, the propensity of the state to respond with repression must be prevented. The existing draconian counterterrorism legislation has been used to violently repress communities, while journalists and activists continue to face harassment and surveillance. On April 22, President MaithripalaSirisena also declared national emergency, which gives the military sweeping powers.

While those responsible must face justice, a similar crackdown and harassment of minority populations in response to the attacks must be avoided. Otherwise, Sri Lanka risks furthering existing divides and paving the path to renewed violence.

In order for sustainable peace to be established on the island, the underlying reasons for the discrimination against minority communities must be confronted by the majority. In the absence of that, a whole 10 years after the end of the war, Sri Lanka’s future continues to look bleak and minority communities will continue to live on the edge.

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Opinion

Is Election Commission Toothless or Timid?

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By Kalyani Shankar

It was left to the Supreme Court to prod the Election Commission to realise the extent of its powers recently.

After the court pulled up the commission for its inaction against political hate speeches, the commission told the court, “We found we have powers!”

 

After the court reprimand, the EC wielded its powers this week and enforced campaign bans as a punishment on four leaders in UP, including Chief Minister Yogi Adityanath, union minister Maneka Gandhi, BSP chief Mayawati and Azam Khan of the Samajwadi Party for different periods, for the offensive remarks they made in the last few days.

For some time now, the role of the Election Commission has come under scanner. There is a debate on its perceived failure to check violations of the Model Code of Conduct and ensure a level playing field for the ruling and opposition parties.

It raises the question whether the EC has no teeth or is the EC being timid? It is significant to note that ahead of the ongoing LokSabha polls, 66 former bureaucrats, in a letter to the President on April 8, had expressed concern over the working of the Commission. They wrote that the EC’s independence, fairness, impartiality and efficiency are perceived to be compromised today.

The evolution of the poll panel has been quite fascinating. While until 1989, it was a single-member commission, Prime Minister Rajiv Gandhi made it into a multi -member one on October 16, 1989, as he was not quite happy with the then Chief Election Commissioner and wanted to clip his powers.

This had given the government enough space to put its own nominees but they had a very short tenure only till January 1, 1990.

Prime Minister PV Narasimha Rao again made it into a three-member commission on October 1, 1993 and since then the multi-member panel has been in operation.

Looking back, it is clear that if the EC decides, it has adequate powers to curb the money power, muscle power and other irregularities as demonstrated by its tenth Chief Election Commissioner TN Seshan. Pleading for electoral reforms, some of his successors like SY Quereshi and Linghdo have also demonstrated their determination to act.

Seshan proved to be the greatest ringmaster of the great Indian electoral circus in a country where nearly 90 crore voters will exercise their franchise this year. He made the EC powerful within the existing laws.

Appointed by Prime Minister Chandrashekhar, he served as a dreaded CEC from 1990 to 1996. Even today, Seshan is cited as a shining example of what a CEC should be.

Even the Supreme Court once told the Commission to aspire for the kind of credibility it enjoyed during Seshan’s days.

Why do people remember a CEC who was being described as a maverick? Seshan’s story is indeed fascinating.

An IAS topper of the 1955 batch, he had once told an interviewer. “I had never conducted an election. I went with two principles: zero delay and zero deficiency.”

He followed both throughout his tenure. He wielded the big stick and implemented the election manual in letter and spirit. Due to his strict policies he was even called “Al Seshan.”

Some of his major achievements include implementation of the election process and the Model Code of Conduct, introduction of voter ID cards, enforcing limits on poll expenses, and elimination of several malpractices like distribution of liquor, bribing voters, ban on wall writing, use of loud speakers, use of religion in election speeches etc.

He introduced election observers and also forced the candidates to keep accurate accounts of campaign expenses.

Seshan took many bold measures. For instance, under his strict watch, a serving Governor who campaigned for his son had to resign. The Chief Secretary of UP was taken to task for issuing an advertisement in a newspaper at the cost of public exchequer.

He recommended to Prime Minister PV Narasimha Rao to sack two of his ministers – SitaramKesri and KalpanathRai – for allegedly influencing the voters, but Rao did not act. In 1992, the Left parties even called for his impeachment.

The question then that arises is – has the EC performed well in the past seven decades?

While the successes have not been consistent or uniform, the EC has conducted 16 general elections in a free and fair manner. However, it is clear that there is need for more electoral reforms and more transparency.

Even during this elections, political parties all across the country have been brazenly violating the poll code, whether it is using religion to seek votes, or Rajasthan Governor Kalyan Singh’s campaign to support the Prime Minister or UP Chief Minister Yogi Adityanath’s describing the army as ‘Modijikesena.’ These seem to indicate the ineffectiveness of the EC to contain the political class.

While we have to wait for a full assessment of the EC’s role in 2019, as of now Supreme Court’s prodding might help the EC to wield its powers more frequently. Undoubtedly, the EC has an unenviable job of not only organising the massive exercise but also ensure that it is held in a free and fair manner.

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Opinion

Heritage of hex and curse

The Kashmir Monitor

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By Jawed Naqvi

Puting a curse on people and on ancient gods is a human heritage that straddled civilisations and underpinned their mythologies. This unreason has somehow survived in 21st-century India to be propagated by tantrics often with official patronage on TV — not very different from voodoo-practising witch doctors holding sway in swathes of Africa.

Saffron-robed Pragya Thakur says she killed HemantKarkare with her curse because the late policeman tortured her for alleged terrorism. There are two ways this could have come about. First, the official version of how the head of Mumbai’s anti-terrorist squad was laid low on the fateful night of the terror attack on the city in 2008. AjmalKasab shot the heroic officer from close range for which he was hanged.

 

In other words, Thakur’s angry hex on Karkare induced the young terrorist to travel by sea and, like a heat-seeking missile colliding with its target, he was guided by a force beyond his knowledge to fulfil the mandate of a distant curse.

The other view, albeit discussed mostly in whispers, is the claim by the former inspector general of Maharashtra police S.M. Mushrif. He has questioned the official narrative in his book, Who Killed Karkare? Mushrif suggested instead that powerful enemies, led by fans of NathuramGodse, lured Karkare into an ambush since he was investigating their communally inspired acts of terror. They used the cover of the carnage and contrived a parallel plot to get rid of Karkare in the chaos.

In either case, Thakur’s curse would seem to have homed in on its target, promptly and accurately. It is another matter that the veracity of Thakur’s belief would not hold before India’s constitutional mandate, which nudges citizens to “develop the scientific temper, humanism and the spirit of inquiry and reform”.

Hindu mythology like other mythologies is replete with examples of curses by myriad gods and sages that transform humans into stones, and so on. Such stories appeared in all major civilisations, but their people now treat mythologies as mythologies, nothing less nothing more.

Celebrated documentary-maker AnandPatwardhan has created a riveting TV serial (available on YouTube) on the subject. It’s called Vivek or Reason, which focuses on the grim battle between obscurantism and rational reasoning in India. Pragya Thakur like Godse-hugging Hindutva colleagues in the documentary subscribes to one set of people while an amazing group of men and women have dedicated their lives to the eradication of superstition and blind faith from the Indian milieu.

It’s an old struggle though, one in which B.G. Tilak and M.G. Ranade, two feisty Brahmins, took opposite sides in the fight for reason. Tilak was the regressive icon, while Ranade was greatly respected by leading social reformer Ambedkar. Patwardhan has pegged his narrative to the cold-blooded murders of popular rationalists NarendraDabholkar, GovindPansare, M.M. Kalburgi, and journalist GauriLankesh by revivalist groups not dissimilar to the ones Pragya Thakur may be identified with.

A most useful tool is this documentary to grasp the fraught consequences for Indian democracy should people like Thakur and far too many others of her flock win the elections for parliament currently under way.

NajmanBua told us with certainty decades ago that Diwali was an occasion when people practised black magic to get even with their rivals. (‘Wokalajadujagaawathain’.) A method was to float a paper lantern with chilly powder, to fly to the targeted person, who would suffer great harm when the lantern landed. Of course, this sounds improbable, which it surely is, but thumb through the works of John Campbell Oman, the British Indologist from early 20th century. Oman has been usefully cited in a collection of essays in historian David Hardiman’s Histories of the Subordinated.

Another book by Hardiman, Feeding the Baniya, has disappeared from bookstores as books critical of wily business practices tend to. The moneylender was one of the most ardent practitioners of black magic and the widely prevalent institution of the hex. That was how he believed he could keep the peasants in constant need of his favours and thus of his greedy attention.

A reason that Indira Gandhi had banned the sharing of met forecasts for monsoons was to discourage this exploitation. Among the many tricks quoted by Hardiman of ways the baniyas, the usurers, would strive to stop rain to keep the fields parched is the one from Rajasthan. “In an interview in southern Rajasthan, I was told that the baniyas could stop rain by pouring hot water onto a small image which they kept for the purpose in the Jain temple.”

Oman recounts other ploys used to drive away rain clouds, in Punjab, for example. “They sometimes made chapattis which they then mistreated in such a way as to offend the gods, the logic being that grain from which the chapattis [were] made came from the bounty of the gods who provided the rain; the angry gods would consequently withhold the rain.”

A hex that would probably make even Pragya Thakur sit up is the one from Punjab. Says Oman: “At another time I learned that a baniya had recourse to a still more effectual method of keeping off rain. He had a charkha, or spinning wheel made out of bones of dead men. Such an article could only be made very secretly and for a large sum of money, but its action was most potent. Whenever the clouds were gathering the baniya set his virgin daughter to work the charkha the reverse way, and by that means unwound or unwove the clouds, as it were, thus driving away the rain….”

It is not whether hexes and curses work, it is what a growing number of Indians expect them to do that should worry a country struggling with subs-Saharan human development indicators, including 37 per cent of the world’s illiteracy.

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