Caste is a socio-political institution – Sandhya Jain

Mayawati's one crore rupee garland

Sandhya Jain is the editor of Vijayvaani.Caste is too complex to be tackled by simple bans. Also, blatant appeals to religion, caste and other parochial loyalties have always been prohibited and there is no dispute regarding the Supreme Court’s attempt to lift politics above narrow identities. However, … not one word of criticism has been ever uttered when the Catholic Church repeatedly exhorts citizens to vote in a particular way in States where the community has a substantial presence. – Sandhya Jain

Almost coinciding with the Election Commission of India’s announcement of dates for elections to five State Assemblies, the Supreme Court’s interpretation of Section 123(3) of the Representation of People’s Act (RPA) in Abhiram Singh v/s C.D. Comachen (dead) by Lrs and Ors. (Civil Appeal No. 37/1992) seems destined to be honoured more in the breach. The Supreme Court ruled that politicians cannot invoke religion, race, caste, community or language to seek a mandate from voters, and that such practice would result in annulment of the election.

The day after the ruling and before the ECI announcement of dates, which kicks in the model code of conduct, Bahujan Samaj Party (BSP) leader Mayawati addressed a press conference wherein she advised Muslims not to split their votes (between non-BJP parties) and added that her Scheduled Caste vote-bank would not be swayed by hollow promises (from rival parties).

In this manner, caste and religion, the cornerstones of our electoral politics since 1947, were matter-of-factly invoked by India’s most openly caste-based political party (BSP was founded by late Kanshi Ram to consolidate lower caste votes). The party is struggling to stay in the reckoning in the critical state of Uttar Pradesh, where elections are due next month.

Mayawati helpfully explained her political sums: The Samajwadi Party is on the verge of a split, so Muslims should not divide and waste their vote on either segment. Despite making such explicit statements, she denied Prime Minister Narendra Modi’s charge that she believes in caste-based politics and claimed that the BSP has distributed tickets to all castes based on the concept of Sarvjan Hitaya (well-being of all). Thus, Muslims have been allotted 97 tickets, Scheduled Castes 87, OBCs 106, and Upper Castes 113. Mayawati added that the BSP has supported finance-based reservations for upper castes, Muslims, and other religious minorities in Parliament.

The BSP intends to exploit emotive caste issues such as the suicide of Hyderabad student Rohit Vemula, whose caste identity has been a matter of dispute between his biological parents; and the undeniably shameful incident of [beating] of Dalits in Una, Gujarat. The BSP supremo disparaged the Prime Minister’s launch of the Bharat Interface for Money (BHIM) App, named after Dr Bhimrao Ambedkar, to promote cashless transactions, and remains critical of the demonetisation programme.

The Bharatiya Janata Party proposes to fight the polls on the twin planks of demonetisation and the post-Uri surgical strike in Pakistan-Occupied Kashmir – both emotive and highly secular subjects with no caste connotations. Its rivals are expected to be dismissive of both.

Of all political parties, the BSP is emphatic that caste is a socio-political institution with deep roots in the hoary origins of Hindu society; it admits that economic deprivation is not co-terminus with caste ranking. It is undeniable that low social ranking has caused deep scars in society; even monotheistic faiths discriminate against lower caste converts.

Beginning with untouchability, many social, economic and cultural issues have a pronounced caste angle and cannot be addressed without acknowledging caste. This is evident in recent demands for extension of Other Backward Classes (OBC) quotas to landowning, regionally-dominant castes, most notably Jats in Rajasthan and Haryana, and Patidars in Gujarat. Each agitation was deliberately violent and posed serious challenges to the respective States.

Legitimate or otherwise, the demands were framed around the issue of caste identity and deprivation, and mitigation efforts (offers of reservations within State quotas, mostly unsuccessful) have to be framed in the same language. If persons contesting elections are denied the right to address citizens’ concerns regarding perceived injustices faced by them and originating in religion, race, caste, community or language, it would “reduce democracy to an abstraction,” as Justice D. Y. Chandrachud pointed out in the dissenting judgment.

The issue of reservations in educational institutions and government employment are at the heart of the politicisation of caste but has not been touched in the Supreme Court verdict; yet it threatens to cancel elections if votes are sought in the name of caste.

Reservations in educational institutions, especially in coveted courses like medicine and engineering, include lowering qualifying standards. Students are pushed by ambitious parents to take admission but cannot manage the academic pressure; they either fail or even commit suicide. The seat for that term thus goes waste. But there is no rethinking regarding the worth of a degree (if finally secured) if the doctor or engineer it produces is not good enough.

Worse, in recent years, the Supreme Court has ruled that seats for which reservation quotas cannot be filled in a particular year are to be carried over the next year, and not released into general quota. This has intensified caste tensions in society like no other measure. The position is similar with government jobs, and these issues have made reservations a ticking time bomb.

The nomenclature of parties like the Akali Dal and All India Muslim League is possibly the least of the problems, for innocuously named parties like the Popular Front of India are far more lethal. But parties that seek to redress regional pride such as the Telugu Desam founded by cine star N. T. Rama Rao, or seek a separate state, such as K. Chandrashekar Rao’s Telangana Rashtra Samithi, also become illegitimate under this sweeping interpretation of electoral malpractice. It makes free speech virtually impossible.

This raises questions regarding the enforceability of the Supreme Court ruling. Although Mayawati’s press conference was covered live on television, neither the Supreme Court, senior lawyers, or any political party deigned to censure her breach of judicial diktat. Prime Minister Modi, at a huge rally in Lucknow, only said, “Will politics stoop so low? Why were some people troubled when we launch a mobile app after Bhimrao Ambedkar?”

Caste is too complex to be tackled by simple bans. Also, blatant appeals to religion, caste and other parochial loyalties have always been prohibited and there is no dispute regarding the Supreme Court’s attempt to lift politics above narrow identities. However, though the RPA specifically bans inducing voter(s) to choose or reject a particular candidate under spiritual or community censure, not one word of criticism has been ever uttered when the Catholic Church repeatedly exhorts citizens to vote in a particular way in States where the community has a substantial presence. Such issues raise legitimate fears that the ruling may be implemented by cherry picking rather than by a reasoned understanding of what constitutes genuine electoral malpractice. – Vijayvaani, 10 January 2017

» Sandhya Jain is an author, independent researcher, and writer of political and contemporary affairs. She contributes a fortnightly column to The Pioneer, New Delhi, and edits an online opinions forum at www.vijayvaani.com.

Reservation

Patriotism thrives best when freely willed – M.D. Nalapat

Flag of India

Prof M.D. NalapatThe national anthem is indeed a magnificent composition. It is impossible not to feel a surge of emotion when listening to its language. However, some believe that the anthem should not be used in a medley of locations, but rather be played on occasions that are of greater import than the screening of a film of less than stellar quality. –  Prof M.D. Nalapat

The Supreme Court of India has decreed that the national anthem be played in all cinema theatres and that cinegoers stand to attention during such a recital, with all exits closed. The objective of the order is to ensure that the spirit of patriotism rises within each cinegoer, a desirable process that hopefully gets created when the anthem gets played on screen. The significance of this order on the rights of the citizen is immense. Hence many may regard it helpful for the court to define precisely what “patriotism” means, apart of course from standing to attention whenever the national anthem gets sung. What are the other requisites of this noble and necessary quality in the citizen, and would it not be best were the Supreme Court to order that the observance of each of these conditions be made mandatory for the citizen? Perhaps the country will soon get the benefit of a fuller order, in which each of the essential components of patriotism gets listed and made compulsory for citizens of India. Also, some may argue that patriotism needs to be constantly refreshed in each individual, not only in a cinema theatre, but also in other locations frequented by the public.

Rabindranath TagoreThe national anthem is indeed a magnificent composition. It is impossible not to feel a surge of emotion when listening to its language. However, some believe that the anthem should not be used in a medley of locations, but rather be played on occasions that are of greater import than the screening of a film of less than stellar quality. Also, that a decision on whether the occasion be solemn enough, significant enough, to merit the privilege of having the anthem played be left to the discretion of individual citizens, rather than to the police or other agencies of the state. If a school or a college is holding a function that is regarded as important, it may be fitting to begin or end the proceedings by the playing of the national anthem. If a factory has broken global records in quality, at the celebratory function held on the occasion, it may be appropriate to play the anthem so as to highlight that the citizens of India, who are almost without exception reverential to the national anthem, are among the finest in the world. However, we need to be reminded of the reality that the difference between a democracy and an authoritarian system is the fact that in the former, the overwhelming majority of decisions get taken by private individuals and not by command of the state.

Incoming US President Donald J. Trump would be delighted at the Supreme Court’s anthem verdict, although it is unlikely that the Court in his own country would go along with their brothers in the Apex Court in Delhi. Even Antonin Scalia, regarded as the most conservative of judges, was clear that only a monarch could decree that the US flag be kept inviolate. Scalia said that US citizens were immune from penalty even if they were to publicly burn the flag, while of course, soon-to-be President Trump would like such individuals to even be deprived of their citizenship. India does not any more have a monarch on a throne, in Delhi or in London, but an elected government. Seeking to enhance patriotism through the anthem being shown in cinema theatres may not always work, as it would be difficult to determine if exposure to the national anthem before watching a movie actually increases the patriotism in the mind of the citizen. In jurisprudence it is, after all, the “mens rea” and not the “actus reus” that determines if a crime has been committed, i.e., the thought must precede the act and not be disengaged from the latter. What if a citizen has fulfilled the “actus reus” of standing up in respect to the national anthem, but his mind, his “mens rea”, is less than respectful? After all, the emotion, indeed the instinct, of patriotism is a quality that needs to get rooted in the mind, and as yet, thoughts are much more difficult to fathom than actions. Not forgetting of course that the mind in the Knowledge Era thrives in a culture of freedom.

Why do students in US universities do better in life than those in many universities in India? Perhaps because students in India are spoon-fed, force-fed in fact. They are drained of initiative and individualism and are subjected to the constant hammer blow of enforced conformity, while students in the US are encouraged to think and act for themselves and indeed, to challenge what their professors seek to drill into them. The Indian mind is at least as versatile as any other, if it were not constantly constricted by a web of regulations that takes away huge tranches of the freedoms available to citizens in all other major democracies. Even without this latest fiat by the Supreme Court, an institution that merits the admiration of every citizen, this columnist has risen to his feet whenever the national anthem gets played. Not because he has to, but because he wants to. And not every individual who remains seated may be unpatriotic. Some of the sitting may, indeed, have done greater service to this country than those standing up. Each citizen has, or ought to have, the right to express his or her patriotism in the manner he or she deems proper, without being made to follow a particular menu of actions regarded as being the attributes of patriotism. The citizen looks to the Supreme Court to expand the boundaries of freedom in a country still in the straitjacket of a colonial mode of governance, and the way to do this may be to leave manifestations of patriotism to the sensibilities of the individual rather than enforced by command. – Sunday Guardian Live, 3 December 2016

SC should not draw false equivalence between Haji Ali and Sabarimala issues – R. Jagannathan

Swedish women pilgrims to Sabarimala

R. JagannathanIn the case of Sabarimala, there is no real issue of gender justice involved, for the ban does not affect all women, only those who are menstruating. While this is still a form of discrimination, it can be justified by references to traditions involving the celibate deity. Lord Ayyappa is not just any deity, and the restrictions placed on women in the 10-50 age group are not applicable in any other temple in Kerala. The intention is not discrimination, When a temple is created with a specific aim, to bring gender justice into the argument is needless meddling in tradition. – R. Jagannathan 

Swami AyyappanThat the Sabarimala temple case has become a political football-cum-ego-battle is increasingly apparent. None of the parties involved—the state government, the Travancore Devaswom Board, or the three-judge Supreme Court bench hearing the case—has been consistent or even coherent on the issue.

The bench, headed by Justice Dipak Misra, and comprising Justices R. Banumathi and Ashok Bhushan, was told yesterday (7 November) that the Kerala government had yet again changed its stand, the fourth change in nine years on the issue. This time it is favouring the entry of women aged 10-50, currently barred. This was the original stand of the government in 2007, when the Left was in power; the UDF government that intervened, went with the Devaswom Board’s stand, that “the restriction on women between the age of 10 and 50 has been prevailing in Sabarimala from time immemorial. This is in keeping with the unique pratishta sankalp or idol concept of the temple.”

The LDF has changed its stance probably because it knows that the larger issue of triple talaq and uniform civil code (UCC) will come up for a judicial decision some time next year. It is hoping to look even-handed by throwing the Sabarimala issue into the pot. The unstated reality is this: if the bench upholds the Devaswom board’s arguments and allows it to restrict the entry of women, the Left and “secular” forces can then use this precedent to argue against banning triple talaq or introducing UCC.

But this is false equivalence. The temple does not allow menstruating women to enter the sanctum sanctorum due to the tradition of seeing Lord Ayyappa as an eternal celibate. The entry ban in the 10-50 year age group is related to the assumption that this is the normal span during which women menstruate.

The Devaswom Board, instead of merely explaining the tradition as unique and unrelated to gender injustice, did not cover itself with glory last year when its chief, Prayar Gopalakrishnan, made a silly remark. He said the day a machine to detect menstruation is invented, the board would give up its 10-50 ban. He did his case no favours by making such crude statement. This is not only unscientific, but also rubbish. Menstruation is related to a woman’s child-bearing capacity, while celibacy is about abstinence from marriage or sexual relationships altogether. The two are not one and the same thing.

And then we had the court itself mixing up issues. According to The Economic Times, the bench sees the Haji Ali Dargah case and Sabarimala in the same way. The Dargah allowed women to enter the sanctum sanctorum a few weeks ago, and this precedent could be used to deal with Sabarimala too.

The Supreme Court bench had this observation to make about Sabarimala on Monday: “A temple is a public religious place. You cannot refuse entry to a woman who comes there…. It violates the rights of women.”

Supreme Court of IndiaThis is debatable. First there is false equivalence between the Haji Ali Dargah’s restrictions on women entering the sanctum sanctorum and Sabarimala. The restrictions on menstruating women are age-old; in the case of Haji Ali, says this report, the ban was a recent imposition dating to 2012. Two reasons have been adduced for this: one was a belated recognition that Islamic tradition does not allow women to visit graveyards or mazhars; another reason was said to be occasional inappropriate dressing by women.

In the case of Sabarimala, there is no real issue of gender justice involved, for the ban does not affect all women, only those who are menstruating. While this is still a form of discrimination, it can be justified by references to traditions involving the celibate deity. Lord Ayyappa is not just any deity, and the restrictions placed on women in the 10-50 age group are not applicable in any other temple in Kerala. The intention is not discrimination, When a temple is created with a specific aim, to bring gender justice into the argument is needless meddling in tradition.

Consider a parallel situation: if a club is created for promoting the interests of and/or bonding of women, it is not an issue of gender justice for men to demand an entry. The same applies to an association created for a specific purpose—say vegetarianism—which can bar non-vegetarians from being its members.

The court’s assumption that all temples are public places is fine in theory, but when public places are created for specific purposes, they become public-private places, ruled by the traditions that dictated its creation in the first place. As long as a discriminatory law is not added as an after-thought, as was the case with Haji Ali, the constitutional principle of allowing cultural and religious groups to maintain their own traditions and practices is sacrosanct.

It is high pretence to assume that gender justice is merely about allowing women entry rights to Sabarimala or Shani Shingnapur in Maharashtra. In our patriarchy, gender injustice is so deeply ingrained in public attitudes and religious practices, that true equality is a distant reality.

The discrimination against women runs deep in all religious denominations, whether Hindu, Sikh, Buddhist, Christian, or Muslim. For example, no religion favours women priests. This is clear and simple prejudice and discrimination. How many women bishops do we have in the Roman Catholic Church? Why are there absolutely no women among the ulema? In Hinduism, there are at last attempts to end this discrimination, with some groups in Pune commissioning women priests to officiate at ceremonies.

Sabarimala is a distraction, where women may be sold a pup. Let’s say the Supreme Court allows women in the 10-50 age group to enter Lord Ayyappa’s abode. It will be hailed as a huge gain for women’s empowerment, when it is nothing of the kind. It will be used as a sop to deny women the more material equality that they truly desire in all spheres of activity.

As for the Supreme Court taking a position on gender justice using Sabarimala as scapegoat, it must ask itself a simple question: how has it implemented gender justice in its own backyard?

Not very well, one must state. Of the 26 sitting judges in the court, there is only one woman judge, Justice R. Banumathi (who is part of this bench). And this is not something you can blame anybody else for but the collegium itself. Higher court judges are selected and decided by the collegium, and if there are not enough women judges, they themselves are at fault.

It is possible to claim that women don’t find the judiciary an enticing career opportunity, but how is it possible to ensure diversity of opinion when there is only one woman judge? –  Swarajya, 8 November 2016

Pilgrims at Sabarimala

9 – Temples, Elephants and Traditions – B. R. Haran

Supreme Court of India

B.R. HaranSubsequent to the SC’s order, the Kerala government started registration of captive elephants in the state. In the process, it found that many persons owned elephants illegally. The elephant owners association pressurized the government to legalise such ownerships and give ownership certificates and licenses. … The SC on 4 May stayed the Kerala government’s order and cancelled the licenses issued to the owners based on that order and ordered the elephant owners association not to shift the elephants to other states. – B. R. Haran

PETA IndiaPetition before the Supreme Court

Animal welfare organizations have been fighting their level best to free the captive elephants from captivity. These organizations have been waging legal battles in courts of law in various States for the welfare of captive elephants. Hearings in a few cases are going on in the High Courts of Chennai and Kerala. Organizations like People for Ethical Treatment of Animals (PETA) and Wildlife Rescue & Rehabilitation Centre (WRRC) are playing a significant role and the Animal Welfare Board of India (AWBI) is also jointly working with them for the same cause.

Animal Welfare Board of IndiaWRRC filed a Writ Petition (Writ Petition(s) (Civil) No(s). 743/2014) before the Supreme Court in 2014, seeking appropriate orders to effectively implement the provisions of the Wild Life (Protection) Act 1972, the Prevention of Cruelty to Animals Act 1960, and various government directives to protect elephants held in captivity in different parts of the country.  

Excerpts from the Petition 

In its Writ Petition, WRRC has placed the following significant facts: 

• This petition brings to the fore the ground-level situation in different States where captive elephants are being victimized in blatant violation of the existing provisions for their health, care and proper upkeep. The current state of the health, welfare, safety and upkeep of a majority of captive elephants in the custody of private ownership is abysmally poor.  

• As a keystone species of the tropical forests, the elephant has been accorded the highest level of protection in Indian law as it is placed in Schedule I Part I of the Wild Life (Protection) Act 1972. Elephant is an important part of Indian culture and heritage and is revered by a significant part of the population. The Ministry of Environment and Forests, Government of India recognizing the same, vide Notification dated 21 October 2010, declared the elephant as National Heritage Animal of India. Unfortunately, such a recognition has not contributed in any manner whatsoever to the welfare of elephants.

• Though there are several important issues relating to the protection of the Indian elephant in the wild, the instant petition raises concerns relating specifically to elephants held in captivity, in the custody of private individuals, temples, trusts, societies, religious and other institutions and seeks appropriate orders and directions with regard to the same.

• The four main concerns which require urgent attention of the Hon’ble Court are: firstly, the cruel treatment suffered by elephants in captivity that is in violation of constitutional and statutory provisions; secondly, the illegal sale and transfer of elephants under the guise of gift or donation; thirdly, the illegal use of elephants in commercial and/or religious activities; and fourth, the poor conditions of housing and upkeep that elephants are subjected to.

• Due to the torture and ill-treatment meted out by owners and mahouts, several instances of death and severe injuries to captive elephants are reported across the country every year. Moreover, elephants held in captivity are known to turn violent under mental and physical stress leading to panic and stampede in public areas, often causing loss of life of mahouts and by-standers and damage to property. Various studies show that the violent behavior of elephants is attributable to poor living conditions and subjecting them to various forms of torture, including beating with a belt trap, making them walk over hot tarred roads and keeping them chained, often for the entire day. Under the provisions of the Prevention of Cruelty to Animals Act 1960, the kind of abuse suffered by captive elephants amounts to the offence of cruelty.

• According to the Ministry of Environment and Forests, Government of India, in 2000, there were estimated to be 3400-3600 elephants in captivity in the country. Captive elephants are found with private individuals, in temples and other religious institutions, zoos, circuses, forest camps, tourist spots etc.

• Despite numerous provisions in Indian law which promote the well-being of captive elephants, the situation on the ground with regard to the treatment being meted out to the captive elephants is dismal. In addition, Hon’ble High Courts of various states have also passed orders and given directions on issues relating to the management and safekeeping of these elephants. Therefore, there exists a large body of laws, rules and orders protecting elephants in captivity. Yet there is ample proof that these laws are blatantly disregarded causing a great deal of hardship to the elephants as well as society in general as accidents involving captive elephants often lead to loss of lives and damage to livelihoods and property.

• As the Indian Elephant (Elephas maximus) is a Schedule I species under the Wild Life (Protection) Act 1972, transfer, acquisition, transport etc. of captive elephants is governed by the Wild Life (Protection) Act 1972. Captive elephants are also protected by the provisions of The Prevention of Cruelty to Animals Act 1960. The Ministry of Environment and Forests, Government of India, has also issued Guidelines for Care and Management of Captive Elephants in 2008. However, the implementation of the law and orders relating to captive elephants has been extremely poor.

• Despite a mandatory requirement under the Declaration of Wildlife Stock Rules 2003, many individuals and institutions have not declared the captive elephants in their custody to the concerned Chief Wildlife Warden of the State or obtained Ownership Certificates under Section 42 of the Wild Life (Protection) Act 1972.

• The Task Force, constituted by Ministry of Environment and Forests, made several recommendations in this regard including the need to amend the provisions of the Wild Life (Protection) Act 1972 to ensure better protection of captive elephants. It has been recommended that there should be a prohibition on the use of elephants in ‘exhibitions, circuses, weddings, unregulated tourism, public functions, begging or for other entertainment’. An emphasis has also been laid on improving the upkeep, maintenance and housing of captive elephants.

• There exists a constitutional imperative in accordance with Article 14, Article 21, Article 48A and 51A(g) of the Constitution of India to protect these elephants held in captivity, as there is towards other wild animals, as well as to prevent accidents that could endanger the lives of people.  

WRRC in its petition has prayed to the Supreme Court to direct the concerned Government agencies to take urgent measures to ensure the protection and welfare of the elephants. 

Wildlife Rescue and Rehabilitation Centre BangaloreAt the Supreme Court so far

WRRC’s writ petition came up for hearing in the Supreme Court on 18 August 2015. Other animal welfare organizations also submitted their impleading petitions in the case. The Kerala government submitted a petition. Accepting Kerala’s petition, the SC Bench comprising Justice Deepak Misra and Justice Baumathi ordered as follows and dismissed it.

As per Indian Wildlife Act 1972, as submitted by the learned counsel of Kerala government under Section 21 or 22 of the Prevention of Cruelty to Animals Act, 1960, as pointed out by the learned Solicitor General of India under Section 42 of the 1972 Act, and also based on the Kerala Captive Elephants (Management and Maintenance) Rules, 2012, the SC gave the following orders:

As far as the present issue is concerned, we are inclined to direct that the Chief Wild Life Warden shall see to it that all captive elephants in the State of Kerala are counted and in the absence of obtainment of requisite certificate under Section 42 of the 1972 Act and the declaration made under Section 40, appropriate action shall be initiated against the owners.

Every owner shall maintain an Elephant Data Book as specified by the Chief Wildlife Warden for each captive elephant. Transport norms for elephants must also be followed as specified in Rule 9. The said Rules shall be religiously followed by the owners failing which the authorities shall take appropriate action against them.

A District Committee constituted as per the 2012 rules to deal with the cases of cruelty meted out to captive elephants must have a member of AWBI (from January 2015) in addition to the members as per the 2012 rules.

The District Committee shall take necessary measures, to ensure that the Festival Committee constituted for the smooth conduct of festivals or the persons organizing such functions in which elephants are exposed, shall adhere to the following:

• There shall be sufficient space between elephants used in processions and parades.

• No elephants in musth shall be used in connection with festivals.

• Elephant which is sick, injured, weak or pregnant shall not be used.

• Chains and hobbles with spikes or barbs shall not be used for tethering elephants.

• Elephants shall not be made to walk on tarred roads during hot sun for a long duration without rest.

• Making an elephant stand in scorching sun for long duration or bursting crackers near the elephants for ceremonial purpose shall not be permitted.

• It shall be ensured that sufficient food and water for the elephants are provided.

• The Committee shall ensure that the flambeaus (theevetry) are held away from elephants. There shall be facility to keep elephants under shade during hot sun.

• It shall be ensured that adequate protection to the elephants taking part in celebrations through volunteers provided for the purpose.

• Services of veterinary doctor from the elephant squads shall be ensured in cases where five or more elephants are engaged in the festivals.

• The nearest Forest Range Officer / Police Officers shall be informed about the proposed festival / celebrations at least 72 hours in advance.

• During the procession the elephants shall have chains (idachangala and malachangala) tied to their leg.

• It shall be ensured that the mahouts are not intoxicated while handling elephants.

• The weaned calf below 1.5 m. height shall not be engaged for festival purposes.

• Sufficient rest has to be given to elephants which are engaged for “para procession”. Para procession shall be restricted to 6 a.m. to 11 a.m. and 4 p.m. to 8 p.m. only.

• During night-time, generators shall be provided to avoid any contingency due to failure of general power supply.

• It shall be ensured that elephants are brought under public liability insurance scheme for an amount of Rs. 3.00 lakhs per elephant.

On a perusal of the aforesaid Rules, it is clear as crystal that it obliges the District Committee to take necessary measures to ensure that the festival committee constituted for smooth conduct of the festivals or the persons organizing such functions in which elephants are exposed are required to adhere to many a measure. The District Committee is bound by the Rules and must see to it that the festival committees follow the same.

Temples or the devaswoms shall get themselves registered with the district committee within a period of six weeks from today. The temple and devaswom shall, apart from other formalities, also mention how many elephants will be used in any festival. It will be the obligation of the State to see that the registration is carried out. It shall be the duty of the State, the District Committee, Management of the Devaswom, Management of the Temple and the owners of the elephants to see that no elephant is subject to any kind of cruelty and, if it is found, apart from lodging of criminal prosecution, they shall face severe consequences which may include confiscation of the elephants to the State.

Gauri MaulekhiWith the above orders the SC disposed off the Intervening Applications and listed the writ petition after eight weeks. (Reference) 

Supreme Court stays Kerala government’s amnesty scheme 

Subsequent to the SC’s order, the Kerala government started registration of captive elephants in the state. In the process, it found that many persons owned elephants illegally. The elephant owners association pressurized the government to legalise such ownerships and give ownership certificates and licenses. Yielding to the pressure, the Kerala government issued a notification dated February 26, 2016, which offered amnesty period for the owners of 289 captive elephants without valid ownership certificates. 

The People for Ethical Treatment of Animals (India) sent a legal notice to the Kerala government seeking withdrawal of the above order, warning that the scheme would be a mockery of the Wildlife (Protection) Act, 1972, which prohibits illegal capture, trade, and custody of wild animals such as elephants, as well as the purpose of the interim order of the Supreme Court of India dated August 18, 2015.

As the Kerala government did not reply to the notice, PETA and WRRC approached the SC. PFA (People For Animals) also submitted an intervening petition through its representative Ghauri Maulekhi. Accepting the petitions, the SC issued notice to the Kerala government to reply by 27 April 2016. Then, after hearing arguments, the SC on 4 May stayed the Kerala government’s order and cancelled the licenses issued to the owners based on that order and ordered the elephant owners association not to shift the elephants to other states. (Reference)

Meanwhile, WRRC added a video clipping comprising a few scenes from Sangita Iyer’s documentary Gods in Shackles by means of a CD material to its petition and submitted it to Supreme Court. The case, which came up for hearing on 21 September, has been adjourned.

» B. R. Haran is and independent senior journalist in Chennai. This series of articles will be continued.

Elephants at Guruvayur Temple

Supreme Court’s ill-timed, ill-considered outburst against “ill-trained” J&K police – Radha Rajan

Pramod Kumar

Radha Rajan is the editor of Vigil OnlineIf it please Your Lordships—and even if it doesn’t—I am exercising my fundamental right to freedom of expression and right to dissent.

I am expressing my dissent against the opinions expressed by the Hon’ble Supreme Court on August 12, 2016, against the country’s police force and by implication our army, in J&K and I am exercising my right to freedom of expression by expressing my dissent in writing.

This I am compelled to do because within three days of the Hon’ble Supreme Court’s disparaging remarks about the state’s police force, yet another selfless and brave uniformed man died in the Kashmir Valley hunting Islamic terrorists who were determined to make a jihadi point on our Independence Day. And five days after the Hon’ble Supreme Court’s lecture on human rights to the “ill-trained” police, on the 17th, two army officers and another policeman have been killed by jihadis in the Baramullah district of the jihadi parasite Kashmir Valley.

Milords, can our Hon’ble courts protect the human rights of our police and army and how can our courts render justice to the widows and orphaned children of our men in uniform who die so that some of us who live because they have died, may thump the pulpit about human rights?

Just three days prior to our Independence Day, on the 12th, Your Lordships could not resist pontificating to the police and army about police brutality, human rights, restraint and all that ballyhoo. The CRPF Commandant, aged just 49 years, who was shot and killed by jihadis on the country’s 69th Independence Day, has left behind a seven-year old daughter who will now grow up without a father. I wonder what this little girl, when she grows up and has questions about why and how her father died, will think of Your Lordships’ lecture to the army about the human rights of stone-pelting, police-killing blood-sucking parasites now living in the Kashmir Valley after they had terrorised and genocided Kashmiri Hindus, forcing them to abandon their homeland. But that little matter of Hindu genocide Your Lordships has not exercised the Hon’ble Supreme Court as much as the alleged violation of the human rights of Kashmiri stone-pelting, police-killing Sunni Muslims.

The jihadi, parasite Valley Your Lordships, is living off the blood, sweat, hard work, tax-payer money of the rest of India, living off the selfless lives—and untimely deaths—of our men in uniform who are on duty in this thankless state, and living off the invisible, voiceless sacrifices which their families make for our country.

It is my considered view Milords, the Hon’ble Supreme Court while pronouncing orders in court should refrain from such observations which seriously violate the dignity and authority of other pillars of our democracy—Office of the President, elected governments, bureaucracy, police, paramilitary and army. I wish to bring to the notice of Your Lordships the observations allegedly made by the Hon’ble Supreme Court about the “ill-trained” police—in the words of the Hon’ble Supreme Court—in the Kashmir valley.

Your Lordships are alleged to have waxed eloquent about the “land of salt satyagraha, fast-unto-death and do or die”. Your Lordships surely chose the safest fig-leaf when you harangued our men in uniform in open court on that day. While I have my own views on Gandhi and his salt satyagraha and fast-unto-death—he never died when he fasted—I wish to submit to Your Lordships that when our police and army die in Kashmir, it is not “do or die”, it is “do and die”.

Excerpts from what the Hon’ble Supreme Court said:

  1. Kashmir has been the victim of separatists’-driven protests, but abuse by an ill-trained police force exacerbates violence and triggers public anger.

  2. The court turned to the police and cautioned the force against “indulging in excesses which become barbaric, not halting even after controlling the situation”.

  3. The judgment, authored by Justice Sikri eloquently recalled the history of legitimate dissent in the “land of Salt Satyagraha, fast-unto-death and do or die”.

  4. The apex court then points to how demonstrations have been twisted out of shape by religion, ethnicity, caste and class divisions—all of which have been “frequently exploited to foment violence whenever mass demonstrations or dharnas, etc, take place”.

  5. “Unruly groups and violent demonstrations are so common that people have come to see them as an appendage of Indian democracy,” the judgment said.

  6. The court points to how violence triggers more violence from the police, who use excessive force to control the mob. But this brutality of the police drives citizens away from the State.

  7. “This in turn exacerbates public anger against the police. In Kashmir itself there have been numerous instances where separatist groups have provoked violence,” the Supreme Court observed.

  8. The apex court urged police personnel to restore calm with “utmost care, deftness and precision” so that no harm is caused to human life and dignity. It has to be seen that “on the one hand, law and order needs to be restored and at the same time, it is also to be ensured that unnecessary force or the force beyond what is absolutely essential is not used”.

  9. The court said the State cannot hide behind the defence of sovereign immunity when there is a “patent and incontrovertible” violation of fundamental rights through brutality, torture and custodial violence.

Your Lordships must know that the Hon’ble Supreme Court was speaking in the exact same language as Amnesty International on the exact same topic on the exact same day in Bengaluru! I respectfully submit to Your Lordships that the Office of the President, elected governments, and our men and women in uniform, the police, para-military and army do not have the comfort and security of anything similar to the “contempt of court” absolutism in jurisprudence which insulates Your Lordships from the kind of unrestrained and harsh criticism, loose comments and gratuitous insults which Your Lordships sometimes hurl at other pillars of government and administration including law enforcing agencies.

President Pranab Mukherjee greets the Chief Justice of India T. S. ThakurJudiciary on collision course with Office of the President of India

Let me begin with the intentionally worded language of Your Lordships when the Hon’ble High Court of Uttarakhand faced off with the Office of the President of India and the careful language used by Your Lordships in the same breath in your self-description.

Legitimacy of the President’s decision to suspend the Uttarakhand assembly is subject to judicial review as even he can go wrong, the Uttarakhand high court observed on Wednesday. The court was responding to an argument by additional solicitor general Tushar Mehta, appearing on behalf of the Centre, who contended that the President relies on his political wisdom in many matters. “You cannot have absolutism. President can go wrong,” the division bench of chief justice K. M. Joseph and Justice V. K. Bisht commented. The judges went on to remark that the court’s order, too, is “always open to judicial review.”

Correct me if I am wrong Your Lordships, but I was raised to believe that the actions of the highest constitutional authority of India, the President of India, are not justiciable and cannot be subjected to judicial review. I am sure every right thinking citizen of this Republic would agree that something is seriously amiss if judges of our High Courts and Supreme Court, who cannot be dragged before any court of law for any crime but can only be impeached by Parliament with the additional cushion for soft landing that erring judges have the option to resign before being impeached, can position themselves above the President of India and can state in open court that the “President can go wrong”.

By asserting that the First Citizen of India can go wrong and therefore even a high court judge can sit in judgement of the Office of the President, I respectfully submit to Your Lordships that by maintaining silence on this startling claim by two judges of the Uttarakhand High Court, Your Lordships have set a dangerous precedent . Your Lordships, if judges can state without being challenged or reprimanded that the President can go wrong and therefore the President’s actions are subject to judicial review, I foresee a frightening scenario when in the future Your Lordships may be emboldened to order our soldiers to return to the barracks in the midst of a war because Your Lordships think the President, as Commander-in-Chief of our army, did not have all facts on the table before him, or that he was misguided or misinformed and was therefore wrong in his decision to deploy our military in response to a perceived threat to the country’s security, sovereignty and integrity! This is not a stretch Your Lordships, because if we open the door of judicial review of the President’s actions, the door will forever remain open. I respectfully submit, Your Lordships should bang this door shut. Failure to do so will inevitably lead to chaos, sooner than later; considering Your Lordships concern for the human rights of stone-pelting, police-killing jihadis and other terrorists.

While asserting that there can be no absolutism and the President can go wrong and his actions are therefore subject to judicial review, Your Lordships also admit that your judgements and orders too are subject to judicial review, but here is the thing Your Lordships. You carefully, intentionally, with great foresight do not say, “Judges can go wrong”. Dear me, no. Your Lordships concede that judicial review of orders is possible but do not say Your Lordships can also go wrong because Your Lordships know that any admission that judges can go wrong will seriously dent the armour of judicial infallibility.

I will conclude my right to freedom of expression and right to dissent with a few poignant words about a table for one by Aditi Hingu. Your Lordships it is poetic justice that the author wept tears of blood for the soldier who will never return on the same day that Your Lordships castigated our men in uniform, and on the exact same day Amnesty International insulted our police and army on our soil. Your Lordships chose a safe and privileged career and a life of pomp and plenty for your families. Our police and army voluntarily and selflessly chose a life with the real possibility of untimely, premature death. Your Lordships must keep this in mind every time a similar case comes up before you. Your Lordships owe this much to them and their families.

Radha Rajan
17th August 2016

Supreme Court of India

Your Lordships are invited to also read:

Table for One

The Table for One – Aditi Hingu

On the eve of the 70th Independence Day of our country, I would like to share a story with the readers. This story is not about a person or an event. The story is about a solitary dining place at the Cadets Mess at the National Defence Academy (NDA) at Khadakwasla. Set up in December 1954, NDA is the first tri-services academy in the world. It trains cadets for permanent commission in the three services (Army, Navy and Air Force) and its alumni have fought valiantly in every major conflict.

Cadets live on the campus and develop strong bonds with their course mates. However, NDA is singularly different from other campus in one way—not only do the cadets forge bonds with each other, an equally strong bond is formed with all those who would have graduated from NDA , even if many years ago. A kinship is developed and the ethos of never letting down a fellow comrade-in-arms is strongly ingrained. Nowhere is this symbolized as poignantly as in the Cadets Mess at NDA.

Apart from the regular dining tables, the dining hall has an empty table near the entrance with a forlorn chair.

It is laid out for a solitary diner with complete crockery and cutlery. However, it is never ever occupied: the chair is tilted forward and the crockery is upturned. The table has a vase with a red rose and a red ribbon, an empty glass, an unlit candle, a slice of lemon and salt on the bread plate. A casual visitor may be pardoned for wondering—whom is this place for?

Why the upturned chair, the empty glass, a rose and ribbon?

This table for one is in remembrance of all those soldiers who fought in various wars but never returned—neither alive nor dead. They were either taken as Prisoners of War (PoW) or declared as Missing in Action.

In the wake of the Shimla Agreement after the Indo-Pak War of 1971, India repatriated over 90,000 Pakistani PoWs but shamefully failed to secure the release of 54 Indian PoWs.

As per the Third Geneva Convention (both India and Pakistan are signatories to the same), every PoW must be treated humanely, be allowed to inform his next of kin and International Committee of the Red Cross of his capture, given adequate food, clothing, housing and medical aid, and released quickly after cessation of conflict.

However, in complete defiance of these terms, there has been no information about the 54 soldiers—even though it has been long wait of 45 years for their families and comrades since the war ended. Despite proof of Indian soldiers languishing in Pakistani jails and sustained efforts by their families to secure their release, nothing tangible has happened. Bureaucratic files moved, papers were pushed—but to no avail.

Fifty-four young men were condemned to rot in jails for having committed the sin of fighting bravely in a war that was not created by them.

The trauma and torture that would have been inflicted on them cannot even be imagined. Their families were doomed to spend the rest of their lives doing the rounds of different Government offices and persuading, requesting and begging an indifferent politico-bureaucracy to bring back their loved ones.

Aged parents went to their graves with broken hearts and children grew up without their fathers.

Many of these soldiers were as young as 25 years old, married for not more than a year or two.

Imagine the plight of a 23-year-old girl—who lived with her husband for 1 year and led the rest of her life fighting a callous government for securing her husband’s release.

Life passed both her and her soldier husband by – she was neither a wife, nor a widow; could not experience motherhood; doomed to decades of uncertainty, seeking only clarity or closure—but getting neither.

Subsequent petitions by children who grew up without fathers led to the ministers flippantly asking them, “Do you think they are still alive?”

I wonder if any minister would have thought the same if his father/brother/son were languishing in the Pakistan jails.

Even if one of the soldiers (who may have been alive) can be brought back, it would mean closure for at least one brave family.

Numbers are not important here, what is important is how a nation can willfully and shamelessly forget its own people.

But while the nation has forgotten these men, their fellow soldiers haven’t.

The table for one is a poignant reminder to the cadets that the missing men were carefree youngsters like them, who roamed the same halls and whose boisterous laughter would have resonated within the same walls.

Every item of the table for one symbolizes something poignant.

The forlorn single chair is symbolic of the overwhelming odds that the conquered prisoner must have faced.

The unlit candle speaks about the insurmountable spirit that would not have broken despite capture, and possible extreme torture.

The upturned plate and the empty glass acknowledge the fact that these PoW may never return.

The red rose is reminiscent of the patience of the families that are still waiting to embrace a loved son, a beloved husband, a younger brother and an indulgent father.

The lemon and salt symbolize the bitter fate, heartbreak and tears that are left for the families who deal with uncertainty.

The red ribbon is reminiscent of the red ribbon worn on the lapel of all their supporters who bear witness to their determination to get a proper accounting of these missing soldiers. It is in the honour of these men, that the armed forces have kept the tradition alive for the last 45 years. However these men did not belong only to an institution called the Indian Armed Forces.

They belonged to a nation called India.

As we celebrate the Independence Day wearing the obligatory tricolour clothes and listening to patriotic speeches and songs, perhaps it would be fitting to spend a minute or two in reflection.

Reflect on what is it that makes a young man risk all for his country—a fairly tenuous ideal in these days when everything is defined by material success or in the ability to create anarchy in the name of freedom of expression?

What is it that makes a 30-year-old man leave his beautiful wife and young kids behind and serve for 2 years at the inhospitable terrain of Siachen?

What is it that makes a 25-year-old jump into a raging river to rescue civilians during floods, knowing well that the same set of people may pelt him with stones a year later?

As we enjoy our country’s Independence Day along with our loved ones, spare a thought for a family where a son has been missing for decades, for children who don’t even know what their father would be looking like now and for men who are still waiting for their comrades to come back.

Let us at least remember their sacrifices and sympathise with those who are still clinging to the ever-fading hope of reuniting with their loved ones.

The table for one waits wistfully for them to return.

Incredible India! Jai Ho!Sify, 12 August 2016

Vir Singh

Turning Temples into Courts: Judges should not dictate religious practices – David Frawley

Vamadeva Shastri / David Frawley“Judges should not dictate religious practises. Political activists should not be allowed to use temples for political agitation.” – Dr David Frawley

Visiting Hindu temples is an amazing experience, an inner journey through history, culture and cosmic dimensions. Each temple is profoundly unique with its own identity. Such temples represent one of the most important cultural heritages of all humanity.

As a Western Hindu visiting Hindu temples for several decades, each temple has been a transformative event in sacred time and space.

Unfortunately, there are a few temples where as a Westerner I have been unable to enter. Having an Arya Samaj certificate of conversion to Hinduism does help, but is not always enough. Yet there are many Hindu temples that let everyone in. Often we are taken to the front of long queues in respect of having come so far in our pilgrimage.

Some complain that there are not enough Hindu women priests, though that situation is improving, or that women cannot enter certain temples, though they can get into most. These are areas of genuine concern. Hindu dharma honours Shakti and this should extend into the society overall.

Yet my wife, who is an Indian and a Hindu religious teacher, always receives special respect at any temple she visits, often from the head pujari, even at temples that I am not able to enter. But she approaches temples with genuine heartfelt devotion, not as an angry activist.

I know something of history, how thousands of Hindu temples were destroyed by Islamic invaders, and how the British belittled Hinduism. I can sympathise with temples that do not want non-Hindus to enter as mere tourist sites. Temples, just as churches, have dress and codes of conduct that should be followed and security concerns in this age of terrorism.

Supreme Court of IndiaPolitics of temple going

It is sad to see temple entry in India being made into a political football. It is strange to see the Indian judiciary ruling on who can go into temples and how far, as if temples should be under court jurisdiction.

This is compounded by the fact that churches and mosques in India are exempt from such interference and regulation. In addition, temple revenues are taken by state governments for their own usage, while church and mosques receive state subsidies.

Clearly, there is a tremendous prejudice against the majority religion in India that is unparalleled in any country. In other countries majority religions are treated as well or better than minority religions. In Islamic states like Pakistan and Bangladesh, Islam is given precedence and prestige over all other religions.

In the secular USA, there is a strict separation of church and state, and the judiciary does not rule on church practises. On the contrary, the government grants extensive and equal tax benefits to all approved religious groups, with majority Christianity granted the most regard.

Devendra Fadnavis & Trupti DesaiThe sanctum sanctorum

Going into temples should be an act of devotion, not of political assertion. Allowing political activists into the sanctum sanctorum of temples can be a gross violation of religious respect. That is an area of the temple reserved for the priests, not for the general public.

There are Hindu temples and festivals for men or women only. There is nothing wrong with this, any more than gyms or clinics that cater to male or female only concerns. There is a strict separation of men and women in certain temples. That is also fine and creates a different type of energy than the free mingling of the sexes.

Hindu temples have a vast array of deity forms and worship at special times and in distinctive ways. There is no single standard church service or namaz. Such local variations of practise should be honoured and preserved. They reflect the richness of Indian civilisation.

Judges should not dictate religious practises. Political activists should not be allowed to use temples for political agitation.

At the same time, temple entry policy should be respectful of different types of devotees in terms of age, sex or ethnicity—but this can be done without destroying the sanctity of the temple or curtailing the myriad forms of temple worship. – Daily-O, 22 April 2016

» Dr David Frawley (Pandit Vamadeva Shastri) has a D. Litt. (Doctor of Letters), from SVYASA (Swami Vivekananda Yoga Anusandhana Samsthana), the only deemed Yoga university recognized by the Government of India.

Hitopadesha Quote

Where are the women judges in India’s courts? – Sanjeev Nayyar

Justice Gyan Sudha Misra

Sanjeev Nayyar“A November 2015 India Today report shares some interesting facts, ‘There are just 62 (9.2 per cent) women judges compared to 611 male judges (in high courts) in the entire country. In 24 state high courts, nine HCs did not have a single woman judge. Three high courts had only one woman judge.’ Is this a case of gender discrimination or does it imply that only male judges possess the best legal brains and women are incompetent?” – Sanjeev Nayyar

Supreme Court of India in New DelhiThe Supreme Court on April 11 frowned upon the practice of barring women between the ages of 10 and 50 years from the Sabrimala shrine in Kerala, asserting that religious practice and tradition could not be allowed to dent constitutional principles and values.

Questioning the validity of tradition which has been under attack from feminists and others, a bench of Justices Dipak Misra, V. Gopala Gowda and Kurian Joseph said temple was a public religious place and it must observe the constitutional values of gender equality.

The judges said that the issue involved the question whether tradition could override the Constitution which prohibited gender discrimination. “Why this kind of classification for devotees to visit the temple? We are on constitutional principles. Gender discrimination in such matters is untenable. You cannot create corrosion or erosion in constitutional values,” the bench said.

Such strong statements by the learned judges prompted the author to visit the websites of the Supreme and five key high courts to ascertain the extent of gender equality in the judiciary. Here is the status as on April 12, 2016.

Women judges in Indian courts

Of the select courts, the percentage of women judges in Delhi High Court is the highest. Could the collegium system of the Apex Court find one only competent woman to be a judge? Did you know that from “1950 to November 2015 only six women became Supreme Court judges out of a total 229 judges appointed?”

India has had a woman prime minister and president but never a woman chief justice.

A November 2015 India Today report shares some interesting facts, “There are just 62 (9.2 per cent) women judges compared to 611 male judges (in high courts) in the entire country. In 24 state high courts, nine HCs did not have a single woman judge. Three high courts had only one woman judge.” Is this a case of gender discrimination or does it imply that only male judges possess the best legal brains and women are incompetent?

Look at the number of women doctors in our country and compare them with the number of women judges. Some might argue that women have taken to education recently in larger numbers. This is not true. Women in this country began taking to modern education even before independence and the pace picked up thereafter in virtually all fields, for example, the author’s mother and mother-in-law became doctors in the mid-1950s in Punjab and Madhya Pradesh respectively.

It can be argued that in the medical discipline, women doctors succeeded because they ran their own clinics or worked in hospitals where they did not need to navigate organisational politics. Fair point. All the more reason why India needs more women judges. Since they are grossly under-represented in terms of numbers, there is a clear case for affirmative action (not reservation). Certainly, there are enough women lawyers in all high courts who can be elevated to the bench.

According to a November 2015 Mail Today report, when a five-judge Constitution bench headed by Justice Khehar was in the process of inviting suggestions to improve the collegium system for the appointment of judges, a large number of female lawyers complained of “gender discrimination” in appointment of judges to higher judiciary.

When faced with such complaints, the respected Justice Khehar asked, “We would first like to know what the ratio of female advocates to male advocates is. That is very important. The ratio of female judges to male judges must be in the same ratio.”

I am inclined to respectfully disagree with this line of questioning. When under-representation of women in the judiciary is universally accepted, is it correct to compare the ratio of female to male advocates? Was the percentage reservation for schedules castes and tribes based on their population numbers or supposed backwardness?

Further, women lawyers told the court that would not be a fair criteria. “Please do not compare the number of women lawyers at bar and juxtapose it with the ratio of female and male judges. Women were allowed to practise in court only in 1922. Women face a lot of problems in practising in court. Despite that, they are coming out in large numbers to practice,” said senior lawyer Mahalakshmi Pavani representing the Supreme Court Women Lawyers Association (SCWLA).

At the same meeting SCWLA also represented, “It is submitted that keeping the Article 14 (right to equality) and Article 15(3) (the power of the State to make special provisions for women and children) of the Constitution Of “India is a signatory to Conventions on Elimination of Discrimination Against Women (CEDAW), 1979, which envisaged removal of obstacles of women’s public participation in all spheres of public and private lives.”  The source of Article 14 lies in the American and Irish constitutions. Before we get into the question of gender equality, we have to answer some fundamental issues on the Justice system and fundamental flaws relating to its practice in India.

1. How adapted is a British system of justice to an Indian culture, ethos, identity and practice? Is the understanding of gender equality the same in Indian and Western societies? Let me elaborate. It is a long-term fundamental flaw in our system, which has not been addressed or has perhaps not even entered the consciousness of our western educated judicial practitioners. While all humans are created equal, it does not mean they are the same. Same and equal are two completely different concepts.

Equality in the Hindu system does not mean we have one toilet for men and women, one set of dresses for men and women.

Why India? It is the same worldwide. In Hindu philosophy, we say the soul of men and women does not have gender in its spiritual state. But for practical purposes, two sexes are created based on physical differences by the Gods. These differences at times have to be respected and catered to just like there are separate toilets for men and women. By doing so it does not mean we are disrespecting and abusing the notion of equality.

2. Now coming to the issue before the Apex Court on whether the current practice at the Sabrimala shrine, of barring women between the ages of 10 and 50 years, should be changed. Hindu Goddesses have a wider following than Hindu male gods in many parts of the country. In the same vein there are certain religious places that are men exclusive and in equal breath there are certain temples that are women exclusive.

There exists a women-only temple in Kerala.  While 95 per cent of the temples are common to both sexes please understand that Hinduism treats both equally, and that does not mean that each and every function on earth has to be the same. At times for reasons of tradition, certain things are male specific and equally certain things have to be reserved for women. This is a fundamental difference between Indian and western thought.

If courts want to still force the issue of gender equality despite the arguments above they should do so. But keep in mind that the courts have to apply the law equally to all religions. That then would be real justice. The suggestion is either create a level playing field, or if the argument is that every community has its uniqueness, then let them cherish their uniqueness. You cannot have different rules for different people in the eyes of the law. We are repeating the mistakes made earlier by using British concepts of secularism and minorityism!

Are we willing to look within and change? – Daily-O,  13 April 2016

» Sanjeev Nayyar is an independent columnist, travel photojournalist and chartered accountant, and founder of www.esamskriti.com.

Women yatris to Sabarimala