Courts should interpret law, not morality – Avay Shukla

Courts & Law

Avay ShuklaThe judiciary trying to assert its supremacy over religion is a recipe for disaster that can lead to a collapse of the social contract held together by the counter balancing forces of many legal fictions, just as the universe is held in place by the opposing gravitational pulls of millions of planets. – Avay Shukla

A legal fiction is a term coined by sociologists to describe widely held beliefs that may not be capable of being proved; they may even run contrary to natural principles of the universe and nature. The most common and important examples are religion, justice and equality. The first cannot be proved scientifically, the second and third are both against the laws of nature and exist more in the ideal than in the real world. But legal fictions have evolved because they are necessary for a stable and peaceful social order. Precisely for that reason they should not be tinkered with. India’s higher judiciary seems to be missing this point.

Starting (in recent times) from the Jain santhara case in Rajasthan (in which the Rajasthan High Court held that the voluntary taking of samadhi by a Jain was illegal and amounted to attempt to commit suicide), to the banning of animal sacrifice in temples by the Himachal High Court, jallikattu in Tamil Nadu, triple talaq and finally Sabarimala, our courts appear to have mounted a full scale assault on the dogmas and traditional beliefs and practices of different religions. In some cases they have had to roll back orders in the face of large scale outrage and defiance, sometimes even by state governments and ruling dispensations. But, as the Sabarimala order shows, they are unwilling to learn the appropriate lessons. And the primary lesson is this: do not test one legal fiction by the standards of another, or by the standards of the ideal or logic or science, for then all will fail the test.

If, for example, the concept of justice was subjected to the test of equity, fairness and common sense it too would fail and be found wanting. Not without basis did [George Chapman] declaim that the law is an ass. Therefore, the judiciary trying to assert its supremacy over religion is a recipe for disaster that can lead to a collapse of the social contract held together by the counter balancing forces of many legal fictions, just as the universe is held in place by the opposing gravitational pulls of millions of planets.

As long as a religious practice or tradition does not physically harm a person or deprive them of a basic fundamental right, there should be no reason for a secular state to interfere. Religious reforms have to come from within, not imposed by the courts at the behest of opportunistic political parties or publicity seeking activists. The reforms in Christianity and Hinduism were driven by people like Calvin, Martin Luther, the Buddha, Vivekananda and Raja Ram Mohan Roy, to mention just a few, not by judges acting on PILs. There are no short cuts to religious reform, it is painstaking work to change centuries old mindsets, and the law invariably follows the change, not precede it. As George Burns said:

We should not mix up the legal with the legitimate: for a law or a judicial pronouncement to be legitimate it must be accepted by the majority of people.

So far it has not happened in India.

Even worse than unilateral judicial dictats simpliciter are those which are selective in nature and lack consistency—for example, the Sabarimala and firecrackers judgments of the Supreme Court. Firstly, there cannot be any comparison in the unconstitutionalities involved in the two cases. The first involved only the grievance of a few ladies (none of them, as far as I know, devotees of Lord Ayyappa) that they were not allowed to enter the temple, which is not a fundamental right. The second case involves the health—indeed, life and death—of tens of millions: the report of WHO released on the 29th of October this year says that 100,000 children below the age of five died of air pollution in India in 2016. Eighty people die of the same cause in Delhi every day. And yet, the Supreme Court saw it fit to allow the entry of all women into Sabarimala but did not deem it necessary to completely ban the manufacture, sale and use of firecrackers. I fail to see the logic or consistency of “reform” in these cases.

Secondly, one would expect our jurisprudence would be mature and wise enough to sift the essential from the collateral. Surely, the restriction on entry into a place of worship is more integral to a religion than the bursting of crackers? It doesn’t make sense to apply the same standards of constitutionality to both, but even that was not done in this case—in Sabarimala the full weight of the Constitution was lowered on the temple, while in the firecrackers case the law was relaxed to partially permit the  freedom to “practice religion” and “conduct business”! Where is the judicial logic in this? We allow a practice that kills millions (more than sati ever did) but declare illegal something that just inconveniences a few.

These are the pitfalls of the lately discovered concept of “constitutional morality”.

There is no such thing. The Constitution is a legal document, not a moral one, and should be so read: the job of the courts is to interpret law, not morality, for then they intrude into the sphere of faith and widely held beliefs and traditions. The latter is a slippery slope without end, for what else will they question next—the denial of priestly roles to women? Hereditary practice of appointment of priests and ulemas? Lack of reservation in such appointments? Monopoly of higher castes in the religious hierarchies? Will they order the Catholic church to approve abortion? Will they insist on scientific proof of the existence of various gods? Faith cannot be subjected to the rigours of cold, impersonal, sceptical rationality. Sometimes it takes a poet to express this troubling dilemma in suitable words; here are the words of one of the greatest of them: Khalil Gibran:

Faith is an oasis in the heart which will never be reached by the caravan of thinking.

It should not, for then there will be no oasis left. – The New Indian Express, 13 November 2018

» Avay Shukla served in the IAS for 35 years and retired as Additional Chief Secretary of Himachal Pradesh. He is a keen environmentalist and loves the mountains.

Kerala women protesting the Sabarimala verdict.


Patel & Nehru: Acute differences over China’s invasion of Tibet – Claude Arpi

Sardar Patel Quote
Claude ApriSenior Congress leaders, led by Patel, violently opposed Nehru’s suicidal policy of appeasement with China, which led India to lose a peaceful border. – Claude Arpi

On October 31, the world’s tallest statue, the Statue of Unity dedicated to Sardar Vallabhbhai Patel, was unveiled by Prime Minister Narendra Modi. The work on the 182-metre tall statue has been completed after round the clock work by 3,400 labourers and 250 engineers at Sadhu Bet island on Narmada river in Gujarat. Sadhu Bet, located some 3.5 km away from the Narmada Dam, is linked by a 250-metre-long long bridge.

Unfortunately, for several reasons, scarce scholarly research has been done on the internal history of the Congress; the main cause is probably that a section of the party would prefer to keep history under wraps. Take the acute differences of opinion between Sardar Patel, the deputy prime minister, and “Panditji”, as Nehru was then called by Congressmen. In the last weeks of Patel’s life (he passed away on December 15, 1950), there was a deep split between the two leaders, leading to unilateral decisions for the PM, for which India had to pay the heaviest price.

The most serious cause of discord was the invasion of Tibet by the Chinese “Liberation Army” in October 1950. In the course of recent researches in Indian archives, I discovered several new facts. Not only did several senior Congress leaders, led by Patel, violently oppose Nehru’s suicidal policy, but many senior bureaucrats too did not agree with the Prime Minister’s decisions and objected to his policy of appeasement with China, which led India to lose a peaceful border.

On November 11, 1950, the deputy prime minister of India addressed a meeting organised by the Central Aryan Association to commemorate the 67th death anniversary of Swami Dayanand Saraswati. It was to be his last speech. What did he say? The Sardar spoke of the potential dangers arising from what was happening in Tibet and Nepal, and he exhorted his countrymen: “It was incumbent on the people to rise above party squabbles and unitedly defend their newly won freedom.” He cited the example of Gandhi and Swami Dayanand.

Sardar Patel then criticised the Chinese intervention in Tibet; he asserted that to use the “sword” against the traditionally peace-loving Tibetan people was unjustified: “No other country in the world was as peace-loving as Tibet. India did not believe, therefore, that the Chinese government would actually use force in settling the Tibetan question.” He observed that the Chinese government did not listen to India’s advice to settle the Tibetan issue peacefully: “They marched their armies into Tibet and explained this action by talking of foreign interests intriguing in Tibet against China.” The deputy prime minster added that this fear was unfounded; no outsider was interested in Tibet. The Sardar continued by saying that “nobody could say what the outcome of Chinese action would be. But the use of force ultimately created more fear and tension. It was possible that when a country got drunk with its own military strength and power, it did not think calmly over all issues.” He strongly asserted that the use of arms was wrong: “In the present state of the world, such events might easily touch off a new world war, which would mean disaster for mankind.”

Did he know that it was his last message? “Do not let cowardice cripple you. Do not run away from danger. The three year-old freedom of the country has to be fully protected. India today is surrounded by all sorts of dangers and it is for the people today to remember the teachings of the two great saints and face fearlessly all dangers.”

The deputy prime minister concluded: “In this Kalyug we shall return ahimsa for ahimsa. But if anybody resorted to force against us we shall meet it with force.” He ended his speech citing Swami Dayananda: “People should also remember that Swamiji did not get a foreign education. He was the product of Indian culture. Although it was true that they in India had to borrow whatever was good and useful from other countries, it was right and proper that Indian culture was accorded its due place.” Who is ready to listen to this, even today?

Days earlier, Patel had written a “prophetic” letter to Nehru, detailing the implications for India of Tibet’s invasion. In fact, Patel used a draft done by Sir Girja Shankar Bajpai, the secretary-general of the Ministry of External Affairs and Commonwealth Relations. However, Nehru decided to ignore Patel’s letter.

Witnessing the nefarious influence of K.M. Panikkar, the Indian ambassador to China, who ceaselessly defended China’s interests, Bajpai, the most seasoned Indian diplomat, had lost his cool. On October 31, in an internal note, he detailed the sequence of events which followed Tibet’s invasion and the role of Panikkar, whose attitude was compared to Sir Neville Chamberlain’s towards Hitler.

Bajpai’s anger demonstrates the frustration of many senior officers; the account starts on July 15, when the governor of Assam informed Delhi that, according to the information received by the local intelligence bureau, Chinese troops, “in unknown strength, had been moving towards Tibet from three directions.” Not only was Panikkar unable to get any confirmation, but he virtually justified Beijing’s military action by writing: “In view of frustration in regard to Formosa, the Tibetan move was not unlikely.” During the next three months, the Indian ambassador would systematically take the Chinese side.

After receiving Bajpai’s note, Patel wrote back: “I need hardly say that I have read it with a great deal of interest and profit to myself and it has resulted in a much better understanding of the points at issue and general, though serious, nature of the problem. The Chinese advance into Tibet upsets all our security calculations. … I entirely agree with you that a reconsideration of our military position and a redisposition of our forces are inescapable.”

Some more details of the seriousness of the situation filters through Inside Story of Sardar Patel: The Diary of Maniben Patel, the daughter of the Sardar. In an entry on November 2, 1950, Maniben wrote: “Rajaji and Jawaharlal had a heated altercation about the Tibet policy. Rajaji does not at all appreciate this policy. Rajaji very unhappy—Bapu (Patel) did not speak at all.”

Later in the afternoon, “Munshi complained about Tibet policy. The question concerns the whole nation—said he had written a personal letter to Panditji on Tibet.”

Later, Patel told K.M. Munshi: “Rajaji, you (Munshi), I (Patel), Baldev Singh, (C.D.) Deshmukh, Jagjivan Ram and even Sri Prakash are on one side, while Gopalaswami, Rafi, Maulana (Azad) are on his side.” There was a vertical split in the Cabinet; and it was not only about Tibet. The situation would deteriorate further during the following weeks.

On December 12, Patel was divested on his portfolios. Nehru wrote: “In view of Sardar Vallabhbhai Patel’s ill-health it is absolutely necessary that he should have complete rest and freedom from worry, so as to be able to recuperate as rapidly as possible. … No work should be sent to him and no references made to him in regard to the work of these ministries.”

Gopalaswami Ayyangar, from the “other side”, was allotted the ministry of states and Nehru kept the ministry of home. The Sardar was only informed after the changes were made. He was a dejected man. Three days later he passed away. – Deccan Chronicle, 8 November 2018

» Claude Arpi is a French-born author, journalist, historian and tibetologist. He is the director of the Pavilion of Tibetan Culture at Auroville, Tamil Nadu.

Nehru, Gandhi & Patel

Sardar Patel: Statue honours a man abandoned by Dynasty – Virendra Kapoor

Sardar Vallabhbhai Patel

Virendra KapoorThat Sardar deserved to be remembered, especially in his own home state, is beyond question. – Virendra Kapoor

Of all the arguments against the Sardar Patel statue, the one that had he been alive he would have disapproved, sounds most preposterous. Which icon, historic, cultural, literary, etc., while still alive, would be so immodest? Probably, leaving aside Tamil Nadu, where they have a relatively recent history of building statues of minor or major political figures and even of cine stars while they are still around, India, by and large, has not put up statues of the living persons.

Of course, the exception that readily comes to mind is the plethora of statues the BSP leader Mayawati erected in Uttar Pradesh of her coiffed and Birkin-bagged self and her mentor Kanshi Ram while the latter was still alive. But, then, she can be excused for rationalising a lot of egregious things which she does in the name of Dalit uplift, with her and her own extended family’s uplift having been all along uppermost in her mind.

Another equally facetious argument concerns the cost of the statue. That Sardar deserved to be remembered, especially in his own home state, is beyond question. The cost, therefore, is irrelevant. Those arguing that he was “a simple man, dressed in dhoti-kurta and was a devotee of Gandhi” and, therefore, would have baulked at the very idea of Rs 2,989 crore being spent on his statue, seem to have no clue about the thousands of crores this country has spent on erecting memorials to Gandhi himself.

Statues of Gandhi’s another acclaimed disciple, Nehru, are far more numerous than anyone else’s. Indeed, a mid-sized memorial industry had come to flourish for deifying him, especially when his daughter Indira Gandhi, and, later, his grandson, Rajiv, came to control the levers of power. To the exclusion of every other member of the pantheon of leaders of the freedom movement, Nehru memorials easily outnumber those for all others put together.

After him, it was the turn of Indira’s and later Rajiv’s statues. These become de rigueur for the Congress administrations keen to keep the latter’s widow in good humour. The little twits advertising bad upbringing tweeting about bird-dropping on the newly-erected Sardar statue should bone up on the costly self-love of the Nehru-Gandhi parivar before poking fun at the most worthy attempt to revive and renew the memory of the Iron Man. And do not forget the memorial was conceived by the Gujarat government in 2010, and its foundation laid by L.K. Advani in 2013. Ironically, Advani was nowhere to be seen when Modi, now the Prime Minister, inaugurated it on Sardar’s birthday on 31 October.

And, if you must know, the proposal to erect the tallest Shivaji statue off the Mumbai coastline was approved with great fanfare by the Congress-NCP government of Vilasrao Deshmukh. Quite clearly, logic is not a strong suit of the Congress’s megaphones.

Relegated as a mere footnote in the nation’s history, Sardar was cheated of prime ministership by a fellow Gujarati who suffered from a deep complex about western education and western mores. Earlier, Sardar’s innate decency and self-denial had led him to clear the way for Nehru to become the Congress president twice, though both times Sardar had won an overwhelming support of the party. Gandhi’s inherent weakness for a westernised Nehru was on display on both occasions—as it was when it came to the post of prime ministership when more than three-fourths of the Congress party wanted Patel to occupy that post. Gandhi was not without his faults, by the way. In South Africa he revealed a racial bias, protesting not so much the discrimination against Indians as the humiliation he felt for being clubbed with the Blacks.

So, let us not grudge the belated justice to the memory of Sardar. If the question of expense on the statue is relevant now, why wasn’t it trotted out by the brave defenders of the public purse when myriad buildings, precious lands, museums and parks et al were earmarked for perpetuating the memory of the founder and various members of the Dynasty? Nehru accepted the Bharat Ratna within a year of that award being constituted. Patel had to wait for a non-Dynasty Congressman to head the government for being given his Ratna.

Also, this glib talk of the ruling party appropriating the Sardar legacy sounds hollow, especially when his contributions in the freedom movement and, later, to the task of nation-building were deliberately reduced to a little footnote by the Nehru-Gandhi family. If his memory had become an orphan, the BJP, or, for that matter, anyone else, ought to be commended for rescuing it for acknowledging his huge legacy and granting him his rightful place in the nation’s history. Congress party was not a one-family property before Independence; it was an all-embracing freedom struggle in which elements of all political hues found place. Organisations still to be born could not be blamed for not being part of the struggle.

To the cringing sycophants denying that there was any attempt to denigrate the Sardar, the following quote from a well-known commentator should help clarify things. Writing about how the successful execution of the Bardoli Satyagraha (against the arbitrary hike in the land revenue in 1928) had earned Patel the honorific Sardar, Shreekant Sambrani writes, “…Gandhiji’s Salt March (1930) and the Quit India Movement (1942) were clear offshoots of the Bardoli Satyagraha. But the All-India Congress Committee commissioned five-volume compilation, A Contemporary History of the Indian National Congress (1886-85), edited by B.N. Pandey and released by Rajiv Gandhi, dismisses this in just a few lines in Volume II without mentioning Patel…” Yes, without mentioning Patel.

The above is the principal reason why the world’s tallest statue had to be erected by a grateful nation to acknowledge the contribution of the man who had virtually single-handedly merged 550-odd princely states into the Indian Union.

Case of double standards

This seems neither fair nor just. While those who find themselves entangled in the on-going #MeToo blood-rush have become untouchable for their peers and the society at large, but someone who stands accused of abetting his wife’s suicide (?) is being feted by the Page Three types and other notables. At least, no investigation as yet has confirmed the allegations of the #MeToo warriors emerging from the woodwork to enjoy their 15 minutes of fame, while the police after painfully long investigations have charged Shashi Tharoor as an accused in the suicide of Sunanda Pushkar, his third wife.

If the argument that one is innocent until convicted is valid, then how come those named by the #MeToo women are being denied the same courtesy? Tharoor was a prominent member of the then ruling party when his wife was found dead under most mysterious circumstances in a five-star hotel, probably a major factor in the investigations being misdirected at the most crucial time. Years later, the charge-sheet lists him as an accused.

Yet, this has not prevented people from calling him for various high-profile dos—and the VVIPs from sharing stage with the man accused of abetting the suicide of his wife. Now, did I hear you mutter double standards under your breath? You are right. It does smack of double standards. – Sunday Guardian Live, 3 November 2018

» Virendra Kapoor is a political commentator based in Delhi.

Narendra Modi


Supreme Court discredits itself with its overly intrusive activism – Sreemoy Talukdar

 Supreme Court of India

Sreemoy TalukdarWhen the judiciary—that is not accountable to the people—intrudes upon the domain of the executive and legislature, makes laws and tries to govern, it does an inadvertent trade-off with its moral authority. – Sreemoy Talukdar

The Supreme Court ban on crackers during Diwali except for a two-hour window between 8 and 10 pm has been flouted across the country. Revelers were seen bursting crackers—including noisy ones—well past midnight. Real time tracking on social media and detailed reportage by traditional media indicates that Indians across the length and breadth of the country paid scant regard to the judgment delivered by the highest court of the land.

In Delhi, violations were reported from different areas including Anand Vihar, ITO, Jahangirpuri Mayur Vihar Extension, Lajpat Nagar, Lutyens Delhi, IP Extension and Dwarka (among others) and in the NCR as citizens burst crackers with gusto. India Today reported “ear-splitting fireworks” being put up for sale at Modinagar and Farrukhnagar warehouses in Ghaziabad district.

In Kolkata, according to reports, pollution on Wednesday was worse than in Mumbai or even Delhi as revelers threw Supreme Court guidelines to the wind and burst high-decibel firecrackers with gay abandon. Tamil Nadu Police registered over 2,100 cases and made 650 arrests against those who burst crackers outside the deadline. Similarly, the SC ruling made little impact on Hyderabad where most residents started fireworks from dusk and continued late into the night.

It is easy to blame the administration or law enforcement for the pickle, but ultimately pointless. Mass-scale open defiance of an apex court order is worrisome. It raises deeper questions about unimplementable rulings and the deleterious effects of judicial activism.

The key question is this: Can law force a change in society’s religious and cultural mores (unless the practices represent social evils)? It is also worth pondering whether in seeking to usurp the role of the executive and the legislature and govern by legal decree, the judiciary is at risk of lowering its prestige by making itself vulnerable to defiance, criticism and even ridicule. The separation of powers in a democracy is designed to ensure that elected representatives do the business of governance at the risk of getting ousted by the people in case of non-performance.

When the judiciary—that is not accountable to the people—intrudes upon the domain of the executive and legislature, makes laws and tries to govern, it does an inadvertent trade-off with its moral authority. All problems cannot be fixed through judicial intervention. Some are made worse.

To recall, the Supreme Court order imposed certain conditions on selling, purchase and bursting of firecrackers: a tradition among a large number of Indians, not just Hindus. The top court’s judgment also covered the types of crackers allowed or disallowed. Series crackers (called laris) were banned, “green crackers” were permitted in Delhi and NCR, but since no one had any idea about what these were, the order caused more confusion than clarification.

Some traders in Delhi reportedly placed firecrackers inside vegetables (mooli phuljhadi, pyaaz chakri) to mock the Supreme Court’s ruling. Judiciary’s activism didn’t end here. The Supreme Court also tried to encourage community bursting of crackers in a designated area and asked the central and state governments to identify spaces for it.

Banning of crackers, of course, isn’t the only instance of judicial overreach. We have seen similar instances of intervention in Sabarimala verdict where the learned judges tried to rationalise faith armed with their codes of morality and equality. The on-ground resistance against court order on Sabarimala cannot be attributed to political maneuvering alone. Politics cannot whip up passion if there’s no popular support.

Intrusions into matters of national security were witnessed on the recent Supreme Court order asking the Centre to submit all “strategic and confidential” details of the Rafale contract to the apex court within a period of 10 days. One wonders whether the learned judges are well-equipped to assess the technical details of the deal and ascertain anomalies, if any, or take informed decisions on the proficiency of the fighter aircraft and the potency of its weaponry.

Major General Mrinal Suman (Retd), who retired from the Indian Army in 2003, wrote in Swarajya Magazine, “Courts should come in only when the prima facie case exists of any wrongdoing and not on the basis of vague and concocted allegations. … The judges are not even sure as to what they want to ascertain. Initially, they wanted to know only about the procedure followed but changed their mind within 10 days. Now they want the cost breakdown with justification. At this rate, they will soon demand to vet the complete field trials process as well. Is this the task of judiciary to decide which weapon system the country should buy and what should be the fair and reasonable price for the same?”

Such interventionism exacts a heavy price. Judiciary’s encroachment tampers with the division of powers and weakens the structure of the State. But it does more. The greatest harm is caused to the judiciary itself. Laws are enforced by the State, but such enforcement is not merely a matter of implementation by force. It is incumbent on compliance by citizens. That compliance recognises the moral authority of the judiciary in passing verdicts. Judges’ views are considered sacrosanct by people not just because there is a danger in non-compliance, but also because people want to comply. Judgments that seek to force a change in religious, socio-cultural or socio-economic issues end up challenging the compliance. The result is evident. Verdicts are subjected to political wrangling or open defiance and it cannot hold good portends for the judiciary.

As former Supreme Court judge Markandey Katju wrote on Supreme Court’s “unimplementable orders” on Facebook: “I am abroad, and I see that the time in India is 11.35 pm. (I won’t tell the time here because then you will locate where I am). I telephoned a lady in Delhi to wish her Happy Diwali, and she told me crackers are still bursting all around. I said what about the Supreme Court judgment which prohibited bursting crackers after 10 pm. She laughed, and said, “Who cares for Supreme Court orders?”

Such overreach also gives rise to what is called the Streisand Effect. Social media is awash with accounts of citizens who have never been enthusiastic about bursting crackers till Supreme Court expressly forbade them from doing so except within the deadline. If the apex court sought to force people into compliance, it likely achieved the opposite. The spike in instances of non-compliance was as much a resolve to continue with tradition as open defiance of a ruling that many interpreted as an intrusion upon their liberty. It became an expression of dissent.

A large section of the media is interpreting the defiance as an instance of cutting off the nose to spite the face. They point out that bursting of crackers will worsen the already wretched pollution levels of Indian cities, especially Delhi, and this logic alone should be enough to enforce the ban. This view seeks to justify judicial interventionism in this context. But this is a flawed argument.

The causal effect relationship between deadly pollution in Delhi and bursting of firecrackers in Diwali is contested and inconclusive. Exhaustive studies such as the one done by IIT Kanpur, which submitted its report to the Delhi government in 2016, indicated that pollution levels are incumbent on a host of factors such as “secondary particles (25-30 percent), vehicles (20-25  percent), biomass burning (17-26  percent), MSW (municipal solid waste) burning (8-9 percent) and to a lesser extent soil and road dust” in winter and “coal and fly ash (26- 37  percent), soil and road dust (26–27 percent), particles (10-15  percent), biomass burning (7-12 percent), vehicles (6-9  percent) and MSW burning (7–8  percent)” in summer.

Pollution in India’s urban spaces are a complex phenomenon that should be solved through an integrated, long-term approach that must include all stakeholders. Band-aid solutions will likely fail and banning of crackers through legal diktat may turn counterproductive. The larger question, however, pertains to the judiciary’s penchant for issuing unimplementable orders. As Katju points out, “Which section of the IPC is violated if young people burst crackers after 10 pm?” – FirstPost, 8 November 2018

» Sreemoy Talukdar is a senior editor at FirstPost in Kolkata.

Supreme Court Cracker Ban

ASI excavations prove temple existed beneath Babri Masjid – K.K. Muhammed

Destruction of Babri Masjid in January 1992

After a comprehensive analysis of the evidences that had surfaced during the excavation and the discovery of historical artifacts, the Archeological Survey Of India came to the conclusion that there existed a temple beneath the Babri Masjid. – K.K. Muhammed

It was in 1990 that the issue of Ayodhya became hot. Before that, in 1978 itself, as a student of archaeology, I had the opportunity to survey Ayodhya. As a student of School of Archaeology, Delhi, I was a member of the team headed by Prof B.B. Lal, which was carrying out an extensive survey at Ayodhya.

We found that there existed brick foundations, which supported the pillars of a pre-existed temple. No one had viewed such findings as controversial those days. We examined the facts with due sense of history as archaeological experts.

There were temple-pillars embedded on the walls of Babri Masjid. These pillars were made of a particular stone called black basalt. There were poorna kalasas engraved at the bottom of the pillars as was the practice in the 11th–12th centuries.

In temple art, poorna kalas is one among the eight auspicious symbols of prosperity. Not one or two, there were 14 such pillars before the mosque was demolished in 1992.

I could see the pillars closely. The team headed by B.B. Lal included officials of the ASI and us 12 students from the School of Archaeology. We spent around two months at various explorations at Ayodhya. Mir Baqi, Babar’s army chief, constructed this mosque using remnants of a temple, which was either demolished by him or had been demolished by someone else.

While excavating on the back and sides of the mosque, we found brick platforms on which the black basalt pillars used to rest. It was based on these facts that I made a statement in 1990 that there existed a temple beneath the Babri Masjid. The moderates among Muslims had started to think that it is better to leave Ayodhya for Hindus and solve the dispute. Some Muslim leaders felt that leaving Ayodhya to Hindus would take the wind out of the sails of VHP. Had such voices got prominence, it would have been possible to diffuse the situation.

A few historians under the leadership of S. Gopal, Romila Thapar and Bipan Chandra started questioning the historicity of the Ramayana. They argued that there is no record of demolition of a temple before 19th century. They even declared Ayodhya to be a Buddhist–Jain centre and they took part in various official meetings as experts on the side of Babri Masjid Action Committee (BMAC).

Many BMAC meetings were conducted under the leadership of Dr Irfan Habib who was chairman of the Indian Council of Historical Research (ICHR). Though member secretary M.G.S. Narayanan of ICHR objected to the meetings of BMAC being conducted in ICHR, he was overruled by Irfan Habib.

The Leftist historians had tremendous influence in newspapers and periodicals, and articles published by them questioning the facts of Ayodhya created confusion in the minds of general public. They were responsible for the volte-face of even the moderates among the Muslims who had favoured a settlement.

Had only this compromise worked out, it would have been a major turning point in the history of Hindu-Muslim relations in our country. This would have resulted in the natural solution to other various contentious issues also.

This lost opportunity demonstrated that not just Hindu-Muslim fanaticism, but Communist fanaticism is equally dangerous to our nation.

My statement came out on December 15, 1990. By then, historians and archaeologists had started fierce arguments from both sides. I made it clear in my statement that I had seen remnants of a temple beneath the Masjid.

The most important artifact, which came out during demolition at Ayodhya, was the stone plaque called Vishnu Hari Shila. On the plaque it was inscribed in Nagari script of 11-12th Century in Sanskrit that this temple is dedicated to Vishnu (Rama is the avatar of Vishnu) who killed Bali and the 10- headed (Ravana).

In 1992, when Dr Y.D. Sharma and Dr K.M Srivastava studied the site they could find small statues of Vishnu’s avataras, Shiva, Parvati etc. made of clay.

These belonged to the Kusana period (100-300 AD). In 2003, when excavations were again conducted, as ordered by the Allahabad High Court, more than 50 brick foundations, which once supported the pillars of the temple were found.

The “amalaka, which is usually found on the top of the temple and makar pranali” through which the abhisheka water flows, were also excavated. Uttar Pradesh’s Archaeology director, Ragesh Tiwari, submitted a report that when the front yard of the Babri Masjid was leveled, 263 temple-related artifacts were found. After a comprehensive analysis of the evidences that had surfaced during the excavation and the discovery of historical artifacts, the Archeological Survey Of India came to the conclusion that there existed a temple beneath the Babri Masjid.

The Lucknow Bench of the Allahabad High Court also reached the same conclusion. To make the excavation impartial, it was ensured that 52 Muslims were included in the team of 131 of excavators. Not just that, the excavation was conducted in the presence of the representatives and archaeological historians belonging to the BMAC group, Suraj Bhan, Mondal, Supriya Varma and Jaya Menon. The ASI had once again, proved its impartiality. – DNA, 6 November 2018

» K.K. Muhammed is an archaeologist who was the Regional Director (North) of the Archaeological Survey of India (ASI). He is currently serving as Project Archaeological Director in the Aga Khan Trust for Culture.

Ayodhya Dispute Timeline


Sabarimala and the US Religious Freedom Restoration Act – Anuraag Saxena

Sabarimala Pilgrimage

Anuraag SaxenaThe right to religious belief has been held sacrosanct, and has been protected by institutions globally. Governments have acknowledged that protecting national and civilisational identity is part of their core responsibility. – Anuraag Saxena

In 1993, US President Bill Clinton signed the Religious Freedom Restoration Act. This Act overturned a 1990 Supreme Court ruling that validated the restriction of religious practices. In short, the head-of-state overruled the Supreme Court and upheld a religious [denomination’s] right to their traditions.

In 2006, Nadia Eweida, a Christian employee of British Airways, was asked to cover up the crucifix on her necklace. When she refused to cover it up, or shift to a back office job that would allow her to brandish it, British Airways sent her home. Multiple legal escalations later, the European Court for Human Rights ruled in her favour; essentially classifying the right to religious beliefs as a human right.

The right to religious belief has been held sacrosanct, and has been protected by institutions globally. Governments have acknowledged, in more than words, that protecting national and civilisational identity is part of their core responsibility.

Sabarimala, stolen Gods, and lost pride

The recent Sabarimala crisis has shed much needed sunlight to the stark contrast with which India handles its traditions and heritage. Let’s draw a parallel to a cause I understand more closely—that of bringing back India’s temple murtis (images) and stolen heritage.

On the one hand Prime Minister Narendra Modi has shown conviction in personally receiving our heritage back from four nations (the US, Canada, Germany and Australia). On the other hand, most of the 200 objects that were offered to him by the US (in June 2016) are yet to come back home. On the one hand we build a huge murti of Sardar Patel (and rightly so); but ignore centuries-old murtis that should be going back to their temples (incidentally, Jordan, with just 2% of India’s GDP has a dedicated agency for heritage recovery).

Sadly, while some female devotees do not have access to Sabarimala; none of the citizens have access to thousands of their murtis and heritage that languish in foreign warehouses. Shouldn’t that deprival offend us as well?

In both these cases, and in many others, our right to pride (in our religious-tradition and heritage) has been torn away. In both these cases, the right to civilisational continuity has been unceremoniously plundered. And that is the core of the issue, what is a nation or a civilisation without the most critical idea, that of continuity?

Selective application and amnesia

I would be factually amiss to call this a blanket apathy. Political and national leadership has, of course, jumped to action in the past. Who could forget the Shah Bano case where the then Prime Minister forced an immediate ordinance, to overrule a court judgement that awarded a frail, old woman her right to dignity? Recent ordinances though have hovered around all other areas—sports, healthcare, bankruptcy provisions, etc—but have stayed timorously away from subjects like religion, tradition and civilisational identity.

Lost opportunity

Someone once said, India has “a problem for every solution”. The silent treatment towards issues of civilisational continuity just adds to the scrap yard of lost opportunities.

What the government could have achieved—by focusing on Sabarimala, reclaiming heritage—is critical. A much needed act in parliament or ordinance could have been:

a) An opportunity to show alignment with the will of the people.

b) An opportunity to strengthen civilisational identity and nationalistic pride.

c) An opportunity to show geo-political strength to the world.

Imagine the grandness of the success if India were to bring back hundreds of murtis and heritage from foreign lands? (Which, in fairness, might happen soon.)

Imagine these murtis/objects going back to their temples, churches, and gurudwaras; bringing back joy and pride that the community had lost.

Imagine if these places of worship were allowed to be run resplendent in their full glory, exactly the way they were meant to be.

Most importantly, imagine a “Religious Freedom Restoration Ordinance, 2018” that would not just be equitable socially, but statesmanlike and politically prudent.

The power of God

Referring to the Religious Freedom Restoration Act in the US, President Bill Clinton said, “The power of God is such that even in the legislative process miracles can happen.”

Here is hoping that PM Narendra Modi comes up with one such miracle. – Sunday Guardian Live, 21 October 2018

» Anuraag Saxena is based in Singapore and leads the India Pride Project. He has been featured/published in BBC, Washington Post, Economic Times, Times of India, Sunday Guardian, Doordarshan, Man’s World, Swarajya, DailyO, and SPAN.

Anuraag Saxena and Vijay Kumar


Non-acceptance of diversity is the real intolerance – Banuchandar Nagarajan

Women devotees in Kerala protest against the Supreme Court's Sabarimala temple-entry ruling.

Banuchandar Nagarajan“God knows, God knows I want to break free.” – Queen

Evolutionary psychology teaches us that humans have a tendency to see patterns. We are wired to prefer order and not break free. We are uneasy with chaos. It is part of the survival instinct nurtured to reduce uncertainty and danger. Predictability gave a sense of ease about the environment early humans operated in. By “controlling the controllable”, the other vagaries could be tackled. Formation of stereotypes and matching patterns, snap judgements etc, flow from this instinct.

This has been so ingrained in us that over the years, we started designing our societies to make them more and more orderly. Our residences, our art, our schools – all have a sense of regularity and discipline. But at some point it must have led to diminishing returns. The opportunity cost of the unexplored path and inherent diversity in human nature would have come to the fore.

The society then would have started “tolerating” diversity. They might have sniggered at it as crazy, but the society as a whole would have received the benefits of the deviation in thought. Lateral thinking would have made the deviants seem closer to god. The artists and scientists, who did not conform to order, would only have been subjected to such limitations that posed an existential threat to the order and hence put the well-being of the group itself in jeopardy.

Our society would probably have evolved like that over centuries. At every era there would have been deviants. The poets, philosophers and scientists were all deviant geniuses of some kind or the other. For example, among the 63 Tamil Nayanars is a lady called Karaikkal Ammaiyar. She was called “Karaikkal Pei”, the devil of Karaikkal, for her extraordinary passion towards Lord Shiva. Same is the case with Andal among the 12 Alwars. But predominantly there was a greater freedom to experiment with ideas.

The Supreme Court majority verdict in the Sabarimala case was based on the idea of equality and conformity with the current thought. Not for once did the court look at it as an eccentric outlier, an exception and not a rule. Women were allowed in all but a miniscule number of temples in the world. Similar restrictions exist for men as well. Group rights, instead of being applied at a holistic level, were poked with and inserted at a specific instance.

Are women allowed to become priests in churches? Are women allowed in mosques in general? These are macro violations of fundamental rights of women. The equality of opportunity is absent. There is real discrimination; in the language of the judges, there is “untouchability”. It does not even call for guts to address it. It just calls for plain old honesty.

In engineering colleges, you are taught about errors and biases. “Errors” are how far the observation is from the expected value. “Biases” are observations that are bunched together and as a group are away from the expected value. The former calls for adding rigour to the experiment and the latter calls for recalibration of the machine.

Sabarimala can be categorised as an “error” in scientific terminology. It has been known for centuries and accepted. Error is so minor that the experiment continued. Widely prevalent practice of not allowing women in many mosques is a bias. Practitioners are still not seeing the need to recalibrate the machine, even if it is programmed based on an algorithm of seventh century Arabia.

Indu MalhotraIn another case, the learned judges declared with grandiosity that “dissent is the safety valve of democracy”. It would call for high-level of cognitive dissonance to call for accepting dissent and not allow for diversity of practice. The judges arrogated to themselves more than the collective wisdom of the Hindus over centuries. The ones that delivered the majority verdict have interpreted the Constitution to mean the dominance of equality over freedom of religion, as the sagacious dissenting judge has claimed.

Why would the judges do that? Aren’t they part of the community? Or are they deviants themselves? Are these the geniuses who we are not able to see? These would have been reasonable questions had they arisen from the cauldron of our society. But the process of judicial appointments is made in smoke-filled rooms. There is no democratic check on the selection. Had the judges gone through conformation, their judgement would have carried the trust it lacks now. It feels as if the deracinated, liberal intellectual elite have thrown something on the faces of the masses from which they have psychologically withdrawn.

This idea of “conformation” forced on the society is past its sell-by date. Genetics have proved that the variations in the alleles are the reason we have thrived as a species. Consanguineous marriages lead only to destruction of groups. If the perspicacity to decipher the benefits of diversity is absent, at least a utilitarian approach can be taken on “how much crazy” can it be allowed to get. Greatest good to the greatest number.

The society has mostly benefited from its outliers—people or ideas or practices. Even in the “land of the free”, the Securities and Exchange Commission imposed sanctions on Elon Musk for a random tweet. How regressive! (It is even dumber for the media to refer to his “smoking pot on live TV” charge. The two-and-a-half hour video was an education on the future of the world).

Europe wants Britain to conform. China wants Uighurs and Tibetans to conform. Campus liberals in American universities want students to conform lest they face ostracism. Communists want similarity and conformation of absurd ideologies that run counter to the human spirit. In our own policy-making, we want schools to conform to the same syllabus.

What these conformists are killing is the richness of diversity. Non-acceptance of diversity is the actual intolerance. The society does not move forward. It just becomes more familiar and comfortable. Not in the spirit of Mao but, “let a thousand flowers bloom!” – Swaraya, 1 November 2018

» Banuchandar Nagarajan is a political and public policy advisor for the Government of India.