Section 377: Dump the obsolete colonial law – Anand Grover

Demonstration against Section 377 in New Delhi

Anand GroverDebates should continue at the community level … so that the onward march of liberation from the yoke of colonialism in the form of Section 377 is overthrown once and for all. Sooner or later, this wall will fall. It is only a matter of time. – Anand Grover

With the German Bundestag voting to legalise gay marriage, the question has naturally arisen: “What is India doing about Section 377?” This section of the Indian Penal Code (IPC) criminalises penetrative penile-non vaginal sexual acts.

After the great victory in the Delhi High Court in the Naz case, the LGBTI (Lesbian Gay Bisexual Transgender Intersex) communities had to face defeat in the Supreme Court in the Koushal case. The review petitions against it were dismissed. Fortunately, in the curative petitions filed after that, the Supreme Court has directed that a constitutional bench will hear them. When they will be heard is anybody’s guess. However, the curative petitions are a window of opportunity for the LGBTI communities. The question is still wide open as far as the Supreme Court is concerned.

Koushal obviously had negative repercussions. Community activists went through a period of demoralisation. Cases of blackmail and extortion have spiked and access to justice thwarted. The defeat in Koushal has, however, not killed the spirit of the LGBTI community in India. While everyone thought that gay persons would return to the closet, it simply has not happened. Those who are out have stayed out. To be sure, the new younger crop of LGBTI persons find the environment more constricting than the one that operated from Naz to Koushal. But, one sees many more, younger, people eager to take up the baton for the rights of the LGBTI communities. This is a big victory in itself. The media is also fully on board. Finally, I would submit that the vast majority of ordinary people are also with us. Yes, the bill of Shashi Tharoor, the Congress MP in the Lok Sabha, to delete Section 377 from Indian law was stymied. The BJP MPs organised to ensure its defeat. So the Parliament route is closed for the moment. It is arguable whether Tharoor had mobilised enough support to put the Bill to the House.

Where does it leave the LGBTI movement on Section 377? While the developed world has made very quick strides from decriminalising gay relationships to legalising gay marriages, India is still stuck with whether to get rid of Section 377.

The communities have to continue their advocacy at all levels, at the central and the state levels. Even though BJP MPs were instrumental in defeating Tharoor’s bill, one has to still engage with them. My understanding is that there are strong voices within the BJP who favour deletion of Section 377. So the effort for advocacy at the legislative level must be ongoing. In this respect, a window of opportunity has been provided with the National Legal Services Authority (NALSA) judgement on transgender rights. Firstly, it has allowed an opportunity for debate amongst legislators in Parliament on the issue of transgender rights, which is intimately connected with 377.

Secondly, the spirit and the logic of the NALSA judgement are completely antithetical to the Koushal judgement. At the time of the final hearing of the curative petitions, this will give ammunition to the lawyers of the LGBTI communities. Now is the time not to give in to despondency and lose hope. Now is the time to regain one’s strength and regroup. In the quietus that exists today, work has to be done systematically to change the thinking of society. Debates should continue at the community level on how to achieve this so that the onward march of liberation from the yoke of colonialism in the form of 377 is overthrown once and for all. Sooner or later, this wall will fall. It is only a matter of time. – Sunday Chronicle, 30 July 2017

» Anand Grover is a senior lawyer and human rights activist known for his legal activism in Indian law relating to homosexuality and HIV. He is also one of the founder-members of the Lawyers Collective.

Loving IS a crime according to the Indian Supreme Court!

Jallikattu: The law is an ass – Sanjay Pinto

Jallikattu BullSanjay Pinto

Courtesy Deccan Chronicle, 24 January 2017 & The New Indian Express, 23 January 2017.

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

Supreme Court has defined secularism, not Hinduism – Prakash Nanda

Supreme Court of India

Prakash NandaThere cannot be true secularism unless all the religions in India are treated equally under Indian laws and politics is liberated from the hegemony—not necessarily influence—of religion. – Prof Prakash Nanda

A constitutional bench of the Supreme Court hearing the case of using religion during elections to seek votes asked a question on Thursday (28 October) that should have been asked a long ago.

In our public discourse, we hear a lot about “secularism”. But can secularism remain aloof from religion?, the Apex Court asked, saying “ it will be difficult to accept as a proposition that a political party should have nothing to do with religion and those who have something to do with it must cease to be political parties”. But this was not all. The Bench then went on to ask, “Secularism does not mean aloofness to religion but giving equal treatment to every religion. Religion and caste are vital aspects of our public life. Can it be possible to completely separate religion and caste from politics?”

While an answer to the ticklish question that the Supreme Court has asked will be different from different parties that have approached (are approaching, something the CPM did on Thursday) the Court, the most notable component of that question happens to be “secularism”. The Apex Court now defines secularism to be “equal treatment to every religion”, a definition that has eluded the political and intellectual consensus in this country so far.

In my considered view, the absence of a clear definition of secularism in our political parlance has created two problems. One, it has resulted in a situation where we witness “communal politicians” becoming “secular” overnight and vice versa, with everything depending on the political convenience of the parties and their supporters. Secondly, the way it has been practiced in India, secularism has been reduced to be essentially anti-Hindu but pro-minorities viewpoints or measures. And this has been systematically promoted by what is known as Nehruism, the Left-Liberal framework that dominates Indian public discourse. Ironically, “secularism” has been never defined by its political and intellectual champions in India. Though the 42nd Amendment in 1975 by Indira Gandhi’s Congress government did incorporate the word “secularism” to the preamble of our Constitution, it did not define what secularism was. Ironically, her Indira GandhiCongress party, which dominated the then Rajya Sabha in 1978, foiled an attempt to actually define secularism as “equal respect to all religions” by defeating an amendment bill to that effect, the bill that had already been cleared in the Lok Sabha during the Janata regime of Morarji Desai.

It is instructive here to note that in 1949, Nehru had said that “to talk of Hindu culture would injure India’s interests”. He had admitted more than once that by education he was an Englishman, by views an internationalist, by culture a Muslim, and a Hindu only by accidental birth. In 1953, Nehru had written to Kailash Nath Katju: “In practice, the individual Hindu is more intolerant and more narrow-minded than almost any person in any other country.”

Of course, Nehru did the right thing by trying to remove some degraded practices within Hinduism, but the problem with him was that he was not bothered about the similar reforms in other religions. Nehru codified the Hindu personnel laws (concerning Hindus’ diverse customs, rituals and practices) in 1956, but he backtracked on doing so towards Muslim personal law. No wonder why J. B. Kriplani, a veteran socialist, opposed the Hindu Code Bill on the ground that the Nehru government was “communal”. Kriplani had told Nehru, “If you want to have a divorce for Hindu community, have it; but have it for Catholic community also. I tell you this is the democratic way, the other is the communal way. It is not the Mahasabhites who alone are communal, it is the government also that is communal, whatever it may say. I charge you with communalism because you are bringing forward a law about monogamy only for the Hindu community. You must bring it to the Muslim community. Take it from me that the Muslim community is prepared to have it but you are not brave enough to do it.”

It is under Nehruvian secularism that the Government appoints trustees to manages Hindu temples (and maths) of Viswanath, Tirupati, Puri, Nathdwara and Guruvayur. But the same Government considers it “communal” to do likewise in the case of masjids, churches and gurudwaras. Secularism of the Nehruvian variety says that it is “progressive” to denounce a Hindu swami for trying to influence his or her followers, but it is “communal” to raise finger at those who issue fatwas and hukamnamas.

As Arun Shourie has pointed out in his book Religion in Politics, “during the freedom struggle, if you looked upon a Muslim as being someone apart, as being someone other than just a human being like yourself, the “progressive” was bound to brand you “communal”. Today, unless you look upon the Muslim as separate, that is, unless you see him as a Muslim rather than as just a human being like yourself, the “progressive” brands you “communal”. Fifty years ago when a Hindu scholar by his deep study perceived and wrote about The Essential Unity of All Religions—the title of Bhagwan Das’ famous work—that was looked upon as Bhagwan Dashumanist scholarship at its best. Today when a scholar points to the identity of what is taught in Granth Sahib and what is taught in say, the Hindu Bhakti tradition, it is taken as proof positive of a deep conspiracy to swallow Sikhism”.

In fact, India today is much more divided than what it was at the time of partition in 1947, thanks to the perverse manner in which secularism or for that matter “the identity politics” is being practiced in the country. The victims of any crime or injustice these days are being seen in terms of their religions and castes, not as normal human beings who are all equal under Indian laws. What is worse, depending on their identities, both the victims and the guilty must get “different” treatments, if we go by the demands of the so-called secularists.

And these “secular” double standards are seen in the politics of the country.

In fact, the Congress manifesto in January 1989 for the Mizoram election promised to promote “Christian socialism”. It stated “As Christians, it is our bounden duty to proclaim the gospel. To fulfill this irreversible responsibility we need secularism in letter and spirit…. It is but reasonable that the Christian should lend support to the Congress.”

Similarly, in his book Communal Road to Secular Kerala, sociologist George Mathew has described how late Indira Gandhi wooed the Church to issue directives to vote in favor of the Congress lead UDF in the early 1980s. The Christian bishops appealed for support to only those candidates who believed in God, with an obvious reference to UDF led by the Congress. And we all know how the Rajiv Gandhi government overturned the Supreme Court judgment on the famous Shah Bano case by bringing about a fresh legislation in the Parliament, with a clear motive to woo the Muslim electorate.

The moral of the story is thus clear. There cannot be true secularism unless all the religions in India are treated equally under Indian laws and politics is liberated from the hegemony (not necessarily influence) of religion. The Supreme Court has done well in providing a definition of secularism. In that sense, the ongoing case should be the referral point for defining secularism, not Hinduism. – FirstPost, 28 October 2016

» Prof Prakash Nanda is editor of Uday India, a national weekly, and Geopolitics a niche monthly devoted to defence, security and diplomacy. Previously he was a National Fellow at the Indian Council of Historical Research.  He has also been a Visiting Professor at Yonsei University, Seoul and FMSH, Paris.

Secularism of Congress

Has Modi Sarkar corrected these anti-Hindu inequities?

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