Supreme Court Collegium: Judicial oligarchy crumbles – Sandhya Jain

Supreme Court of India

Sandhya Jain is the editor of Vijayvaani.Media reports hint that the Centre is reluctant to clear the suggested [judicial] appointments as those being recommended are related to judges or politicians. Since Justice Chelameswar has revolted against the system by which such selections were made, the panel of 250 nominees must be scrapped immediately. A fresh selection must be made with Government exercising its supremacy. – Sandhya Jain

Justice Jasti Chelameswar has struck a powerful blow against the poisonous legacy of the Supreme Court in the Second Judges Case, 1993, which usurped the Executive’s power to appoint judges and replaced it with an opaque system of selection by dominant judges. By breaking the omerta code on this sham, Justice Chelameswar has shattered the ethical fig-leaf beneath which a brotherhood of judges functioned without accountability even within the closed circle that supposedly took decisions by “consensus”.

By refusing to attend meetings of the Supreme Court “collegium“, a word that does not exist in the constitution, Justice Chelameswar has punctured the legitimacy of the system and put his brother judges in a bind. By not recusing himself from the collegium—which could replace him with a more amenable judge—he has forced it to make itself accountable, first to all collegium members, and then to the judicial community, including the Bar Association. This revolutionary step disrupts a status quo contrived during an era of weakening central authority.

Such misappropriation of power was unthinkable during the reign of Jawaharlal Nehru, Indira Gandhi or Rajiv Gandhi, who ruled with absolute majorities. Now, after a hiatus of over two decades, the Centre is once again ruled by a party with its own majority in Parliament (in coalition by choice); hence, it would be appropriate to restore the constitutional position. This is not to say that weak coalition regimes should have their authority eroded by judicial overreach.

Chief Justice T. S ThakurAccording to media reports, Justice Chelameswar has written a three-page letter to Chief Justice of India, T. S. Thakur, asserting that there is no point in attending collegium meetings if its deliberations are kept under wraps. Though the National Judicial Accountability Judgment (October 2015) emphasised transparency et al, the collegium continued with its old policy of keeping its deliberations, as also communications with the Centre on the Memorandum of Procedure, a secret.

The system reportedly functions by the two top judges deciding the names of candidates to be elevated—no reasons or opinions are recorded—and asking the collegium to approve the same. Genuine objections against undesirable candidates are shot down. Hence, Justice Chelameswar has taken the stand that he would examine files referred to him, regarding judicial candidates, and record his views in writing. This will automatically force the collegium members to record their own views before passing on the files to him.

Justice Chelameswar was the sole dissenter at the time of the NJAC judgement, delivered by a five-Judge Constitution bench. Terming as unfortunate the quashing of the NJAC Act, passed unanimously by Parliament, he urged the judiciary to introspect if the collegium system has become “a euphemism for nepotism” where “mediocrity or even less” is promoted and a “constitutional disorder” does not look distant. He disagreed that judicial primacy in appointments of judges is a basic structure of the Constitution: “To wholly eliminate the Executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people.” Not only does this have no parallel in any other democracy, it erodes the basic feature of checks and balances. Continue reading

Gold worth Rs 186 crore missing from Padmanabhaswamy Temple in Kerala – ENS

Padmanabhaswamy Temple Gopuram

Vinod RaiIn July 2011 the Supreme Court committee stumbled upon six vaults in the temple, with just one vault left to be opened. The treasure that has been found in the other five vaults have been estimated to be valued at more than Rs 100,000 crore. – ENS

In a startling revelation, the Vinod Rai committee special audit report on Sree Padmanabha Swamy Temple in Thiruvananthapuram, Kerala, stated that a lot of financial irregularities and corruption is going on in the temple administration and gold worth Rs 186 crore have gone missing.

According to sources, the report by former comptroller and auditor general Vinod Rai are in two volumes and five parts running into 1,000 pages. The Supreme Court had asked Rai in October 2015 to complete the audit and submit its report.

This directive came on the recommendations of amicus curiae and senior advocate Gopal Subramaniam, who had sought overhauling of the functioning of the temple.

The report states that there is a loss of 263 gold on the name of purification and states that gold worth Rs 186 crore in the form of 769 gold pots are not traceable.

Rai, in his report, has recommended a committee probe to oversee these irregularities.

“Gold worth Rs 2.50 crore was lost because of change in ratio adopted for purification. Moreover, the residual quantity of gold was not recovered from the contractor which lead to a loss of Rs 59 lakhs,” sources said.

“There was a lack of transparency in kanikka [gift offering] counting. Gold and silver worth Rs 14.18 lakh had not been entered in the nadavarav register, which is illegal,” according to the report.

“Silver bar with value of Rs 14 lakh was found to be missing,” the report said.

Gopal SubramaniumThe temple trust illegally sold 2.11 acres of land in 1970 and no records were found.

The report also expressed surprise over the sudden increase of expenditure in temple management over several years and termed it as “abnormal”.

The committee has also recommended major changes in the temple administration system and suggested that it should now be a seven-member committee headed by a retired section-level officer, tantric, two prominent citizens, representative of state and the royal family.

The report also suggested major changes in the temple’s security arrangements and said, “Priceless items in the temple should be housed in a modern museum and security installments need to be altered a bit.”

The audit was done for the financial year 2004-2014.

In July 2011 the apex court committee stumbled upon six vaults in the temple, with just vault B left to be opened. The treasure that has been found in the other five vaults have been estimated to be valued more than Rs 100,000 crore.

Since then, armed security guards, besides state of the art security equipment, have been deployed for the safe upkeep of the treasure. – The New Indian Express, 15 August 2016

Sri Padmanabhaswamy's treasure.

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

Pramod Kumar

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

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

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

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

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

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

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

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

Excerpts from what the Hon’ble Supreme Court said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Radha Rajan
17th August 2016

Supreme Court of India

Your Lordships are invited to also read:

Table for One

The Table for One – Aditi Hingu

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Every item of the table for one symbolizes something poignant.

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

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

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

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

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

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

They belonged to a nation called India.

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

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

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

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

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

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

The table for one waits wistfully for them to return.

Incredible India! Jai Ho!Sify, 12 August 2016

Vir Singh

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

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

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

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

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

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

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

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

Supreme Court of IndiaPolitics of temple going

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

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

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

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

Devendra Fadnavis & Trupti DesaiThe sanctum sanctorum

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

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

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

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

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

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

Hitopadesha Quote

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

Justice Gyan Sudha Misra

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

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

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

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

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

Women judges in Indian courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

» Sanjeev Nayyar is an independent columnist, travel photojournalist and chartered accountant, and founder of

Women yatris to Sabarimala

The Supreme Court has reduced polymorphic Hinduism to meaningless myths – Gayatri Jayaraman

Ganapati in Mumbai

Gayatri Jayaraman“The Supreme Court, in adjudicating on matters it has no religious punditry over, and in doing so under the protection of the law, and the Constitution of India reduces Hinduism to a bunch of meaningless myths. … Hinduism, under the protection of the Constitution of India, faces a fate worse than death.” – Gayatri Jayaraman

On the Sabarimala temple issue, the Supreme Court of India observed on April 13, 2016: “In Hindu dharma there is no denomination of a male or female. A Hindu is a Hindu.”

And just like that a constitutional body has, probably for the first time anywhere in the world, become the interpreter of religious texts. In this it is protected by Article 25 (2) that deals with the right to religious freedom but allows the courts to intervene on social welfare and reform, but only on Hinduism. This inability to separate faith and state is now the definition of Indian secularism.

What this becomes is not just a ruling on access to a temple, but a reorder of the entire Hindu faith itself. The source of Hinduism is its Vedas. The Vedas contain entire texts devoted to women. While much is made of that favourite of the book-burners—the Manusmriti, which is not even a Vedic text but a second century code now overwritten by 18 centuries of lawmaking that left much of it behind, much like amendments to the current Constitution leave regressive laws behind—this ruling impacts the core texts of Hinduism, the ones that its philosophies are actually composed of. To say Hindus have no gender and are but Hindus, makes a mockery of much great philosophy

The Hindu epics

The entire Ramayana revolves around Sita’s abduction. And who wages war on the purity or abduction of a man? The entire Mahabharata was wrought upon the Pandu clan because of Draupadi laughing at Duryodhana in the palace of illusions. Kunti, Shakuntala, Maitreyi, Sati, Sita, Parvati, Gargi, Savitri, Ahalya and of course Sabari occur with various catalytic roles throughout Hindu literature. Their roles may be questioned or derided as sexist, and debated, but many texts are metaphorical, contain sub texts that a competent guru could explain, and are subject to interpretation, and they may not be arbitrarily removed from the religion by a non-religious body, and that too one that gives its followers the right to question it.

For example, my guru explained the Ramayana, as a metaphor: Sita as the mind, the deer as material wealth, Rama as the self, and Ravana as the ten senses who must be conquered else will be ruled by ego, ahamkara, and the subjugation of Sita in the purity ritual as the return to one-minded focus.

Others have other versions. Some take it at face value. Are we to toss out our texts and their interpretations because a judge decides it is a sexist story?

The feminine principle

Within Hinduism, the issue of gender is complex and nuanced. Rites and rituals are defined in various parts of the Vedas. The principle of Shakti, the feminine principle of energy, is integral to understanding Vedic lore and, at once empowered with creation itself as well as destruction, is a very distinct energy from male avatars. Lord Ayyappa, at the centre of the Sabarimala debate, is born of Hara and Hari—Vishnu in the form of Mohini, both male principles.

So while the Supreme Court, if it so chose to reduce a spiritual union of male energies to physical form, may be well within its right here to ask why Hindus must be deprived of a law that decriminalises homosexuality, when it is in fact rich with religious precedent as evidenced here, sadly, the honorable court, unable to question the human rights’ curtailing provisions of its own personal laws, is unable to bring up the real progressive questions of India for debate. Instead, it reduces Hindu gender to binaries. The principle of Shakti is also not restricted to women, it is permeable in men. Hence entire sects of male yogis devoted to female energies.

So, as far as any Hindu knows, principles of male and female are not as distinct as the Honorable Judge would make them out to be. Neither is male or female a physical only form, nor is its energy restricted by the gender of the worshipper. Shiva lies in the sahasrara chakra and Shakti in the muladhara chakra, so all Hindus are in fact composites of both energies.These are nuanced positions most Hindus understand easily and are intrinsic to our religious ethos.

Supreme Court of IndiaThe legends of Sabarimala

The legends of Sabarimala, though there are many, one romantically portrays the ban on women as Ayappa’s loyalty for the penance of a beautiful woman released from her curse by his slaying her demon form of Mahishi, also have to do with harnessing the inner male energies.

Ayappa is the god of discipline. Mahishi symbolises the ego. It is in him that Hari and Hara, creation and destruction, come to harmony. The rigorous vows of celibacy, the 40 days penance, ironically, are a tribute to womanhood: they symbolise one day of penance for each week spent in a mother’s womb. Woman, the symbolic prakriti energy, or vehicle of creation is not available to man for these 40 days. Man must pull himself back from his function as procreator and the procreated. The black symbolises the nullifying of the colour spectrum, absorbing all differentiation into one.

Devotees do not even address each other by name during the pilgrimage. The physical state is forgotten, and the pilgrim must subsist on alms. The 18 steps symbolise 18 exercises to remind the student or the householder, of his need to transition to a state of detachment. Women may go up the hill all they want, Lord Ayyappa will survive the seduction of women pilgrims plenty. He is too advanced a master of the mind not to.

One may not be so sure of the men who make the climb though. The penance is for them. To remind themselves that they are one half of a whole, where they come from, who they depend on, and why balance is their function. That it is seen as rigorous penance, is indicative of why men need to probably do this more often, but once a year is enough.

No single Hindu philosophy

The Supreme Court also seems to be reducing Hindu philosophy to a single absolute certainty. Something Hindu sages, the progenitors of the philosophy themselves, never did. There is, contrary to popular opinion, no arbitration on who a brahmin should be. Ram was a kshatriya, Krishna was a Yadava, Shiva a tribal, a kirata, none of them brahmins. Rishi Aiterya, Vishwamitra, Veda Vyasa, Matanga, Nammalvar … Ravana. Many material states in Hinduism are mutable.

The sages even in their expositions mark nothing but the highest truths as certainty. In Chapter 2, Brahmana 4, Brihadaranyaka Upanishad, Rishi Yajnavalkya asks of his wife Maitreyi who asks him for knowledge instead of the settlement of property he was about to give her before he left for the forest:

Yatra tv asya sarvam ātmāivābhūt:

“Where everything is the Self of knowledge, what does that Self know, except its own Self?”

This conversation with the most woman-friendly of Vedic sages—there is a later conversation with Brahmavadini Gargi also in the same Upanishad—becomes the core of what is to be Advaita. Basically, that philosophy which says that, simply put, all soul, matter, energy, forms, are one.

It is pertinent that Yajnavalkya was himself disowned by his guru, who annoyed by his constant questioning, asked for the knowledge he gave him back, which he vomited out and which was consumed physically by birds (tittiri), now forming the Taittirya Upanishad (and that’s just one version of that story). Yajnavalkya then proceeded to seek the sun as his guru, and procured his own knowledge, which became the Shukla Yajur Veda.

All Hindus do not follow the Shukla Yajur Veda, and much of the caste distinctions are not merely whom you can choose to oppress, but is built on which school of Vedic study you traditionally follow. So when Yajnavalkya and Maitreyi propounded what was to be the base of Advaita philosophy, let’s be clear, they were not following convention. That they were free not to do so, is the beauty of the space the religion lent them even at that conservative period of time.

MonotheismWhy this monotheism?

No doubt, this entire body of knowledge and way of thinking is what the learned judge of the honorable Supreme Court was encapsulating and taking into account when he began to arbitrate what Hinduism says. He had clearly studied it, decoded all the caste links and structures, schools of knowledge, expounded it, and was only thus explaining it in open court. Which is an amazing feat, considering all commentaries and bhashyas on Hindu texts differ, even from sage to sage and commentator to commentator on the same line of Hindu text. Yajnavalkya warns Maitreyi: it is impossible to know the essence of finite beings.

Yet, the honorable judge, has defined all of Hindu Vedic dharma with the clear exposition of advaita, non-differentiation. Where do the Visishtadvaitins, and the Dvaitins, who believe in differentiation, and other things, from Yogins to Nastikas, which Hinduism allows them to, apart from several other schools of thought, go?

The judicial arbitration of Hinduism’s intrinsic principles reduces an entire religion to a monotheism and ignores the multiple layers of consciousness that form its spiritual temperament. The pantheon of Hindu gods exists so a devotee may adopt that which suits his form of bhakti, or adoration, which again is not the only path. Even wealth, duty, study take you there. One is not imposed on another. The myths and stories exist so Hindus lower down the plane of spiritual evolution may comprehend higher truths more easily, in the form of life lessons. The stories of avatars exist to exemplify ways of living and behaving. The Vedic texts exist for those who seek to question on higher planes. This ascent is not ordained by pundits but is open to each member of the faith as and when he or she finds himself seeking it. The multi-layered multi-faceted expansiveness of Hinduism is its fabric.

Meaningless myths

So, yes, the women may enter Shani Shingnapur and the women may enter Sabarimala. Just like Maitreyi may have her own Upanishad. But to do so for the sake of a court-ordained mandate, by which every woman in Yajnavalkya’s time may write their own upanishad, betrays a lack of understanding of the religion. Of all religions on earth, it is Hinduism that refuses to apply a blanket formula for all spiritual growth and understands that every person finds their own ways of spiritual growth, through devotion, through duty, through study, through learning, through meditation, through yoga, through rebirth, and allows multiple channels to do so.

To force ascension is against the inbuilt progression of the religion itself. The Supreme Court, in adjudicating on matters it has no religious punditry over, and in doing so under the protection of the law, and the Constitution of India reduces Hinduism to a bunch of meaningless myths.

Without this spiritual understanding to back them, our temples are just stone houses, and our texts just myths we will never be able to explain. Hinduism’s greatest temples have survived sieges, been shut, abandoned, looted, idols taken underground and protected against being misused, desecrated rather than their essence be lost. And Hinduism has survived it all. But these were mere physical attacks.

The current attack works against the essence of what constitutes the religion itself. By pandering to popular thought rather than any deep philosophical study of the religion or its tenets, it reduces it to its material facade.It is better, that rather than Hinduism suffer this fate, temples be shut down, rather than propagate this unthinking version of myths and stories that then hold no meaning intrinsic to the religion, and Hinduism recede to the space of private spiritual study.

Else Hinduism, under the protection of the Constitution of India, faces a fate worse than death.

It disintegrates into meaningless ritual.

Shut the temples down.

If what the court says today stands as law, Hinduism in India is dead anyway. – Daily-O, 13 April 2016

» Gayatri Jayaraman is an author, reporter and editor based in Mumbai.

Ganga Namaste

A Partisan Constitution: Why the law is loaded against the Sabarimala Temple authorities – R. Jagannathan

Supreme Court Justice Dipak Misra

R. Jagannathan“When did anything with a religious dimension have pure ‘rationalism’ as its core? In fact, our Constitution itself hardly passes the test of rationality in the way it framed provisions on religious rights.” – R. Jagannathan

Given the trend of questioning in the Supreme Court, where women activists are fighting a ban on the entry of menstruating women in Sabarimala, it is clear that the temple authorities are fighting a losing battle.

Supreme Court of India in New DelhiOn 11 April, the Supreme Court bench headed by Justice Dipak Misra asked questions that cannot but indicate how the case is going. Among the questions asked: “What right does the temple have to forbid women from entering any part of the temple? Every argument has to meet the test of constitutionality.”

Then: “Can you deny a woman her right to climb Mount Everest? The reasons banning anything must be common for all.”

Or take these questions and observations: “Why this kind of classification for devotees to visit the temple? We are on constitutional principles. Gender discrimination in such matters is untenable. You cannot create corrosion or erosion in constitutional values.”

And, finally: “We will be guided by (a) rational dimension and that is the Constitution. I just believe in the Constitution.”

The last one takes the cake. When did anything with a religious dimension have pure “rationalism” as its core? In fact, our Constitution itself hardly passes the test of rationality in the way it framed provisions on religious rights.

The contrast with the US Constitution is stark. The US Constitution has just 16 words to describe its approach to religious freedom, while we have multiple articles in our tome. The first amendment to the US Constitution, which deals with religious and other freedoms, has this to say:Our constitution has an imbalanced approach to religious issues. In fact, it ties itself in knots by professing one high principle in one place, and then allowing exceptions to this principle in other places when it involves another community.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

This simple sentence allows religious groups to practice what they preach: this could include the right to discriminate against homosexuals, oppose abortion, or practice polygamy (Mormons) or whatever, as long as an individual claims it is part of his or her religious faith or practice.

India, on the other hand, has elements in the constitution that say contradictory things. One part will say such laws will apply only to Hindus (including Sikhs, etc), and another says some laws will not apply to others. Our constitution is egalitarian in spirit, but discriminatory in many of its provisions.

Thus, civil laws will apply to Hindus, but not minorities.

Thus, you can make laws that discriminate against beef-eating, and still claim you don’t’ discriminate against minorities who want to eat beef.

Thus, you can make laws (like the Right to Education) that are supposed to be applicable to all, but not minority-unaided institutions.

Thus, you can profess the right to religious freedom, but states can also put in laws to hinder it.

This is why the Supreme Court can claim it is following the constitution, even while defeating the spirit of it.

Haji Ali Dargah MumbaiThe real villains are Articles 25, 29 and 30. Article 25 gives the state the right to interfere in how Hindu temples are run, but articles 29 and 30 give minorities the right to run their own institutions according to their own traditions and culture. This is why Sabarimala is a losing battle, but Haji Ali may not be.

Article 25 is about “Freedom of conscience and free profession, practice and propagation of religion.”

It says: “(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

This should have given Sabarimala the space to argue that its practices are part of its religious belief, but there is an important “but” in Article 25.

It says: “(2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”

Article 25(2)(b) would thus allow the Supreme Court, if not the government, to claim that Sabarimala is an institution of public character and should be “open to all classes and sections of Hindus.”

Given the recent tendency of the Supreme Court to make the law rather than just interpret it, the fact that the Kerala government is on the Sabarimala temple’s side may not matter much.

On the other hand, Article 29 gives minorities the right to protect their culture and institutions. It says, inter alia, that “(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”

If Sabarimala had not been covered under Article 25(2)(b) which gives the state the right to enforce its own idea of egalitarianism, it could have claimed protection under Article 29. Article 29 negates a part of the ideas in Article 25. Giving minorities a right not enjoyed by a majority is essentially iniquitous, but the Supreme Court may not spend much time discussing this anomaly.

Clearly, the Indian Constitution is a mish-mash of contradictory provisions. It needs to be seriously rewritten.

This is not to say that Sabarimala is right to keep out menstruating women, but we can’t deny that our laws are wonky. – Firstpost, 12 April 2016

» R. Jagannathan is the editorial director of Swarajya Magazine in Mumbai.

Women yatris returning from Sabarimala

See also