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

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