Judiciary And Its Brahmanical Prejudices In India
By Vidya Bhushan Rawat
10 February, 2011
Manukhsi.blogspot.com
Two Judges of Supreme court recently, for the first time in our
judicial history, had the courage to challenge the religious text of
the Brahmanical order. In an order favoring tribal women's land right
violating which the powerful in the village termed her as witch and
paraded her in the village. The Judges were very forthright in their
statement saying that violation of the tribal right start from ancient
period when Guru Dronacharya asked from his tribal disciple Eklavya to
donate his thumb to him, in order to protect the interest of Arjuna,
the kshatriya warrior to be the best archer of the world.
Not long back the same Supreme Court gave a judgment saying Hindutva
is a way of life. It has been criticized. The highest court today is
more sensitive than ever. Just a few days back the court amended their
old order in which they upheld the life sentence to Dara Singh, the
mastermind of burning Grahm Stains with his two sons in Orissa. While
court upheld the high court's judgment, it unnecessary stretched its
brief to conversion and then said that Dara Singh was protecting
people from converting to Christianity. The court later realize their
mistake and amended the order.
The brahmanical prejudices in our system are well known and judiciary
is no exception to it. There are number of judgments against dalits on
the issues of reservations are well known and can be elaborated here.
Even after the Mandal judgment the issues related to OBC reservation
has been diluted in many ways and the issue of merit always cropped up
as if there is no merit in those who come through reservation. This
stand is quite dangerous. In fact, Indian courts have continuously
opposed reservation in judicial services terming that it will affect
merit in the courts as if all the other sectors where reservation is
effective are non meritorious. The fact is judicial appointments are
political nature and there is control of several families in top
echelon of Indian judiciary. Like every other sector, here also we
have judges who have history of their parents in the judiciary.
Earlier, the people retiring from the Supreme Courts used to keep
themselves off from the politics but today they are openly part of
political parties and ideologies. Many of them like Justice
V.M.Tarkunde, Justice Krishna Iyer, Justice Rajender Sachar gave
monumental contribution in the field of human rights and promoting
rule of law in the country and never ever took any official position.
Some of them actually gave dangerous judgment and reports. Justice
Rangnath Mishra was appointed by Rajiv Gandhi to look into the anti
Sikh riots in the aftermath of Indira Gandhi's death in 1984 and not a
single political leader from the ruling party was charged. Justice
Mishra got his reward to Rajya Sabha from the Congress Party.
The lower judiciary is more prone to brahmanical biases. In Allahabad,
a district judge washed his court room with Ganga Jal when he assumed
charge as his predecessor was a Dalit. Just a few days back we heard
that a judge in Madhya Pradesh asked the government to get each
children's horoscope checked by the Brahmins and then admit them to
school so that they can understand whether the boy or girl is going to
be healthy child or not. This story has appeared in the Times of India
yesterday though it was abuzz in the internet for long. The Child
Rights commission in India has asked for a report on it.
Indian judiciary is like any other sector in India suffers from the
inadequacy of understanding the issues and problems of the
marginalized. If there are some judgments favoring them they are
purely on charitable and good will basis. When ever the issue of the
rights of the Dalits and marginalized have come judiciary by and large
was seen with powerful. Several years back, the a retired Supreme
Court judge was asked by the Supreme Court to report on the
inadequacies Public Distribution System in several states. He called
up meeting of many people working on the same. I was one of them. In
the meeting the former Judge was asking people what would be good for
them and then came out with an idea that to improve the efficiency of
the PDS they must have computers at their shop. Every body was happy
but when they realize that this was nothing but another sale ploy
people opposed it. Suddenly, some of the people suggested the issue of
quota for the Dalits, Muslims and others in the distribution of these
shops. The judge became furious and he asked the others as why don't
they openly oppose it. How one any one who is not known marketing be
given charge of shops. And he just stuck down the entire formulations
that we can not talk of quota here.
In the past twenty years judiciary paved way for land acquisition
process which was responsible for displacement of hundreds of
thousands of people. Political craftiness and crookedness forced
political leaders to take shelter in the judicial activism which was
nothing but turning the issue of executive which is more accountable
to the people, in their hands. Land has always been acquired in the
name of 'public interest' but none could find what the public interest
if lakhs of people have been uprooted from their land. There are
definitely very good judgments and we always are grateful to them. We
still look for some good judgments as people are quite fed up with
political maneuvering.
Hence, land acquisition never ever got discussed in Parliament but it
has been justified by the judiciary on many occasions.
Thousands of cases related to land ceiling act are lying with courts.
Powerful people have time and money to delay judicial process. It's
the poor who bear the brunt of it. It's difficult to bring all the
cases to the court. Justice Y.B.Sabbarwal's over enthusiasm on
implementing Sealing process in Delhi and making our cities 'world
class' is well known. It uprooted lakhs of people. DDA and other
authorities got right to demolish any location and slums without
rehabilitating them. It was painful to see how the doors of court
remain close for the poor as they feel helpless.
Three years back a 4 year old Dalit girl was thrown into burning fire
allegedly by an upper caste boy in district Mathura. The UP government
appointed a fast track court to implicate him. The boy was booked
under SC-ST prevention of Atrocities Act. The judge after hearing
every one exonerated the boy that there is no witness. He rejected the
contention that girls mother is a witness saying that she was in veil
when the girl 'fell; into the fire. There was no other witness and
hence the judge came to the conclusion that the girl fell the fire out
of her own even when it was clear that she was going to defecate with
her mother and was pushed to fire by the local landlord who was
unhappy with their using his fields to defecate.
It is important that India reform its judicial system and form an all
Indian Judicial commission which be made responsible for recruitment
of the judges and they be monitored and seen. Let a committee of
retired judges observe and read the judgments of these judges and then
promote them. Right now most of them are picked up from the practicing
lawyers of High Courts, so political favor, relationships and other
things matter and unfortunately that reflect in judgments on many
occasions. Binayak Sen's conviction is one such incident of how judges
in the lower courts have already made up their mind and do not
normally question the government version. The situation is grim as
people do not have money and patience to fight for their cases in the
High Court and Supreme Court.
I have been fighting for the case of 150 Dalit families in Shaheed
Udham Singh Nagar for the past 15 years. The were fighting for
implementation of land ceiling act and be given land declared surplus
under Ceiling Act. This case went to Allahabad High Court where the
judge upheld ceiling. Then the powerful people of a company challenged
in the Supreme Court and lost there also. The judgment came in 2004
and we waited with breathe that now the people would get their land.
When nothing happened and the judgment was dubiously used to defeat
the purpose of it, we went to the Lokayukta of the Uttarakhand state
who took about 2 years to come to a conclusion that the violation of
Supreme Court Judgment has happened that official need to be punished.
Nothing happened. We went to the Supreme Court again. Justice
K.G.Balakrishanan accepted the petition but for next three years, he
did not give us time to hear it. As soon as it he retired, the
petition came to current Chief justice who directed us to go the
Uttarakhand High Court, Nainital. Now, it is painful for people to
wait for three year and then be asked to go back to High Court. We
went to Nainital High Court where the chief justice was not willing to
listen to us even when we mentioned that it is under the direction of
the Supreme Court. Finally, he fixed up a date to clear the case. We
brought to his notice violation of Supreme Court judgment and
Lokayukta report but that was clearly rejected. Lokayukta can not be
bigger than this court said Chief Justice. Now the question was no
body was questioning the powers of judiciary, we just used his report
because it took two years for him to come to some conclusion and he
himself was a judge in Lucknow bench of Allahabad High Court.
The Ayodhya verdict has been shocking. How are the judges going to
decide where Lord Rama Was born. Is it the job of the judiciary to
decide about it. The matter before them was whether some body
installed the statues of Ram in the Babari mosque or not and secondly
about the ownership of the land which could have been judged on the
basis of their papers yet the judges went on and on to declared it. If
such cases become a legality than it would be difficult to find any
land in India for human being as under each building the religious
thugs are ready to say there resided a 'god' and we have over 33 crore
of them.
The latest judgment in this series is of Bombay High Court which
declared that Astrology is science. Should the judiciary accept such
cases? How can they come to such a conclusion? If they want a
meaningful judgment why can't they seek opinion from medical and other
department like that of Science and Technology? Isn't it a fact that
our judiciary is taking their role much beyond their defined role and
is opening a Pandora's Box. Such judgment helps the religious
manipulators to spread their false massage in the name of judicial
approval. It does not bode well to the health of the country. There is
a need to control astrologers as there is no mechanism where they be
held accountable. There is no mechanism where an Ayurvedik doctor and
his activities be monitored under MRTPC act. If they are being
declared as science and modern then all the modern day rules and
regulation should also be implemented on them. Like any medicine they
should also put expiry dates and other things on their products and
all their activities should be scrutinized.
It is really needed that judicial system be reformed so that people
get justice. This is a great season at the Supreme Court when some of
the judges have delivered great judgment favoring tribal and Dalits,
on human rights and against corruption. One sincerely hopes that this
tribe of honest judges will increase whose judgment will help the
marginalized gain their rights and confidence. It is time for
reservation in judiciary for the Dalits, Muslims, Adivasis and women
so that their confidence level also grows and people feel safe that
the judges will understand their feeling and issues. Some of my
friends suggest that this is the best moment in the Supreme Court in
recent history when we are witnessing some fairly balanced judgment.
People are still looking to higher courts for resolution of their
problems. On Gujarat they have consistently taken a stand against the
communal politics of Narendra Modi. Similarly, on many other things
including the tribal rights, common land of the village, on women's
right, the judges have taken bold stand in the Supreme Court. One
sincerely hopes that the highest court of the land will do its best to
change the set up of judicial appointments as well as speedy process
of law so that they are delivered on time. It is also important that
Supreme Court take not of what the High courts are delivering and
wheverever the judges have gone or commented beyond their jurisdiction
should not only be scrutinized but those portion should be withdrawn.
In the Graham Stains case the Supreme Court has withdrawn
controversial portion of its order which is a welcome sign. One hope
that the Supreme Court will support initiative in the direction so
that in our judicial officers are more sensitized on the issue of
caste, gender and communalism and it is not possible without fair
representation of people from affected communities in the services.
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