Rather, has not political analysis of the election become inevitably deeply influenced by these margins and these numbers of seats, by the scale of the sweep?  In other words, the analysis is of necessity post facto, assuming that these seats have actually been won fairly, and therefore represent the views of the electorate.

I found very revealing a story by two Reuters journalists who covered rural North India extensively.  Mayank Bhardwaj and Rajendra Jadhav ruminate on how they could have gone so wrong in assessing the mood of the electorate. Although they say they never thought Modi would lose this election, it looked certain that he would return with a reduced majority. There was nothing  they heard and observed on the ground that suggested the actual outcome. They conclude that next time they will travel even more, push their respondents harder, “be more aware of our limitations.”

Many seasoned journalists have the same sense of shock. But what if they were not wrong after all?

The day before results were announced, BJP told opposition parties to “accept defeat with grace”, after exit polls predicted a BJP sweep. Exit poll predictions were treated as the results themselves. Did the BJP leadership know something we don’t?

After Phase 6 of the elections, Amit Shah declared that after traveling across the country and gauging the mood, he was confident the party would cross the 300 mark.  And so it did, by 3 seats. One did wonder at this mood that he gauged so accurately, given empty seats at rallies for Adityanath, Modi, and Shah in Gujarat, UP, Bihar, Chandigarh Karimganj, Guwahati. I list only a few.

Not to mention what preceded these elections –  massive farmers’ agitations across the country, militant university campuses, country-wide demonstrations against lynch culture…
But Amit Shah knew almost to the number the seats his party would get. Even the RSS, with its massive ground-level networks, had no idea of what was to come, as was evident from Ram Madhav’s statement as late as May 7, saying the BJP will need allies to form government. (Or this could be characteristic Sanghi doublespeak, who knows.)

Let us begin this story then, with the infamous exit polls.

The dubious role of exit polls
The chances were very high that BJP would have emerged as the single largest party, and formed government with its allies in an NDA formation.  Many serious political analysts expected this as a best case scenario both from the point of view of BJP, as well as its opponents.
However, exit polls though they varied, went much further,  predicting a sweep by the BJP.  The lowest number of seats for BJP predicted by exit polls was ABP- AC Nielsen with 267, just short of a majority.

Of course, at least one exit poll (India Today – Axis My India ) that predicted a BJP sweep (339 to 368) was rife with so many errors that very soon it took down seat-wise data from its site.  Assembly constituencies in Uttarakhand were named as Lok Sabha constituencies; Congress shown as winning from Chennai Central, a seat it did not contest; the prediction for Sikkim Lok Sabha seat was changed.

Other exit polls too made huge mistakes:
News 18-IPSOS exit poll gave the Lok Janshakti Party between 5-7 seats while it contested only 6 seats in Bihar.

Times Now- VMR exit poll predicted that AAP would win 2.9% vote share in Uttarakhand while the party did not have a candidate from the state.

The methodology used in these polls was not clear. For instance, India Today said the question it asked was about popularity of the party, not about the candidate. Very much in keeping with the current wisdom that every vote for BJP was for Modi, not for the actual candidate. This has now passed into common sense, again post facto.

The methodology claimed by the India Today poll does not in fact  stand up to any sort of scrutiny.

Never mind these details though, at the end of the day it was declared that India Today-Axis My India got the result “spot on”  – although it was off by a minimum of 36 seats.

But to return to exit polls. What purpose do they serve? One,  if they predict the right (not necessarily correct) outcome, then the Sensex is happy and makes money, satta bazars make money.

Two, how was it that despite such major errors and shoddy methodology,  exit polls were largely correct in predicting the sweep? Where and how did they get the information they put out, and most importantly – was the intention of the exit polls to make the results seem credible?

Do doubts about the electoral process deny the validity of political analysis?
No, of course not. The very fact that the Opposition had to unite all over the country in different kinds of alliances if they were to defeat the BJP tells us that there are significant long term shifts in India that we need to recognize, not the least of which is the power of Hindutva that the RSS has been working on steadily for a hundred years, and the discourse of macho nationalism (dushman ke ghar ghus ke vaar) after the Pulwama attack and the Balakot air strikes.

Then there are the weaknesses of the Congress; the local rivalries between CPM and Trinamool in West Bengal; the micro level caste arithmetic the BJP supposedly pulled off to win UP; the benefits that sections of the population derived from some government schemes and so on. All of these are valid factors that we should be alert to of course, but these would explain BJP becoming the single largest party without a majority; they do not necessarily explain the scale of the victory – the number of seats, the margins in each seat.

Especially as after the exit polls there was complete silence on the indubitable failures of the Modi regime  – the all time low on employment front; destruction of the informal sector after demonetization; state owned banks drowning in bad debts to crony capitalists; agrarian distress, targeted attacks on Dalits, Adivasis and Muslims by Hindutva-based gangs, the overall climate of fear and uncertainty.  None of these were invoked even to express surprise at the results, which were suddenly presented as inevitable.  “Consolidation of Hindus” and “popularity of Modi” became the go-to answers for the conundrum of the scale of the sweep. In fact, the sweep is not even seen any longer as a conundrum requiring an explanation. But if religious community identity and caste identity are primary explanations for the BJP’s victory, then since these identities are not going to change, and Modi presumably has a long life ahead of him, election results are fixed for the foreseeable future.

But survey information is not self-evident – it has to be read and interpreted, there are corollaries to every feature of a survey. Take the Hindu-CSDS Lokniti post-poll survey, arguably the most credible one. It shows that support for BJP rose across all Hindu castes and communities, from 36 percent in 2014 to 44 percent in 2019. Adding the NDA allies, the support went from 43 percent to 52 percent of Hindus polled.

But if 48% of Hindus are not voting for BJP or its allies,  then Hindutva did not succeed with the community as a whole; for instance, in Kerala where it is understood that on the back of Sabarimala, it was Congress that gained, not BJP, precisely because the vote was not a Hindutvavaadi vote.  And on the other hand, we cannot assume that it was Hindutva that led to votes for NDA allies such as AIADMK, JD-U, Shiromani Akali Dal, Naga People’s Front, and Pattali Makkal Katchi.

Nor are all the votes even for BJP itself, necessarily pro-Hindutva, especially if we are taking seriously the “micro-management of caste” argument about BJP in UP, for that involved concrete material benefits of different kinds, both constitutional and extra constitutional. Take this report that says:
 

…unlike the west UP where there were attempts of a subtle communal polarisation through debates of ‘Ali vs Bajrangbali’ and a slight jingoistic appeal for Hindu nationalism through exaggerated claims about national security and Pakistan bashing, the campaign narrative has been more around caste appeal as the election moved towards east UP. It’s for this reason that Prime Minister Modi on multiple occasions reminded of his “most backward caste” credentials and also tried to converge caste dynamics through common agenda of poverty.

Also, in this kind of situation, when the non-Yadav OBCs and non-Jatav Dalits vote for BJP, it is not necessarily a vote for Hindutva, but against Yadav domination through SP and Jatav domination through BSP.

As for non-Hindus, the percentage of Muslims voting for BJP remained the same at 8 percent in 2014 and 2019, Christians voting for the BJP went up from 7 to 11 percent, and among Sikhs, declined from 16 to 11 percent. The distinctly lower percentage of non-Hindus voting for BJP is not surprising given its anti-minority stance, but evidently, other factors than Hindutva come into play locally, or else these figures cannot be explained.

So while we need to understand the role of Hindutva in the rise of support for BJP, treating it as the final definitive answer is effectively a closure of our minds to the ways in which the BJP as opposed to the RSS, has to function as a political party seeking votes.

Is there a ‘Level Playing Field’?  BJP’s extra-constitutional advantages in elections
We cannot continue to discuss the elections as if all parties are functioning in more or less an equal manner with regard to resources – especially with regard to the use of official machinery.  The situation has dramatically transformed in the last 5 years in particular. India is no longer the democracy, however flawed, that it has been till 2014.  Let us recognize the disproportionate muscle power the BJP wields during elections in terms of funds, its control over the media and through the subversion of all constitutionally mandated institutions that it has achieved.
Funds

Prashant Bhushan notes that there are no limits on spending by political parties and no compulsion on parties to receive and spend money only through banking channels. These lacunae benefit the BJP the most, a clear indicator of the kinds of policies it promises and enacts. 
According to the Association for Democratic Reforms, an elections think-tank, BJP received 73.5 percent of the combined declared income of the seven largest political parties in the financial year of 2017-18.

Bhushan points out in addition to the above, “three retrograde changes” in the law of election funding that have increased the role of money power and corporate hijacking of elections.
a) The Foreign Contribution Regulation Act brought primarily to prevent parties, candidates and public servants from getting and being influenced by foreign funds, has now been amended (2016) to allow receipt of foreign funds through subsidiaries of foreign companies.
b) The limits on corporate donations to parties and candidates which was earlier 7.5% of their profits has been removed to allow unlimited corporate funding (2017).
c) The introduction of electoral bonds in 2017, which are bearer bonds allowing anonymous funding of political parties even through banking channels. Bhushan points out that electoral bonds clears the way for payment of bribes by corporations to the ruling parties. The BJP, unsurprisingly, has received about 95% of the approximately 2000 crores of the funding through electoral bonds in the last 2 years since they have been introduced.

What this means is that the BJP has to pay back, not voters, but  its funders, through policy measures. For instance, within five months of the Supreme Court judgement declaring Aadhar linking cannot be mandatory for bank accounts and mobile  phone connections, the BJP cabinet promulgated an Ordinance to allow for “voluntary” use of Aadhar for both.  An Ordinance was necessitated as the Bill, delayed by lack of sanction in the Rajya Sabha, would have lapsed with the previous Lok Sabha. Hence the Ordinance was hastily passed one month before the Lok Sabha elections – so urgent was the need to pacify the corporates!

Or, take the permission given to Adani in March 2019 to conduct open cast mining in Hasdeo Arand in Chhatisgarh, one of the largest contiguous stretches of very dense forest in central India.

There is a reason why the BJP’s pockets are very, very deep and dark.

Control over media
What has been described by some commentators as Modi’s masterful “control over the narrative” is in fact near total control over the media – through ownership by direct BJP supporters or by those with vast business interests who want to please the government for quid pro quo’s, or who at the very least, don’t want to rub the government the wrong way; or through fear and intimidation and blackmail, or monetary benefits. Some editors who generally stand up to this pressure are still forced from time to time to toe the line.

For instance, on the very day of the 7th and final phase of polling, the otherwise usually balanced Indian Express published a front page interview with the Prime Minister, who is not exactly known for placing himself for scrutiny before the media. In this interview that ran over three pages, Modi added “Khan Market gang” to the other gangs that roam India-that-is-Wasseypur – the tukde tukde and the Lutyens, at last count.

Or take the India Today story that lists 5 reasons that got Narendra Modi another term. These “reasons” are simply BJP claims, listed baldly as claims – the Modi government claims to have built so many toilets, it claims to have distributed so many gas cylinders; it claimed Balakot as a victory of its strong muscular policy towards Pakistan, and so on. In other words, BJP’s press handouts  and/or confidential chats with journalists are being treated as facts. Of course, one is grateful for the overwhelming number of times the word ‘claim’  is used in this story. Many others simply report such claims as facts.

Nikhil Inamdar has discussed at length the death of Indian media at the hands of the Modi regime, including through arm-twisting non-compliant media proprietors.
 

Raiding news channels, boycotting prime-time debates, and stopping government advertising—a significant source of revenue for the industry—have been among the common tactics used by the Modi regime.

The use of social media to target critics and mobilize public opinion, and well funded and organized trolling are part of the BJP’s arsenal. The BJP has also been openly selective in handing out TV licences to new applicants, controlling who enters the fray. Unwillingness to toe the line has often led to high-profile editorial sackings.
 

In May 2018, a sting operation by an outfit called Cobrapost showed that some 25 of India’s leading media organisations, including giants like The Times of India, The New Indian Express, and the India Today Group were willing to participate in propaganda for the BJP. Other outlets recorded in the sting, even agreed to spread communal hate in return for cash from the ruling party.
The sting was in some sense reflective of the extent to which the institutional nexus between mainstream media and the government had strengthened under this regime and possibly a harbinger of what was to come post-Pulwama.

Inamdar is referring to the way in which after Balakot air strikes,
 

India’s television stations dispensed with even basic journalistic rules, as seasoned reporters declared unequivocal allegiances and experienced editors parroted exaggerated claims. Theatrics abounded, with toy-gun toting warrior anchors in army fatigues drumming up an atmosphere of hate and violent jingoism.

In short, media narratives except for a few well known exceptions, are practically crafted by the BJP PR department.

Judiciary
Prashant Bhushan discusses in detail the way in which every institution has been subverted by the BJP – the CAG, the CBI, the Central Vigilance Commission and the Lokpal.

But in the context of elections, the institution that matters the most after the Election Commission, is the judiciary, upon whose independence there has been a determined assault by this government.  The attempt to bring back the executive into the role of selecting judges through the Judicial Appointments Commission was scuttled by the Supreme Court, but this government has still attempted to block appointments of judges recommended by the collegium, by just “sitting on those names that it finds inconvenient”. It has also refused to appoint inconvenient judges whose appointments have been reiterated repeatedly by the SC collegium. 

The proverbial “clean chit” issued to Chief Justice Ranjan Gogoi by the “in-house” committee of the Supreme Court set up to enquire into a charge of sexual harassment against him, and the spirited defence of him by Union Minister Arun Jaitley, does not augur well for the independence of the highest court in the land. Especially as immediately after the CJI was cleared of all charges, a Supreme Court bench headed by himself issued notice to advocates Indira Jaising, Anand Grover and their NGO Lawyers’ Collective on a PIL seeking court-monitored SIT probe into an alleged Foreign Contribution Regulation Act violations.  It may be noted that Jaising claims she is being victimized for having spoken up against the illegalities in the enquiry against Justice Gogoi.

This stranglehold that the Sangh backed Modi regime has over multiple institutions in the Indian polity cannot merely be remarked upon, as if once noted, it can be business as usual for Indian democracy.
These factors have to be recognized as decisively shaping BJP’s electoral victory, for  this is the kind of control over and subversion of all institutions that the BJP has been able to establish.

And now, to the conduct of the 2019 elections.

Election Commission, EVMs, ‘ghost voters’ and much else
Let me make it clear that we can only raise questions based on the scattered information available to us. It is not our job as citizens to offer proof of wrong-doing of the highest institutions in the land, when these institutions function in so opaque a manner. It is our job to raise questions about visible anomalies. It is the responsibility of the Election Commission to explain the anomalies. This is also the responsibility of the government, but I have no expectation that this government, riding high and arrogant on the back of its “massive mandate”, will take heed of the voices raising questions, except perhaps to discipline us in various ways, or charge us with sedition.

There are four questions here that need to be addressed.

1. Internal functioning of the EC and bias it has shown
2. Whether EVM’s are immune to hacking as claimed
3. What is the explanation behind the missing EVMs as revealed by an RTI. This is linked to the  question of “tally mismatches” or “ghost voters”.
4. The mass deletion of voters’ names

1. Biased EC.
The EC issued “clean chits” to Modi and Shah in cases of multiple blatant violations of Model Code of Conduct, which was challenged by Election Commissioner Ashok Lavasa.  He was not only overruled but it was decided that dissent notes would not be recorded. Lavasa then recused himself from meetings of the EC.  The complaints on MCC violation included the Prime Minister saying in a speech that his government kept Pakistan on its toes to secure the safe release of IAF Wing Commander Abhinandan Varthaman, and his appeal to first-time voters in Latur to dedicate their first vote to “the Pulwama martyrs”.  Lavasa had also wanted the EC to issue a show-cause notice to Rahul Gandhi over his “chowkidar chor hai” slogan but in the meanwhile a BJP Minister took it to the Supreme Court as a matter of contempt, which was admitted and heard by the court, leading to an apology by Rahul Gandhi, so the EC did not need to act on it.  The EC also ignored the continued operation of  Namo TV and refused to recognize the open and blatant use of religious and anti-Muslim rhetoric in the campaign by the ruling party.
The internal functioning of the EC evidently is far from democratic. Majority decisions are being pushed through, and minority opinion buried. These majority decisions were largely to the benefit of the government.

Openly biased EC. Check.
2. Are EVMs immune to hacking.
The Election Commission says no,  Indian EVMs cannot be hacked. So all the arguments about EVMs being given up the world over, due to their susceptibility to hacking, are irrelevant to India. The reason the EC gave in support of their confidence was that the micro-chips used in Indian EVMs are One Time Programmable (OTP).  So they cannot be tampered with. Nevertheless, despite this confidence, they refused to permit a public examination of EVMs, and when put under pressure, in 2017 agreed only to a four hour test which most parties boycotted.
There are three points we need to take up.

a) It transpires that the EC did not provide correct information  when it claimed that the microchip used in Indian EVMs is One Time Programmable (OTP). 
Two public sector companies manufacture EVMs – BEL and ECIL. The microchips for all Indian EVMs are however manufactured by companies in USA and Japan. According to Rajat Moona, Member, Technical Expert Panel on EVMs, EC, blank chips are imported by BEL and ECIL, then the source code is developed and programmed by them and coded on to the EVM chip.

Venkatesh Nayak obtained information through RTI in May 2019, which revealed that :
The micro-controllers (computer chip) embedded in the BEL-manufactured EVMs and VVPATs used in the current elections, are manufactured by NXP – a reputable multi-billion dollar corporation based in the USA.
While the ECI continues to claim that the micro-controller used in the EVMs is one-time programmable (OTP), the description of the micro-controller’s features on NXP’s website indicates that it has three kinds of memory – SRAM, FLASH and EEPROM (or E2PROM). A computer chip which includes FLASH memory cannot be called OTP.

Read Nayak’s detailed piece on his RTI enquiry and the answers he received here. He could not get information on which companies manufacture chips for ECIL, which was refused on grounds of confidentiality.
If the chips are not OTP, it means they can be reprogrammed.
b) Secondly, add to this the information that there appears to be a connection between one of the US based companies that manufactures microchips for Indian EVMs and the company that benefited from the Gujarat State Petroleum Corporation (GSPC) scam while Modi was Chief Minister of Gujarat. According to the CAG report, Geo-Global Resources, a private company listed in Barbados and based in Ahmedabad, was taken as the private exploratory partner without any transparent bidding, and also offered 10% stake in GSPC. The start-up company was preferred over ONGC.  The CAG report found that the exploration activities undertaken by the GSPC along with Geo-Global Resurces led to a government loss of over Rs 20,000 crore and did not result in any fruitful oil production.

 Janta ka Reporter states that (i) Geo Global Resources Inc is a subsidiary of Key Capital Corp, a financial group in USA, and  (ii) the ownership pattern of Key Corp and Microchip Inc, USA that manufactures microchips for the EVMs used in India is strikingly similar. 

Is there then, a connection between a company that was unduly favoured by Gujarat government under Modi, and one of the companies that manufactures EVM micro-chips for India?
The EC in its FAQ, published by the government’s publicity department, PIB, says, ” The Software Programme Code is written in-house, by these two companies (BEL and ECIL) , not outsourced, and subjected to security procedures at factory level to maintain the highest levels of integrity. The programme is converted into machine code and only then given to the chip manufacturer abroad”.

The doubt raised by Janta ka Reporter is that since the microchip manufacturing companies in the US and Japan deliver microchips in a sealed condition, for security, even the EC is not in a position to verify if its original programme code, prepared by its scientists at BEL and ECIL has been modified.
c) Third, VVPATs,  the paper audit trails that act as independent verification for EVMs:
(i) why was the EC so resistant to VVPATs for the 2019 elections conceding only when forced to by a Supreme Court order?
(ii) Why did the Modi government try and pressurize the EC to buy VVPATs from private sources?

The Law Ministry sent three letters, between July and September 2016, seeking EC’s views on the suggestion, as Indian Express learnt through an RTI. The Express story adds:
 

Documents show this suggestion had its origins in a meeting held in the Prime Minister’s Office (PMO) on July 11, 2016.

Nasim Zaidi, the Chief Election Commissioner at the time, firmly turned down the suggestion as it could hurt the credibility of the election process.
(iii) Why did EC resist even 50 percent verification of VVPAT after the polls, before declaring results, accepting only 5 booths per Assembly constituency?

The reason EC gave for not accepting 50 percent verification, was the laughable one of “delay in the declaring of results”. Surely a delay in declaring results (after such a long drawn out election process) is preferable to accepting the possibility of “malfunctioning” on a large scale?
Rajendran Narayanan and Nikhil De make the irrefutable ethical point that statistical sampling is simply not sufficient to check “malfunction” in the case of elections, where every single person’s vote is meant to count:
 

There are approximately 10.35 lakh EVMs used in this election and so even according to this model, the way the EC is conducting the so called “audit” runs the risk of many undetected errors. Correct counting of votes cannot be left to chance and so statistical estimation and random sampling in the context of counting of votes should not even be an option. The right to a secret verified ballot is the most fundamental right of a citizen, and the verified slip, and not the opaque EVM machine should be counted as that ballot, otherwise it is akin to the state surreptitiously stealing the most fundamental right of a citizen. Counting anything less than 100% of the VVPATs must ideally be deemed unconstitutional.

**************************************************************
In the light of all this information in the three points above, the innumerable stories from 2014 onwards, of “malfunctioning” EVMs (and all of them malfunctioned in the same way – by lighting up for lotus whatever the button pushed) need to be revisited.
I actually cannot list them all here, a quick search reveals far too many cases reported in the media.  And often,  it is not a single EVM, it’s several. In Karnataka Assembly elections, it was 2400! In Kairana Lok Sabha and Noorpur Assembly by-polls in 2018, the EC dismissed claims of “malfunctioning” EVMs, claiming they were “briefly affected” by the heat.

And remember, this is not an exhaustive list of even the instances reported in the media, it is merely the tip of the iceberg.

Some complaints were “found to be false”, others proved correct and repolls ordered.

In one case at least, that we know of, the claim of malfunctioning EVM was “proved false” by asking other voters present, not by checking the machine itself.  In Muzaffarnagar, a BSP worker Dara Singh,  was booked for “spreading rumours”, and the SDM told the Indian Express:
 

Singh told us that he has been informed by two-three voters that on pressing any button of their choice, the vote was going to BJP’s symbol. We cross-checked the information with other persons who had cast their votes and the allegations turned out to be false. Since we got confirmed information that Singh made false allegations, we did not check the EVM machine. Today, I filed a complaint with the police to lodge an FIR into the matter.

A “malfunctioning” EVM  need not malfunction every single time, nor would voters who pressed the lotus have experienced any malfunction. So “asking other voters present” is at best a lackadaisical, and at worst a motivated, way of looking into such a serious complaint.
The fear of arrest as provided for in the law, if a claim is “not proven”, stopped even a former top police official  from lodging a formal complaint:
 

Former Assam DGP Harekrishna Deka has alleged that the voter-verifiable paper audit trail (VVPAT) machine at a polling booth in Guwahati had malfunctioned as the machine displayed some other name and not the one he had voted for. Mr Deka, however, said he did not lodge a formal complaint fearing punishment if the claim is not proved.
“I don’t want to take the risk,” he said adding, “How do I know how will it be proven?”

And as has been pointed out innumerable times in the course of this debate since 2014, it is not necessary to tamper with every single EVM to win an election, it is possible to do so strategically, using information that most parties, and especially the BJP, have about specific booths and constituencies.

The Caravan carried a story that in March this year, the Election Commission filed an affidavit before the Supreme Court that “made blatantly false claims”. The affidavit claims that there had not been any mismatch in the VVPAT and EVM tallies conducted in the past two years, and that the EC had only received one complaint about a VVPAT recording an incorrect vote since 2013. However, the story goes on to establish the large number of such complaints that have in fact been recorded.

Rigging through switching Ballot Unit and Control Unit numbers
At local level polls, less technologically advanced stratagems have been adopted to rig EVMs. For instance, in February 2017 in Pune, in which BJP swept the civic polls, RTI activist Vijay Kumbhar explained that:
As per procedure, the EVMs were checked, randomised, allotted booth and sequence wise, and sealed in presence of the authorities, candidates or their representatives, and a representative of the EVM manufacturing company on February 15, six days before the voting. The randomisation implies allotment of Ballot Unit (BU) and Control Unit (CU) numbers to corresponding booths, with the BU and CU charts given to the candidates or their representatives. The sequence of candidates was also set on the same day.
“However, on the actual polling day [February 21], when the polling staff opened ballot units, the serial numbers were different from those recorded and sealed on February 15,” said Mr. Kumbhar.
The rules plainly stipulate that a ballot unit be connected to the control unit according to a particular sequence allotted to them.

“Changing that sequence is tantamount to an exchange of votes among candidates. Just how anyone could have access to sealed machines is anybody’s guess…” said Mr. Kumbhar.
I might add that the first doubts about EVMs were raised by the BJP after Congress won in 2009. The Huffington Post story linked to above is written in that context. That the doubt was raised first about Congress does not in any way reduce the validity of the questions we raise. Any party is capable of trying to rig an election. It is we citizens who must be vigilant.

“Malfunctioning” (rigged?)  EVMs. Check.
3. ‘Missing’ EVMs.
This mystery is related to two other serious issues during the 2019 elections –

• the as yet unaccounted for movement of EVMs in private vehicles in different parts of the country ,  which the EC has not satisfactorily explained; and
• the mismatch between the ECI figures for voter turnout and EVM votes cast.

These are in fact, pending issues from 2014.  In Banaras, the site of the Kejriwal-Modi contest, for example, where Kejriwal lost by over 3 lakh votes, there were reports of EVMs turning up in odd places. For instance, a Sector Magistrate took some machines home  and his son took photographs of the EVMs in his bedroom, and posted them on Facebook. We have no idea of what the follow up to this was, nor about the scale of the tampering during the 2014 elections.

A case was being heard in the Uttarakhand High Court in 2018, regarding EVM tampering in at least 6 constituencies in the Assembly elections of 2017, which I have been able to track till April 2018, when the next date for a hearing was set as May 4, 2018. All the while, of course, the BJP government continues its regime.

At one point, the Uttarakhand High Court even issued a gag order on criticism of EVMs. Because of course, that is the problem – drawing attention to anomalies in the election process.
Let us come now to 2019.

(i) The missing and fugitive EVMs.
A series of RTI applications by Manoranjan Roy regarding the number of EVMs produced by BEL and ECIL and the numbers received by the EC, revealed major discrepancies (19 lakh ‘missing’ EVMs) and he then filed a PIL in the Bombay High Court, hearings on which have been going on for about 13 months now.

Venkitesh Ramakrishnan in a carefully documented story in Frontline outlines the “glaring discrepancies” highlighted by the RTI documents procured by Roy
 

…in all three operations—procurement, storage and deployment—and also pointed to grave financial irregularities to the tune of Rs.116.55 crore. The documents, submitted as “exhibits” to substantiate the arguments of the PIL, brought out huge disparities between the accounting of the number of EVMs the ECI had received over a period of time and the supply records of the manufacturers. They show that nearly 20 lakh EVMs that the manufacturers affirm to have delivered to the ECI are apparently not in the latter’s possession. Neither the ECI nor the SECs have been able to throw light on the issue of the missing EVMs despite seven hearings of the PIL over the past one year.
Roy’s petition also raised grave doubts about the movement of EVMs from one State to another without proper records such as their number, serial number, model number and mode of transportation. It pointed out that the absence of proper systems and infrastructure too could lead to misplacement of EVMs along with misappropriation of funds. Even on the question of destroying old EVMs, there is no clarity, it stated.

Further, it has emerged that no audits have been conducted by the State Election Commissions of Maharashtra and Uttar Pradesh on EVMs.

On April 5, 2019, the court directed the ECI to file its replies to Roy’s queries on or before the next hearing on April 23, 2019. In a characteristic delaying mode, no reply was filed before that date. The court stayed proceedings on the petition for two weeks, and the next hearing has been scheduled for July 17.

The EC sent a response to Frontline, to which Ramakrishnan responded. The  two main points in his response are:

• ECI says Frontline has “selectively quoted some information obtained by an individual through RTI applications from multiple public authorities and a PIL filed in the Bombay High Court”.  The obvious mismatch between the data given by “multiple public authorities” is precisely the problem. “On a matter as crucial to the democratic process as EVMs, the public expectation is that the ‘multiple authorities’ would come up with exactly the same number.”  But the ECI response makes no effort to explain the mismatch, which, if it occurred due to clerical errors in any of the institutions, would have been mentioned in the response.
• The ECI response asserts that “the commission has a robust EVM management software (EMS ) through which the status of every EVM/VVPAT can be tracked on real time basis and only first level check cleared EVMs , properly logged in EMS are used for poll- purpose”. Despite such claims, Ramakrishnan points out, there have been regular media reports about the discovery of EVMs in places such as hotel rooms, which the EC has not explained.

We know that the EC’s response to all such reports – see also here – showing unsupervised transportation of EVMs is that they were spare EVMs, but why was there such a large volume of movement of spare EVMs just before counting, in such an informal, unsupervised manner?
Further, The Quint reports that
 

The Election Commission of India (ECI) had mandated real-time GPS tracking of all vehicles transporting Electronic Voting Machines (EVMs). However, a day before the election results were declared, the Commission in response to an RTI query, said it has no information in “any material form” related to the GPS data and movement of these vehicles.

In its response to Roy’s petition, the ECI also declared that it had no information about the possibility of any EVMs being  delivered to the State Election Commissions (that conduct local body elections), as these are autonomous of the ECI.  Does this mean there are no centralized figures available as to how many EVMs reach the ECI and how many the SECs? This is a very casual way of accounting for so critical a commodity to the functioning of a democracy!

But if SECs are completely autonomous to the extent that the ECI does not even know how many EVMs are delivered to them,  how to understand the inexplicable and controversial directive by the Election Commission of India in May 2017, restricting BEL and ECIL from selling EVMs to State Election Commissions? The matter was discussed during the all India conference of State Election Commissioners, held in November 2017 and a copy of the minutes of the meeting was received in reply to RTI query, which revealed that the State Election Commissioners objected to this directive, as “Different designs of EVMs for use by the ECI and SECs, will further create confusion both among the voters and the political parties about the use and credibility of the machines.”

If the SECs are autonomous of the ECI, then how could ECI take decisions regarding supply of EVMs by BEL and ECIL (also autonomous of the ECI)  to SECs? And what was the intention?
(ii) Mismatch between  figures of voter turnout numbers and EVM votes cast.
Two detailed and exhaustive stories in NewsClick and  The Quint pointed out significant discrepancies in these numbers available on the ECI site, with votes recorded as counted, being in excess of votes recorded as cast. The Quint found serious discrepancies in the two sets of data in 373 constituencies which went to polls in the first four phases of the election, while Newsclick  found similar mismatches in several Lok Sabha constitutencies , including  including  three high-profile ones  – Patna Sahib, Jehanabad and Begusarai.

In response, after several days of silence, (and after taking down the votes polled data from its site after receiving questions from The Quint), the ECI said in a rambling statement on June 1, 2019, that the figures were “provisional”. Please remember that the far-from-provisional government had already been sworn in the day before.  Well over a week after declaration of results, and after the government has been sworn in, the figures were “provisional”?

The Quint spoke to former chief election commissioner OP Rawat about the discrepancies. He said:
 

Prima facie, it appears to be a serious issue. I am not aware of any such occurrence (where votes polled didn’t match with votes counted) in the past, that is, during my tenure as chief election commissioner.”

Please note that in Rawat’s tenure as CEC, in 2018, there were by-elections to the Lok Sabha, elections to the Rajya Sabha, elections to legislative assemblies of eight states and numerous other by-elections to state legislative assemblies and councils.

Three former CECs to whom NewsClick spoke also said they were surprised at these discrepancies. H.S. Brahma who headed the Election Commission in 2015, told Newsclick that discrepancy of up to, say, a couple of thousand votes could be understood because sometimes there are issues with postal votes. “But anything more than that needs to be investigated and explained,” he added.

Here is a comparison of constituency-level “votes polled” & “votes counted” data prepared by Vidyut on aamjanta.com,  for each Constituency in which elections were held during the 2019 Lok Sabha Elections.

It contains constituency level voter turnout data only for the first 6 phases because only this data is available on the ECI site.
 

For the seventh phase, there is only state level data on turnout… Yes, that is correct. The Phase of election in which India’s Prime Minister as well as several other cabinet ministers were elected to Parliament does not have ANY constituency-level turnout data available. Not before counting, not before government formation, not even after government formation.
The green ticks indicate that there is a possibility that the data is accurate (if the mismatch in total is caused by another constituency and not the one with the tick), while the red crosses indicate that the EVM votes counted do not currently match ANY voter turnout data provided.

Meanwhile, the “final turnout” data has been deleted by the ECI and replaced with provisional data.  

What are we to make of this saga of statistical manipulations?

Are the missing EVMs somehow coming into play here?

Some at least of my generation must feel we  are living inside the Costa Gavras film Z,  a thriller about deep levels of conspiracy and massive corruption in the political establishment, in which idealistic citizenry take on a fascist regime…

Statistical chicanery by the ECI. Check.
4. Large scale deletion of voter names 
During 2014 elections in Banaras, the opposite was the case. the Navbharat Times reported that 3,11,057 fake voters had been discovered in Varanasi, where Modi had won by a margin of 3,71,784 votes.

The ECI claimed that the person who wrote the story had “understood it in a wrong perspective”. There were not 3 lakh bogus voters, but 6.47 lakhs  repeated names, an official claimed. The ECI’s explanation was that these are not all necessarily fake entries in the rolls. They could be people who share a name. “For instance, a ‘Rajesh, son of Ramesh’, might be found several times in UP,” an official said. “We are in the process of checking whether these people are same or different.”

The question is, when the process was to compare both the voter’s as well as his/her father’s name with other voters, how were 6.5 lakh duplicate names found in a constituency with 17 lakh voters?  And why was this exercise being carried out after the crucial Lok Sabha elections?
In the 2019 Lok Sabha elections, a survey found that in Uttarakhand, 12-13 per cent of the total electorate was disenfranchised by their names being removed from the voter list, of which 90 per cent are Dalit and Muslim voters.

In Delhi, the names of many long-time residents, including a retired government employee, were found missing in the voters’ list.

In Karnataka, too, there were reports of large numbers of long-time voters not finding their names on the list and so being unable to vote. More than 5 lakh voters were deleted from the Bengaluru electoral rolls between May 2018 and January 2019, while only around 4 lakh new voter names were added.

Similar complaints of missing names came from UP;  from Mangaluru;  from Tamil Nadu (where it was claimed that Muslim and Dalit names had been deleted); and missing names and bogus voting were reported from Mumbai.

Manipulation of voter lists. Check.
Conclusion
Let me reiterate. India is not the democracy, however flawed, that it was up to 2014. There have been deep tectonic shifts in the functioning of the state. Has the functioning of a robust democracy protected by its institutions and a Constitution,  for over 70 years, weakened our capacity to fully assimilate the extent to which all these have been subverted in so short a time? For instance many well- intentioned people with no love lost for the BJP, still defend EVMs with all their hearts – their belief in technology as neutral, their belief in statements and claims made by the ECI, their resistance to a “conspiracy theory of history”.

True, all of history cannot be explained by conspiracies. But this does not mean there are no conspiracies in history!

There has been rigging and booth capturing before. But make no mistake, this is of a different order altogether.

As alert citizens we need to take stock seriously now. We need to remember that the first and last time the election of a Prime Minister of India was set aside (by a High Court Chief Justice) in 1975, was for misuse of government machinery for election campaigning; for violation of the Model Code of Conduct, in short. How laughable those grounds seem now.

Now,  in 2019, when an IAS officer on poll duty in Odisha checked the Prime Minister’s helicopter, he was suspended; and a large black box that was whisked out of a helicopter in which the Prime Minister arrived in Karnataka and put into a private car, remains unexplained. Remember also that the Prime Minister has sworn on affidavit to educational qualifications that till today remain unverified because of the resistance put up by Delhi University authorities,

During these elections of 2019, we have seen the complete collapse of the EC under pressure from the government; the strong possibility of EVM manipulation and replacement of EVMs; the consistently higher number of votes cast over number of voter turnout; mass, often selective, deletion of voter names; legal changes to permit huge amounts of unaccounted money to pour into one party’s coffers…

Immediately after the 1975 judgement by Justice Sinha (who withstood all pressure to deliver it), Indira Gandhi declared  Emergency. The rest as they say, is history. Emergency was resisted across India with great courage and personal sacrifices, and India Gandhi defeated in the elections that followed.

What will the future say about this moment  of the “massive mandate”?
Large numbers of active citizens are speaking up, more and more of them, thanks to social media and a few media outlets that remain independent. How should we act upon all the information that is emerging?

There is no doubt we are at a perilous watershed in the history of our democracy. I think we all know this.

First published on https://kafila.online/
 

The post The “massive mandate” of 2019 and the role of the Election Commission appeared first on SabrangIndia.

The three images below teach us how society is transformed – by the courage and determination of the oppressed and marginalized; by tears of rage, and by stony cold resistance in the face of violent retaliation by entrenched power.  It is not that these pioneers were fearless, but that they acted despite their fear.

The first shows Kairali TV camera-person Shajila Ali Fathima, tears running down her face as she continues filming the vandalism of Hindu right-wing mobs over the Sabarimala issue, despite being threatened and physically attacked (her neck was hurt, and she has since been advised a cervical collar and rest).

The second shows fifteen year old Elizabeth Eckford walking steadfastly past the hostile screams and stares of white segregationists on her first day of school in 1957, after the US Supreme Court outlawed racial segregation in schools.

And the third shows the Kalaram Temple satygraha, led by BR Ambedkar and BK Gaikwad in 1930, to fight for the right of Dalits to enter the temple.  Almost nine decades later, Dalits still face immense hostility and violence towards their right to worship and participate in temple festivals.

Women are activists, men are devotees
The Supreme Court today decided to reserve judgement on the 48 pleas around the review petition on its previous order permitting Sabarimala entry for women of menstruating age.

Meanwhile, let us reflect on the curious distinction  made by the media in the coverage of this issue, as well as by Kerala Ministers and police officials. Women attempting to enter the shrine following the Supreme Court order are termed activists, the men mobilized by Hindu right-wing organizations who violently stop them, are termed devotees.

Thus.
 

Several Kerala ministers on Friday said the Sabarimala temple should not be a place for “activism” even as three women attempted to trek to the hill shrine.

Chased away from Sabarimala by angry devotees, 11 women activists vow to return

The Kerala Police has said it would not be able to provide protection to women activists attempting to enter Sabarimala,  Malayala Manorama reported. The special officer posted at Sannidhanam, the temple, has submitted a report to DGP Loknath Behera in which he wrote, “It is obvious that most of them are looking for publicity. The police should be allowed to dissuade them from going to the shrine.”

How does this distinction work, exactly? Why are women trying to enter Sabarimala for worship, “activists seeking publicity”, while thousands of men mobilized explicitly for the purpose of blocking implementation of Supreme Court orders, “devotees”? Have these men all observed the 40 day mandala vratham , which involves rigorous penance, including celibacy, for 40 days? And why should we characterize as devotees, men who, on hearing a rumour of a woman below  50 entering the shrine, “planted themselves on the sacred 18 steps, raising fists and shouting slogans”, with none of them carrying the irumudi, a bundle carrying offerings, on their head, which is the ritual custom. Only devotees carrying irumudi are allowed on these last 18 steps to the deity’s sanctum. These men without irumudiincluded a Travancore Devaswom Board member and an RSS leader.

So much devotion towards protecting the deity from other devotees!

(I am reminded of the famous words of Vivekanda, recounting his distress at the thought of the desecration of the Kshir Bhavani temple by Muslim invaders, and his belief that had he been there, he would have laid down his life to protect the Mother. Thereupon he heard a voice that asked him, “Do you protect me? Or do I protect you?” After this, he said, he was but a child before Her.)
Law versus faith

Justice Indu Malhotra’s dissent to the Supreme Court judgement centrally made the point that courts cannot impose their rationality on religion.

In my personal opinion, social transformation is best brought about by political struggles rather than from above by the law, but the oppressed do not have the luxury of waiting for that moment to come about. Just as BR Ambedkar used both weapons, state intervention as well as political struggle, challenges to heteropatriarchy have often had to take recourse to the law, especially when the structures of heteropatriarchy and brahminical patriarchy (as feminist historian Uma Chakravarti has termed it) are upheld by the law itself. Laws on marriage, laws on sexuality – the law often encodes popular prejudice and existing power structures and this is why the struggle has to be at both levels.

Let us also state right away that temple entry is not the beginning and end of brahminical patriarchy or caste oppression, but it is a significant movement which even Dr Ambedkar took seriously.  Feminists who may not be believers therefore, nevertheless support temple entry for Dalits and women, as an issue of democratic access to all spaces. (Just as feminists who may be pacifists would still support equal entry for women into the armed forces, as into any public domain).

But the Supreme Court judgement did not overturn faith, it overturned an earlier Kerala High Court judgement of 1991 on a petition by 24 year old Mahendran, which directed the Sabarimala Temple Trust to prohibit entry of women of menstruating age (between the ages of 10 and 50) into the temple. Thus it was the Kerala High Court (the law) that banned entry of women, directing the temple trust (the keeper of the faith), to ensure this, and asking the Kerala government to use the police force to enforce the order to ban entry of women to the temple.

Why was this court order necessary? Because in fact, women were going to Sabarimala. Writer NS Madhavan claims that an “informal ban” may have existed, but women routinely went to the temple, especially for the ceremony of the first food given to infants (choroonu), but also on other occasions – from the Maharani of Travancore in the 1930s to the young woman whom Mahendran saw trekking up to the shrine. T K A Nair, a career civil servant and adviser to former prime minister Manmohan Singh, said his own choroonu  was performed at Sabarimala with his mother feeding him in her lap in 1939. By the mid 19th century, it seems the informal ban existed, according to a British Survey report, but that is already well into modernity. Hoary tradition is not established by a 19th century report.

OB Roopesh has written about Sabarimala in the context of what he terms “templeisation”. This he describes as
 

a process of converting myriad forms of worship places like kavus [sacred spaces near traditional homes of various non Brahmin and Dalit caste communities in Kerala], to the Hindu (or Brahminical) temple form.

Roopesh is critical of Devaswom Boards that remain bastions of upper castes, and appointment of Backward Caste and Dalit priests is met with savarna resistance. The first Dalit priest in a Devaswom Board was appointed only in 2017, and he faced severe protests. Interestingly, says Roopesh, this Dalit priest is also opposed to women’s entry into Sabarimala.

(‘Sabarimala Protest. Politics of Standardising Religious Pluralism’, Economic and Political Weekly, December 15, 2018)

If one indeed cares for tradition, there is sufficient historical evidence to suggest that Sabarimala was a Buddhist shrine, and that Ayyappa was Nilakantha Avalokiteswara depicted in the Buddhist Puranas. The chant of Sabarimala pilgrims Swamiye sharanam Ayyappa echoes the Buddhis chant Buddham sharanam gachhami. Rajeev Srinivasan who has been on the pilgrimage several times, suggests that prior to its Buddhist incarnation, the temple was an early Dravidian Saivite centre, and has thus been a sacred spot for 3 to 4 millenia.

Rajeev cites Devakumar Sreevijayan who has an interesting take on the myth of Ayyappa being the son of Vishnu and Siva  – that this suggests a reconciliation between Saivite and Vaishnavite Hindus. Unlike other parts of the South, therefore, he says,  where the two were often in conflict, Kerala has typically seen harmony between them.

Jitheesh PM has surveyed scholarship on the origins of Sabarimala and Ayyappa, and finds that it is difficult to establish Ayyappa in the Puranic texts, and nor is his worship found North of the Vindhyas. On the other hand, it is non-Brahmin influences on the historical evolution of Sabarimala that Jitheesh finds. The relationship of Ayyappa with the horseman god Ayyanar of Tamil Nadu is one such influence. According to T.A. Gopinatha Rao whom Jitheesh quotes
 

Ayyanar is basically a village tutelary deity, worshipped by the lower castes. There are iconographical similarities between the two deities and etymologically too it appears to be feasible.

One can see the gradual ‘templeisation’ (to use Roopesh’s term) of Sabarimala over the centuries. Like every religious practice in India, Sabarimala too has dense and living histories that are sought to be frozen by the current “owners” of religion.

This brings us to another of Justice Malhotra’s arguments, accepting the claim that Ayyappa worship is a sect or a separate religious denomination because it follows Ayyappa Dharma, and can therefore have its own beliefs and practices. If anything, what we see is that what was a non Brahminical shrine is gradually absorbed into Brahminical Hinduism, losing any claim to be a separate sect.

Overall, it seems to be less tradition and more modernity that imposed the ban on women. Only in 1972, according to NS Madhavan, was a more strict ban sought to be imposed. At any rate, there is considerable debate on what transpired regarding women at Sabarimala prior to 1990, when Mahendran approached the courts.

One of Justice Malhotra’s other points of dissent has to do with the petitioners (Indian Young Lawyers’ Association) who she said were not directly affected by the ban, as they were not devotees. However, from their names (Bhakti Pasricha Sethi, Prerna Kumari, Sudha Pal, Lakshmi Shastri and Alka Sharma) they are all Hindu women, and there is no reason to believe they would not climb Sabarimala if they could. Of course, Sabarimala is one of the few temples that does not prohibit entry on the basis of caste and religion, so their Hindu identity is not really relevant. One does wonder though, how their devotee status (or lack of it)  was determined.

After all, Mahendran was simply a private individual who saw a photograph in a newspaper of women at a choroonu ceremony, claimed his sentiments were hurt and wrote to the court. His letter was turned into a PIL. He was then supported by the Nair Service Society and the Ayyappa Sewa Sangham. Further, taking into consideration his financial state, the court even posted a lawyer for him.

But Mahendran, being a man, is a devotee, and the petitioners of the Indian Young Lawyers’ Association, being women, are only activists, even to Justice Malhotra.

Menstruation and seduction
Justice Malhotra also rejected the plea that excluding women of the ages 10 to 50 amounts to untouchability, because all forms of exclusion do not constitute untouchability. In addition she stated that all women  as a class are not excluded, only women of the age group 10 to 50. It is true that untouchability as a practice cannot simply be equated to all forms of exclusion, because the full horror of untouchability, the institutional and cultural dehumanization of a section of people identified by birth, is lost by analogizing with exclusion more generally.

However, Justice Malhotra’s reading fails to touch upon the significance of that age group – on the assumption of menstruation as polluting and the status of women of a certain age as threats to male celibacy, as Ayyappa is claimed to be celibate, a Brahmachari, by those opposing the entry of women.

Let us not here enter into whether menstruation should be considered polluting or not, although it would be important to understand when this understanding emerges. Surely not at the time of the worship of pre-Aryan goddesses of fertility and destruction, surely not in the matrilineal communities of Kerala in which the onset of menstruation was celebrated like a festival. Menstruation seen as polluting is a consequence of the expansion of Aryan patriarchal religious practices across the subcontinent.

But setting that aside, what is more interesting here is to confront the implication of the fact that that by the 19th century or so, the heterogeneous communities labelled Hindus had mostly come to see menstruation as polluting, and devout Hindu women stopped entering  temples during their periods. They simply will not do so. Why then the additional precaution that no woman who could possiblymenstruate should enter Sabarimala? Are all women in the menstruating age group polluting at all times? Or is the assumption that women would lie about being in their periods and enter the temple? When devout men’s claim to have kept the 40 day vratham of celibacy and a long list of other kinds of good conduct is believed without verification, why not believe that devout women would not enter a temple during their periods? Isn’t there a powerful misogyny at work here that has nothing to do with Ayyappa worship itself?

As for the claim of Ayyapa being celibate, this appears to be a later addition to bolster the argument against women’s entry. Sandhya Ram says:
 

all of us in Kerala born post 1970s know of this legend solely from a movie titled ‘Swamy Ayyappan’ which was released in 1975. 

Once again, a tradition of modern origin.

Interestingly, transgender people are permitted in Sabarimala. They pose no threat to Ayyapan’s celibacy, it seems. The heteronormativity attributed to Ayyapan, the progeny of two male gods, is astonishing.

The Hindu right wing activists are proud of the fact that their violence stopped the entry of women, except for Kanakadurga, a Nair, and Bindu Ammini, a Dalit.

However, even the entry of just two women was treated as a calamity. A Whatsapp message the Hindu rightwing circulated after their entry focused on the deceitful strategies the women used to be able to escape the policing being carried out by violent mobs. In the long rant, the following passage stands out:

“This is the true nature of our enemy here in Kerala….An enemy who does not even have the dignity or courage to enter through the front door, but instead, sneaks in and out of back doors like someone having an ILLICIT AFFAIR.”

An illicit affair with the deity Himself – Bhakti poets have written of the glory of this romance, of the belief that love for god cannot be held within the rigid bloodless bounds set by societal norms. Who are the real devotees here?

The movement for women to enter Sabarimala has a long history going back to earlier anti-caste movements, a history that the Chief Minister has continually recalled. The movement for dignity by Nadar women in Travancore, for example, challenging the upper caste prohibition on lower castes covering their breasts, was met with equal violence. Some converted to Christianity to escape caste humiliation. Nadar women who dared to wear upper cloths like Nair women were attacked, schools and churches were burnt.

In a significant reversal today, the Travancore Devaswom Board which manages the Sabarimala temple told the Supreme Court that it has no objection to the entry of women inside the temple and urged the people to “gracefully” abide by the apex court’s verdict.

Once women, including the current  #HappytoWait-ers begin to  enter the temple, we can start thinking about the fragile ecosystem of the Western Ghats that Sabarimala rests in, and the implications of increasing amenities for the flood of pilgrims expected. The sudden concern for the environment in the context of women pilgrims alone is suspicious, of course, but this is a real issue. There must be ways of regulating pilgrims, advance applications, limiting the numbers annually, not providing urban comfort, but ensuring only basic, eco-sensitive and sustainable facilities.

Kanakadurga, Bindu Ammini, and scores of other women have paid a high cost to approach their god. Many hundreds and thousands more wait in the wings. Their faith is faith too.

The Supreme Court decision thus, was not a judicial review of ancient faith, as Justice Malhotra holds, but an overturning of a previous legal interpretation of human, not divine, practices; of recent historical origin, not an unchanging hoary past.

Courtesy: Kafila.online

The post Law versus faith, female activists versus male devotees and other strange creatures at Sabarimala appeared first on SabrangIndia.

First published on Kafila.online

This post is an analysis of the Allahabad High Court judgement of September 2010, on the BabriMasjid /Ayodhya issue. The final judgment ruled that the disputed land would be divided into three parts, one third going to the Hindu Maha Sabha which represented Ram Lalla, one third to Sunni Waqf Board and the rest to Nirmohi Akhada including Ram Chabutara and Sitaki Rasoi.

This essay was written at the time, and published in Economic and Political Weekly. Two of the key issues of this case arose in two of the recent judgments of the Supreme Court on other matters.
One, the status of ‘Next Friend’, which is central to the Ayodhya case, was brought up in the judgement on the Bhima- Koregaon Five. Regarding  the PIL filed by historian Romila Thapar and four other eminent persons challenging the alleged-unlawful arrest of these five activists,
 

the court assumed that the writ petition has now been pursued by the accused themselves and was of the opinion that the petition, at the instance of the next friend of the accused for an independent probe or a court-monitored investigation cannot be countenanced, much less as a PIL as the petitioners cannot be heard to ask for the reliefs which otherwise cannot be granted to the accused themselves.

Two, the status of the deity as a person in law came up centrally in the judgement on Sabarimala.

Apologies for posting this long piece, which is not a blog post but an analytical essay closely examining the 2010 judgement by Allahabad High Court. I have not updated it in any way, as that is the judgement that currently stands. The  case is currently in the Supreme Court.

The Ayodhya judgement: what next?
Published in Economic and Political Weekly Vol 46 No. 31 July 30 – August 05, 2011
Since the Allahabad High Court judgement on the Ayodhya dispute was delivered on September 30, 2010, a substantial body of reflection upon it has emerged. Historians, political commentators, legal scholars and lawyers have all produced serious and engaged critiques of the judgement, pointing out flaws in reasoning and flaws in law. In an engagement with the debate so far, particularly with the critical voices, of which I am one, I hope here to develop a composite picture of the problems with the judgement, currently under appeal in the Supreme Court. And to ask, what are its weakest links?

I will start with the barely disguised partiality in the judgement towards a particular political project that claims to represent all Hindus; a partiality that has been generally glossed as the recognition of ‘faith.’ Both critics and supporters of the judgement seem to be agreed that ‘faith’ has been given recognition by this judgement. It is with this question therefore, that I begin[1].

Faith over facts?
Does the Ayodhya judgement of the Allahabad High Court privilege ‘faith’ over ‘facts’? The BJP’s position on this is interestingly ambiguous.

On the one hand, the BJP’s chief spokesperson Ravi Shankar Prasad refuted CPI(M)’s claim that the judgement was based on faith and belief, and told reporters that the court decided the case on the basis of ‘testimony and settled principles of law’[2]; while on the other hand, LK Advani celebrated the judgement explicitly as ‘faith upheld by law’[3].

This apparent contradiction however, was precisely at the heart of the Hindu Right’s strategy in court, as outlined in an article in Tehelka jointly written by Bhupender Yadav, National Secretary of BJP and Vikramjit Banerjee, both Supreme Court lawyers, who are identified as having ‘represented Ram Lalla and other Hindu parties in the case’. In this article, they deny that the judgement was ‘a fanciful exploration of faith’, and argue that it stayed closely with the legal issues raised in the civil suit, arriving at conclusions based entirely on evidence presented in court (Yadav and Banerjee 2010: 17). Nevertheless, they then go on to state that religious belief was one of the key elements in the case, and in dealing with it, the judgement follows the ‘nuanced’ view created by British courts in India, that courts will not test the rationality of a belief system, but only whether that belief is actually held by the followers of the religion. Thus, ‘The courts decided to go by the belief system from which the disputes arose, that is, from Hindu belief in cases of Hindu jurisprudence and Islamic belief in cases of Islamic jurisprudence’ (2010: 17). It is this test of validly held belief, claim Yadav and Banerjee, that the Ayodhya judgement applies: ‘Everybody accepts that that Lord Ram is integral to Hinduism and that he was born in Ayodhya. The Muslim parties in the case have only disputed whether he was born at that specific site. To answer this, the Hindu parties had to prove with evidence that Hindus have historically believed that the disputed site is Ram Janmabhoomi. Which they did’ (2010:17)

Yadav and Banerjee thus assert the judgement did not go into questions of faith – implying this would be a subjective exercise – but only considered whether the faith was actually held or not, something they imply can be objectively proved. In this context they make the following arguments:
 

1. a) The Sunni Waqf Board (SWB) does not seek the land title but the declaration of the property as a public mosque and the handing over of the property after removal of the idol to it.
2. b) To determine whether it was a public mosque, the court had to go into matters of Islamic faith – whether or not it can be treated as a mosque under Islamic law.

(The three judges had three different positions on this, but more on this point later.)

1. c) Ram Janmabhoomi Nyas (RJN) and Nirmohi Akhara (NA) have sought title to the land, unlike the SWB, under Hindu law. The title claim is based on Hindus always regarding the site as sacred. It does not have to be proved that Ram was born there, they only have to prove that the devotees have believed this – ‘the sacredness and deitiness of the place comes from this belief.’ Yadav and Banerjee cite case history in Hindu law to support this claim.

Thus, Yadav and Banerjee reveal their strategy in court to have been, to show that the ‘Muslim’ belief (that the demolished structure was a mosque) fails the tests set by Islamic jurisprudence, while ‘Hindu’ belief (that Ram was born there) passes the test set by Hindu jurisprudence. It is striking that it is assumed both by Justice Sharma and by Yadav and Banerjee that Islamic faith can be interpreted objectively by an outsider to the faith – that is, the question of whether it was a mosque can be determined by an objective outsider through a study of Islamic tenets. But when it comes to Hindu beliefs, they can only be tested to see if they are held or not held by believers. To be consistent, if the SWB claims that the Babri Masjid was a mosque, the court should have focused on the question of whether it is a ‘validly held belief’. The fact that Muslims offered prayers there until stopped by court order in 1949 should establish this fact without a doubt. Even the ‘Hindu’ parties’ claim regarding this point concedes that Muslims worshipped at the mosque till 1934, when it was substantially damaged in a riot. But rather than considering the question of whether the Babri Masjid was a mosque in terms of validly held belief, Justice Sharma asks another kind of question, precisely the one (coincidentally?) posed by the RJN. That is, whether the ‘disputed structure’ was in fact a mosque as laid down by rules of the Islamic faith. Justice Sharma then accepted the arguments made by the ‘Hindu parties’[4] that the construction and dedication of the mosque did not follow the tenets of the Quran – it did not have minarets, was surrounded by graveyards, there was no place for vuzoo, there were idols present there and so on[5].

On this point, Justice Khan held that none of these features are essential for a mosque,[6] and Justice Agarwal was consistent in holding that whether it was a mosque or not must be determined not by the tenets of the Shariyat but by the beliefs of people who worshipped at it.[7]
Despite these differences of opinion among the three judges, and the fact that the majority opinion in fact holds that the demolished structure was a mosque, Yadav and Banerjee ignore that point and deftly displace the critical question to Hindu law – the title claim of the Hindus being based on Hindus ‘always regarding the site as sacred’, and on the claim that in ‘Hindu law, once a deity is always a deity.’ This displacement is carried out by Justices Sharma and Agarwal too.

The question that arises then is this: if Hindu belief is to be tested in cases of Hindu jurisprudence and Islamic belief in cases of Islamic jurisprudence, what is to be done in a case such as this particular dispute, in which two sets of beliefs come into conflict? Which belief or school of jurisprudence has greater value? In this judgement, Sharma and Agarwal trump Muslim law (as they interpret it) with Hindu law. What is the justification given for this? The simple answer is – none.

Flawed legal reasoning and the question of ‘history’
The case basically involved five title suits claiming the disputed land, and 28 issues framed by the court. Here I will outline the legal flaws in the very framing of these issues:

This is the most significant point at the heart of this judgement – the demolished Babri Masjid. What is the view of the judgement on that act of destruction?

Two of the issues were in fact explicitly framed in this way: Whether after demolition of the disputed structure as claimed by the plaintiff, it can still be called a mosque and if not whether the claim of the plaintiffs is liable to be dismissed as no longer maintainable? (Suit no. 4, Issue 25) and Whether Muslims can use the open site as mosque to offer prayer when structure which stood thereon has been demolished? (Suit no. 4, Issue 26).

It has often been said that the demolition has not been justified by the judgement. This is incorrect. It is true that Justice Khan merely notes the facts of the demolition, and Justice Agarwal condemns it. However, Justice Sharma states very clearly what in fact the decision of the judgement assumes: ‘The disputed structure has already been demolished. Accordingly the place cannot be called as a mosque and Muslims cannot use the open place as a Mosque to offer prayers.’[8]
As many commentators have pointed out, does not the division of the property through the judgement assume the demolition, for the RJN has been given the land on which the Babri Masjid once stood. If the mosque had not been demolished, is not this judgement in fact an order for its demolition?

b) The legitimacy of invoking ‘history’.
Anand Teltumbde has drawn attention to the issues that were framed in such a way that they revolved around ‘history’ – whether Ram was born at the spot or whether the mosque was built at the site of a demolished temple. Teltumbde points out that many of these issues of ‘history’ had already been settled in law by a five-judge bench of the Supreme Court in 1994, while responding to the Presidential Reference sent to it after the demolition of the Babri Masjid (Dr. M. Ismail Farooqi Vs. Union of India, 1994 (6) S.C.C. 360). The reference was to the following effect:
‘Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janam Bhoomi and Babari Masjid (including the premises of the inner and outer courtyards on such structure) in the area on which the structure stands or not?’

Supreme Court refused to answer the reference, ruling that that such a question was incapable of legal determination and was outside the purview of courts (Teltumbde 2010: 12).

That left only the title suits, which in the absence of documentary proof on all sides, could have been resolved by established law that grants the property to the one who has had uninterrupted possession of it for 12 years or more. Says Teltumbde, there are only two parties that can make this claim, since it is undisputed that namaz had been offered at the Babri Masjid from 1528 till 1949, and that the Nirmohi Akhara had conducted religious ceremonies from the 19^th C. The act that placed idols under the dome was an act of criminal trespass, and so the claim by Ram Lalla’s Next Friend should have had no legal status (Teltumbde 2010: 12).

As Warisha Farasat puts it, ‘if you don’t ask the right questions, you will not get right answers.’
She points out that the issues were framed in a manner that rendered them insusceptible to legal resolution. For instance, ‘Have the Muslims been in possession of the property in suit from 1528 A.D. continuously, openly and to the knowledge of the defendants and Hindus in general? If so, its effect? (Suit no. 4, Issue 15). And ‘Whether the disputed structure claimed to be Babri Masjid was always used by the Muslims only regularly for offering Namaz ever since its alleged construction in 1528 A.D. to 22nd December 1949 as alleged by the defendants 4 and 5? (Suit 5, Issue 15).

Is it possible, asks Farasat, for any court to determine continuous possession of any immovable property by a party for almost five hundred years? In framing the issue thus, the court set ‘too high a threshold’ to prove possession and title. Can one go back so far into history to prove title? Farasat cites the Supreme Court decision in Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779, in which it was held that the title of the government over the property could only be ascertained by the courts for the last one hundred years and not beyond (Farasat 2010). (It is not an insignificant detail that in that particular case, reliance on history would have given Muslims control over three mosques.)

Justice Khan too cited this judgement, Para-8, as follows: ‘As far as a title suit of civil nature is concerned, there is no room for historical facts and claims.  Reliance on borderline historical facts will lead to erroneous conclusions.’[9]
After all, as Farasat puts it, ‘even after filling thousands of pages, the fundamental question remains unanswered. Who owns that piece of land?’ (Farasat 2010)

c) The complex nature of historical sensibility.

Janaki Nair and Radhika Singha have drawn attention to the gradual amplification of the claim to the site. [10]  From the 1885 suit by Mahant Raghubar Das demanding that he be allowed to build a temple over the Ram Chabutra, to the expansion of the claim over the century, as a suit involving the right to the entire site by a purported representative of ‘Hindu Public in general’ by 1989. (This ‘representative of the Hindu public’ is the Next Friend of Ram Lalla, and is an important party in the current litigation. We will return to the question of the Next Friend later in this paper).

Incidentally, the 1885 judgement, both trial and appellate, declared the mosque to be in adverse possession. In 1885 Mahant Raghubar Das acknowledged the Babri Masjid as a ‘mosque’, and claimed the Ram Chabootra as the birth-place of Ram (‘chabutra janam asthan’), not the space under the dome of the Masjid. Nair and Singha too, point to the gradual narrowing down over the years, of the space under dispute to the ‘exact spot under central dome’ of the Babri Masjid.

The more general argument Nair and Singha make is about the methods of the historian and the judge. These are alike up to a certain point, but they sharply diverge thereafter. ‘The historian need not bear the burden of misjudging a just cause, nor does she reach the kind of closure that is imperative for judges, with far reaching implications for future legal action. What has been called into question in this judgment are not merely the evidentiary protocols of the historian, but the space they can legitimately occupy in a field which pits history against faith.’[11]
In other words, I understand the question they pose as the following: whether the historical method can be used to apply closure in a field pre-defined as ‘faith’. That is, can the ‘faith’ of a community be ‘proved’ by historical evidence? If it is ‘faith’ then historical evidence is irrelevant; if history, then there are multiple narratives and interpretations of the same body of evidence. Nair and Singha refer to the site as located in ‘the ebb and flow of time’ and as ‘linked to multiple memories’, and in terms of ‘construction, abandonment and reconstruction within a large site.’ They point out that there are different kinds of complex claims made over a period of time: claims of residence, of occupation and of worship.[12]

Justice Khan, they say, takes this view of history, but the other two judges treat historical evidence of different sorts as capable of offering proof that can substantiate ‘faith’.

Unravelling the three voices in the judgement
It is well known that the judgment is not one but three. The question however is, what are the faultlines of the disagreements between them? An obvious one is that between Justice Sharma on the one hand with his dissenting decision awarding the entire property to one party, the Ram Janmabhumi Nyas; and Justices Khan and Agarwal on the other who divide it equally between RJN, the Sunni Waqf Board and the Nirmohi Akhara. Other commentators have noted the similarities between Sharma and Agarwal on their reading of history[13] and on the question of faith (Gupta 2010). But it seems to me that the real division is visible if one considers the reasoning in the judgements rather than the decision, and in this case, the judgements of Agarwal and Sharma are on one side and that of Khan on the other. Many commentators have in fact read Justice Khan’s judgement separately, but I suggest that we need to go further – taking it seriously should make us see the whole judgement in a different light. In this section I will look at the judgements of Sharma and Agarwal, and return to Khan’s judgement in conclusion.

On a careful reading, it seems quite clear that the reasoning in all three judgements is an exercise in justifying in retrospect a preferred conclusion, decided upon in advance for extra-legal reasons. The legal and historical reasons are clearly adduced after the conclusion has been reached – a chronicle of a judgement foretold?

Let us begin with Justices Sharma and Agarwal. What we find is that there is no consistency regarding which principle should hold in adjudicating competing claims. That is, at least six principles have been variously invoked by them – history, archaeological proof, possession, adverse possession, legal title to the property and finally, faith. These are invoked often in successive sentences, and it appears that when one argument seems a little weak, other, quite contradictory ones are added on, just to be on the safe side.

Thus, with regard to title to land, possession and adverse possession in the Muslim case:
 

1. a) Regarding title, Sharma said the Sunni Waqf Board could not show that Babur had a title to the land, nor ‘any registered lease deed’ about the disputed land. So the SWB has no legal documentation to prove its ownership.[14]
2. b) Regarding possession, Agarwal said that while ‘Muslims’ lost possession of the outer courtyard from 1856/1857 onwards, the inner courtyard was used by both Hindus and Muslims, since the former prayed there as well. So while Muslims do not have exclusive rights of possession of the inner space, Hindus do have exclusive rights of possession to the outer courtyard.[15] This point about Hindus worshipping in the outer courtyard is read by Justice Khan very differently, as a ‘very very unique and absolutely unprecedented situation’,[16] implying, it seemed to me, the hopeful possibilities of people of different faiths living together, rather than merely as indicating ‘possession’ or lack of it. We will return to Khan’s reading later.
3. c) Regarding adverse possession by Muslim parties, Sharma defined it as follows: it involves the dispossession of the owner, gaining of legal possession by the dispossessor, and negligence on the part of the owner to seek remedial action within a prescribed time (that is, the statue of limitations applies here).

He then made the following arguments rejecting this claim:

1. i) Muslim parties cannot show dispossession of the ‘true owner’ as they have not mentioned the ‘real’ owner, nor shown when the true owner was dispossessed (see (a) above).
2. ii) They do not claim the property through title but through possession

iii) However, the defendants (the Hindus) claim the property was never in exclusive use by the Muslims

1. iv) A deity cannot be dispossessed or remain in possession of the plaintiffs, as the deity is a perpetual minor against whom no claim of adverse possession can be brought.
2. v) The property in fact belongs to Dashrath who was sovereign king of all Ayodhya, and after him it passed to a charitable trust and a temple was built. This temple was destroyed ‘without formal sanction under the law by way of possession by dispossessing’ (sic).

‘Thus’ concludes Sharma, the Muslim parties have failed to prove adverse possession.[17]
We can see in this demolition of all Muslim claims – to legal title, to exclusive possession and use, and to adverse possession – that strict legal norms of usage and formal title have been invoked. This is not the case for Hindu claims. While the lack of Babur’s title deed is crucial, Dashrath’s ownership of Ayodhya is not thus limited. Babur’s assumed demolition of a temple is characterized as ‘without formal sanction’ while the placing of idols inside the mosque in 1949 and the demolition of the mosque in 1992 are treated differently, and in fact, used to establish adverse possession for the ‘Hindu’ parties.

When it comes to Hindu claims, they can prove adverse possession, says Sharma, because since 1934, Hindus claim, Muslims were not allowed to enter the mosque. It has thus been adversely possessed and has lost its character as a mosque.

Thus Sharma rests his claim on adverse possession that was ensured by the 1934 violence on the mosque by a Hindu mob, the surreptitious placing of idols in 1949 and the subsequent court judgement the same year banning namaz but permitting puja. He thus appears to be basing his decision on legal principles of adverse possession and title to land. However, simultaneously he invokes the ‘core belief’ of Hindus when he holds that the place being Ramjanmabhoomi makes the site itself a deity and its religious significance means that the state cannot acquire it under Eminent Domain.

According to Justice Sharma: ‘Lord Ram as the avatar of Vishnu having been born at Ayodhya at the Janmasthan is admittedly the core part of Hindu belief and faith which is in existence and practiced for the last thousands of years…’[18] Further, ‘a sovereign government even by exercising the power of eminent domain cannot exercise the power of acquisition of land or property which extinguishes the core of the faith or the place or the institution held to be sacred.’[19]

This specific reference to the untenability of Eminent Domain is significant, because immediately after the demolition of the Babri Masjid in 1992, the Narasimha Rao government acquired large plots of land around the disputed structure through The Acquisition of Certain Area at Ayodhya Ordinance, 1993. The land in the possession of the Centre practically encircles the disputed plot and all parties to the dispute are aware that some sort of Central government intervention would be needed to re-develop the disputed land whether as a mosque, a temple or in any other way (Vyas 2010). Justice Sharma appears to be trying to ensure undisputed control over the property for the RJN.

Justice Agarwal too invokes belief on the question of whether the disputed site belongs to RJB – it does because Hindus have always believed it. But along with this, he cites the legal principle that the deity is a perpetual minor and no limitation can run against it for purposes of adverse possession.[20] That is, Babur’s assumed demolition of a pre-existing temple does not establish adverse possession for Muslims, because the deity being a perpetual minor is protected from any limitation challenging this after any length of time. Thus we see that the Justices Sharma and Agarwal use the legal principle derived from the deity being a ‘perpetual minor’ to buttress the ‘validly held faith’ of Hindus. The faith of Muslims on the other hand, is judged by an outsider’s reading of Islamic scripture, and ends up failing both the test of faith and legal principles as interpreted by the judges.

The reasoning behind these two judgements is that the ‘Hindu’ claims are justified. Sharma hands over the entire property to them, but Agarwal’s reasoning too, in dividing the property, is essentially de-recognizing the SWB’s claim, and accepting adverse possession for Hindus following the communal violence of 1934, the placing of idols in 1949, and the subsequent court order ending namaz and permitting puja.

It has been pointed out by Anil Nauriya regarding Section 110 of the Evidence Act (which the judgement cites to say that since no party has the title deed, the property will be shared among the claimants) that according to this Section, it is the challenger who must prove his claim, not the one in possession. Since it is the ‘Hindu’ side that has encroached/trespassed (in placing the idols and in demolishing the Babri Masjid), it is they who should prove their claim. If they are unable to do this, the Waqf Board remains the owner.[21]

Appropriation of Next Friend status
The key figure in the judgements of Sharma and Agarwal is the deity who is a perpetual minor and must be represented by its Next Friend. However, this section will explore two questions that arise from this assumption: a) there are legal doubts about whether an idol is indeed the same as a minor in Indian law; b) the recent Supreme Court judgement on the Aruna Shanbaug euthanasia petition clarifies the legal position on the status of Next Friend, which has consequences for the Ayodhya dispute.

Gautam Patel has drawn our attention to the differences in legal status of ‘a minor’ and ‘an idol’, which have been conflated in the judgement. He claims that while there are points of similarity between the two, ‘An idol is inherently an act of judicial artifice, but a minor is a natural person…Most importantly, under the substantive law of contract, a minor cannot contract; an idol may. Adjectival law (limitation) exempts a minor from the bar of time. This protection is not extended to Hindu idols” (Patel 2010:49).

Thus, it is legally contestable whether the deity Ram Lalla is indeed a perpetual minor protected from the statute of limitations as Sharma and Agarwal claim, enabling a suit to be brought 400 years after the fact. Moreover, argues Patel, the parallel that Sharma and Agarwal draw with the Church is untenable, as the histories of the two religious institutions are very different. The Church holds property in its own name, not in the name of Christ. ‘Certainly Christ does not sue, nor can be sued; Hindu gods, it would seem,’ he adds cheekily, ‘are altogether a more litigious lot’ (Patel 2010:50).

The second critical question here was flagged by Rohit De.[22] Even if it is accepted that Ram Lalla is a perpetual minor and therefore needs to be represented by his ‘Next Friend’, or by a ‘natural person’, one can raise the question – who should be this person? How is s/he to be appointed? The Next Friend (in the case of a minor) or shebait (i.e. manager, in the case of an idol) has legal standing, but this status must be established in court. Sometimes there are competing claims, which the court must decide between.

A relevant recent judgement is that of the Supreme Court in the case of Aruna Shanbaug, who is in a permanent vegetative state following a sexual attack 37 years ago. She is being looked after at the hospital where she was a nurse, so devotedly that in all these years she has not had a single bed sore. A writer, Pinky Virani moved court as the Next Friend of Shanbaug, seeking permission to withdraw life support, while this move was opposed by the staff of the hospital. The court ruled (in March 2011): ‘It is the KEM Hospital staff, who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani, who has only visited her on a few occasions and written a book on her. Hence it is for the KEM Hospital staff to take that decision.’[23] Since the KEM staff desired to keep Shanbaug alive, the Court declined Virani’s plea. That is, the Court assessed the claims of two parties to be the Next Friend in this case, and chose one over the other. Why this judgement is relevant here is that it illustrates that the Next Friend status has to be established, and can be contested in court.[24]

But how was the critical figure of Next Friend appointed in the Ayodhya case? How, as Rohit De puts it, was ‘Ram Lalla kidnapped’ and Next Friend status appropriated? In 1989, Deoki Nandan Agarwal, after retiring as an Allahabad High court judge, and having collected data, including revenue records, ‘to prove that the land belonged to Ram Lalla’ (as he claimed), filed a writ petition at Allahabad High Court’s Lucknow bench seeking his own appointment as Ram Lalla’s sakha (friend). As ‘Ram sakha’, Agarwal then filed civil suit no 5 on behalf of the deity at Ram Janmabhoomi with Ram Lalla as Plaintiff no. 1; the site itself, Asthan Janmabhoomi as Plaintiff No. 2; and himself as Plaintiff No. 3. Agarwal acted as Ram Lalla’s ‘Next Friend’ throughout his life. After his death in 2002, TP Verma, a retired history professor at Banaras Hindu University (BHU), got himself appointed the next ‘sakha’. In 2008, Verma applied for retirement in court, citing ill health and age. Triloki Nath Pandey then took charge as Ram sakha in early 2010. Pandey’s association with Ram Lalla began in 1974 when he became an RSS pracharak.

The link between the Vishwa Hindu Parishad and these individuals who unilaterally got themselves appointed the ‘Next Friends’ of the deity, is clear when we consider the following sequence of events. The VHP set up the Ram Janmabhoomi Nyas in 1986 to ‘renovate, reconstruct and develop’ the birthplace of Ram. It was soon afterward, in 1989, that Deoki Nandan Agarwal filed the writ to get himself appointed the Next Friend. After the recent Allahabad High Court judgement, Nritya Gopal Das, president of the RJN, staked the RJN’s claim to build the temple along with Ram Lalla – ‘We will build it with Ram Lalla, which will remain its owner, as it has always been,’ he declared (Bhattacharya 2010)

Thus, this position of ‘Next Friend’ has been unilaterally appropriated by the RJN and the VHP. Even if the deity is to be considered a minor, the only reason that the VHP is its Next Friend, is that the VHP approached the court first, having worked out its long-term strategy in Ayodhya. Consider the other ‘Hindu’ party to the dispute, with a much older history in Ayodhya than the RJN, but which had for long been eclipsed by the RJN until the judgement suddenly made it visible. Nirmohi Akhara is a religious denomination following its own religious faith and customs, belongs to the Vaishnav sampradaya and is one of the 14 akharas recognised by the Akhil Bharatiya Akhara Parishad. NA has long been at loggerheads with the VHP-dominated RJN and in April this year, it broke off all ties with the RJN. The chief priest of the NA, Mahant Jagannath Das said, ‘VHP does not have any claim over Ram Janmabhoomi. It just created communal riots and disturbed the peaceful atmosphere of country. It is responsible for whatever has happened in its so called Ram temple movement’ (Khan 2011).

Nirmohi Akhara filed a suit as long ago as January 1885 with the sub-judge of Faizabad, seeking consent to construct a temple for Lord Ram in the area called the Ram Chabutra, adjacent to the Babri mosque. (The RJN as we know, was set up about a century later!) The claim was not to the very land occupied by the Babri Masjid, but to build a temple adjacent to it. The sub-judge held then that two large religious structures in close proximity could potentially be a threat to public order. Permission was denied by the court, though the Nirmohi Akhara has since kept up its effort to construct the temple. Bhaskar Das, the Mahant of Nirmohi Akhara, was the man who had filed the first petition in 1959 seeking ownership rights of the land in Ayodhya adjacent to the mosque. He said to a reporter: “You know who filed the petition on our behalf for the first time? He was a Muslim, one Siddiqui sahib” (Banerjee 2010).

The current disagreements between the RJN and NA as to who will build the temple, whether the decision should be appealed in the Supreme Court, and whether a mosque should be built alongside, is a clear indication that while the appropriation of the status of spokesperson of Hindus status by the RJN/VHP may have legal standing currently, it can be legitimately challenged in court. Akhil Bharatiya Akhara Parishad president Gyan Das wants Muslims to build the temple and Hindus to build the mosque, proposing that the two shrines be set up ‘side by side’. To be able to do that, Gyan Das, who belongs to the Nirvani Akhara, says his sect and the Nirmohi Akhara will have to build the temple together (Bhattacharya 2010)

Rohit De points to a precedent for the argument that the claim of particular groups to speak for the entire religious community can be challenged before the court – the ongoing litigation over the Parasnath Hill in Jharkhand. The suit began when a Swetamber Jain trust sued the state of Bihar/later Jharkhand for control over certain shrines and pilgrimage facilities. The  Digambers intervened in a separate suit and argued that Sheth Anandji Kalyanji Trust (a Swetamber Trust) have no proprietary interest over the hill property nor do they have any hold in the forest. Rather, the Jain community as a whole has a right to worship on the shrines over hill and the other customary rights arising therefrom. The litigation on this has been going on for over 50 years in various forms and is currently being argued before the Supreme Court.[25]

‘Faith’ as Hindu/Hinduism as ‘culture’
The confident assertion by Yadav and Banerjee that ‘Everybody accepts that Lord Ram is integral to Hinduism and that he was born in Ayodhya’ is open to scrutiny. The heterogeneity of Hindu beliefs and practices across the country (including the worship of Ravana in several parts of India)[26]; the fact that for large numbers of practicing Hindus, Ram is not even a deity to be worshipped but an ideal man, maryada purushottam; the fact that there are very few temples to Ram;[27] are all matters that can be established in court, challenging the idea that ‘everyone accepts that Ram is integral to Hinduism’.

Soon after the judgement, some commentators applauded it for recognizing that ‘the social world of our subcontinent is deeply formed by its religio-sacred inheritances. Most people regard the divine to be intimately and integrally involved in human life’ (Mani 2010: 11); and for creating ‘a space for compassion and human sentiments’ (Nandy 2010: 16). Both Mani and Nandy seem to have accepted the general assessment then prevalent in the media and assiduously purveyed by some sections of the BJP that the judgement had accommodated ‘faith’. But as I hope to have demonstrated, only one ‘faith’, indeed, one particular voice in Hinduism, is legitimized in the judgement; and of course, the ‘religio-sacred inheritance’ of Muslims is not considered worthy of recognition at all. Mani further suggests that the judgement vindicates
‘the grounds that already exist for forging a common struggle against authoritarian religion…The very thing that secularism is unable to notice:  the open-ended, intimate, dialogic and, at  heart, individual relationship with Allah or deity, a fact inimical to the fundamentalist project’ (2010: 11).

On the contrary, it is precisely ‘authoritarian religion’ and ‘the fundamentalist project’ that has been vindicated by the judgement, the project that demolished the Babri Masjid and seeks the building of a temple at that very spot – mandir vahin banayenge. Mani’s ‘intimate dialogic’ relationship with one’s god does not require that god be accommodated in grand temples at the very site where the place of worship of another faith once stood.

Nandy seems to think (or did at that point) that the judgement encourages ‘Ayodhya to settle its problems locally…[It] recognizes that the final solution cannot come from the courts; it will have to come from the local communities’ (2010: 17). With all due respect, the judgement does nothing of the sort. I doubt that Nandy had read any part of the judgement at the time, at any rate there is not one concrete reference to the judgement in his entire article. Mani cites Justice Khan’s Epilogue, but we will return to Khan’s judgement in conclusion, and I suggest that a serious reading of his judgement would in fact undermine the majority decision.

This conflation of ‘faith’, ‘religio-sacred inheritance’ or ‘religion’ with the professed beliefs and practices of one strand of Hinduism is one common way of privileging Hindutva. A brief aside is not out of place here, to consider another kind of privileging of Hindutva in the public realm. This is the characterization of Hindu practices (and sometimes of Hindutva the political project) as non-religious, cultural, and generally ‘Indian’, as a Supreme Court judgement on Bal Thackeray’s politics did in 1995, terming Hindutva as  ‘way of life’ and as ‘Indianization’ (Menon 1998: PE6).
A more recent example of this strategy has been drawn to our attention by Arun Thiruvengadam. A judgement of a division bench of the Gujarat High Court recently dismissed with exemplary costs of Rs 20,000, a PIL filed by a Dalit activist challenging the performance of Hindu religious functions during a ‘foundation laying/bhumi pujan ceremony’ on the grounds of the High Court. The petitioner had claimed that the performance of such a Hindu ceremony in a government institution would ‘shake the confidence of the people who do not believe in Hindu religion’ and was therefore unconstitutional.

The judges held that any apprehension that the impartiality of the judiciary was impugned on account of prayers and the sanskrit slokas spoken at that ceremony, was a misreading of ‘a noble intention of praying the earth for the successful construction of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc.” The court was of the opinion that the offering of prayers for the betterment of everybody cannot be termed as a ‘non-secular activity’. The real object and purpose of the prayers was the successful construction of the building and ‘not for flourishment of any religion.’

As Thiruvengadam comments: ‘The Times of India report on the case carries the headline: “Secularism is not anti-God”. Students of the Indian judiciary’s body of precedents on religion and the law know that this sentiment is certainly in line with that body of law. However, the question is not whether one has to be ‘anti-God’ to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally’ (2010).

The universal position claimed by Hinduism in such situations (where Hindu practices reflect general Indian culture (breaking coconuts, worshipping bhumi), while other practices are religious) is exposed if one plays with a counterfactual idea around the insistence of the Hindu Right that Vande Mataram be sung by Muslims. The song supposedly merely shows veneration to one’s motherland, and by focusing on its idolatrous implications, the Hindu Right claims, Muslims display their lack of patriotism. In response, let us take a simple uttering of the sentiment, ‘God is great’, which could surely be proclaimed by any believer. Now, let us insist it must be said in the following way: Allah-o-Akbar. The impossibility of passing off the latter as merely ‘cultural’ reveals, as feminists recognized long ago, that proclaimed universals are always surreptitiously coded with the features of the dominant group, as Seyla Benhabib has pointed out in another context (Benhabib 1986).

The Ayodhya judgement and the Gujarat High Court judgement are thus similar in flouting, through different strategies, the basic principle of Indian secularism – sarva dharma sama bhava

Summary of flaws in judgement
Before we move in conclusion to Justice Khan’s judgement then, the following points discussed so far may be noted:
 

1. a) The status of the idol as juristic person and as minor have been conflated, permitting the argument that since Ram Lalla is a minor, the statute of limitations on contesting adverse possession does not apply. This means that SWB can use neither the argument of actual exclusive possession (since Hindus continued to worship in the outer courtyard) nor that of adverse possession (assuming a temple was destroyed 400 years ago to build the mosque) because Ram Lalla is not bound by the statute of limitations, being a minor, and can claim its property back even after 400 years.
2. b) The use of history in civil suits over property title has been established as impermissible by an earlier judgement of the Supreme Court in the Karnataka Board of Wakf case (2003). Title over property can only be ascertained by the courts for the last one hundred years and not beyond, it was held.[28]
3. c) The status of Next Friend has been unilaterally appropriated by the VHP claiming to represent all Hindus, a claim that can be contested in court.
4. d) The use of the terms ‘Hindu’ and ‘Muslim’ for the three specific parties to the title brings into the ambit of the judgement all Hindus and Muslims, who should therefore be permitted to have a voice in court.
5. e) The notion of ‘faith’ and ‘belief’ has been conflated with the professed faith of one strand of Hinduism only. If these notions are to have their place in a court of law, then they must be consistently applied, taking into account the faith of all parties to the suit.
6. f) Hindu law and Islamic law have been inconsistently applied in the case, and there is no explanation offered anywhere, of the principle of adjudication followed when one comes into conflict with the other. What is clear is that Hindu law has been consistently privileged.

Justice Khan – findings in conflict with decision
Coming now to Justice Khan’s judgement, the summary of his findings is in direct contradiction to those of the other judges.
He finds (in sum) that[29]
– The disputed structure was constructed as mosque by or under orders of Babar;
– No temple was demolished for constructing the mosque;
– Mosque was constructed over the ruins of temples and some material thereof was used in construction of the mosque;
– That for a very long time till the construction of the mosque it was treated/believed by Hindus that somewhere in a very large area of which premises in dispute, is a very small part where birth place of Lord Ram was situated, however, the belief did not relate to any specified small area within that bigger area.
– That after some time of construction of the mosque Hindus started identifying the premises in dispute as exact birth place of Lord Ram or a place wherein exact birth place was situated.
– That much before 1855 Ram Chabutra and Seeta Rasoi had come into existence and Hindus were worshipping in the same. It was very very unique and absolutely unprecedented situation that inside the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.
– That in the early hours of 23.12.1949, idols were placed beneath the central dome of the mosque.
That is, he disagrees with both Sharma and often with Agarwal on every key issue – he holds that the structure was a mosque, that no temple was destroyed to build it, that Hindus have not ‘always’ believed that the spot under the dome of the Babri Masjid was the birthplace of Ram, and that the idols that miraculously appeared in 1949 were placed there by human hands.
The decision he hands down however, does not follow from this outline of facts at all. Rather, we have to understand his decision in the light of the Epilogue[30] in which he sets out his reasoning. ‘My judgement is short, very short’, he concedes[31], but ‘Sometimes patience is intense action, silence is speech and pauses are punches.’ What is it that he wants us to hear in his silences?

He recognizes that this judgment is not finally deciding the matter and that ‘the most crucial stage is to come after it’. Keeping this in mind, he offers a reminder to ‘both the warring factions’ – to the Hindus, of the quality of tyag (sacrifice) that characterized Ram; and to the Muslims, of Mohammad’s treaty with the rival group at Hudayliyah, which initially appeared to be a surrender, but which proved to be a wise compromise, because within a short span of time, Muslims entered the Mecca as victors, and not a drop of blood was shed.

Although earlier in his judgement he celebrated the resilience showed by India after the demolition of the Babri Masjid, at this point he cautions against continuing on this path; implying a reference to the Hindu Right’s claims on mosques at Kashi (Gyanvapi)  and Mathura (Katra) when he says somberly: ‘Another fall and we may not be able to rise again, at least quickly. Today the pace of the world is faster than it was in 1992. We may be crushed.’

He quotes Iqbal here: Na samjhoge toh mit jaoge ae hindostanwalon/ tumhari daastan tak na hogi daastanon mein
(If you fail to understand, you will be erased, oh dwellers of Hindostan/your very stories will vanish from history.)
Turning to Darwin (‘what an authority to quote in a religious matter!’ he says in a tongue-in-cheek aside), he reminds us: ‘Only those species survived which collaborated and improvised.’
He then urges Muslims, as ‘junior partners’ in this democracy, to play a positive role in the resolution of this conflict.
Thus, when he finally concurs with Justice Sharma in finding both the parties to be joint title holders in possession of the entire premises in dispute, and allots to the Hindus the portion beneath the central dome where at present the make-shift temple stands, it is clear that the decision does not follow from his findings as outlined above.

Role of ethics in legal reasoning
What we see is that despite the findings as he sees them based on law and evidence, he privileges something else, something intangible, ‘a patience that is intense action’- the continued existence and survival of India as a plural society. What Justice Khan privileges is a form of ethical reasoning that is widely accepted as being part of law. Seen from this perspective, the majority decision (including Khan’s voice in it) in fact violates the widely accepted common law principle that no-one should benefit from his own wrong-doing. If one murders a person to inherit his wealth, then one should not be eligible to inherit it. The land-mark judgement on this question is by the state of New York in 1889 in Riggs v. Palmer. The majority decision was that over and above ordinary law, there were ‘fundamental maxims of the common law’, according to which, ‘No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.’ [32]

This understanding is widely accepted in legal philosophy, and Ronald Dworkin for example, has argued that in addition to rules established in statutes, ethical principles are also a component of law (1967: 23-24). Let us remind ourselves that in the Ayodhya case, the court framed Issue 25 and 26 in the following manner: Whether after demolition of the disputed structure as claimed by the plaintiff, it can still be called a mosque and if not whether the claim of the plaintiffs is liable to be dismissed as no longer maintainable? (Suit no. 4, Issue 25) and Whether Muslims can use the open site as mosque to offer prayer when structure which stood thereon has been demolished? (Suit no. 4, Issue 26).

It should be clear that this very manner of framing the issues violates a basic principle of legal ethics, permitting the criminal to take advantage of his own wrong-doing.

Lata Mani sees the judgement as making it possible to ‘facilitate peace understood as negotiated compromise’ (Mani 2010: 12). However, if the reasoning of Justice Khan is to be taken seriously, and it is accepted that the judgement on this issue cannot be purely about legal verities, but must foster compassion and peace, then why are we limited to this particular conclusion that treats Muslims as junior partners? Why is the sacrifice to be on the part of the younger sibling rather than the older?

If the reasoning behind Justice Khan’s decision can be a legally sound basis for arriving at a decision, then Ashis Nandy’s claim is vindicated that ‘The aim of a judgement is to deliver justice within the law, not absolute justice. But to acquire moral stature, it should ideally make sense within the ethical frames of ordinary citizens’ (2010: 16). However, I hope to have shown that the decision as a whole fails both tests – that of delivering justice within the law as well as making sense within ethical frames of ordinary citizens, presuming that the latter includes all citizens of India. However, if Nandy’s claim can be read as a blueprint of what a judgement, especially a judgement on Ayodhya, ought to do, I am in agreement with him.

Justice Khan’s Epilogue brings in ethics in an extraordinary fashion into the law. His argument is fully one half of the two judge decision, and if that reasoning is tenable, then there is no reason why the Supreme Court should not consider the case before it, keeping Justice Khan’s objectives in view. That is, rather than treating the issue either as a straightforward property dispute (which can legally only be resolved in favour of the SWB) or as a situation in which the powerful threatening majoritarian forces have to be appeased [33], the Supreme Court could address the issue as one involving the future of plural faiths, India’s future as a democracy, the need to live together, and above all, the desires of the people of Ayodhya themselves. As we saw earlier, it is already emerging that the way in which the Nirmohi Akhara (and other Akharas) see the situation and the way in which the RJN does, are quite opposed, with the former wanting a just and more local resolution in which the Muslims of Ayodhya will have a say.

If Justice Khan’s judgement has legal standing, then its reasoning is as important as his solution. This same reasoning can be used by the Supreme Court to arrive at a decision that is more just and inclusive. The parties to the property dispute are three specific groups, but they are continuously referred to by all three judges as the ‘Hindu’ and ‘Muslim’ parties. If ‘Hindus’ and Muslims’ are party to the case, then other Hindu and Muslim voices must be heard too. Every citizen of India has a stake in the resolution of the Ayodhya issue. We must insist our voices be heard, that wide-ranging discussions be conducted nation-wide – with the residents of Ayodhya, Hindu and Muslim, as the primary participants – to start the process of a just, creative and sustainable resolution of this intolerable situation.

The Supreme Court, in short, can do justice only by mandating a return of the Ayodhya dispute to the realm of politics, where it should have been resolved in the first place.

This paper grew out of the Rajendra Vohra Memorial Lecture delivered at the University of Pune in February 2011. Thanks to Suhas Palshikar for giving me the opportunity to benefit from discussions there. In earlier incarnations, this was a post on kafila.online (‘The Second Demolition’) and a short presentation in a panel discussion ‘The Ayodhya verdict: Fact Vs Faith’ organized by a student group, Anveshan, in October 2010. Thanks also to Rohit De and Tarunabh Khaitan for helping me think through a previous draft.

References
Benhabib, Seyla (1986) ‘The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory’ Praxis International 5:4 January
Bhattacharya, Debaashish (2010) ‘God of small things’ The Telegraph November 7
Biswajeet Banerjee (2010) ‘Muslim pleaded for Nirmohi Akhara in 1959’ The Pioneer  October 1
Dworkin, Ronald M (1967) ‘The Model of Rules’ The University of Chicago Law Review, Vol. 35, No. 1. (Autumn), pp. 14-46
Farasat, Warisha (2010) ‘Ayodhya Verdict: Does it Provide Closure?’
http://kafila.org/2010/11/09/ayodhya-verdict-does-it-provide-closure/
Gupta, Anupam (2010) ‘Dissecting the Ayodhya Judgement’ EPW December 11
Khan, Arshad Afzal (2011) ‘Nirmohi Akhara severs ties with VHP’, Times of India April 16
Mani, Lata (2010) ‘Where angels Fear to tread: the Ayodhya Verdict’ EPW Ocotber 16
Menon, Nivedita (1998) ‘State/gender/Community: Citizenship in Contemporary India’ EPW January 31.
Nandy, Ashis (2010) ‘The judges have been injudicious enough to create a space for compassion and human sentiments’ Tehelka Novemeber 6
Patel, Gautam (2010) ‘Idols in Law’ EPW December 11
Teltumbde, Anand (2010) ‘Whither the faith of Indians, your lordhsips?’ EPW November 13-19
Thiruvengadam, Arun (2011) ‘Gujarat High Court’s stimulating interpretation of the demands of Indian secularism’
http://lawandotherthings.blogspot.com/2011/02/gujarat-high-courts-stimulating.html
Vyas, Neena (2010) ‘RSS, VHP welcome court decision’ The Hindu September 18
Yadav, Bhupender and Vikramjit Banerjee (2010) ‘Courts can’t judge the rationality of faith’, Tehelka October 30
[1] Extensive summaries of the voluminous judgement prepared by Biswajit Roy (‘Reading the Ayodhya judgement’ Part I  https://kafila.online/2010/10/09/reading-the-ayodhya-judgement-biswajit-roy/ and Part II https://kafila.online/2010/10/15/reading-ayodhya-judgement-ii-biswajit-roy/) and by Aparna Chandra (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1690803 ) are  invaluable resources. The full judgement is available at http://rjbm.nic.in/
[2]‘Read the Ayodhya judgement: BJP advice to Left’ October 5, 2010 http://www.zeenews.com/news659771.html
[3] ‘Faith upheld by law, says Advani’  The Asian Age  October 4, 2010
http://www.asianage.com/india/faith-upheld-law-says-advani-751
[4] The use of the terms Hindu and Muslim parties for the RJN, NA and SWB in the judgement, is noteworthy and we will return to it in conclusion.
[5] Justice Sharma pp 112-113, Vol 1, OS No. 4/1989
[6] Summary of judgement by Aparna Chandra op cit P. 11
[7] Justice Agarwal, P 3315
[8] Justice Sharma P 290-291, Vol 2, OS No 4/1989
[9] Epilogue to Justice Khan’s judgement
http://rjbm.nic.in/suk/O.O.S.%20Nos.1,3,4%20&%205%20of%201989.pdf
[10] Presentation at seminar on Ayodhya at Centre for Historical Studies, JNU, January 2011
[11] ibid
[12] ibid
[13] ibid
[14] Justice Sharma P 236-7, Vol 3 OS No 4/1989
[15] Justice Agarwal P 3962
[16] Gist of findings Justice Khan’s judgement Point 7, P 282
[17] Justice Sharma P 87 Vol 3, OS No 4/1989
[18] Justice Sharma P 121, Vol 4, O.S. No. 4/1989
[19] Justice Sharma, P 144, Vol 4, OS No 4/1989
[20] Justice Agarwal, Pp 2594-2595
[21] Panel discussion ‘The Ayodhya verdict: Fact vs Faith’ organized by a student group, Anveshan, in October 2010
[22] Presentation at LASSNET conference, Pune, December 2010
[23] Supreme Court judgement on Aruna Shanbaug euthanasia petition, Para 126 (i)
http://ibnlive.in.com/news/full-text-supreme-courts-judgment-on-aruna-ramachandra-euthanasia-petition/145201-53.html
[24] It should be clear that I am not here going into the substance of the judgement that has crucial implications for the Right to Life. Two recent articles in EPW have raised this debate – by Rakesh Shukla and Sushila Rao in EPW April 30, 2011. I only draw attention here to the fact that simply making a claim to be Next Friend is not sufficient and rival claims are assessed by courts, finding one claim to be acceptable over others.
[25] ibid
[26] See accounts of Ravana worship in Karnataka, Madhya Pradesh and Jodhpur in Hindu Blog:
‘Ravan is worshipped at Khonpura Village in Madhya Pradesh’
http://www.hindu-blog.com/2010/09/ravan-is-worshipped-at-khonpura-village.html
‘Ravana Worshipped in Kolar District of Karnataka”
http://www.hindu-blog.com/2008/07/ravana-worshipped-in-kolar-district-of.html
‘Ravana descendants planning to instal idol’
http://www.hindu-blog.com/2006/11/ravana-descendants-planning-to-install.html
[27] For example, there are only 3  listed out of 61 major and ancient Temples in India by Swami Sivananda in a Divine Life Society publication. These are at Bhadrachalam, Nasik and Ayodhya, the last listed as destroyed by Babur. See http://www.dlshq.org/download/temples.htm#_VPID_22
This list is of course not exhaustive, but is certainly indicative of the fact that Ram is not worshipped in temples generally.
[28] The impossibility of ascertaining and adjudicating between such long-standing claims is evident when we consider the claim of  Buddhists to a history in Ayodhya going back to the 7^th century BCE. Press release from the All India Confederation of SC/ST Organisations after the Ayodhya judgement.
https://kafila.online/2011/01/08/ayodhya-for-buddhistsall-india-confederation-of-scst-organizations/
[29] Gist of findings of SU Khan, J http://rjbm.nic.in/suk.pdf
[30] Epilogue to Justice Khan’s judgement  http://rjbm.nic.in/suk/O.O.S.%20Nos.1,3,4%20&%205%20of%201989.pdf
[31] It is 285 pages to Sharma’s 5019 and Agarwal’s 560 pages.
[32] http://www.courts.state.ny.us/reporter/archives/riggs_palmer.htm
[33] In an intervention very soon after the judgement I had likened it to a decision of the village panchayat to marry the raped woman to her rapist, in order to secure peace. ‘The Second Demolition’ at https://kafila.online/2010/10/02/the-second-demolition-ayodhya-judgement-september-30-2010/
 

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Stylized image of fasces

It might as well have, but no. Really it doesn’t. The Vedic goddess vac (she who personifies speech) is not renowned for a sense of humour.

What the word fascism does come from is the aforementioned “bundle of sticks tied to an axe” or fasces,  that the bodyguard of the Roman magistrate carried in ancient Rome, as a symbol of his authority. Then Mussolini came along and resurrected the thing as a reminder  of ancient pride (although, not much pride for the minion carrying the symbol of another’s authority) and unity (sticks tied together are harder to break than sticks on their own).

Hence fascism. Hence the extreme allergy to being called fascist among Sanghis and the BJP because, really – Italy? Italy as the source of a name for their government? How fair is that, mitron?

Also because sticks they know well, this regime. Single sticks have heft, and come down nicely on soft skulls. Sticks tied together – clumsy, just unwieldy and pointless. Distribute them among well trained mobs, one per Sanghi – yeh hui na baat.

Altogether, the Sanghis are bewildered and enraged by all this talk of fascism. They hate Italians, and they understand that fascism is a term of abuse. And they are having none of it. Especially as the hundreds of thousands of urban naxals that have now emerged into the light of day hurl the term about freely.

The five people arrested recently apparently claim they are anti-fascist. They have attended  meetings about the thing. They might know some people who might know some other people who form fronts to “fight fascism” and who rejoice that “campaigns in support of the marginalised people are now visible in some states”, as a highly perturbed government prosecutor Ujjwala Pawar told the Pune City Court. Those people known to people known to them, write sinister letters to one another, signing off with revealing pseudonyms such as ‘Com M’, and spelling out elaborate plots to assassinate the person holding the highest elected office in the land. Also known as Pradhan Sevak (of the Sangh), and more importantly, as the newest friend of Chacha Chaudhary, beloved of children – practically Chacha Modi, really. Also as the inventor of the Modi jacket. (For someone who hates Nehru so much…)

Of course the other fascist parties are jealous of all this importance given to the BJP. Shiv Sena has been reported to be “sarcastic” in its sullen refutation of any such plot.
 

The plot to assassinate them (Modi and Fadnavis) seems mysterious and the story of a horror film

said an editorial in Sena mouthpiece, the Marathi Saamna. The editorial scoffs at the idea that an underground organization would spell out an assassination plot with its precise method (“Rajiv Gandhi style”), in a written letter.

More sarcasm is to follow. The editorial then says that Modi and Fadnavis should be provided with elaborate security cover so that they can live even if “lakhs of people die” (in Naxalite attacks), even though already Modi’s security cover is “as strong as Mossad” and Fadnavis has “converted the state Secretariat into a fortress”.

My goodness. So much sarcasm.

(There have been assassination plots against Modi before. Each one has won him an election).
But this anti-fascism business gets murkier and murkier. Tamil Nadu BJP chief Tamilisai, on a flight to Thoothukudi from Chennai, told the press that she noted “a young and seemingly innocent girl” in seat number 8 (this number must have some ominous relevance, we will know after further investigations by our conscientious police forces). Upon alighting, Tamilisai continued in her heart rending account, this girl (named Lois Sofia, an Indian woman studying in Canada)
 

suddenly shouted ‘down with fascist BJP government’. When I turned to her, she repeated it.

Now, as Tamilisai correctly pointed out, a person using the word ‘fascist’ cannot be an innocent person.
 

No innocent girl will use that word. I questioned her. She replied that she has the right to freedom of expression. She shouted that slogan and used the word ‘fascist’, raising her fist and all. I thought I shouldn’t ignore a terrorist, so I filed a petition.

Used that word fascist, raised her fist and everything. And questioned “her” (Tamilisai’s) government:
 

I told them I cannot ignore it if my government is questioned in such a way, Tamilisai said.

It’s the government of the BJP, to protect as they would their own mother. Who dares criticize my mother?

And of course, the BJP chief’s suspicions of Lois’s lack of innocence turned out to be right.
 

In the evening, I got reports that all those people who were behind the Sterlite protests (in Tuticorin) have come to support her at the police station. I also have information that she is connected to some groups in Canada

A-ha.

Anti-Sterlite, anti-fascist, anti-BJP.

And those groups in Canada, what about those, eh?

Unnamed ‘groups’.

In Canada!

Need one say more?

Actually no. Nothing more needs to be said. All the key words have been operationalized. Lois Sofia is an un-innocent urban naxal terrorist.

(So – I hear you seek a clarification – foreign connections, foreign support and funding, are never okay? Glad you asked. Foreign support IS very okay under very specific circumstances – here is a guide for the perplexed.)

As BJP leader and Union Minister of State for Finance and Shipping Pon Radhakrishnan explained the other day, those opposing various governmental projects are ‘terrorists’. He was adamant on this term, refusing the milder term anti-social.
 

These people are worse than anti-socials. They are against the people and growth…The State government has to take action. They have begun taking action; I am happy,

he said in an apparent response to the State arresting activists opposing the Salem-Chennai green corridor project. He added that the Central government would step in if the State government hesitates in taking such action.

It’s so reassuring to see such co-ordinated action across the board by the BJP. Arrests here, arrests there, all the terrorists opposing government projects (and projects of the government’s close corporate cronies), behind bars.

After all, the prisons where they will be lodged would all have been redecorated and renovated to Vijay Mallya’s exacting standards.

Look, these terrorists broke the Pradhan Sevak’s heart when they got the Sterlite plant shut down. The Sterlite project in Thoothukudi had his personal stamp of approval – the Modi government made an interpretation to green regulations in December 2014, which helped Vedanta’s plant at Thoothukudi to be built without consulting people of the project-affected area.

Anybody can see the problem with  all this ‘consulting the people’ kind of anti-national, urban naxal nonsense. Look at the tribals across the tribal belt of central India, not even bothering to pick up guns, simply planting stones citing the authority of the Constitution, demanding that gram sabhas be permitted to take decisions regarding their own resources.

I refer to the pathalgadi movement, driven by what Nandini Sundar calls ‘constitutional messianism‘, the immediate impetus for which were amendments proposed by the current BJP government of Jharkhand, to two key legislations that protect tribal rights to their land – Chhotanagpur Tenancy Act and Santhal Pargana Tenancy Act. The legislation was passed, but aroused such widespread opposition that it had to be withdrawn. Subsequently, the same effect was cleverly achieved by the BJP government by the passing of amendments to another legislation in 2017, that is, the Land Acquisition Act, 2013. The amendments enable the acquisition of tribal land for ‘development’, reduces the scope for social impact assessment and reduces the powers of the gram sabha to merely giving ‘advice’. This legislation received the assent of the Governor this year, in 2018. What is more, the copy of the Amendment Bill, which finally got the assent of the President, has been kept out of public circulation by the government, and what can be viewed is only the Draft Bill.

Of course the people do not know what is best for the government.

Why should they be consulted? Any demand for consultation is nothing short of sedition.

I think of the lower ranks of the police puzzling over books by Marx and Mao and Ambedkar found in scholars’ homes during police raids (time that could be more profitably spent raiding Hindu terrorist organizations like Sanatan Sanstha, which claims a section of police officers is involved with them). I imagine non-English speaking constables being confused by terms like Anti-Fascist Front. Then I imagine all this ‘evidence’, these papers and books, reaching the desks of IPS officers, who have studied in the top universities of the country, who know very well that they themselves have read such books, that these cases are quite simply what a certain Congress MP would call a ‘farrago of lies’, and I ask myself, what are these top police officials thinking? Is there not one voice from among them to speak up publicly against this kind of ridiculous, shameful attack on democratic rights that has come to characterize police action? How many young Muslim boys languish in jails on such bizarre and cooked up evidence?

It seems that after case after case lodged against AAP MLAs fell to the ground in courts, top police brass in Delhi called a meeting and “directed DCPs to conduct a thorough investigation before approaching the courts”.

Thorough investigation before arrests and courts. Now, there’s an idea.

Whatever fascism may have been in Italy in its time, the term now refers to authoritarian governments that brook no voice of opposition to their pro-corporate and anti-poor agenda; control the media through carrots and sticks; invoke the Nation and produce internal enemies to justify terrible repression, and are resolutely anti-intellectual and anti-universities as these produce critical thinking.

All these features can be identified in the RSS-directed BJP regime. A poisonous cocktail of virulent anti-Dalit Hindutva and predatory capitalism, breaking up India into pockets of hate and expropriation – BJP-RSS is the real tukde tukde gang.

To dissent is to hold an opinion at variance with ‘officially‘ or ‘commonly held‘ views. In India the two are different. The ‘official’ view of the state is one thing. But I don’t believe the ‘commonly held’ view on anything in India conforms to the RSS’s masculinist, North Indian hegemonic, savarna, Other-hating ideology. (Even other Hindutvavadi outfits like the Shiv Sena disagree with its Brahminical vegetarian mode of functioning.)

The shadowy, malevolent RSS has never dared to contest an election precisely because it knows very well that the people of India do not tolerate its views. Its mode of functioning therefore involves two principles – one, the creation and spreading of a network of lies. Two, violent intimidation and production of ‘riots’ and lynch ‘mobs’ – both words suggesting spontaneity, when what is involved, is meticulous planning. We can see these in operation everywhere today, now that the RSS has the backing of the state. The point is that it is the RSS that dissents from commonly held views on how we choose to live in this landmass that we call India.

As for dissent from official views – it is the very spirit, the life breath of democracy. Dissent to official ideology cannot be treated as merely an indulgent permission by the state to let off steam so that the pressure cooker can continue cooking the people! Dissent can and will eventually reshape the very ingredients and vessels and form of fuel used in the cooking process; not  to mention transforming notions of who will do the actual work involved in cooking.

So yes, the BJP government is fascist and will be spectacularly defeated in 2019. Hence the desperation. Watch out for more violence, more arrests, the uncovering of more assassination plots, a war maybe.

And keep a sharp eye on those EVMs. They are fussy creatures, affected by heat waves, charmed by lotuses, and when they malfunction, it is always in one particular way.

Moreoever, they are independent young things, with a mind of their own, and tend to go missing. Manoranjan Roy filed RTI applications over a year to the two PSUs that manufacture EVMs, as well as to the Election Commission, and found huge discrepancies in the numbers manufactured and those received by the EC, at times ranging from several thousands to lakhs of EVMs, raising questions on “where the excess number of EVMs are going, and what is being done with them.”

VVPAT paper trail machines are malfunctioning too, and also are not being manufactured fast enough to meet the deadline of the 2019 elections. The government, with a kindly pat on the EC’s shoulder, has recommended it buy them from the private sector (mera dost hai, jaldi deliver kara dega). Quite insistent the government was. The Law Ministry sent three letters, between July and September 2016, seeking EC’s views on the suggestion, as Indian Express learnt through an RTI. The Express story adds:
 

Documents show this suggestion had its origins in a meeting held in the Prime Minister’s Office (PMO) on July 11, 2016.

Nasim Zaidi, the Chief Election Commissioner at the time, firmly turned down the suggestion as it could hurt the credibility of the election process.

Stirring times ahead, fellow urban naxals!

Courtesy: kafila.online
 

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According to Republic TV, this committed and dedicated lawyer and activist is an “urban Maoist” who is “plotting to break India” with separatist groups and armed guerrillas across the country. The basis for the long list of scurrilous allegations and malicious insinuations against Advocate Bharadwaj is a letter purported to be written by her that Republic TV claims it has accessed.

The provenance of this letter is not revealed and we are not told how it came into the possession of Republic TV. The language of the letter is crude and clumsy, with the supposed author self-identifying as “Comrade Advocate Sudha Bharadwaj” and mentioning the names of various known and unknown individuals who are meticulously addressed as “Comrades”. The contents – or rather, what Republic TV claims are the contents – are supposed to establish a “sensational” connection between the Kashmiri separatists, “urban Naxals”, students from JNU and TISS, and others who take public stands against the anti-people policies of the state. According to Republic TV, these are “incontrovertible and unquestionable facts” that cannot be questioned.

Based on the telecast, the alleged letter belongs to the shoddy archive of similar “documentary proofs” that are regularly leaked to the press by investigation agencies eager to pin various “crimes” onto activists, leaders of people’s movements, political opponents, human rights defenders, critics of government policies and other citizens who are exercising their legitimate rights to free speech, dissent and political action.

The frenzied propagation by Republic TV of these concocted allegations and invented charges against known critics of the ruling party is clearly aimed at blurring the lines between evidence and allegation, accusation and proof, coincidence and causality in the mind of viewers who do not have access to multiple sources of information.

Equally dangerous is the creation and demonisation of virulent labels like “urban naxals” and “tukde-tukde gang”, which gain currency solely by virtue of insistent repetition and circulation despite being legally, factually and politically untenable.

The lethal consenquences of this shameless manipulation of public opinio​n​​ are today visible in the form of the targeted lynchings of Muslims, Dalits and others identified as criminals based on malevolent WhatsApp messages and videos.

Ludicrous though this attack on Advocate Bharadwaj may seem, it is also a signal of the widening dragnet being used to establish absolute control over all institutions and spaces of governance. We call on all responsible people to condemn and expose this attack as the latest attempt by the Modi sarkar and its embedded propagandists in the media to bypass democratic institutions, undermine the rule of law, stifle all voices of dissent and crush all those who seek to question or challenge their autocratic rule.

We also call on media bodies, professional associations and senior journalists to come out and condemn practitioners of this form of toxic, unethical and malicious “journalism”.

Nancy Adajania, curator and writer
Prof Amita Baviskar, Institute of Economic Growth
Dr Shilpi Bhattacharya, OP Jindal Global University
Prashant Bhushan, Advocate, Supreme Court of india
Dr Neera Burra, writer and historian
Prof Uma Chakravarthy, feminist historian
Anil Chamadiya, journalist
Prof CP Chandrasekhar, JNU
Anil Chaudhary, PEACE
Dr Yug Mohit Chaudhary, Advocate, Bombay High Court
Dr Vanessa Chisti, OP Jindal Global University
Maja Daruwala, Senior Advisor, Commonwealth Human Rights Network
Senior Advocate Mihir Desai, Bombay High Court
Saba Dewan, filmmaker
Deepa Dhanraj, Filmmaker
Professor Sabeena Gadihoke, AJK Mass Communication Research Centre, filmmaker
Prof Jayati Ghosh, JNU
Professor Shohini Ghosh, AJK Mass Communication Research Centre, filmmaker
Viji Ghosh, journalist
Colin Gonsalves, Senior Advocate, Supreme Court of India
Dr Smita Gupta, JNU
Prof Zoya Hasan, JNU
Ranjit Hoskote, curator and poet
Indira Jaising, Senior Advocate, Supreme Court of India and former Additional Solicitor General of India
Amar Kanwar, Filmmaker
Prof Ayesha Kidwai, JNU
Ritu Menon, publisher and writer
Dr Kalyani Menon-Sen, researcher and writer
Ravi Nair, SAHRDC
Farah Naqvi, writer and activist
Aditya Nigam, Centre for the Study of Developing Societies
Anand Patwardhan, Filmmaker
Pamela Philipose, journalist
Dr Imrana Qadeer, health activist
Annie Raja, General Secretary, National Federation of Indian Women
Vimala Ramachandran, Education Resource Unit
Aruna Roy, Mazdoor Kisan Shakti Sangathan
Dunu Roy, Hazards Centre
Rahul Roy, filmmaker
Prof Abhijit Sen, JNU
Ardhendu Sen, IAS (retired)
Dr Jhuma Sen, OP Jindal Global University
Dr Rohini Sen, OP Jindal Global University
Dr Mira Shiva, health activist
Abhishek Srivastava, journalist
Dr Pankaj Srivastava, journalist
Prof Nandini Sundar, Delhi School of Economics
Prashant Tandon, journalist
Henri Tiphagne, People’s Watch Tamilnadu
Dr Achin Vanaik, writer and researcher
Dr Anish Vanaik, OP Jindal Global University
Anand Swaroop Varma, Editor Samkaleen Teesri Duniya
Prof Asghar Wajahat, writer, playwright and filmmaker
Nivedita Menon, Jawaharlal Nehru University
 

The post Statement condemning the attack on Advocate Sudha Bhardwaj appeared first on SabrangIndia.

Needless to say, such an act has far-reaching repercussions for higher education in India.

The Union HRD Minister, Sri Prakash Javadekar, has urged all members of the concerned public to respond to the proposed draft of the HECI within the 7th of July, 5 pm.

This is a very short time span, but a response has been prepared by college and university teachers laying out the problems of the draft, strongly opposing the same. We believe that by withdrawing financial powers from the regulator and handing them over to the central government, and by giving the HECI unilateral and absolute powers to authorise, monitor, shut down, and recommend disinvestment from Higher Educational Institutions, the Draft Bill will expose higher education in the country to ideological manipulation, loss of much needed diversity as well as academic standards, fee hikes, and profiteering.

You can read the full draft of this response here.

If you would like to respond to Shri Javadekar along these lines, please click here and follow the simple instructions.

Courtesy: kafila.online
 

The post Higher Education Commission of India Act – Send your responses NOW! appeared first on SabrangIndia.

Image: Creative Commons/Joi Ito

We learnt from media reports that a duly constituted committee of AUD has found Lawrence Liang guilty of sexual harassment. We did not know about this earlier, as some characteristically self-righteous and ill informed twitterati assume we did. Those whose social concern and activism is limited to busy fingertips obviously have no idea about the processes that have been carefully put in place in sexual harassment policies in universities, which protect confidentiality primarily to protect the complainant. So the first we heard of the leaked AUD report was from the media. Lawrence’s own statement was then issued that says that he plans to appeal this decision. This statement too we saw in the media.

From enquiry to report to appealing the decision (which can be done by complainant or accused) – these are all established stages of due process that feminists have worked for decades to establish, from the Vishakha judgement of 1997 onwards. That judgement itself was a result of feminist intervention. I do not understand ‘due process’ as a technicality alone, nor do feminists in general who have worked with women and men complainants on this complicated issue, especially in a context of power in academic contexts. We see due process as involving principles of fairness and justice, and the opportunity for both sides to be heard. We also see due process as involving graded punishment according to the context of the act of harassment. This is crucial. Depending on the nature of the act of sexual harassment, the punishment would and should vary. The minimum punishment cannot be termination from a job, especially as in Lawrence’s case it is clear that the incident did not happen in a student-teacher interaction. In my opinion, the decision of the Committee regarding punishment is judicious and appropriate to the situation as described.

Of course there are failures of due process, as for example in the Mahmood Farooqui rape case, in which the Delhi High Court overturned the lower court judgement that found Farooqui guilty. The High Court judgement said two mutually contradictory things. That it is doubtful that the incident ever took place. And second, that if it did take place, the complainant’s ‘no’ was too feeble for the accused to understand that it was not consent. As Mrinal Satish puts it:
 

If on the basis of the evidence adduced, the court laboured a doubt about the timeline of the survivor’s testimony, it should have acquitted Farooqui straightaway. That could have been said to be based on a sound legal basis, although one may disagree on the interpretation of facts. However, by articulating irrelevant “standards of consent” and ruling that the perception of the accused on the survivor’s consent is relevant in rape adjudication, the judgment causes immense damage to rape law, and to the advances made—both in law and public discourse—after the 2012 Delhi gang rape.

So yes, due process does not always deliver justice.  And when such perversions of justice happen, it is our responsibility to produce the counter narratives at every level, from protests on the ground to analyses of the judgement, that will change the common sense around these issues. For the finger-tip activists with no historical memory, it may be necessary to remind ourselves that the 1983 amendments to the rape law came out of widespread social reaction to the Supreme Court judgement that acquitted the rapists of Mathura. Similarly the 2013 amendments emerged after protests and interventions after the Delhi gang rape. This is not the place for a critical analysis of the 2013 amendment, but my point is that when due process fails to deliver justice we do not give up on it but struggle to make it more accountable.

Just as when democracy fails us and ‘the people’ put fascists in government, we do not give up on democracy.

It must also be noted that there has been no statement from AUD so far, and we are all basing our understanding on a report leaked to the media before the process is complete. The AUD process includes the opportunity for both sides to appeal, only after which is the report made public. We must keep this in mind, that the process is not complete.

Nevertheless, both I personally as well as the Kafila Collective have taken the leaked report to be genuine, and we accept that a clear and just procedure has been followed up to this point in the proceedings. We await the end of the process to collectively decide our next course of action.

Does the AUD report establish the validity of the List? On the contrary, it thoroughly invalidates the politics of the List which I still hold to have been an act of abdication of responsibility, as was established by the defensive and vacuous responses of the administrators of the List to Partha Chatterjee’s direct question as to what the complaint against him was. They had no details to provide, and when backed into a corner, very soon simply started attacking him again, asking him to consider his own behaviour over the years and decide if it was sexual harassment! But one of the key feminist interventions has in fact been to establish that some kinds of behaviour considered normal are not normal or appropriate. Feminists have worked to define sexual harassment to the extent possible, and this has a pedagogical function as well, in that it helps people to revise their previous behaviour. We are trying to build new spaces, new forms of interaction based on mutual respect, and we believe that social interactions can be transformed through political intervention. To this end, we believe that dialogue and conversation are as necessary as an end to impunity.

As for this particular case, it should be clear that the justification of the List supporters at that time, that due process never works and that is why a hasty list with no context or description of the alleged acts was required, has been proved to be untrue. The complainant did get a hearing through the procedures established by AUD in 2014, under the policy on sexual harassment that it established, and the report has established culpability. This policy was evolved through wider consultations with the larger feminist legal community, which has worked for decades to establish due process on sexual harassment through policies in universities.

The question about whether those who signed the Statement that questioned the List now realize the List was “correct” only arises from those who accused us of protecting people on the List and worrying about “innocent men” on the List. These were never our concerns, as anybody simply reading our Statement will see. Our concern was that the politics of the List was dangerous for feminist politics – for attempts to make sexual harassment visible as a crime. And indeed, the ridiculous responses of the administrators of the List to Partha Chatterjee justified our fears.

It is also important to remember the simple fact the List is not some grand originary moment. It was started in the wake of the #MeToo campaign, which in turn came out of decades of feminist politics that in the US has struggled to establish sexual harassment as a crime. There is also the very long history of ‘breaking the silence’ on sexual harassment in India. So the fetishization of the List and some individuals by themselves and by other finger-tip activists is in fact contrary to all feminist ethics.

How should the academic community react in terms of future speaking engagements or academic collaboration with those found guilty of sexual harassment? I think it is not for anybody to lay down how an entire community should react. Individuals and collectivities will take decisions on this as and when necessary, and I would certainly consider it a deeply undemocratic act to insist on one kind of response from everyone. There are ongoing conversations about what appropriate responses can be, and these difficult conversations are unavoidable.

There is no quick fix to the complicated issue of sexual harassment, and complicated it is. And certainly the kind of self righteousness, lack of self-reflection, moral high ground capturing and continuously accusatory tone adopted by some on social media is not helpful at all.

Courtesy: Kafila.online
 

The post Lawrence Laing case: There is no quick fix to the complicated issue of sexual harassment appeared first on SabrangIndia.

The Union Budget 2018-19 makes tall claims, with no clear road map for the health sector, one that is sensitive to the needs of the poor and the vulnerable population of India.

Image: Scroll.in

The allocations for Ministry of Health and Family Welfare (MoHFW) (including for AYUSH) have increased from Budget Estimate of Rs. 50,281 crore in 2017-18 Rs. 56,226 crore in 2018-19.

However, from 2017-18 (Revised Estimate) the increase is much lower, a mere Rs. 1374 crore, or just about 2.5 percent. This is a decline in real terms if we account for inflation, and Union Budget allocations for the health sector have stagnated at 0.3 percent of Gross Domestic Product (GDP). The 2017 target of National Health Policy (NHP) is 2.5 percent of GDP as health expenditure by the Government (both Centre and States) by 2025. However, with central allocations stagnating at the current 0.3 percent of GDP, it would not be possible to achieve this target.

The ‘Modicare’ mirage
The announcement of National Health Protection Scheme (NHPS) touted as “world’s largest government funded healthcare programme” (termed ‘Modicare’ by sections of media) with 50 crore prospective beneficiaries is accompanied by an allocation of just Rs. 2000 crores.
Some facts about this scheme:

·       This is not a new scheme·       

• Raising of the sum assured to 5 lakhs this year was not necessary. In most circumstances the earlier sum assured of Rs 1.5 lakh was quite adequate, and disease specific exceptions could have been made when necessary. The increase to Rs 5 lakhs has been done mainly to address the demand of the corporate sector. The other key stakeholder seeking a slice of this pie is commercial insurance companies.
• Over half the target beneficiaries proposed to be covered under the NHPS already stand covered today by existing government supported schemes. What would indeed have been a step forward is if it covered out-patient treatment as well – but that is lacking.
• This scheme does not address the problems associated with existing Rashtra Swasthya Bima Yojana (RSBY), of which it is an expanded version. RSBY has not been successful in reducing healthcare costs for the poor. Many states have in fact opted out of RSBY in favour of state-run schemes, and some states are trying out the trust-based model. A recent comprehensive review on various studies related to RSBY (Prinja, 2017) revealed that in a majority of studies (8 out of 14) there was increase in Out of Pocket Expenditure related to RSBY, while only 2 of 14 studies showed reduction in expenditure. NSS data on RSBY shows that enrolment is quite low – only 57% of those eligible are enrolled. And less than 12% of the eligible persons got their hospitalization covered through RSBY.

·       The National Health Mission with a 30,000 crore budget covering the entire 130 crore population is a much larger scheme than this one, touted as “the world’s largest government funded health care programme.” 

This line has been repeated by the Prime Minister himself. But more importantly:

Why is health care being equated with health insurance and not public health services?

Key public programmes underfunded
The allocations for maternal and child health in the budget are covered under the Reproductive and Child Health (RCH) component of National Health Mission. In 2018-19 (Budget Estimate BE) the budget for RCH has declined by 33 percent from 2017-18 (Revised Estimate RE). Along with this we must note that the allocation for Pradhan Mantri Matru Vandana Yojana (PMMVY), which was earlier called the Maternity Benefit Scheme, has also decreased by 8 % over 2017-18 (Revised Estimate). Thus, overall there is a reduction in allocations for schemes/programmes devoted to maternal and child health.

The announcement of allocation of Rs. 1200 crore for the Health and Wellness Centres (HWCs) is a step towards strengthening primary healthcare. However, an announcement for establishment of HWCs was made in the last year’s Union Budget also, but till date there have been no examples of these centres getting established anywhere in the country while the government has invited contribution from the private sector in the establishment of HWCs. This is not a positive move for India where out of pocket (OOP) expenses are already high. Current allocations will pay for only about 10,000 HWCs – less than 7% of what is required.

Although there has been an announcement for establishment of 24 new Medical Colleges by upgrading District Hospitals, the allocation for this particular sub-head under NHM has decreased from Rs. 3300 crore in 2017-18 (RE) to Rs. 2888 crore in 2018-19 (BE), a decline of about 12 percent.
Gradually the public health system is being weakened by drying up resources for government schemes such as the National Health Mission. There is a visible failure in addressing the critical issues of health system strengthening, such as access to generic medicines and diagnostics, freeze on recruitments in health sector, and contractualisation of health workforce. 

The Union Budget 2018-19 thus, continues to neglect the public health system and instead increasingly focuses on enhancing the role of private sector in healthcare. Moving towards an insurance-based model of healthcare at the expense of strengthening public provisioning would lead to disastrous results for a country like India where a large section of population who is poor and vulnerable depends on public provisioning of healthcare.

Jan Swasthya Abhiyan urges the government to follow recommendations for increasing the budget to at least 2.5% of GDP as envisaged in the National Health Policy, accompanied by strengthening of the public provisioning of healthcare to address needs of the common people, and not the private sector whose exploitative practices are widely known and recently stand further exposed. 

A range of public policy innovations are urgently needed to ensure health and health care for all the people of this country:

• public systems to ensure adequate supply of free medicines
• upgrading of Primary Health Centres and Community Health Centres
• community accountability of public health services
• strengthening of  primary health care in rural and urban areas linked with District health systems, and
• establishment of Right to Health Care 

The Jan Swasthya Abhiyan (JSA) was formed in 2001, with the coming together of 18 national networks working on public health.
 

The post Exposing the mirage of ‘Modicare’: Jan Swasthya Abhiyan appeared first on SabrangIndia.

Student poster displaying a clear understanding of Foucault and surveillance. Compulsory attendance is really not needed at JNU!

Professor Mamidala Jagadesh Kumar has, since his taking over in January 2016:
 

• openly flouted every statute and regulation of the university
• shut down admissions almost entirely for the 2017 academic year
• violated the law of the land, that is, constitutional provision for reservations
• failed to implement JNU’s Deprivation Point system that attempts to bring about representation for students from a diversity of class, regional and caste backgrounds
• shut down the country’s oldest functioning Committee on Sexual Harassment (GSCASH)
• brazenly cooked up and manipulated Minutes of meeting after meeting of the Academic Council and
• treated faculty and students of JNU as his enemies to be defeated by the naked use of authoritarian power.

He has lost all moral authority to continue as the Vice Chancellor of a university that has consistently been ranked highly by reports of the National Assessment and Accreditation Council – see here  and here, as well as by reports of the National Institutional Ranking Framework (NIRF), carried out by the government of India in 2017 and 2016.  (All this before this VC taking over, and without compulsory attendance.)

Students gathered at Freedom Square

It would be a mistake therefore, to see the current unrest at JNU as resulting from a protest at compulsory attendance alone. Even this protest is not about the ‘right not to attend classes’, as it was put in a newspaper editorial.  A number of articles by students and teachers of JNU have argued that classes are taken and attended routinely; most students have way over the 75% compulsory attendance that is sought to be implemented; and even through the massive protests we see today, apart from two days of strike called by the JNU Students’ Union, classes are going on.  In protest, these classes are being held outdoors and research proposals are being presented to faculty seated on the grass. However, speakers from outside invited to speak at JNU are finding seminar rooms packed as always, with interested students and faculty.

Ph.D synopsis presentation in the open air before faculty and rest of the class. Other classes can be seen going on in the background.

As Rajat Datta, professor at Centre for Historical Studies, put it:
 

The crucial point is that a form of compulsory attendance is already in place in JNU, albeit minus the coerciveness, because attendance is linked to evaluation and not to registering an individual’s presence in class as a matter of fact. This is the pedagogical aspect of attendance, where a student’s academic performance is judged through her participation in a series of interactive sessions with her teacher and her peer group. Such interactions are carefully prepared and calibrated: prescribed readings must be done, papers written and submitted on time, and arguments presented and defended.

Other faculty have written on different aspects of why compulsory attendance is neither necessary nor desirable; and in the case of research scholars, utterly infeasible. See Kavita Singh in Wire and Scroll; G Arunima in Indian Express; Kamal Chenoy in Daily O; Ayesha Kidwai in Indian Express; Avijit Pathak in Wire.

Students have written too – Chepal Sherpa points out that JNU’s ‘vibrant political activism has so far prevented the privatization of JNU, kept education affordable and inclusive and ensured social and gender justice‘ while the JNUSU President Geeta Kumari wrote against compulsory attendance citing John Holt, who termed compulsory learning
 

‘a tyranny and a crime against the human spirit.’ Such fiats stem from distrusting the student and overlooking the various life circumstances of the learner. They obstruct rather than facilitate student participation in learning.

In a meticulously documented Public Inquiry against the Vice Chancellor held late last year, the JNU Teachers’ Association documented some of the illegal actions of the VC as follows:
 

• The 2017-18 M.Phil./PhD admissions to JNU have seen an overall 83% cut from the previous year. Actual admissions are reported to be less than 100 out of this 194 seats. Intake for 2018-19 is projected to be just a little more than 50% of the 2016 values. None of these decisions about intake and admission policy have been deliberated upon by the Academic Council, the only forum with the authority to do so by the JNU Act.
• National reservation policy has been violated with impunity, with confirmed admissions of only 3 SCs, 2 STs, and 13 OBCs for the 2017-18 admissions. The JNU innovation of awarding deprivation points for regional, economic and gender backwardness has been dispensed with entirely for research admissions.
• Hailed as a landmark example of how to address sexual harassment in universities by the late Justice Verma Commission of Inquiry Report, and presented as a model for other universities by the UGC‘s Saksham Guidelines, JNU‘s Gender Sensitisation Committee Against Sexual Harassment has been abruptly wound up and replaced by a committee in which all the faculty members are nominated by the Vice-Chancellor. Today the replacement Committee is busy organising self defence classes in collaboration with the Delhi Police but has not a word to say about the fact that JNU women students are being harassed and defamed in the name of hostel security checks.
• The full effects of the Vice-Chancellor‘s arrogating to himself the power (which the UGC or the JNU Act does not give him) to determine who is an expert in every field taught and researched in JNU, and to call only those he has so named to Selection Committee meetings are being felt in full now. The last two months have seen Selection Committee after Selection Committee stacked with ̳experts‘ whom the Vice-Chancellor has picked. Academic considerations are being subordinated in the selections made, with an alarming frequency. The names of these so-called experts and the Minutes of these Selection Committees are not even being shown to the Executive Council. Any protest at these violations by the ex-officio members in Selection Committees, such as heads of departments or Deans, is met with a swift reprisal and disciplinary action. With about 280 appointments and scores of promotions in the offing, the academic future of the university looks bleak.
• JNU is a residential university and the hostel wardens play a very important role in maintaining order, good humour, freedom from violence, and democracy in hostel functioning. Further, hostel wardenship is the means by which younger colleagues can avail of university accommodation. Over the past six months or so, more than 20 wardens have been summarily informed that they are to be relieved of wardenship within the next six months, without any explanation.
• All norms that have ensured democracy of functioning have been given the complete go-by. The appointments of Heads of departments and Deans of faculties is no longer one by the principle of seniority by rotation. In the School of International Studies, the third senior-most Professor was designated Dean and in the School of Social Sciences, the appointed Dean is sixth on the seniority list.
• Disciplinary action and vindictive punishment has become the norm, without even the cursory gesture towards due process. Just in the last week 15 students have been issued show-cause notices for a range of very severe punishments, faculty have been removed from their positions as chairs for daring to disagree with the Vice-Chancellor. A ever-growing round the clock surveillance, whose only aim is to retro-fit every opinion and act into the language of misdemeanour, has pinned all democratic discussion and dissent under the gaze of a ruthless panopticon. Even while there may be humour to be found in a JNU administration that surround itself with barricades at the sight of a poster by some young women resolving to read the works of Audre Lorde near his office, this cannot override the overwhelming sense of despair that for this Vice-Chancellor, the university has to become a bootcamp in which the message has to be delivered through a tank rather than through reflection, consultation, and mutual respect.

See Ayesha Kidwai’s JNU community Vs. the JNU VC  for detailed figures such as the one below on how research admissions to JNU have been destroyed by the VC.

The Public Inquiry also looked into the manner of handling of the disappearance of Najeeb, a JNU student attacked by ABVP activists on campus, and concluded that the alacrity with which fines and punishments were dealt out to other students for peaceful, non-violent protests was not shown in this case. The VC’s ‘inaction’ in Najeeb’s case (he is still missing) was patent and appears motivated.

The Public Hearing concluded that the Vice Chancellor is guilty of each of the charges laid out against him and also guilty of
 

leading a process that can be unambiguously described as having disastrous consequences for the future of this premier institution as a centre of academic excellence in the widest possible sense of the term

and concluded therefore, that Professor M. Jagadesh Kumar is unfit to be the Vice-Chancellor of JNU. The members of the jury also suggested that a class action litigation or an appeal for a Visitor’s inquiry could be the route to follow in case Professor Jagadesh Kumar does not step down on his own, as a self-respecting Vice-Chancellor should under these circumstances.

(The full report of the Public Enquiry is available here).

Since then several reports on the ‘Appointments Scam’ in JNU have emerged in the media, showing the extent to which the Vice Chancellor has single handedly controlled every faculty appointment made in the last few months, flouting even the semblance of legality or rule-bound functioning. See Vandana in The Week , Ajoy Ashirwad Mahaprashasta in The Wire and Aranya Shankar in The Indian Express.

A little over a year ago, in December 2016, here on Kafila, the statement by 20 faculty members of the 142nd Academic Council meeting (about half the members present), was published along with a report on the shockingly illegal conduct of that AC meeting.  The statement said in part:
 

The minutes of the previous (141^st) Academic Council meeting that had been circulated contained many errors, misrepresentations, and falsities. Several of these had been pointed out by many members of the Academic Council, including in written representations to the Registrar.
The Registrar misled the Academic Council that no written submissions had been received and retracted only when copies of such responses were provided to him. The repeated tampering of minutes has become a serious problem that is affecting the functioning of the university and is against all procedural norms.

Every single AC meeting conducted under this Vice Chancellor since then has seen the continued falsification of Minutes and protests are termed as disruptions.

What is significant today is that yesterday, one of the new external (non-JNU) members of the AC inducted by the current VC, Madhu Kishwar, who is not known for her sympathies to the Left, publicly declared that the decision on compulsory attendance was not taken in the AC meeting, as the VC has publicly claimed. To Republic TV for example, the VC said:
 

Vice-chancellor cannot take any decision. It is the statutory bodies that decide the rules, regulations and formulae. As a single member of the academic council, a VC can’t along (sic) (alone?) bring any rule.

Well, he is lying. While his ‘team’ in the administration and those AC members who derive benefits from his administration go along with his lies, Madhu Kishwar, whatever her ideological or political leanings, has had the decency to disassociate herself from the procedural violation involved in claiming a decision as backed by the body of which she is a member, when she knows full well that it was not.

Below is the series of tweets in which she makes her own position clear on compulsory attendance. But the key point she makes is that whatever her views, this issue was not even on the agenda, and came up accidentally in the course of another discussion.

The point is that this VC and his administration lie without compunction. They lie when they claim university property was damaged by the latest protest in which students reclaimed Freedom Square. What happened was that the flower pots that the administration placed on the iconic steps to prevent students from sitting there, were removed to the side; some of them broke, but the plants were re-potted by the students themselves!

Students perform at Freedom Square

They lie when they claim that the main road to the university was ‘blocked’, causing ‘enormous hardship for the elderly, sick, school children and the visitors to the campus’. One way in was blocked, but all vehicles could continue along many other paths to their destination.

They lie when they claim that compulsory attendance is meant to improve academic standards. It is meant to establish a surveillance regime to further continue what Kishwar terms a ‘civil war’ that the VC has unleashed on campus.  Every single step taken by this administration has been meant to destroy a vibrant academic and intellectual culture, self-critical and democratic, a culture that is anathema to the dispensation ruling the country today.

The VC has consistently refused to meet either office bearers of JNUTA or JNUSU. When the students declared that they would continue the agitation until the next Academic Council meeting, scheduled for the 23rd of February, the VC postponed the AC meeting indefinitely. This decision alone shows the complete moral defeat of this VC and his administration.

A top ranking university, using public funding to make higher education available to heterogeneous publics in India, is being sought to be tamed, silenced and brought into line with an authoritarian, violent regime.

So no, the struggle in JNU is not about the right not to attend classes. It is about reclaiming the right to education, and our students are leading the way.

Courtesy: kafila.online

The post The Vice Chancellor of JNU has lost all moral authority: A dossier of misdeeds appeared first on SabrangIndia.

Said Modi in parliament to the distinguished out-going vice president:
 

Aapke karyakaal ka bahut saara hissa West Asia se juda raha hai. Usi dayere mein zindagi ke bahut varsh aapke gaye, usi mahaul mein, usi soch mein, aise logon ke beech mein rahe. Wahan se retire hone ke baad bhi jyadatar kaam wohi raha aapka; Minorities Commission ho yah Aligarh Muslim University ho, zyadatar dayara aapka wohi raha.

Lekin yeh 10 saal puri tarah ek alaga zimma aapka sar mein aaya. Puri tarah ek ek pal samvidhan samvidhan samvidhan ke hi dayere mein chalana. Aur aapne usko bakhubi nibhaane ka bharpur prayaas kiya. Ho sakta hai kuch chatpatahat rahi hogi bhitar aapke andar bhi. Magar aaj ke baad shayad woh sankat bhi nahin rahega. Mukti ka anand bhi rahega aur apni mulbhut jo soch rahi hogi uske anusaar aapko karya karne ka, sochne ka, baat batane ka awsar bhi milega.

Translation:
 

You were associated with West Asia for a major part of your career as a diplomat. You spent many years of your life in that circle, in that atmosphere, in that thought, its debate and amid such people. For a major part after your retirement, whether it was in Minority Commission or Aligarh University, you remained in that circle. But for 10 years, you got a different responsibility. Every moment, you had to remain confined to the Constitution and you tried your best to fulfil that responsibility. But perhaps you remained uncomfortable throughout. But after today, you will not have to face even that dilemma. You will experience freedom and will be able to work, speak, and think according to what you really feel.The clear taunt is that as long as Hamid Ansari was consorting with Muslims of West Asia and India -“in that circle, amidst such people” – he was not fulfilling constitutional obligations. This taunt, from this person? From Narendra Modi, the RSS pracharak who has held the Constitution in utter contempt throughout his blood stained and shameful career?

Modi participated in the demolition of the Babri Masjid in 1992, and his government was responsible for the genocide of Muslims in Gujarat in 2002. After becoming Prime Minister, with his henchman Amit Shah he has engineered BJP governments in states in which BJP lost the elections, and his regime presides over a vast multitude of private armies that provoke and generate large scale violence against Muslims, Dalits, and women.

The word “samvidhan” or Constitution, is sullied by being uttered by such a man.

Meanwhile in JNU, we can see at micro level every strategy the Modi regime follows, being implemented in our university at close quarters.

Take for instance, the case of Prof Rajeev Kumar of IIT Kharagpur who was selected as Professor in JNU and came on lien.

Prof. Rajeev Kumar was victimized by IIT Kharagpur through a travesty of an enquiry, for blowing the whistle against corruption in admissions, and dealt a punishment of compulsory retirement, by a Committee that didn’t even give him a charge-sheet. He appealed to the Visitor to set aside this inquiry, and on no response, got a stay on implementation of the punishment.

Since 2006, Rajeev Kumar has been using the Right to Information Act (RTI) to gain information about how the JEE exam decides on its admission criteria. After a protracted legal struggle involving several aspects of IIT administration, in 2010, this led to the Delhi High Court ordering the IITs to release such information. Since 2012, every candidate gets a carbon copy of his paper, and the various cutoffs are announced.

Meanwhile, as his life and liberty were constantly under threat in Kharagpur, he moved to JNU in 2015. But in 2016, as soon as JNU started proceeding to confirm him after a year, IIT Kharagpur started demanding him back, saying the stayed punishment was not a settled issue.
In May-June 2017, JNU suddenly joined in to victimise Prof. Rajeev Kumar. The VC cancelled his lien illegally, effectively terminating his employment in JNU.

JNUTA and Prof. Rajeev Kumar took the matter to EC members, and in a rare victory, the JNU EC refused to ratify the VC’s decision. But the JNU VC is yet to reinstate him.

As the JNUTA statement points out:
 

The Hon. ex-President Pranab Mukherjee in his last few days set aside IIT’s unjust inquiry, vindicating years of Prof. Rajeev Kumar’s struggle against corruption and injustice. The question is how much more of a price is Prof. Kumar going to be made to pay. Today, he receives no salary, his lab is closed to him, he lives in rented accommodation, his wife and mother both passed away recently. All because he believes that public money demands accountability.

In JNU, one watches with growing comprehension the blatant subversion by Jagadesh Kumar’s administration – of every norm of accountability, every procedure established by law and statute, of constitutional provisions of reservations.  Academic Council Minutes are routinely manipulated and misrepresented; UGC regulations have been deliberately misinterpreted to shut down admission; in the few admissions that have happened this year, reservations have been given the go-by.  One is aware of brazenly rigged selection committees for faculty appointments, and very strange developments in the admission process. One hears that administrative staff involved in admissions have started asking for written orders from the VC for some of the procedures they are asked to follow.

One watches with growing comprehension as the Registrar of JNU, an alumnus of JNU himself and well aware of the traditions and culture he is working so hard to destroy, as an obedient minion of ‘The Competent Authority’, writes a letter of overwhelming arrogance to the distinguished and globally respected Professor Prabhat Patnaik asking him not to address students in front of Administrative Block:
 

It is expected from you that such violation of rules is not repeated in future.

Of course, Prof Patnaik’s cold sarcastic reply is now the stuff of legend and song:
 

Dear Registrar,
Thank you for your mail. I would like to remind you that I am not a salaried employee of the university but only a professor emeritus, whose relations with the university authorities of any particular time are governed by mutual courtesy, and not by obedience to these authorities. Your letter which demands obedience is clearly based on a misconception. I shall be grateful if this is conveyed to the competent authority.

Nevertheless, the incivility displayed by the Registrar Pramod Kumar (whose second letter to Prof Patnaik does not even contain the routine salutation), is of a piece with the incivility shown by the Prime Minister of this unfortunate country to the outgoing vice president.

We watch with growing comprehension, the developments unfolding in JNU, not the least of which is the targeting of students and faculty who have stood up to these moves. The ABVP students who disappeared Najeeb roam free, the JNUSU President who protested is not allowed to register. A number of faculty with excellent records have been denied promotions; rules and regulations have been misinterpreted to punish other faculty members financially. Prof Rajeev Kumar, as we saw, has not been reinstated despite an EC decision, and I am the subject of an entirely illegal enquiry.

We watch, I say, with growing comprehension, these developments at the micro level that mirror so faithfully what is happening at the level of the country, because we understand fully, that all that is happening in JNU reflects in microcosm, the rapid unfolding of Hindu Rashtra. That the Vice Chancellor acts, not on his own, but at the behest of  much larger forces, not least of which is that shadowy organization that is accountable to no institution or power outside of itself, the Rashtriya Swayamsevak Sangh.

Our student Kanhaiya Kumar declared two years ago that the real enemy at this moment, is Sanghvaad. All of us who oppose this ideology, whatever our other differences, need to come together on this one minimum principle.

Courtesy: Kafila.online
 

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