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The Hindu Notes for 15th October 2018

A question of writ

The Sabarimala and Asia Bibi cases put the spotlight on how institutions adhere to constitutional principles

  • On the streets of India and Pakistan, a frightening message is being sent out: that courts must not rush in where politicians fear to tread. In matters of faith, courts must simply sit on their hands and pray for divine intervention to resolve the petition before them. The public and political responses to Supreme Court judgments in two instances — Sabarimala in India and the Asia Bibi case in Pakistan — bear striking similarities. What is different, however, is the ability of the two states to enforce their writ.
  • Sabarimala is considered to be one of the holiest temples in Hinduism, with one of the largest annual pilgrimages in the world. The faithful believe that the deity’s powers derive from his asceticism, and in particular from his being celibate. Women between the ages of 10 and 50 are barred from participating in the rituals.
  • The exclusion was given legal sanction by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. The validity of the rule and other provisions restricting the entry of women was decided by the Supreme Court last month. The Court, by a majority of 4:1, held that the exclusion of women between these ages was violative of the Constitution.

    • The Sabarimala judgment

  • Then Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar held that the practice of excluding women did not constitute an “essential religious practice”. Crucially, the judges also relied on Section 3 of the Act mentioned above which stipulates that places of public worship must be open to all sections and classes of Hindus, notwithstanding any custom or usage to the contrary. It was held that Rule 3(b) prohibiting the entry of women was directly contrary to this. A concurring judge, Justice R.F. Nariman, further held that the right of women (in the age bracket in question) to enter Sabarimala was guaranteed under Article 25(1). This provision states that all persons are “equally entitled” to practise religion. According to him, Rule 3 prohibiting the entry of women, was violative of Article 15(1) of the Constitution.
  • Justice D.Y. Chandrachud, also concurring, emphasised the transformative nature of the Constitution which was designed to bring about a quantum change in the structure of governance. More crucially, it was a founding document, designed to “transform Indian society by remedying centuries of discrimination against Dalits, women and the marginalised”. ‘Morality’ used in Articles 25 and 26, the judge held, referred to constitutional morality which includes the values of justice, liberty, equality and fraternity.
  • He also held that barring menstruating women from entering the shrine is violative of Article 17 (the constitutional provision prohibiting untouchability). The judge held that the concept of untouchability is grounded in the ideas of ‘purity and pollution’. These same notions form the basis for excluding the entry of menstruating women into religious shrines.
  • The sole woman judge, Justice Indu Malhotra, who dissented, reasoned, “Issues of deep religious sentiments should not be ordinarily be interfered by the court. The Sabarimala shrine and the deity is protected by Article 25 of the Constitution of India and the religious practices cannot be solely tested on the basis of Article 14... Notions of rationality cannot be invoked in matters of religion... What constitutes essential religious practice is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would allow all to practise their beliefs. The court should not interfere unless if there is any aggrieved person from that section or religion.”
  • While the Bharatiya Janata Party has seen the judgment as an attack on the Hindu religion, the Congress too has not lagged behind. Even an “instinctive liberal” such as Shashi Tharoor has said, “abstract notions of constitutional principle also have to pass the test of societal acceptance — all the more so when they are applied to matters of faith... In religious matters, beliefs must prevail; in a pluralistic democracy, legal principles and cultural autonomy must both be respected…”

    • Asia Bibi case

  • In 1929, the funeral of a killer, Ilmuddin, took place in Lahore, executed for the murder of Rampal, a publisher, who had published an allegedly unsavoury reference to the life of Prophet Muhammad. Ilmuddin had been buried without funeral prayers as the authorities anticipated further trouble. But some eminent personalities, who included M.D. Taseer, assured the British authorities that there would be no trouble if there was a proper burial with a procession and Islamic prayers. The British relented and at the public mourning, the funeral prayer had to be read thrice before the surging crowds. The upshot of these events was that Section 295A was introduced into the Indian Penal Code to punish a deliberate insult to religious feelings.
  • Years later, in Zia-ul-Haq’s Pakistan, Sections 295B and 295C were added to the Pakistan Penal Code which criminalised blasphemy against Islam and even made it punishable with death. In 2009, Asia Bibi, a Christian woman, was accused of blasphemy by her neighbours and jailed pending trial. She was sentenced to death in 2010 by a trial court.
  • Her case became a cause célèbre and Salman Taseer, the Governor of Pakistan’s Punjab province, visited her in prison to express support. This act by Taseer, who was the son of M.D. Taseer who had negotiated Ilmuddin’s burial, did not go down well. So enraged was his bodyguard Mumtaz Qadri, that he assassinated Taseer in 2011. When Qadri was produced in court for trial, he was showered with rose petals by lawyers. He was tried and hanged in 2016, and his funeral attracted a crowd that rivalled the one at Ilmuddin’s.
  • Last month, the Supreme Court of Pakistan allowed Asia Bibi’s appeal and declared her innocent of the charges. She has now been released and expected to be granted asylum in Europe. Her lawyer has fled Pakistan and the judges now fear for their lives. Pakistan faced the threat of mob violence led by the radical Tehreek-e-Labbaik Pakistan party. Despite Prime Minister Imran Khan’s initial bluster, an agreement has been signed with mob leaders to end the violence.
  • The Chief Justice of Pakistan, Saqib Nisar, has reportedly defended himself by saying, “No one should have the doubt that the Supreme Court judges are not lovers of Prophet Muhammad... How can we punish someone in the absence of evidence?”

    • The thread

  • It is easy to dismiss the Sabarimala and Asia Bibi cases as being unconnected and belonging to different jurisdictions and contexts. But both belong to the same region and trajectory of history. India was built on a secular foundation while Pakistan was built on a majoritarian Muslim agenda. However, both countries profess at least lip service to the rule of law. Years of majoritarianism have brought Pakistan to the point where its institutions have had to defend themselves before doing justice to minorities. India is at a stage, where its majority is seeking to bring its institutions to acquiesce in majoritarian instincts. A majority whose forebears had committed themselves to a magnificent constitutional compact now has elements who seek to regress from those values.
  • The question is whether the people and the institutions succumb to pressure or adhere to principle. Each individual, regardless of birth ascribed identity, is a minority of one entitled to an individual guarantee of rights protected by the Constitution. It is in the adherence to individual rights that the greater public good rests. Those who sacrifice a little man or woman’s liberty for the security of the many will find neither liberty, nor security.
  • Let us keep this in mind, as the Supreme Court agrees to hear in open court a review petition against its Sabarima judgment.

    • Setting a proper diet plan

    To tackle malnutrition, food prices must be regulated and the PDS strengthened in both developed and poor States

  • Despite being one of the fastest growing economies in the world, India has been ranked at 103 out of 119 countries, with hunger levels categorised as “serious”, in the Global Hunger Index 2018. Strikingly, in July, three girls died of starvation resulting from prolonged malnutrition in the national capital Delhi, which has a high per capita income. India’s child malnourishment level is not only the highest in the world but varies considerably across States. As per the National Family Health Survey-2016, the proportion of stunted (low height for age) children under five is significantly higher (38.4%) than global (22.9%) averages. The underweight (low weight for age) children rate (35.7%) is a lot higher than the global average (13.5%) too. India is home to over 53.3 million stunted, 49.6 million underweight and 29.2 million wasted (low weight for height) children under five.

    • Major challenges

  • Growing prosperity has hardly made any significant dent in chronic malnutrition of children. Faster economic growth has enormous benefits, but it is by no means sufficient and sustainable if millions of children remain undernourished, as it not only impacts early childhood health and imposes disease burden but also affects education, wages and productivity when they grow up, which will impact India’s growth. Where does the solution lie?
  • One problem lies with the current thinking of growth-oriented development. No doubt, the low income and Empowered-Action-Group (EAG) States face major challenges to improve malnutrition, but, two EAG States, Chhattisgarh and Odisha, have performed better on this front compared to Gujarat and Maharashtra where per capita income is almost double.
  • The development path prevalent in Gujarat is more about growth and investment, which, however, has not been able to translate as better nutritional status in the State. Odisha, which is a low income State, has a better network of Integrated Child Development Services (ICDS), public health facility/workforce per lakh population and educational attainment among women, which have translated into a better nutritional status when compared with Gujarat. Further, tribals, rural, poor and illiterate mothers’ children are badly off in so-called developed States of Haryana, Gujarat and Punjab. These groups are also affected in poorer States of U.P., Bihar, Jharkhand and Madhya Pradesh. Around two-thirds of stunted/underweight children are from 200 districts of both less developed and developed States.

    • Agriculture v. hunger

  • Another prominent idea is the need to link agriculture and nutrition, as agriculture provides answers to most nutrition problems. Our estimates, however, show malnutrition continues to be high in agricultural surplus States like Haryana (34% stunting and 29.5% underweight). Worryingly, malnutrition in some of its agriculturally-developed districts (Karnal, Panipat, Sonipat, Rohtak as well as in Gurugram) is even higher than the average of Odisha. Recently, Madhya Pradesh has registered double-digit growth in food grain production making it one of the wheat granaries of India, but acute malnutrition is still critical in most of its districts with a high proportion of underweight (42.8%) and stunted children (41.9%).
  • To understand the contradiction between agrarian plenty and malnutrition, let us take the example of diversified food. With the increase in diversity in food intake, measured through Food Intake Index using 19 food items in all 640 districts, malnutrition (stunted/underweight) status declines. Only 12% of children are likely to be stunted and underweight in areas where diversity in food intake is high, while around 50% children are stunted if they consume less than three food items.
  • A majority of children across districts in Tamil Nadu consume a reasonably highly diversified food, leading to lower percentage of stunted/underweight children across districts. Children in a majority of districts in West Bengal, Odisha, Kerala and Karnataka consume mediocre level of food items and malnutrition is relatively lower than in Rajasthan, U.P., Jharkhand, M.P., Gujarat, Bihar and Haryana (children in many of their districts consume less diversified food). The diversified food intake is very low in a majority of Indian districts; just 28% of children consumed over five items of the total 19 food items.

    • The way forward

  • An inclusive and holistic approach, including controlling/regulating food price, strengthening the public distribution system (PDS) and income support policies for making food cheaper are important steps. The ICDS was a high impact nutrition intervention, but its universal availability and quality are questionable due to poor functioning. The government must broaden the ICDS programme by ensuring diversity in food items in worst-hit districts. The launch of the National Nutrition Mission as a strategy to fight maternal and child malnutrition is a welcome step towards achieving the targets of underweight and stunted children under five years from 35.7% to 20.7% and from 38.4% to 25% respectively by 2022. But sustained budgetary commitment towards nutrition components is not sharply visible.

    • The gold standard for a Prime Minister

    Jawaharlal Nehru’s greatness is that the nation often misses his empathy, intellect and competence

  • India’s first Prime Minister, Jawaharlal Nehru, is now moving through an eclipse that B.R. Ambedkar experienced and yet emerged from more luminous. During his life, Ambedkar was vilified by both the left and the right, and decades after his death, he was at best ignored. Later jurists and scholars joined his followers to dust up his legacy and recognise him as a guide in political, social and constitutional matters.
  • That Nehru has lost state patronage is to be welcomed, for that is the only way that a great leader would be able to stand on his feet. Since his family continued to be a part of the party and the government, any celebration of his life and work till recently was suspect. A genuine admirer of Nehru would have been mistaken for a courtier.

    • The three virtues of a leader

  • Democracy demands of a leader, especially one who is called to lead the government, to possess three virtues to redeem his pledge. First, he must have a track record of service with humility. The spirit of democracy militates against our notions of ‘the leader’. What it requires of him is to submit to people’s will while being firmly anchored to due process. Nehru’s constant engagement with the masses and his deep sense of national destiny helped him to be a class apart from his contemporary world leaders, especially in the developing world. A less competent leader would be driven either by the mob or become a dictator.
  • It is always tempting for a leader to flex his muscles lest he be dismissed as a weakling. Democracy affords a leader two choices: either he can assert his position even at the cost of due process to convince others and himself that he’s in control, or he can submit to institutional requirements and traditions not so much as constraints on his right to rule but as a sacred obligation to be honoured. Hence, the commitment to the institutions of state forms the second virtue of a leader. That Nehru understood the indispensability of institutions above personalities is not the only measure of the man; he also recognised the need for a strong Opposition for democracy to succeed.
  • The third virtue is the quality of the leader’s legacy. Can the generations after him fall back on his ideas, traditions and exhortations that he preached and practised? It is fashionable today to ridicule Nehru’s non-alignment policy and his belief in a mixed economy, but he formulated these policies not as a figment of his imagination; he tailored them to suit India’s position at the time. Though this is not the place to delve into the merits of these policies, one must surmise that Nehru would have admitted to a certain wear and tear of these policies. He was also pragmatic enough to alter or jettison his policies if national interest so warranted.
  • Thus, Nehru was the complete Prime Minister that none of his successors can hope to be. Having witnessed more than a dozen of his successors in office over the past five decades, one is alive to the fact that no one comes even a distant second to Nehru.

    • Extrovert and introvert

  • Over and above any virtue, there is the matter of temperament that gives a leader his character. A complex office like that of the Prime Minister of India requires not one but two divergent temperaments, wherein lies the difficulty of being a successful Prime Minister. One, it has a front-office function wherein the incumbent must become the face of his government and engage with the masses to explain his policies to draw their support and legitimacy, and also nudge his officials to translate people’s aspirations into policy outcomes. One must be an extrovert, articulate and full of vigour to hit the campaign trail every now and then to plead with people why he and his political formation need and deserve their understanding, affections and support. Two, the back-office function of the Prime Minister amounts to the invisible and hence unsung drudgery of reading dozens of files and making crucial decisions. Only an introvert leader (an oxymoron) who is contemplative and familiar with the complexities of governance will be able to discharge this duty.
  • These two halves of the job expect the incumbent Prime Minister to be simultaneously an extrovert and an introvert. If a Prime Minister fails in his front-office functions, it would produce a political disaster, and a back-office failure would result in paralysed governance or misrule. India’s history since Nehru is replete with instances of Prime Ministers who were of either temperament, not both. Nehru remains the only Prime Minister to have discharged these two functions with aplomb.
  • Among Nehru admirers, there circulates an anecdote which testifies to his dexterity of being a part of the masses while supping with intellectual giants like Arnold Toynbee and Albert Einstein. Nehru as Prime Minister maintained a tradition of having ‘personal guests of the Prime Minister’ who would stay at the Prime Minister’s official residence, the Teen Murti House, in New Delhi for some time. The guest would meet Nehru at breakfast and, possibly, at dinner, and he would have his own engagements. These worthies included historian Toynbee and British physicist and Nobel laureate M.S. Blackett, who advised Nehru on setting up a defence research establishment in the country.
  • Blackett visited India as many as eight times during Nehru’s stint as Prime Minister. On one occasion, during the late 1950s, being a personal guest of the Prime Minister, Blackett met Nehru at breakfast. It was disheartening to the great physicist that he found Nehru to be distracted, weak and melancholic. Though he answered his guest’s questions, Nehru was truly out of his wits, or so his guest thought.
  • Blackett was sceptical that Nehru could solve the problems of a vast and populous country like India, despite his intellect and commitment to national interest. It so happened that Blackett met Nehru at dinner on the same day. For every minor query, he found Nehru launching into a mini lecture, brimming with enthusiasm.
  • Blackett wondered aloud: how could a man who was so weak to engage in an informed conversation at breakfast be so vigorous at supper to expound on every question? Pat came the reply: “Oh, I addressed a public rally in the evening!”
  • A great leader has something timeless about him and he remains consequential. He cannot be deprived of the credit for the services he rendered and the values he stood for, even if his ideas and policies become passé and even if the rulers of the day find his memory inconvenient or unprofitable. Above all, people’s collective memory will not allow him to fade into oblivion. Jawaharlal Nehru is one such leader that modern India produced.

    • Bittersweet judgment

    The U.K. Supreme Court has made the mistake of conflating speech with conduct in the gay marriage cake case

  • Bakeries in the U.S. and the U.K. have become the latest sites of contestation about fundamental rights. In June, the U.S. Supreme Court upheld a Christian baker’s right to refuse to bake a cake for the wedding of a gay couple. On October 10, the U.K. Supreme Court held that a baker’s refusal to bake a cake with a message in support of gay marriage does not constitute unlawful discrimination.

    • The case at hand

  • Ashers Bakery in Northern Ireland offered a customised cake service, which enabled customers to provide pictures or graphics that would be iced on a cake. Gareth Lee, a member of an LGBT organisation called Queer Space, placed an order for a cake with a graphic that included the cartoon characters Bert and Ernie (from Sesame Street) together with the words “support gay marriage”. After initially accepting the order, the bakery refused to fulfil it and offered a refund on the basis that it was a “Christian business”. Mr. Lee took his order elsewhere.
  • Mr. Lee claimed that in refusing to fulfil his order, the bakery discriminated against him on grounds of sexual orientation and political belief. He succeeded in both courts leading up to the Supreme Court, with the Court of Appeal deciding that businesses could not, based on their religious beliefs, cherry-pick which services they offered to the LGBT community. These decisions (at least in respect of the claim of sexual orientation discrimination) were problematic for three reasons. First, they confused the content of the message with the identity of the customer. Second, the decisions would have produced disquieting consequences, as they would equally oblige a gay or lesbian baker to bake a cake with a homophobic message. Third, they failed to acknowledge that implicit in the freedom of speech is the freedom not to speak — and placing a message on a cake most certainly constitutes speech.
  • The U.K. Supreme Court has decisively addressed the first two of those concerns in its judgment. The court noted that it was clear on the evidence that the bakery discriminated not against the customer, but against the message. The bakery had served Mr. Lee before, and was willing to sell any of its other confectionaries (or indeed, a cake without the graphic) to him. Support for gay marriage was not a proxy for a particular sexual orientation, as people of all sexual orientations could support gay marriage. The bakery’s response would also have been identical had a heterosexual man or woman requested the cake with the same message. Acknowledging that it was deeply humiliating to deny a person a service on the basis of their identity, the court noted that it would, however, do the project of equal treatment “no favours” to “extend it beyond its proper scope”.

    • Contours of the freedom of speech

  • However, while undertaking its analysis on discrimination on the basis of political belief, the court went much too far in identifying the contours of the freedom of speech in this debate. One of the important arguments was whether a message printed on a cake would be conceived of as speech not just of the customer, but also of the baker. People typically see a sculpture or painting as embodying the message of the sculptor or artist. On the other hand, we are unlikely to assume that a printing shop necessarily associates with the messages of each of the banners it prints. Is the “support gay marriage” cake akin to the painting or the banner? Instead of engaging with this question, the court chose to sidestep it entirely — noting that by simply “being required to produce the cake”, the bakery was being requested to express a message with which it disagreed.
  • Put simply, the court made the mistake of conflating speech with conduct. Baking a cake does not constitute speech in and of itself. If it did, then by the same logic, the local printing shop could legitimately refuse to print banners bearing messages with which is disagrees. The neighbourhood café could refuse to brew coffee for some prospective customers because of the “expressive” element involved that task. The court failed to recognise that it also does no favours to the free speech project by extending it beyond its remit.
  • In a peculiar turn of events after the judgment was delivered, an agency that was hired to take photographs of the owners of the bakery upon their success at the court refused to complete the project and hand over the photographs. If it is established that they did so based on the sexual orientation or political beliefs of the owners, the photographers could themselves be held liable for unlawful discrimination. The U.K. Supreme Court’s observations on free speech, however, might just save them.