Racist Ideology of Indian Supreme Court: More on Graham Staines Case

Ideology is still something that we live with even in the so called post-modern and what the free-market believers seriously want us to believe as post-ideological times! Ideology remains imbued into our minds as well as in the minds of those who run our political institutions. We are driven by and remain rooted more into ‘Ideology’ in the old Marxist sense as ‘false-consciousness’. What do I mean? Let me clarify the basics: What is Ideology? Let me explain by this old classic joke:

A man believes himself to be a grain of corn seed. He is taken to the mental asylum where doctors do their best to finally convince him that he is not a chicken but a man. However, when he is cured and convinced that he is not a grain but a man and allowed to leave the hospital he immediately comes back trembling, scared. “There is a chicken outside the door and I am afraid that the chicken will eat me”, he exclaims. The doctor obviously says his dialogue: “You know very well that you are not a grain but a man”. “Of course I know that”, replies the patient “but does the chicken knows it?”

This is precisely what ideology is all about. It is easy to convince YOU that your symptoms are just effects of your repressed traumas and so on. But, the problem is to convince the unconscious, which is as it were, the chicken, in you! So that’s the real problem with the talk of Tolerance and Multiculturalism. Though we all understand and say that tolerance of the Other is good and we are multicultural etc. but it is difficult to convince our unconscious habits. So racism goes on without our knowing it or, may I say, in spite of our superficial and outwardly denial of it.

The Para 43 paradox of the Graham Staines case that I have mentioned in the comment but worth re-illustrating is as follows: The apex court despite convicting Dara Singh for murder has this to say: “THOUGH Graham Staines and his two minor sons were burnt to death while they were sleeping...the intention was to teach a lesson to Graham Staines for his religious activities, namely, converting poor tribals to Christianity.” This becomes the rationale for not describing the inhuman and brutal act of Dara Singh as ‘rarerest of rare’ and thus for not giving him death penalty. Now the surprise awaits us: Two days later the court expunges or removes these remarks but retain the original decision on even more flimsy and stupid grounds! But how do we understand this expunging? How do we psychoanalyse it? Is it not the hidden ‘chicken’ or racist ideology against Christians in the minds of judges? I say definitely it is. This is how ideology functions, in our sub-conscious in spite of our denial of the same.

This hidden racist ideology of the Supreme Court makes the minorities (the Other) realise the facade and sham of liberal language of pluralism, tolerance and multiculturalism. That is why all talk of pluralism by the State becomes just like the trained man who is superficially convinced of not being a grain but still harbors the conviction of being one when he sees the chicken! The chicken still lurks deeper in the psyche of the Judges and in this case the chicken is ‘racism’. This is the true problem with Uniform Civil Code (UCC) debate. Whenever evoked by the Supreme Court is couched in the language of secularism and equality and so on, but under the skin lie the chicken of ‘racism’. That is why the minorities always, and rightly, oppose it. Please refer to the following ‘chicken comments’ of the Supreme Court in invocation of UCC in Sarla Mudgal Case (The second case after Shah Bano that evoked the UCC discussion). Almost in racist tone the court invokes the desire for UCC:

Since Hindu along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a Common Civil Code for the whole of India... Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation, the Indian Nation and no community could claim to remain a separate entity on the basis of religion. In this view of the matter no community can oppose the introduction of Common Civil Code for all citizens in the territory of India.’ (AIR 1995 SC 1351 at 1355)

The obvious reference to partition and to the ‘choice to remain in India’ is targeted at the Muslim minority (Parsees and Christians did not have any choice in the matter). This reference to ‘those who preferred to remain in India after the partition’ has long functioned as a warning to Indian Muslims from the Hindu right wing parties. So in the garb of universality and understanding of equality comes out the ‘chicken’, that is, the racist ideology which is the ‘chicken’. How seriously can the minorities take the multicultural and equality discourse of the court?

And was this also not the case in Ismail Faruqui (Babri Masjid Demolition case) when the court said that ‘Muslims can offer prayers (namaj) even in open’ and thereby denying them opportunity to offer prayers at Ayodhya site while allowing their Hindu counterparts. We are rooted in Ideology in post-modern times where it mushrooms as the fear of ‘chicken’ propped up in the joke. I am not saying that we need to completely give up the discourse of liberal pluralism and tolerance. But we need to understand this ideological underpinnings which governs human conduct and may I say the conduct of the Judges as well. Its time to agree first that in the post-cold war era also ideology guides the political institutions just as it did in the earlier or Lost) times. There is no escape from ideology and thus we better understand it. Converting problem of racism into liberal notions of lack of tolerance etc. is to confuse the very struggle against the monster even before beginning it. This is the most basic insight we need in order to begin to understand these lapses by the court in India and abroad.

Rethinking Aamir Khan's 3 Idiots

As a welcome note to the new author, Bhawna Gulati, on the blog I wish to share an old review of Aamir Khan's 3 Idiots which I wrote long back.


THE WISDOM OF IDIOTS: Film Review

Where is the life we have lost in living?
Where is the wisdom we have lost in knowledge?
Where is the knowledge we have lost in information?... T.S. Eliot

These famous lines of T.S. Eliot form the thematic concern of both the contemporary political milieu, wherein there are moves of making class X board exams optional, as well as the popular culture as depicted in the recent Amir Khan starrer 3 Idiots reflecting death of Humanism in the competition driven production of knowledge in Indian Universities. Undoubtedly, the object of these benign endeavors is appreciable as it seeks to eliminate the mimetic spirit and lack of individuality from the present educational system. However, both the attempts still await the accomplishments they seek to attain. The move of taking away board exams has already given rise to concerns that the school authorities with the power-access are making the gradation or internal assessment system equally, if not more, stressful and competitive as the system of board examinations. Rajkumar Hirani’s 3 Idiots, which has got a great opening, follows a similar trend. The movie which depicts the iconoclastic protagonist having a queer and rebellious way to conceptualize education forms the gang of idiots along with his other two college inmates as they do not follow the traditional path which preaches cut-throat competition and the rat-race rationality. However, in their idiocy they illuminate extraordinary wisdom which the others (so called 'wise people') have lost in gathering knowledge through information. The movie follows the classic literary wisdom that in a society which has gone mad only an idiot or madman of the society reflects sanity! In their heretic insanity they illustrate an extraordinary sanity absent clearly in the “intelligent” Others.

However, the movie, in my view, ultimately fell within the same trap it seeks to relentlessly question and expose. Eventually, the three idiots in the film obtain success in their respective fields. The problem is that in order to prove their worth to themselves and to the world at large they have to “succeed” in the traditional sense only. The final moments of the movie almost reinstate all the structures it seemingly explodes and questions. The climax saves the protagonist from being mocked at by the old rival, who followed the orthodox path, only as he is more “successful” than his rival. The more important part is that here "success" is also understood as in the terms of the competitive rat-race following rival. Thus, the ultimate victory remains the“success” of the protagonist and that too in the eyes of what French psychoanalyst Jacques Lacan would call the Big Other [the unknown other to whom we want to prove ourselves]. So Aamir Khan to be successful has to earn more money than his rival. That is where the movie incorporates the same logic which it vehemently opposes throughout. This way of falling in the trap is not an isolated case in Aamir Khan's otherwise radical films. The previous Amair Khan blockbuster Taare Zameen Par also endorses the logic of ‘structural adjustment’ in the same way by proclaiming that the differently abled child has to accomplish the number one position in order to be appreciated by the society at large. The protagonist can never be shown as a Vincent Van Gough who, could not get appreciation in his lifetime, defied the logic of worldly success as he remained content in his failure too. His posthumous appreciation proved, in true sense, that competence and talent reign much above “success”. In other words, the hero could have been a 'hero' and successful in spite of being a small school teacher but more human in his outlook for life than his rival who, as shown in the movie, is so devoid of humanity that a photograph where others see his wife (a human being) he can only focus on the big bungalow behind her! Would this not have been a truly radical and new way, though idealistic (but the movie is idealistic too), to re-define success for our hyper-globalizing society?

However, the final structural adjustment in no way undermines the major theme of radical change in educational system permeated throughout the movie and the fantastic manner in which the film is made. This trend to seek change in the existing structures of educational system, both at the political level as well as in the domain of popular culture, is reflective of the deep desire in the social psyche for an alchemical transformation of the educational system and base it on more human values, human love and human friendship. What is still desired is to find out a proper ending for such benign aspiration both in the movie as well as in life. We still remain arrested by corporate values, corporate friendship and may I say corporate love. So to borrow the Shakespearean wisdom we may say that ‘All is Well’ with the movie but it not necessarily Ends Well!

Candlelight that never glittered for Hemraj

Of the most recent murder cases that were sensationalized by media (both print and electronic media), the case popularly known as Aarushi murder case was one. Owing to the special efforts made by some of the 24 hours news repeating channels, the detailed facts of the case (as interpreted by the media) are in the public knowledge. It is now known to almost everyone that a 14-year-old school going girl was killed inside her room in the residential house by some (no) one. But it is not known to many that it was in fact a double murder case and one Mr. Hemraj – the unfortunate servant (domestic help) of the family to which Aarushi belonged to was also brutally murdered at the same time.

Many candlelight marches were held, with wide media coverage, seeking justice for Aarushi. No one remembered Hemraj. It was only recently (i.e., on January 5, 2011) that a group of students under the banner of NGO Noida Nirman took out a procession seeking justice for Hemraj displaying placard that read ‘Apna Khoon doosron ka paani, Hemraj ki yahee Kahani’ and ‘… Aarushi aur Jessica ki pukar hai, Baki sab bekar hai’. Even this expression of anguish by the students did not receive as much media coverage as that of the candlelight marches seeking justice for Aarushi or for Jassica. Little did the media understand that it was the protest mainly against itself?

Media has brought to light Aarushi’s parents and other relatives. Their faces are very familiar to every one now. Their voices have been heard and conveyed to all. But no one knows Hemraj’s family members, his near and dear ones. No one cared to meet them. No one knows their pain and suffering. Was the life of Hemraj so insignificant that his death does not matter?

“Natural lottery and arbitrariness of birth denies every one to have equal start in life.” An unjust society/system, on the other hand, continues to deny equal treatment throughout the life to those who are discriminated against by the arbitrariness of birth. It is unfortunate to note that the media, which enjoys constitutional protection in India, does not share the vision of the founding fathers of our Constitution i.e., to procure equality of status and of opportunity for all. Instead of promoting this constitutional value, it is contributing for perpetuation of inequality in the society. It denies access to the have-nots. The victimization of have-nots is considered as less important and such news are rarely carried. It is often been talked about but never taken seriously.

Even public response also largely depends on the importance media gives to particular news. If the candlelights have not glittered seeking justice for Hemraj, media is largely responsible for it. It does not, however, mean that there is no fault on the part of the candlelight activists. Perhaps one need to understand that the candlelight march is a method devised and mainly adopted by the elite in the society to protest against what is not acceptable to them and that explains why candlelight never glittered for Hemraj!

There is need to tell all that he too deserves justice!

Binayak Sen denied Bail by High Court...Justice in Tears!

This is the most painful moment for Human Rights future in India to receive the news of denial of bail to Binayak Sen by the high court yesterday. Denail of bail is a euphemism for denial of personal liberty to someone like Binayak Sen, who was committed to the cause of empowerment to the disenfranchised Indian citizenry. Someone whose commitment has been backed and appreciated by more than 40 Nobel Laureates across the globe! Legal vocabularies certainly possess the mask to hide the face of violence perpetrated by law itself. Alas, such vocabulary is scarcely available to the insurgent sections of Indian humanity. We all must attempt to expose and condemn this atrocious legal brutality in every possible manner. Thus, I fully share the urge to invoke the constitutional consciousness against such an archaic, arcane and anachronistic colonial law of sedition in the Indian Penal Code, 1860 which could make us relive Mohandas Gandhi’s plight in the post-independent India. Mohandas Gandhi remarked “Section 124-A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizens.” (Selection from Gandhi’s closing statement on March 23, 1922).

I feel that it is the right moment that we need to re-evoke the vanishing Gandhian consciousness against the text and interpretation put to section 124-A of IPC. Having said that, I must confess that I find it difficult, if not completely fail, to agree with the hyper-globalizing media activities to oppose the denial of bail by way pressing a button on our mobile phones! This sort of 'sms-justice' (almost obscenely eulogized in the rcent Bollywood flick No One Killed Jessica) can hardly lead us anywhere in the pursuit of justice . What great purpose save a venting of frustration can be served by ‘issuing 'sms'-es’? I fail to see myself more than a human rights hysteric guided by the 24 x 7 media consciousness (to evoke the very apposite invocations of Upendra Baxi) in being part of collective 'sms' writings. And issued to whom – Media? And what serious purpose do we sincerely feel it will serve save some appeasement of anger that engulfs us?

But if I see any hope in, or any role of, intellectuals (especially legal academia) in this moment of Historic time then I see it in developing an acumen of asking right questions rather than plunging into action. The counter-productivity of too-much-action can be best illustrated by this oft-quoted instance: When a number of people were protesting against the Bush Administration for invasion of Iraq and they came on roads and shouted slogans, what did Bush said? He said that “This is great...That is why we are invading Iraq so that their people can also protest against the rulers there as well”! This is not to say demean the activistic potential but just to emphasise on the subtle way establishment can co-opt the language of protest as the justification to do what is protested!

I implore everyone need to think and find ways to address the issue. I feel that our seriousness demands that we should not end up wasting our effort nor let die down the anger by indulging in trivialities. I honestly feel the role of intellectuals today is to make a serious distinction between human rights hystericism and human rights activism.

I was seriously intrigued by Prof. Upendra Baxi’s comment in Faculty Development Workshop in Jindal Global Law School on January 4, 2011, when he said that he refrains to sign any Statement against the conviction of Binayak Sen by trial court as he fails to get an affirmative answer, from those who issue them, to the simple question – Have they read the judgment in full? This made me certainly learn one social responsibility as a budding law teacher of How not to Judge the Judges! We need to forge ways to transform this moment of despair into a moment of hope or potentiality to challenge the ill-logic of law itself in the text of the judgment. The task remains how to convert this potentiality into actuality. An arduous task indeed. Whether we can do that and if so in what manner? That's the question we need to find answers to...

Supreme Court changing Para! Graham Staines Case

The Supreme Court bench comprising of T. Sathashivam and B.S. Chauhan ordered the deletion of a para in the Graham Staines Case. Previously, the apex court while not finding the case to fall under the category of 'rarest of rare' observed that " the intention [of the accused] was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity." This para now stands deleted from the decision due to much criticism elicited by it from the civil society as well as Christian organizations. Before we embark upon to discuss the newly inserted para the original one needs elaboration.

The judgment nowhere tenders evidence as to what Graham Staines was doing in the tribal areas of Orissa that can be styled as illegal. Further, the court never ventures to ask whether the said conversion of the 'poor tribals' a forceful or voluntary one? Or should we understand that even voluntary conversion should be sufficient to elicit the taint of the Supreme Court? In that case, how are we to understand the semantics of the expression 'propagate' under Article 25 of the Indian Constitution? Are we to understand that one may be tainted for exercising his/her Constitutionally protected right to 'propagate religion'? The sweeping comment of the court, which becomes the basis for not awarding the maximum penalty under the Indian Penal Code,, 1860 does not bother to answer these preliminary questions. Are we then constrained to say that the expression 'fools' should be justifiably replaced with the 'Indian Supreme Court bench' in the proverb: Fools rush in where angels fear to tread.

Here it may be noted that there was a lively debate in the Constituent Assembly as to the inclusion of the expression 'propagate' under what is now Article 25 of the Indian Constitution. After initial reluctance the expression was finally included within Article 25 and the inclusion was welcomed by the Christian members of the Assembly such as Jerome D'Souza. He remarked that the inclusion of the expression 'propagate' is "so reassuring and encouraging to the minorities, that we have no reason at all to quarrel or to ask for stronger assurances'. [See. Ronojoy Sen, Articles of Faith 108-127 (2010)]. In spite of such a clear mandate of the founding fathers as well as mothers of the paramount parchment the apex court in one of it old and ill-reasoned decisions held that 'propagate' does not include the right to 'convert'! (Rev. Stanislaus v. State of M.P. AIR 1977 SC 908). The court in Stanislaus case also failed to make a distinction between forceful and completely voluntary form of conversion. It is unfortunate that the perverse decision still stands as the law of the land. Perhaps, it needs to be overruled soon.

Be that as it may but, coming back to the Graham Staines case, one wonders how to read the new dexterity of the court in replacing the controversial para from its judgment. Is it an apologia tendered by the court for their incapacity to understand their own reasoning in the original pronouncement? Or, more optimistic reading is possible seeing the court as responsive to the social/ civil society criticism? Howsoever one may choose to read it the fact remains that it raises further questions which do not have an easy answer. For instance, is the judgment of the court comparable to a newspaper article or report wherein corrections can be made in the later edition! Is there any power or procedure which exists for such change of previous mistakes, in this weird fashion, on later self-realization? Further, how far the new logic of the court that the fact that Dara Singh has been incarcerated for 12 years already is a reason sufficient enough not to give him death penalty? Perhaps, the judgment should have been revised following a due procedure. If no such due procedure for revision exist then is not this executive power/ privilege arbitrary and foul Article 14? [At least in Administrative functions the apex court is 'State' within Article 12 and thereby amenable to Part III mandates].

Such questions need serious reflection. Justice A.K. Ganguly, when questioned about this ill-logic of the bench of the court by my Constitutional Law students described this as a un-desired surgery done by his brethren! (Seminar on Constitutional Litigation, 9th February 2011 at Jindal Global Law School). There hardly seems to be any justification for not categorizing the case as 'rarest of rare' when the dance of death was perpetrated in killing two young lives and that too unceremoniously in the name of God (Jai Bajrang Bali!). Do we still we need to debate the status of accused as terrorist? By all counts it seems hard to understand the new dimensions of the court's perverse logic, if any, in the case of Graham Staines. Its disheartening to see that such acrobatics can happen in a case which deserves severest condemnation to make the minorities feel that they too can witness the living reality, if any, of the rhetorical expression 'Rule of Law'.