Monday, September 17, 2012
Friday, September 7, 2012
Judicial Activism to Judicial Overreach to Judicial Encroachment- Birth of a Monster
Judicial Activism to Judicial Overreach to Judicial Encroachment- Birth of a Monster
The
irony could not be more damning given the fact that all High Courts
driven by the Supreme Court are hubris-bent on demolishing “religious
encroachments” (read Hindu street temples) from public places. It is a
monumental pity that the bulldozers employed by the courts to demolish
our temples cannot be used to bring down the monstrous structure which
ordinary Hindus call Judicial Encroachment.
On
1 September 2012, agitated neighbours rushed to the writer’s house with
news that the Chennai Corporation demolition squad had bulldozed the
20-year old street-corner Ganesha temple and reduced the small shrine to
a pile of rubble in less than five minutes; and this when Ganesh
Chaturthi was just days away!
Dropping
everything, the writer ran to the corner but the deed was done; the
temple was gone. Chennai Corporation authorities who came in two
imposing government SUVs (bought with ordinary Hindu taxpayers money)
and the man sitting behind the wheels of the bulldozer (also bought with
ordinary Hindu taxpayers’ money) were unmoved by the tears and anger of
local residents and passers-by who had all worshipped at the shrine for
over two decades. “Orders”, said one Authority with a smirk, while
second Authority told us sarcastically to go to the Court for redress.
Deja Vu; it was 2010 all over again.
No
court in the country, including the Supreme Court, was going to listen
to the voice of hundreds of thousands of very ordinary Hindus (adherents
of Abrahamic faiths are not “ordinary”, they are a special breed
spawned by secularism) who build, offer worship and maintain these
street temples, among which are temples that stand at the junction of
three roads or ‘muchhandi’ as they are called in Tamil.
This
article is about how the fate of street temples is even now being
decided away from public scrutiny and in total secrecy by state
governments, the central government and the Supreme Court. Ordinary
Hindus – auto-rickshaw wallahs, roadside idli vendors, fruit and flower
vendors, local residents whose temples have been demolished in 2005 by
the AIADMK government and then in 2010 by the DMK government – do not
have access to the Chief Minister, Chief Secretary, Commissioner of the
Corporation, the Mayor or the High Court.
The
ordinary Hindu would not even dream of daring to approach the gates of
these imposing and intimidating offices to get them to hear his/her
voice.
Building street corner Ganesha temples, popularly known as muchhandi Pillaiyar, is a thousands of years old Hindu tradition. Ordinary Hindus like the writer believe that these street-corner shrines or sthana devta
watch over the people living close-by and we can see these roadside
street-corner Ganesha (or other divinity) shrines across the country.
Muslim-majority
Indonesia continues to practice this ancient Hindu tradition and street
corners in Java even today are sanctified by shrines to Srirama and/or
Hanuman. What happened to the little street-corner Ganesha shrine in
Chennai on September 1, 2012 has its origins in May 2, 2006, Ahmedabad.
The
writer knows a lot more today than she did in 2010 about the nature of
the secretive and joint covert operations launched against ordinary
Hindus by state governments represented by their Chief Secretary, Sonia
Gandhi’s UPA, and the Supreme Court which is ridding all public spaces
across the country of its Hindu face and Hindu identity while leaving
religious structures of the Abrahamic minorities strictly alone.
Briefly, the sequence of events leading up to September 1, 2012 is:
- End
of April, 2006 - Narendra Modi’s government (Vadodara Municipal
Council) demolishes several structures in Vadodara in the name of
development; including several Hindu temples and one dargah
- 1
May 2006 - The Muslim community did what it does best – let loose
organized violence and mayhem on the streets including attacking the
District Court at Vadodara (Nyayamandir); a Muslim mob pelted stones at
buildings and passers-by in the court and also damaged vehicles parked
inside the court premises
- 2
May 2006 – The very next day, adding fuel to the fire and with the
deliberate intent to inciting the Muslim community again and watch how
Narendra Modi dealt with Muslim riots, the Times of India
Ahmadabad Edition published a provocative news report. ToI dug into the
city’s past and fished out a survey conducted by the Ahmedabad Municipal
Corporation which stated that there were 1200 temples and 260 “Islamic
Shrines” which had encroached upon Ahmedabad’s public spaces and that
“no local authority has the guts to go about demolishing them”
- Reacting to the ToI news report, the Gujarat High Court made the issue into an exercise of its suo motu jurisdiction and ordered the High Court Registrar to convert its exalted interest into a writ petition
- The
Gujarat High Court made ToI the writ Petitioner and made the State of
Gujarat Respondent No.1 and the Director-General of Police Gujarat,
Respondent No.2. To this impressive list the Gujarat High Court added
Commissioners of Police of Ahmedabad, Vadodara, Surat and Rajkot besides
the Commissioners of the Municipal Corporation of the four cities and
their Urban Development Authority as co-Respondents in the petition
- And
then in classic off-with-their-head style, the Gujarat High Court
ordered immediate destruction of all temples and Islamic shrines across
the state if they stood on what the court deemed public space. “Meanwhile
all the respondents are directed to take immediate steps for removal of
encroachment of religious structures on the public space without any
discrimination and submit their reports”.
What the Gujarat High Court did not say was “and to hell with the consequences”.
Muslim
violence in reaction to the demolition of one dargah in Vadodara had
not only escalated, but had spread to other cities in Gujarat too. We
may never know if the Gujarat High Court order sent Narendra Modi into a
tizzy, but with 260 Islamic shrines destined to be brought under the
bulldozer, the Congress pressed the panic button.
Sonia
Gandhi rushed Additional Solicitor-General Gopal Subramaniam to the
Supreme Court on 4 May to file a Special Leave Petition. The main prayer
of the UPA government in the SC was to appeal against the Gujarat High
Court order dated 2 May. The central government also sought an interim
relief seeking immediate stay of the operation of the impugned order.
The Supreme Court granted leave and admitted the petition and also
stayed the Gujarat High Order of 2 May 2006.
Readers are urged not to lose sight of the following facts:
- The
central government’s SLP was filed only as an appeal against the
Gujarat High Court Order dated 2 May 2006; to emphasise, the UPA
government’s SLP in the SC when it was filed on 4 May 2006 concerned
itself only with Gujarat and the Gujarat High Court Order
- In
February 2005, a division bench in the Madurai Bench of the Madras High
Court comprising two Christian judges, Justices Ashok Kumar and
Dinakaran, over-stepping their brief and transgressing the scope of a
small case that was before them, ordered the Madurai corporation and all
local municipal authorities and panchayats to demolish and remove all
encroachments. Considering what we know about these two judges today, it
may not be far-fetched to suppose that the judges knew exactly what
they were doing and why. Moving swiftly to fulfil the orders of the
Madurai Bench, Jayalalithaa’s men went on the rampage bulldozing
everything in their path - homes, shops and Hindu temples. Over 250
temples were demolished in Madurai, Tiruchy and Kanyakumari, including
temples that had stood for twenty, thirty and even fifty years. Some of
the temples and other revered structures threatened with demolition were
over a hundred years old! The samadhi of Muthuswami Dikshitar of revered memory and one of the three Mummurtis
or saints of Carnatic Music, the hoary Bhoothalingaswamy temple
believed to have been consecrated by Maharishi Patanjali and the dearly
loved, famous Madurai landmark Ganesha-under-the-peepul-tree were three
such ‘illegal encroachments on public land’ facing Jayalalithaa’s
guillotine.
In this asuric orgy of destruction, only one church and one dargah were demolished.
Hearing
on the UPA government’s SLP in the Supreme Court dragged on for two
years with no decisive movement forward with regard to the appeal
against the High Court Order asking for 1200 temples and 260 Islamic
shrines to be removed in Ahmedabad. But in a bizarre turn of events,
probably encouraged by the docility with which Hindus in Tamil Nadu
accepted the order of Justices Ashokan and Dinakaran and certainly
encouraged by the impotence of Tamil Nadu’s Hindus who stood by and
watched Jayalalithaa’s government destroy their temples, Sonia Gandhi
decided to aim high.
Sonia Gandhi’s UPA, surviving on the jizya being paid in varied forms, decided to offer jizya
from the debris of Hindu temples from across the country. In an
inexplicable leap even for judicial overreach, on 25-03-2008 the Supreme
Court delivered the Order expanding the scope of Sonia Gandhi’s SLP.
From Gujarat, the theatre of war against Hindu street temples had
expanded to include all States and Union Territories.
“This Court, while issuing notice on the Special Leave Petition on 4th May 2006, had stayed the operation of the impugned order.
Learned
ASG states that the Central Government after convening a meeting of all
the concerned Secretaries of the respective States would try to take a
consensual decision to deal with the problems such as in the present
case all over the country and seeks time for this purpose.
Put up after summer vacation”.
It
was within the powers of the Supreme Court to reject expanding the
original scope of the SLP, to have confined the same to Gujarat and
delivered a speedy judgment on the central government’s petition
appealing against the Gujarat High Court Order of 2 May 2006.
Instead,
in what is seen by ordinary Hindus as unwarranted activism, the Supreme
Court went along with the UPA government and broadened the canvas to
now include religious structures (the real target being Hindu temples)
throughout the country.
23 September 2009 – “I
had taken a meeting with the Chief Secretaries of the States on
17-09-2009 with a view to evolve a consensus on the problem of
encroachment of public spaces by religious structures. I am glad to
report that after the meeting the following consensus emerged:
(1) No
unauthorized construction of any religious institution namely temple,
church, mosque, or gurudwara etc shall be permitted on public
street/public space.
(2) In
respect of unauthorized constructions of any religious nature which has
taken place in the past, the State Governments would review the same on
a case by case basis and take appropriate steps. This will be done as
expeditiously as possible.
In
the light of the above, the matter may be brought before the notice of
the Supreme Court for appropriate action. If any affidavit is to be
filed a draft affidavit based on the above consensus may be filed in the
Supreme Court. I understand the case is coming up for hearing on 29th September, 2009”.
(Signed Gopal K Pillai, Home Secretary, Government of India, to Gopal Subramaniam, Solicitor General of India)
29-09-2009 – After
reiterating that no new temple, church, mosque or gurudwara should be
allowed to be built on “public streets, public parks or other public
places etc, the Supreme Court concluded its Order on the 29th
September 2009 with, “In order to ensure compliance of our directions,
we direct all the District Collectors and Magistrates / Deputy
Commissioners in charge of the Districts to ensure that there is total
compliance of the order passed by us. They are directed to submit a
report within four weeks to the concerned Chief Secretaries or the
Administrators of the Union Territories who in turn will send a report
to this Court within eight weeks from today.
List this matter for further directions on 7th December 2009”.
(Justices Dalveer Bhandari and Mukundakam Sharma of the Supreme Court)
List
this matter for 7 December for further directions said the judges, and
making good their promise, on 7 December 2009, the Supreme Court slammed
the last door on the face of ordinary Hindus.
7th
December, 2009 – After the by now familiar no new temple, church mosque
gurudwara etc, and the token gesture made to the people from whom the
judiciary derives its legitimacy about reviewing pre-existing religious
structures on a case to case basis, the Supreme Court dropped this bomb
on our heads:
Place this petition for further directions on 4th February, 2010. Looking to the gravity of this matter, we direct that no order or direction inconsistent to our orders shall be passed by any other Court in the country.
(Justices
Dalveer Bhandari and AK Patnaik (Thiruvananthapuram Shree Anantha
Padmanabha Swamy open-the-vaults- notoriety) of the Supreme Court)
That
all States and Union territories must arrive at a consensus was
creative thinking by the Home Secretary and not mandated by the SC. It
is not clear why the Home Secretary insisted on consensus, and more
intriguing, why no State sounded the “federalism under threat” alarm;
instead the Chief Secretary of all States and Union Territories rushed
to the SC to present their report card.
These thoughts have plagued the writer ever since she got to read all documents pulled out from the SC on this issue:
- Is
not the issue of what kind structures can or cannot come up on roads,
on which roads they may be permitted to be built, and the guidelines
governing all construction, the domain of elected governments?
- The
Gujarat High Court assumed for itself the role of urban development
authority when the State had an elected government to administer it;
never mind good, bad or ugly.
- When
Narendra Modi had already embarked on a demolition mission even without
court directive, why did the High Court encroach upon executive domain
and order removal of encroachments?
- When
no individual or agency had approached the High Court with a complaint
or for redress, was the Gujarat High Court justified in taking up an
issue which was not a matter of life and death or of gross violation of
human rights?
- More
to the point, why did Narendra Modi not tell the court that it was
treading on executive toes and that the judiciary must respect
well-demarcated line between judicial and executive jurisdiction?
Even
more shameless was the affidavit presented by the Addl.
Solicitor-General on behalf of Sonia Gandhi’s UPA, praying for leave to
appeal against the Gujarat High Court Order. This deserves to be quoted
in some length and readers are urged to recollect Jayalalithaa’s
demolition spree in 2005.
The
central government’s SLP is a remarkable document for the language
used. Without going into too many details the opening words of all
paragraphs are reproduced to demonstrate the anxiety and passion with
which Sonia Gandhi is dealing with wounded Muslim sentiment because one
dargah was demolished.
1. That
the Instant Special Leave Petition has been filed preferred by the
Union of India against the order dated 2.5.2006 passed by the Division
Bench of the Hon’ble High Court of Gujarat. Special leave to appeal is
sought for on, inter alia, the following grounds which are taken without
prejudice to one another.
2. That the impugned judgment is erroneous...
3. That the High Court has acted in excess of its jurisdiction...
4. That the High Court ought to have exercised circumspection....
5. That the Hon’ble High Court erred in directing demolition...
6. That the Hon’ble High Court erred in passing the impugned order....
7. That the Hon’ble High Court had no material before it in the form of any official documentation...
8. That the Hon’ble High Court erred in acting on the basis of a news item....
And
it goes on and on about how the High Court had erred, was erroneous,
failed to be circumspect, had no basis for its action and much more.
Sonia Gandhi’s UPA threw the dictionary at the Hon’ble High Court. But
the reasons cited by the Addl. Solicitor-General should be an eye-opener
for Hindus. Readers please keep Tamil Nadu temple demolition 2005 and
2010 in mind.
Union of India is only interested in ensuring that the law and order situation in the State of Gujarat does not go out of hand and it is with this objective that the Union of India is praying for a stay of the impugned judgment. Grave and serious, irreversible prejudice would be caused to the State of Gujarat and its citizens of the impugned order were not stayed pending disposal of the Instant Special Leave Petition.
The petitioner is
deeply concerned about the safety and security of the citizens of the
State of Gujarat and the prevailing law and order situation and is therefore constrained to institute the ISLP....
......it
is imperative that it (the Petitioner) be permitted to file the ISLP in
as much as the impugned order, if not stayed immediately, would have
serious and grave consequences upon the law and order situation in the
State of Gujarat but would also have severe ramifications on unity, integrity and security of the Nation.
(Excerpts from the ISLP filed by the UPA through the Addl.
Solicitor-General in the SC asking for an immediate stay on the impugned
order of 2.5.2006 and petition appealing against the Gujarat High Court
Order)
That
is the power of organized, orchestrated and well-organized violence
with which Muslims across the country bring national governments and as
seen in this case, even the judiciary to its knees.
Narendra
Modi, Mamata Banerjee, Jayalalithaa, Nitish Kumar and Naveen Patnaik
have in recent times refused firmly to co-operate with the union
government on several occasions citing federalism-under-threat as
reason. And yet, no state government, no political party challenged the
Supreme Court ordering them to remove all religious structures which the
Supreme Court called encroachments.
These
Chief Ministers also did not express any dissent with the general view
that these religious structures had to be removed. No one asked, ‘why’?
There is a lesson here for Hindus, a big lesson which they never seem to
learn no matter how many times different governments have rubbed the
collective Hindu nose in the dirt.
Why
did the UPA government not intervene when a Division Bench of the
Madras High Court at Madurai passed a similar order and the then Chief
Minister demolished over 250 Hindu temples.
Why
is it when Hindu temples are destroyed routinely by governments like
evil boys tearing the wings of a butterfly, the central government does
not rush its Addl. Solicitor General to the SC panting communal harmony
is at stake, unity, integrity and security of the nation is at stake or
that law and order will get out of hand?
Because
Hindus have still not mastered the science of organized and
co-ordinated violence or understood the need for expressing our
sentiments with force which compels attention?
By
September 2010 when the Tamil Nadu Chief Secretary submitted the
report, all States and Union Territories had submitted state-wise
statistics of total number of religious structures encroaching public
spaces, how many have been removed, how many relocated and how many
regularised.
When
the writer went to the High Court in October 2010 to protect one old
street temple from demolition, the Chief Justice ordered the civic
authorities not to demolish it, but did not demand answers from the
state government for destroying 158 temples in 2010 before October.
Because the Supreme Court had ordered High Courts not to pass any order
not in line with its directive to remove all religious shrines from
public places.
Angry
Hindus wondered how many churches and mosques had been removed by the
AIADMK in 2005 and by the DMK in 2010. We do not know the numbers for
2005 but the numbers for 2010 should make Hindus sit up if there is even
an iota of self-esteem left in them.
According
to the report filed by Tamil Nadu’s Chief Secretary in the Supreme
Court on 8 September 2010, there were more than 70,000 religious
structures on public spaces. Acting upon the orders of the Supreme
Court, the Tamil Nadu government demolished 151 structures altogether of
which 138 were Hindu temples, 4 churches, 5 mosques and 4 ‘others’.
Those
familiar with Tamil Nadu would know that the Generic Church has poured
thousands of crores of rupees into Tamil Nadu in the last twenty years
and more. Much of this money has gone into buying large expanses of real
estate to build imposing churches blotting the sky-line. Idli vendors,
autorickshaw drivers, local residents and street hawkers do not receive
money from foreign churches and western nations to build imposing
temples. They build small street temples as sthana devtas to watch over them and their trade.
The
TN Chief Secretary’s remark explains why the both Jayalalithaa and
Karunanidhi chose Hindu temples to prove their obedience to the Courts.
It
is also submitted that in past cases of Religious Encroachments, in
almost all cases, once the persons encroach upon the lands and construct
some sort of structures, they obtain Electricity, Water Supply,
Drainage Connections and based on this they assumed that they have a
right over the encroached land. Further, these religious encroachments
thrive on the sentimental feelings of the local mass and thereby exploit
the innocent public to the detriment of the society and Public Amity.
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