Shah Bano and Jallikkattu: How BJP has gone in the Congress way to bend the law!

Shah Bano and Jallikkattu: How BJP has gone in the Congress way to bend the law!

shah-banu-venkaiya-naidu-jallikattu-act-amendment

Venkaiah Naidu citing “Shah Bano” case precedence (10-01-2017)[1]: Venkaiah Naidu hinted that in the view of strong emotional connect of the people of Tamil Nadu with jallikattu, the Centre was mulling over a way out after the Supreme Court banned it.  He claimed that Centre is mulling the idea of amending the law to nullify Supreme Court order on Jallikattu.  “We are getting suggestions (to amend the law). After all, we did it in the Shah Bano case,” said Naidu adding[2], “But, we will have to see. We will have to discuss. We will have to weigh what court thinks.” However, Naidu was non-committal about bringing an ordinance to deal with the Supreme Court order on Jallikattu, saying[3], “I am not dealing with the subject in the government.” Speaking at the India Today Conclave South in Chennai, Venkaiah Naidu said[4], “Personally, I feel that Jallikattu is a traditional art. It is a traditional sport in Tamil Nadu. Nobody should have problem with this.” But, Naidu also added, “I don’t know whether I should be saying this as a minister.” So just like Rajiv Gandhi, the BJP has also decided to politicize the issue, by bending the law by creating another bad precedence of law. In fact, the so-called “India Today” conclave had given much focus to the “Jallikkattu” issue, calling opinion from others. Now, let us note, what the “Shah Bano” case brought out in Indian judicial, political and religious arena.

shah-banu-venkaiya-naidu-jallikattu-act-amendment-modiThe brief of Sha Bano case[5]: Though, the details of the “Shah Bano case” are known, they are briefed here as follows[6]:

  • Shah Bano, who was 62 years old in 1978, was divorced by her husband using the triple talaq law.
  • Bano, who was left with five children, approached the court to seek justice.
  • The Madhya Pradesh High Court had instructed Bano’s husband Mohammed Ahmed Khan to provide Rs 179 per month as maintenance.
  • The case reached Supreme Court, with the bench announcing a verdict in 1985, instructing that Shah Bano should be provided all the benefits which divorced women from other religious communities are entitled to.
  • The observations of court drew sharp reaction from conservative Muslims, who called it a violation of their religious affairs.
  • Fearing ire from the Muslim community, Congress government at Centre led by Rajiv Gandhi amended the Muslim Women (Protection of Rights on Divorce) Act, 1986. The amended legislation nullified the Supreme Court’s order.

At that time, a lot of criticism was made against Rajiv Gandhi and Congress for yielding to the Islamic fundamental forces by reversing the Supre Court judgment.

jaggi-ravishankar-modi-jallikattuJallikkatu issue goes in the Sha Bano route: The political solution to this public demand in case of Jallikattu is to pass an ordinance, overturning and reversing the Supreme Court ban, is well understood, but, bad in the law. The job of the apex court is to simply interpret statutes and constitution provisions. The Apex Court enters the arena of traditions, religious practices or even cricket administration, only when such issues come to the court. In the Shah Bano case, the apex court’s verdict was overturned by Parliament (which had the brute majority of the ruling party). The utopia that the voice of “the people” is supreme too works with the ruling politicians. Unfortunately, there is a thin dividing line between robust democracy and mobocracy, or mere capitulation by politicians to mass hysteria and this is what happened in the Jallikkttu case. Who has whipped up mass hysteria to generate short-term political advantage, is yet to be known clearly, though, the sudden surge has been claimed as “spontaneous and apolitical”. It is, therefore, worth recalling incidents when the brute power of elected governments was thwarted by sound legal principles, and even the power of ordinance was blunted by the apex court. Whether the “emotional blackmail”, “ideological extortion”, “cultural counter threat”, definitely, it has shown a bad way for such incited, provoked and encouraged groups again bargain, so that the judiciary becomes a mockery of democracy.

anti-modi-demo-2017-vaikoPoliticians are interested in safeguarding their interests[7]: Of course, the most celebrated case is the Keshavanand Bharti case, fought so successfully by Nani Palkhiwala, which has ever since protected the basic structure of the Constitution of India. It cannot be amended by the legislature. A more recent example is from May 2002, when the Supreme Court decreed that all candidates who stand for elections must declare, via sworn affidavits, their criminal antecedents (if any), their wealth (ill begotten or not), and their education status. This was based on the voters’ right to know before they cast their vote. The Union Cabinet in its wisdom sought to nullify this verdict through a hastily drawn up ordinance in June 2002, as the entire political establishment did not want to disclose any information, or details of their candidates. But citizen activists across the nation got together and asked the then President Abdul Kalam to refuse to sign that ordinance. He had to sign since the Cabinet refused to budge, or dilute its ordinance. Hence, this ordinance (even before it could be presented to Parliament) was challenged in the Supreme Court as being un-constitutional. Denying information to voters was akin to denying freedom of expression (as casting a vote is like expressing yourself). Remember the Right to Information was passed in 2005, three years later. In March 2003, the Supreme Court ruled that the said ordinance seeking to gag information about candidates was unconstitutional and hence null and void. Hence the ordinance was defeated. As for Jallikattu, it’s a wholly different animal and the polticians may bend the law again[8].

jallikattu-cruelty-involvedRequesting Supreme Court to delay the judgment and passing the Ordinance (20-01-2017)[9]: Hours after the Central government requested the Supreme Court to delay its judgment on the legality of Jallikattu, citing “huge unrest” in Tamil Nadu, it approved a draft Ordinance by the state government to make an exception for bulls in the Prevention of Cruelty to Animals Act. Earlier, Attorney General Mukul Rohatgi told a bench led by Justice Dipak Misra that there were “immense problems” in Tamil Nadu due to the interim ban on Jallikattu and that the circumstances warranted delaying the judgment at least by a week. “If this court pronounces the judgment in one way or another, it (judgment) would inflame passions…there is already social unrest in the state. The Centre and the state are in talks to find a way out in the matter and our request is that the court should not deliver the judgment and hold back for a while,” submitted the AG. At this, Justice Misra asked Rohatgi how many days he wanted the judgment to be delayed. “At least for a week,” replied AG. To this, the judge responded[10]: “Okay.”

© Vedaprakash

21-01-2017

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[1] India Today, Law was amended after Shah Bano case, can do it for jallikattu too: Venkaiah Naidu at India Today Conclave, IndiaToday.in | Posted by Ruchi Dua,New Delhi, January 10, 2017 | UPDATED 18:16 IST.

[2] http://indiatoday.intoday.in/story/india-today-conclave-south-venkaiah-naidu-jallikattu/1/853680.html

[3] The Hindu, Centre exploring options on jallikattu, says Venkaiah, CHENNAI JANUARY 11, 2017 01:47 IST;  UPDATED: JANUARY 11, 2017 07:47 IST.

[4] http://www.thehindu.com/news/national/tamil-nadu/Centre-exploring-options-on-jallikattu-says-Venkaiah/article17020612.ece

[5] India.com, Like Shah Bano case, Centre may nullify Supreme Court order on Jallikattu: Union Minister Venkaiah Naidu, By Mohammed Uzair Shaikh | Updated: January 10, 2017 1:36 PM IST; Published Date: January 10, 2017 1:28 PM IST | Updated Date: January 10, 2017 1:36 PM IST

[6] http://www.india.com/news/india/like-shah-bano-case-centre-may-nullify-supreme-court-order-on-jallikattu-union-minister-venkaiah-naidu-1750572/

[7] Pune Mirror, WHEN SC TURNED DOWN AN ORDINANCE, By Ajit Ranade, Pune Mirror | Jan 21, 2017, 02.30 AM IST

[8] http://punemirror.indiatimes.com/columns/columnists/ajit-ranade/when-sc-turned-down-an-ordinance/articleshow/56693786.cms

[9] Indian Express, Centre clears TN draft for Ordinance to allow Jallikattu, Written by Utkarsh Anand , Manoj CG | New Delhi | Updated: January 21, 2017 4:29 am

[10] http://indianexpress.com/article/india/jallikattu-ban-centre-asks-sc-to-delay-order-4484017/

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