Kerala high court

Unprecedented, Unconstitutional Action by I&B Ministry to Remove Two Films From IFFI List: ‘S Durga’ Director

In conversation with S Durga filmmaker Sanal Kumar Sasidharan about his latest movie, politics and his time as an ABVP worker.

Sanal Kumar Sasidharan. Credit: Facebook

Sanal Kumar Sasidharan, the 40-year-old Malayalam filmmaker is no Marxist, nor does he have any ‘jihadi’ connection. He had been the unit secretary of the Akhil Bharatiya Vidyarthi Parishad (ABVP), the BJP’s student wing, while a student at the Government Law College in Trivandrum. Even though he parted ways with the organisation over political differences, and now believes that the BJP’s rule at the Centre is nothing but authoritarian and fascist in nature, Sasidharan did not hesitate to support the idea of demonetisation. He had his reasons for it, like he has for making the film S Durga, which was ‘Sexy’ till the Central Board of Film Certification (CBFC) struck off three letters.

The CBFC was the first to train its gun on the film, issuing a U/A certificate, with 21 audio mutes and a change in name from Sexy Durga to S Durga. Finally the information and broadcasting ministry removed the movie – which has already bagged nine international awards including the Hivos Tiger Award at Rotterdam – from the screening list of the International Film Festival of India (IFFI), along with Ravi Jadhav’s Marathi film Nude, setting aside recommendations by a 13-member jury. S Durga is Sasidharan’s third feature film following Oralpokkam (‘Six Feet High’) and Ozhivudivasathe Kali (‘An Off-day’s Game’).

Sasidharan, in an interview to The Wire, said that it is the fascist mindset of our politicians that prevents them from watching a film before judging it.

Your new film S Durga, which has already won a handful of international awards in respected festivals, is repeatedly running into trouble with the authorities. What do you think the reason could be?

This is how right-wing politics works. They need not even watch a work of art to put a ban on it. Prejudice is a part of their politics. It is the same kind of judgment they always have against the other. You could be thrashed or killed simply for growing a beard, no matter who you are or what you do. They would not even bother asking before attacking you. This is quintessential fascism, isn’t it?

How do you feel when your work is rejected for no reason and you are kept in the dark? What are you going to do as the next step?

I actually feel angry when I see sad smileys under the news feeds about the dropping of my film. I am not feeling sad or disappointed, nor do I have any regret. I am angry and I will intensify what I did to provoke these people. I am not going to let them go easily. I want to know why my film was removed from the list. I have filed a writ petition before the Kerala high court against this unprecedented, illogical and unconstitutional action taken by the I&B ministry. We can’t sit idle when fascism is approaching us steadily. It may not eat us straight away, but it will feed us enough for us to grow fat – so that it can eat us later, softly.

What is your contention in the court? Do you think your arguments would hold up?

The I&B ministry has arbitrarily intruded into a jury’s decision by an unprecedented action to remove two films from the Indian Panorama section of the festival. This has never ever happened in the history of the festival till date. The jury members including the chairman have come out openly against this injustice; the chairman has even tendered his resignation. They might not come on record or testify in person but we can submit the media reports in court and I am hopeful of a favourable verdict. I think there is a strong case against the ministry. The minister (Smriti Irani) has misused the constitutional powers vested in her.

We have seen Marathi filmmakers rallying behind Ravi Jadhav and his film Nude. What is the reaction of the Malayalam film fraternity?

It is indeed disappointing that not many voices of protest came up when S Durga was dropped from the Indian Panorama. You may recall that the regional media usually make a big hullabaloo whenever Malayalam films are ignored in the panorama section. This time, only one film from Malayalam made the cut, yet they chose to remain silent. Some filmmakers have issued a statement protesting the move, so far so good, but it took five long days for them to come up with such a statement. I do not expect super stars like Mohanlal and Mammootty to support my cause, but I did bank on ‘art house’ filmmakers and they have failed me.

You withdrew your film from the International Film Festival of Kerala (IFFK). What made you resort to such an extreme step?

We are protesting against the oppression of the Kerala State Chalachithra Academy and IFFK towards the film. Despite winning many international awards and recognition, the film didn’t make it to the competition section of the IFFK, nor were they ready to give the film its due. I think it was part of a conspiracy to undermine the achievements of this small film made on a shoe-string budget. We are planning to organise a parallel festival, Kazhcha Indie Film Fest (KIFF), to protest the IFFK’s ignorance towards the growing indie film movement in India. We need spaces to challenge the system, which has been ruined by powerful people and vicious politics.

What is your take on the Central government as a concerned political being and an independent filmmaker?

This government is ruthlessly capturing all the spaces of artists in an autocratic manner. It supports the extremist groups which are disrupting artistic freedom and freedom of expression citing stupid reasons. It is imposing its regressive ideas on culture and education. It is even trying to hijack the growth of science and research in this country by bringing stories from the epics as facts. But see what is happening around. See what the opposition of this country is doing. It has not even heard or read about what is going on. The opposition parties are actually to be blamed for letting this government go without accountability and ignoring the rules and principles.

You were a vocal supporter of demonetisation, Why did you rally behind Prime Minister Narendra Modi on this issue?

Supporting the demonetisation drive was an instantaneous response on my part. I still think the idea of demonetisation was good. Had it been implemented without flaws it could have delivered good for the country, but unfortunately it did not happen. The implementation of demonetisation caused trouble for the ordinary people. All government programmes are Janus-faced, they always have hidden agendas with them. A section of the Left has branded me as ‘sanghi’ because of this. They always do this, ‘othering’ the dissenting voices. They are primarily partisan and that is why they keep away from me and my films. I am neither Left nor Right, I have no space in either of these ends, I stand in a space of my own.

You were an ABVP worker during your student days. Why did you bid adieu to that ideology, or haven’t you?

I come from a Hindu religious background. My father was associated with the Hindu Munnani. I used to recite whole verses from the Sunderkanda of the Ramayana by heart in my early childhood, which had won me many accolades. I used to frequent an RSS shakha, and this background led me into student politics. In college, the Students Federation of India (SFI) was dominant. I became active in the ABVP to protest the arrogant attitude of the SFI towards other organisations. I was the secretary of the ABVP unit there. Towards the fag end of my student days, political differences emerged between me and the organisation. They always wanted a foe to fight. Often Pakistan was their imaginary enemy and everyone in the organisation wanted to thrash them (interestingly, even the SFI guys wanted to ‘teach Pakistan a lesson’). The political differences started to proliferate and it eventually resulted in my exit from the ABVP and its ideology. My wife had also been active with the Vidyarthi Parishad, now she also is not a part of it.

Finally, what is S Durgaall about?

It has nothing to do with sex, sexiness or the goddess Durga. The coinage was aimed to provide some artistic meaning to the title by the combining of two seemingly contrasting words or ideas. The film puts the spotlight on a couple, Kabeer and Durga, who are running away in the night. The situations and people they encounter make the movie. It deals with the intrinsic politics of the man-woman relationship, patriarchy and power.

Rajeev Ramachandran is an independent journalist based in Kochi.

SC Directs Hadiya’s Father to Produce Her Before It on November 27

The apex court wishes to ascertain her mental health and whether she had given free consent to her marriage.

Supreme Court of India. Credit: PTI

New Delhi: The Supreme Court today directed the father of Hadiya, who had converted to Islam and married a Muslim man, to produce her before it on November 27.

A bench, comprising Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud, asked senior advocate Shyam Divan, representing the father of the woman, to ensure that she is produced that day for interaction with the bench, which is likely to ascertain her mental health and whether she had given free consent to the marriage.

The National Investigation Agency, represented by Additional Solicitor General Maninder Singh, said there was a well-oiled machinery working in the state and they are indulging in the indoctrination and radicalisation of the society in the state where as many as 89 cases of similar nature have been reported.

Divan, appearing for woman’s father K.M. Ashokan, claimed the alleged husband of his daughter is a radicalised man and several organisations like Popular Front of India are involved in radicalisation of the society.

Senior advocate Kapil Sibal, appearing for her husband Shafin Jahan, opposed the NIA’s submission and that of the woman’s father.

Hadiya, a Hindu, had converted to Islam and later married Jahan. It was alleged that she was recruited by ISIS’s mission in Syria and Jahan was only a stooge.

Jahan had on September 20 approached the apex court seeking recall of its August 16 order directing the NIA to investigate the conversion and marriage of a formerly Hindu woman with him.

Meanwhile, the Kerala government had on October 7 told the Supreme Court that its police had conducted a “thorough investigation” into her conversion and subsequent marriage to Jahan and did not find material warranting the transfer of probe to the NIA.

Jahan had moved the apex court after the Kerala high court annulled his marriage, saying it was an insult to the independence of women in the country.

Kerala High Court’s Ban on Student Protests Poses Serious Threat to Democracy

The court order arbitrarily deprives students as a class the fundamental right to hold peaceful forms of protest.

Members of ABVP take part in a protest. Credit: PTI

An order passed by Chief Justice Navaniti Prasad Singh and Justice Raja Vijayaraghavan of the Kerala high court in a case concerning M.E.S College, Ponnani states that “dharnas, hunger strikes and other practices like satyagraha have no place in a constitutional democracy,” and recommends expulsion or rustication for any student participating in such forms of protest.

Such an order has serious implications not only for student movements and campuses but for India’s democracy in general.

The entire tone and tenor of the order is that of moral chastisement and castigation rather than an assessment of constitutionality. The order begins by declaring, about a student activist and member of Students’ Federation of India, “The first thing which crosses our mind is whether he goes to the college to indulge in politics or to study, a question which he and his parents must consider, for we hold that in academic institutions, politics or political activities cannot be permitted.”

Should the honourable judges really give vent to the “first thing that crosses their minds” in a matter as crucial as the right to protest? Of late, the Kerala high court has been issuing one appalling order after another, displaying a censorious gaze towards the freedoms and civil liberties of the young. In the Hadiya case, the Kerala high court judges chose to empathise with a father’s outrage at an adult daughter’s decision to convert her faith and choose a husband and handed the 24-year-old into her father’s custody. And now, the court is outlawing protests by students on campuses.

What is the reasoning behind this judgement, and why should it concern us, irrespective of whether or not we are students or political activists? The judgement quotes Ambedkar’s words at the time of adopting the constitution suggesting that civil disobedience, non-cooperation and satyagraha were alright during colonial rule when India lacked independence and a constitution – but that such means would amount to “the grammar of anarchy” once India had become a constitutional democracy.

Citing these words, the high court’s verdict declares:

“If they have a legitimate grievance, avenues for ventilating them are legally available. There is students council, academic council and there are courts including this Court where appropriate grievances can be raised. Dharnas have no place which would only vitiate the academic atmosphere.”

This is a shocking interpretation of the fundamental rights recognised by Article 19 of the constitution.

Article 19 recognises the right to freedom of speech and expression, to peaceful assembly, to form associations and unions as a fundamental right – it has generally been held that restrictions on this right cannot be arbitrary. Notwithstanding Ambedkar’s words about satyagraha and other protests, peaceful forms of protest have, in fact, been widely recognised and upheld by numerous court judgements as a fundamental right of all persons. How can students as a class be deprived arbitrarily of such rights?

Role of people’s movements

In the past 70 years, people’s movements – in dharnas, processions, protests, numerous acts of civil disobedience – have done as much and more to enrich and protect the spirit of the constitution than the so-called “legitimate avenues” of elected representation, assemblies and parliament.

The “legitimate avenues” – parliamentary avenues – have more often than not been hijacked by the rich and powerful. Dhirubhai Ambani is reported to have boasted, “I don’t break laws; I make laws” – that is, he did not need to break laws, he could simply get assemblies and parliament to enact laws to suit his interests. Parliaments have been notoriously unwilling to risk offending mob morality to uphold and defend what Ambedkar called ‘constitutional morality’ – i.e the rights of minorities, however minuscule and unpopular.

Also read: The Anatomy of Protests in India

In this backdrop, it is trade union movements, feminist movements, student movements, environmental movements, Dalit movements, movements for civil liberties and to defend secularism – that have, by defending the rights of the weak and powerless and speaking truth to power, been the life and soul of Indian democracy in action and in spirit.

Student politics

Students, in particular, have been at the forefront of every democratic churning that India has experienced: the anti-Emergency protests famously began with student strikes in Gujarat against hikes in hostel mess fees; prominent leaders of most Indian political parties today cut their teeth in the movements against the Emergency. How then can courts be allowed to decree that politics must be outlawed from campuses; that campuses must be ‘zones of exception’ for democratic rights and the right to protest? “Have your parents sent you to college to study or to do politics” is the question every student activist has faced from irate administrations. Why is it assumed that studying and politics cannot go together? Isn’t ‘study’ in some senses sterile if it is artificially divorced from politics?

‘When politics decides your future, you must decide your politics’ is a popular slogan coined by student movements in answer to those who delegitimise student politics. If politics decides to hike fees and make college/university education unaffordable for the poor, should students not protest? When the university administration blames women students for sexual harassment, is it not practicing patriarchal politics? Why should women students not have the right to agitate against victim blaming – as they did at Banaras Hindu University (BHU) last month?

When university rules discriminate against the freedom of speech and expression (punishing students for printing leaflets, forming unions or holding meetings) or discriminate on the grounds of gender or caste, should students not have a right to agitate to demand a change of rules?

Students of Delhi University, JNU and Jamia during their protest march against ABVP at Delhi University. Credit: PTI

In the past, too, it was a Kerala high court verdict that led to the Supreme Court appointing the Lyngdoh Committee (LC) to lay down norms for students’ union elections. In doing so, the SC agreed that students had a right to form unions and exercise Article 19 – but asked the LC to regulate the ways in which Article 19 might be exercised on campuses. The results of the LC regulations are questionable. The LC rules have not been used – as the LC report had mandated – to ensure regular student union elections in central university campuses like BHU or Jamia Millia Islamia. In campuses like Delhi University, LC rules have been unable to curb the massive political expenditure by powerful patrons of student leaders. But the LC rules that prevent students who have faced any punishment by administrations or the state from contesting elections have created a situation where on a campus like Jawaharlal Nehru University (JNU), the administration can easily prevent a committed and experienced activist from contesting union elections by punishing them on some pretext or another.

The Delhi high court has recently set aside the disciplinary action taken by JNU against 15 of its students in 2016 on the grounds that the administration’s procedures of enquiry and appeal had violated principles of natural justice. While that is a welcome step, the fact is that owing to these unjust punishments, many of these students were prevented from contesting JNUSU polls. The relief received from the court now cannot undo that injustice. In effect, a politically-biased administration was able to use the Lyngdoh regulations to ensure that some of the university’s best activists were unable to contest elections.

Criminalisation of student politics

What about concerns around criminalisation of student politics that have so often been cited to justify bans on ‘political interference’ on campuses? That is indeed a serious problem – but so is criminalisation of politics in general. It would be outrageous and unconstitutional for elections and politics in India to be suspended to curb criminalisation of politics – why then is it acceptable to curb student politics on this pretext?

College and university students are adult citizens – and must enjoy the rights that every citizen has, to organise and agitate peacefully. Universities and colleges do have a custodial responsibility – but that responsibility is to protect students from violence and discrimination, not to take away their fundamental rights. Administrations are justified in acting to prevent and punish ragging or sexual harassment or other forms of violence; but they cannot use concerns about ragging or women’s safety to insulate themselves from students’ peaceful protests challenging their policies or decisions, or to justify gender discrimination against women students.

Members of AISA and JNUSU shouting slogans during their protest in New Delhi. Credit: PTI

Moreover, as Parnal Chirmuley of JNU observes, it is “progressive student politics across campuses” that has “gradually emerged as a counter to the criminalisation of student politics that was the legacy of some mainstream parties. Student activism has fought for democratic admission policies, for student rights on campuses, for the equitable right to education, and have consistently thwarted attempts of successive governments at blanket privatisation of higher education in the country.

Brave student activists have built among students a deeper understanding of progressive people’s movements around issues of caste, gender, class, land and minority rights. They have revitalised the idea of the university as a space for learning about commitment to one’s society, making education the first step towards creating a better society for all, as against protecting the privilege of a small elite.”

Also read: Student Protests Have Challenged the Ideological Stagnation of BHU

Finally, what to make of the claim made by the court that student protest encroach on the “right of the civilised students to receive education”? Actually, student politics and democratic, regular union elections are the best way to ensure that student organisations do not misuse power to indulge in violence. The power of ordinary students to organise, form associations and shape political narratives, is the best guarantee against the money- and muscle-power wielded by the student outfits of powerful ruling parties.

In 2009, Justices Markandey Katju and A.K. Ganguly of the Supreme Court of India referred the Lyngdoh Committee recommendations to a five-judge constitutional bench of the SC, expressing “grave reservations about the manner of implementation” of the recommendations. Pending before the constitution bench are the questions: whether the judiciary can legislate without encroaching on the powers of the executive; and “whether Article 19 (1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.” The constitutional bench is yet to deliberate on this pending issue. But in my opinion, what the Supreme Court additionally – and urgently – needs to consider is whether a judicial fiat can curb the fundamental rights of a citizen of India or any other person merely because the citizen/person is a student of a college or university in India?

Kavita Krishnan is secretary of the All India Progressive Women’s Association (AIPWA).

Don’t Communalise Inter-Religious Marriages as ‘Love Jihad’: Kerala High Court

The court also emphasised the need for encouraging inter-caste and inter-religious marriages.

Kerala high court. Credit: PTI

New Delhi: The Kerala high court on Thursday decried the increasing tendency of viewing inter-religious weddings as ‘love jihad’ as it upheld a marriage between a Hindu woman and a Muslim man.

A division bench comprising justices V. Chitambaresh and Sathish Ninan made this observation in its judgment on a habeas corpus petition filed by the man. A habeas corpus plea is filed to ensure a person under arrest is brought before a court which will determine whether the detention is legal.

“We are appalled to notice the recent trend in this state to sensationalise every case of inter-religious marriage as either ‘love jihad’ or ‘ghar wapsi’ even if there was platonic love between the spouses before,” the court said.

The bench also cited the Supreme Court order in the Lata Singh vs state of Uttar Pradesh case of 2004 to emphasise the need for encouraging inter-caste and inter-religious marriages.

“We caution that every case of inter-religious marriage shall not be portrayed on a religious canvas and [used to] create fissures in the communal harmony otherwise existing in the God’s own country – Kerala,” the bench said and upheld the marriage.

It said the present case was projected by the parents of the woman as ‘love jihad’ whereas the man, who was in love with her and married her later, termed it as ‘ghar wapsi’ (a bid to coerce her to come back).

The woman from Kannur had left her home on May 16 along with the Muslim youth. On a complaint from her parents, the police had traced and detained them in Sonepat in Haryana a month later.

Initially, a lower court had allowed the woman to go with her parents, who then lodged her in a yoga centre at Tripunithura in Ernakulam district allegedly to make her give up the relationship with the Muslim man.

When the woman was produced before the high court on August 18, she had interacted with a single judge and expressed her desire to go back with her parents.

Subsequently, when the petition came up for hearing four days later, the woman retracted her stand and told the division bench that she made the statement expressing her wish to go with her parents under pressure.

She alleged that she was tortured at the yoga centre. It was being run “to coerce the inmates to return to Hindu religion”, she had charged.

During the litigation and counter-litigation by both sides, the woman and man had got married legally.

The division bench applauded the “extra-ordinary courage” shown by the girl to live up to her conviction and “decry the attempt of her parents to deflect the course of justice by misleading litigations”.

It observed their marriage had now been registered too.

The court also observed that any centre for forcible conversion or re-conversion had to be busted by the police whether it was Hindu, Muslim or Christian lest it offends the constitutional rights of citizens.

Article 25(1) of the constitution guarantees every citizen the right to freely profess, practice and propagate any religion which cannot be trampled upon by subversive forces or religious outfits, the court observed.

The judgment began with a quote from American poet Maya Angelou who famously said: “Love recognises no barriers. It jumps hurdles, leaps fences, penetrates walls to arrive at its destination full of hope.”

It may be recalled that another division bench of the Kerala high court had in May annulled the marriage of a 24-year-old woman with a Muslim man after her parents alleged she had been forced to convert to Islam, terming it as an instance of ‘love jihad’. The woman in question, Hadiya, had denied the charge.

On an appeal by the husband, the Supreme Court had on August 16 ordered a probe by the National Investigation Agency into the case as the agency claimed it was not an isolated incident but a “pattern” that was emerging in Kerala.

Kerala ‘Love Jihad’ Case: SC to Examine Whether HC Has Power to Annul Marriage

The Kerala high court had in May annuled the marriage of a Muslim man with a Hindu woman who had converted to Islam.

The Supreme Court bench invoked its powers under Article 142 of the constitution. Credit: PTI

“Pattern or no pattern, the question is, can the high court annul the marriage by exercising its powers under Article 226 of the constitution,” the bench held. Credit: PTI

New Delhi: The Supreme Court today (October 3) said it would examine the question whether the Kerala high court can exercise its power under writ jurisdiction to annul the marriage of a Muslim man with a Hindu woman who had converted to Islam before tying the nuptial knot.

The apex court was apparently not in agreement with the submission that the National Investigation Agency (NIA) was asked to probe whether there was any wider pattern, commonly referred to as ‘love jihad’, in the case and said that the question was can the high court annul the marriage between two adults.

“Pattern or no pattern, the question is, can the high court annul the marriage by exercising its powers under Article 226 of the constitution,” the bench comprising Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud said and fixed the plea of the Kerala man for hearing on October 9.

The bench also said that a father cannot be seen dictating the personal life of a 24-year-old daughter.

At the outset, senior advocate Dushyant Dave, appearing for Shafin Jahan who has sought recall of the order asking the NIA to probe the case, started his arguments on a high pitch, which led the bench to ask him not to shout.

“This NIA probe shakes the very foundation of this multi-religious country. The order for NIA investigation was not in consonance of the law,” Dave said.

“Please do not shout,” the bench said, adding that his high pitch made it impossible for the bench to understand the submissions.

“I will shout,” Dave replied.

The senior lawyer questioned the apex court order asking the NIA to probe saying that neither the father, nor the state and neither the NIA was in appeal against the high court order. Rather, it was the man who has challenged the annulment of his marriage.

“State is not in appeal, father is not in appeal, NIA is not in appeal. Your lordships have gone beyond the jurisdiction and expanded the proceedings by ordering NIA probe,” he said.

“This investigation shakes the foundation of this multi-religious country. Two high functionaries of BJP have married members of minority community. Will your lordships order NIA probe into it? This order sends terrible signals all over the world,” he said.

The bench, which was apparently miffed with the way Dave addressed the court, said it would examine the validity of the high court order.

“No shouting. Instead of questioning the legal foundation, you are straying here and there,” it said.

Additional Solicitor General Tushar Mehta, appearing for NIA, opposed the submission of Dave and said the probe agency was not a party but was asked by the court to probe the matter to ascertain wider pattern, if any, to the case.

He said that the order asking NIA to probe was a consent order and senior advocate Kapil Sibal, the then counsel for Jahan, was present at the hearing.

Jahan had on September 20 approached the apex court seeking recall of its order directing the NIA to investigate the controversial case of conversion and marriage of a Hindu woman with him.

The Kerala high court had annulled the marriage terming it as an instance of ‘love jihad’, following which he had approached the apex court.

The top court had on August 16 directed the NIA to probe the incident under the supervision of retired apex court judge, Justice R. V. Raveendran.

Jahan, who had married a Hindu woman in last December, had moved the apex court after the Kerala high court annulled his marriage, saying it was an insult to the independence of women in the country.

The woman, a Hindu, had converted to Islam and later married Jahan. It was alleged that the woman was recruited by the ISIS’s mission in Syria and Jahan was only a stooge.

Ashokan K. M., the father of the woman, had alleged that there was a “well-oiled systematic mechanism” for conversion and Islamic radicalisation.

The high court, while declaring the marriage as “null and void”, had described the case as an instance of ‘love jihad’ and ordered the state police to conduct probe into such cases.

SC Should Defend Women’s Privacy, Autonomy, Not Perpetuate ‘Love Jihad’ Myth

Courts are the only institutions left where India’s women ought to be able to expect their freedom to be respected, but now court orders too seem to be legitimising the widespread violence against women.

The courts are one institution where India’s women expect their freedom to be respected, but now court orders too seem to be legitimising the widespread violence against women.

Stree/Woman. From a street sign. Credit: Shoko Muraguchi/Flickr CC 2.0

The attitude of the Kerala high court and Supreme Court of India towards the autonomy and rights of adult women, as displayed in the ongoing Hadiya case, is deeply disturbing.

A young Hindu woman named Akhila befriended a young Muslim woman, Jaseena. Over time, Akhila became close to Jaseena’s family as well and she embraced the Muslim faith, changing her name to Hadiya. Her father filed two petitions in the court alleging that his daughter had been forcibly converted to Islam. Both petitions were rejected by the Kerala high court court, which held that she was of sound mind and capable of making her own decisions. Her father then filed a third petition, this time before another bench of the high court.

While this petition was being heard, Hadiya signed up for a groom in a matrimonial website and of several applicants, chose to marry Shafin Jahan, a young man who works in Muscat and has been a member of the Social Democratic Party of India (SDPI). The high court this time upheld her father’s petition, annulled Hadiya’s marriage to Shafin and “handed over” the 24-year-old woman to the custody of her father. The verdict also indicated that there was a conspiracy to turn Hindu women against their parents, convert them to Islam and take them to Syria/abroad to join terrorist groups and that this conspiracy deserved a probe.

Shafin approached the Supreme Court to overturn the annulment of his marriage. In this matter, the SC bench has not yet summoned Hadiya to hear her version of the matter. Instead, it has ordered a National Investigation Agency (NIA) probe to see if there is a larger conspiracy by terror groups to convert Hindu women to Islam and radicalise them.

The language adopted by the Kerala high court and implicitly endorsed by the Supreme Court in this matter raises the question – Do courts have no obligation to respect the constitutional values of autonomy and privacy of adult women?

We are used to khap panchayats – kangaroo courts – disrespecting and curtailing women’s autonomy, and women’s hostels in India routinely infantilising adult women and treating them as ‘wards’ of their male relatives. Will the courts in India – the custodians of the constitution – also do the same henceforth?

Can an adult woman be sent into the “custody” of her father?

The Kerala HC verdict noted the contention of the father’s counsel that “as a parent it is his right to give away his daughter in marriage and to ensure that the person who marries her is a suitable person.” Nowhere did the verdict rule – as it ought to have – that in fact no parent can claim such a right over an adult daughter. Instead, the court stated the opposite.

Giving short shrift to Hadiya’s lawyer’s argument that she is an adult and therefore the master of her own life’s decisions, the verdict stated:

Though the learned senior counsel has vociferously contended that the detenue is a person who has attained majority, it is necessary to bear in mind the fact that the detenue who is a female in her twenties is at a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married. We consider it the duty of this court to ensure that a person under such a vulnerable state is not exposed to further danger …

Granting custody of Hadiya to her father, the Kerala HC declared, “A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways…”

There are several points to note here. The court is repeatedly referring to a 24-year-old woman as a “girl”. It is repeatedly stating that a 24-year-old adult who is “female” is “weak and vulnerable”, it also refuses to refer to Hadiya by the name she has adopted, and instead refers to her as Akhila.

Most dangerously, in a country where there is an epidemic of “honour” crimes where adult women are incarcerated and tortured – and even killed – by their parents to prevent them marrying across caste and community barriers, the court cites “Indian tradition” to claim that “the custody of an unmarried daughter is with the parents, until she is properly married”. (Note the word “properly” here – Hadiya’s self-arranged marriage to Shafin is “improper” because her father did not select the groom and give away the daughter in marriage.) The SC order also refers to Hadiya as “the concerned girl, namely Akhila.”

The Kerala HC verdict also makes disturbing assumptions about the supposed conduct of “normal/natural” daughters and “normal” young women:

Ms. Akhila is the only child of her parents. There are no other persons in this world, who would consider the welfare and well-being of their daughter to be of paramount importance than her parents. The nature (sic) provides numerous examples of even animals taking care of and protecting their progeny, sacrificing their very lives for the purpose. The Homo sapien is no exception. The forces operating from behind the curtains have succeeded in creating a hostility (sic) in the mind of Ms. Akhila towards her parents.

It is implied here that any feelings of hostility of a daughter towards her parents can only be unnatural – induced by sinister “forces operating from behind the curtains.”

Perhaps we need to remind the judges that it is only among Homo sapiens that one finds the phenomenon of parents killing their daughters for transgressing the norms of caste, community, and gender to love and marry? In 2010, Nirupama, a young journalist living in Delhi, was killed by her parents when she was visiting her home in Ranchi because she was born to Brahmin parents and had fallen in love with a non-Brahmin classmate. Such custodial violence against daughters inside the four walls of their homes is sadly the norm, not the exception, in India.

Are the honourable judges willfully ignoring the fact that the denial of autonomy by their parents quite naturally does create hostility in the minds of young women? The will to be autonomous and free – supported by a highly-developed sense of self – is an urge natural to Homo sapiens. Young women defy parental “authority” all the time – to pursue careers, to pursue political activism and social movements, to fall in love, to get married, simply to live without the suffocating weight of patriarchy dictating their every decision. Women’s bid for freedom from the four walls of the home is the stuff of literature, film, poetry.

Gorakh Pandey’s poem ‘Band Khidkiyon se Takrakar‘ or ‘She collides against closed windows’, eloquently describes how home is prison for many Indian women:

In every home are prison walls
Colliding against the wall
She falls

Alok Dhanwa’s poem ‘Bhaagi hooyi ladkiyan‘ (Runaway girls) is a is an ode to a woman in flight from the her house that is like a tank, like a prison:

Chains of the home
Become so much more visible
When a girl runs away from home…
Outside the large, locked tank
That is your house
Girls have changed quite a lot

Why are our courts now sentencing an adult woman – against her will – to the custody of the prison walls and chains of her father’s house? Why is Hadiya now being held in virtual house arrest in her father’s house – the house surrounded by police and reportedly also by Sangh cadres, preventing her from meeting even accredited journalists?

The Kerala high court verdict is also notable for the hostility it displays towards conversion:

“…it is not normal for a young girl in her early 20s, pursuing a professional course, to abandon her studies and to set out in pursuit of learning an alien faith and religion.”

Would the high court have felt the same, one wonders, if the young woman in question had abandoned her studies in order to marry a man of her parents’ choice? Or if she had, with her parents’ approval, joined an ashram or a Hindu religious cult?

Interestingly, the high court found the self-arranged nature of Hadiya’s marriage sinister and pitted it against “love marriage”: “This is not a case of a girl falling in love with a boy of a different religion and wanting to get married to him. Such situations are common and we are familiar with them. In all such cases, this court has been consistent in accepting the choice of the girl. However, the case here is different. It is an admitted case that this is an arranged marriage.”

Note the irony here. If a Hindu woman falls in love with a Muslim man, she is seen to be a victim of “love jihad”, if she embraces Islam and then arranges her marriage through a matrimonial website, the lack of love in her choice of partner is seen as sinister.

Have we forgotten the Meerut ‘love jihad’ case?

In the wake of the Supreme Court ordering an NIA probe, some TV channels are running high-pitched scare stories on the so-called “love jihad tapes” (audio tapes of a Hindu woman claiming to be a victim of love jihad).

These tapes bring to mind the so-called ‘Meerut love jihad case’ of 2014. A 20-year-old Hindu woman from Meerut, Shalu, who had been a teacher at a madrasa, had claimed, on camera, in August 2014, that she had been abducted, gang-raped and forcibly converted to Islam. She said that this was part of a larger conspiracy in which other Hindu women were also victims. A young Muslim man named Kaleem and his family members were duly arrested and booked for these crimes, based on her allegations. The Sangh parivar and the BJP went to town, making the video of Shalu’s allegations go viral.

In November 2014, Shalu finally escaped the confines of her parents’ home, where she had been held against her will. She told the police that she was in love with Kaleem and had been illegally confined by her parents. She said she had been pressurised into making allegations against Kaleem and his family, in a situation where her life was in danger of “honour killing.” Shalu is now married to Kaleem.

Inter-faith marriages, abduction and radicalisation of baby girls

If there is any actual evidence that Hadiya’s husband Shafin or her friend Jaseena have ISIS links, the police should place such evidence on record and book them for those crimes. Whatever its politics, the SDPI is a registered party – it cannot be insinuated that Shafin’s membership of this party indicates terror links.

There is actually no evidence of “love jihad” or of a “conspiracy” to convert Hindu women into Islam – yet the SC has sent the NIA on an expedition to probe such a conspiracy, without even bothering to hear or heed the woman’s opinion in the matter. The irony is that where there actually is vast, credible evidence of organised violence by Sangh groups against Hindu women in inter-faith marriages and the abduction of baby girls to brainwash and radicalise them as Sangh cadres, the courts have chosen to ignore this.

A Cobrapost sting operation in 2015 caught BJP and Sangh leaders on camera admitting that not a single genuine love jihad case exists and openly boasting of inflicting violence on women – in the name of ‘rescuing’ them from inter-faith marriages. These men, while on camera, also boasted of committing ‘Hindu terrorism’. On tape, Sanjay Agarwal, a BJP candidate in the municipal elections in Muzaffarnagar, revealed his modus operandi of whipping up the bogey of “love jihad” and “cow slaughter” in order to garner support for Modi. He described the brutal violence he and other Sangh cadre inflict on Hindu women to make them renounce their relationships with Muslim men: “If she doesn’t listen to us, we hit her. We get her beaten up. We misbehave (Poori badtameeze karte hain). Such a girl is [hit] with a wooden board (bilkul phatte se bajwate hain).”

RSS leader Omkar Singh claims to have “saved” 125 girls from the “clutches of Muslims”. He boasts on camera that this is done by filing false rape cases against the Muslim men. “Hum uss ladki ko pehle samjhate hai lekin ladki manti nahi phir ham ladke pe case lagwate hai pharji (We first try to make the girl understand and if they still disagree, we file false cases against their men).”

BJP MLA Suresh Rana, also on camera, reveals how they coerced a girl to falsely accuse Muslim boys of rape in a Shamli ‘love jihad’ case:

Now I will tell you the truth. We charged them with rape, but it wasn’t rape, it was consensual. We slapped a rape case against them to teach them a lesson. The girl wasn’t ready to give a statement against them. If you look at the case in depth, the girl was willing. Three people didn’t take her away by force.

Rana also casually justifies the open use of violence to force Hindu women to falsely accuse Muslim men: “A girl is a girl after all. It has always been said that they change in five minutes according to the circumstances … they insist, ‘No matter what, I will stay with him. I won’t go without him’, if she is taken aside and given two slaps, then she herself goes and gets the FIR registered claiming, ‘They sexually assaulted me … he has been doing it for a month’. Then she will tell the whole story and slap a case on him. You can mould a girl the way you want.”

Krishna Sena founder Shiv Kumar Sharma explains how his organisation incites riots in the name of ‘love jihad’ rescue operations: “We create a lot of chaos and rioting and employ every trick… If she says she loves the boy and has married him and would go with him, in that case, we try our best to find out some way to separate them. We use false documents to declare her a minor or not in right frame of mind so that the girl is handed over to her family.”

Ravish Tantri, the chief of Hindu Unity Forum in Kerala, threatens to kill inter-faith couples: “When the girl goes from the ‘conversion centre’ to the court, we warn her that if she does not give a statement agreeing to her parents and does not marry the guy prescribed by us, then the moment she and her husband step out of the court, they will be killed by our people.”

BJP MP Hukam Singh admits that women tend to stand their ground in police stations and declare that they have gone voluntarily with the Muslim men and he feels Modi’s rule might solve this problem: “The strategy was, let Modi come to power, then no Mohammedan will dare look at any of Hindu girls let alone touching them.”

BJP leader Sanjay Agrawal describes how courts, lawyers and cops all cooperate with such violence, helping to hand over Hindu women into their parents’ custody, so that they can be coerced to renounce their Muslim boyfriend or lover:

“A lot of advocates are swayam sevaks. They keep an eye out for Hindu girls registering at the city magistrate or the sub-divisional magistrate’s office for marriage and the date given. They find out who her lawyer is and if she is in the lawyer’s chamber. Then they call us. We go there with our whole team… 50, 60, 70 people… We don’t let the girl appear in court for days. We say that the girl is not listening. They [police] say it’s alright, we will see her tomorrow. If she isn’t listening even tomorrow, they say it’s alright. They help us a lot. They send her mother to her to talk … Judges help us, so does the senior superintendent of police … The judge gives the girl to us in his judgment. He hands her over to her parents. Once she is under her parents’ control, we can get her married in three days.”

On tape, Cijiith from the Hindu helpline in Ernakulam, Kerala reveals that his organisation drugs the women to bring the girl under control if she is “being too aggressive” and he claims that parents bring their daughters from as far as Uttar Pradesh and Maharashtra for such “drug treatment” in Ernakulam, where the women are held captive and drugged in a hospital controlled by his organisation.

Why has the honourable SC not taken suo motu notice of this sting operation which suggests a widespread all-India Sangh conspiracy to whip up riots in the name of “love jihad” and “cow slaughter”? Why is physical and mental violence, coercion and even the use of mind-bending drugs by the Sangh outfits against women not seen as “terror” – why has there been no NIA probe into such violence?

In August 2016, Neha Dixit broke a painstakingly researched story of how the RSS was trafficking adivasi baby girls from the Northeast – against their parents’ will – to “Hinduise” them and radicalise them as RSS cadres. Does this conspiracy, in the SC’s view, not call for an NIA probe?

Why are well-documented instances of force and violence by Sangh outfits against girls and women, to make them give up inter-faith marriages or to “Hinduise” trafficked adivasi girls, not seen as a “terror conspiracy” deserving a probe? Why, instead, is an instance of an adult woman choosing to change her faith and choose her own husband seen as inexplicable, except as a result of sinister, mind-bending coercion by terrorist outfits?

Legitimising violence against women’s ‘autonomy’

A six-month analysis of 600 rape cases that came up for trial in Delhi’s district courts in 2013 revealed that “over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape”.

What do these numbers tell us? Each of these false ‘rape’ cases actually hides the very real and common violence against daughters and their autonomous choices by their own parents. In this context, the Kerala high court verdict upholding the “Indian tradition” whereby “the custody of an unmarried daughter is with the parents, until she is properly married” is downright dangerous. As are indications that even the SC is showing such contempt for women’s autonomy.

We know that common sense notions of morality and culture in India and South Asia see adult women as the property of their fathers, brothers and communities. Political parties often echo and bolster such ‘common sense’. The BJP and sangh, which follow the “core ideology” of the Manusmriti, in fact peddle such notions as the law of the land in the imagined “Hindu Rashtra”. This is why Yogi Adityanath, now chief minister of Uttar Pradesh, elaborately explained in his article on “Matrshakti — Bharatiya Shakti ke Sandarbh Mein” (Women’s Power In the Context of Indian Power) that a woman must never be left free and must forever be under the protective custody of her father in her childhood, her husband in her youth, her son in her old age.

When such violence against autonomy is not only widely accepted as “normal” in society and where there is a political push by those in power to equate such violent curtailment of women’s autonomy with patriotism, the role of the courts become crucial.

The courts are one institution where India’s women expect that their autonomy, privacy and freedom, as guaranteed in the constitution, will be respected – that courts will be guided by and will uphold what Ambedkar described as “constitutional morality” rather than common sense morality. Sadly, in the matter of Section 377 and the rights of LGBT persons as well as in the Hadiya matter, it seems that the courts too are subordinating constitutional morality to patriarchy.

Kavita Krishnan is secretary of the All India Progressive Women’s Association (AIPWA).

The Kerala High Court Thinks Love Jihad Is Real, But Women’s Independence Is Not

According to the court, a woman is just a vulnerable body incapable of knowing what’s best for her and what she wants.

The narrative that the court is supporting says that a woman must always belong to a man. Credit: Salem, Invisible Lens Photography/Flickr CC BY-NC 2.0

The Kerala high court in a recent judgment has stripped women of every last bit of agency, independence and self-determination, and reduced us to mere gendered bodies, incapable of making decisions. The judgment was delivered by the court while exercising parens patriate jurisdiction, defined as “the monarch, or any other authority, regarded as the legal protector of citizens unable to protect themselves (emphasis added).”

The citizen here is Akhila, a 24-year-old woman. As an adult citizen with a working mind, she should be free to take her own decisions, however odd others might find them, as long as they are not against law. But not according to the Kerala high court.

The Indian Express reports that Akhila left home to convert to Islam because she was attracted to its teachings. Akhila’s father, K.M. Ashokan, filed a habeas corpus writ to bring her back home. Meanwhile, Akhila married Shafin Jahan, an active member of the Social Democratic Party of India. Following this, her father filed another petition asking that the marriage be annulled and that he be granted custody of Akhila – an adult woman. The high court, astonishingly, decided in favour of the father. After the order, the police reportedly took her to her parents’ house, though she had earlier told the media that she does not want to stay with her parents.

A few excerpts from the judgment:

“A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways

“…the petitioner…given custody of Akhila. She shall be cared for, permitted to complete her house surgeon course…”

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents.” (emphasis added)

The words of this judgment are so deeply patriarchal and unambiguous that there is absolutely no scope to give the court any benefit of doubt. A woman is always the property of a man, the court seems to have decided, and must always act in ways that are acceptable to that man.

‘Love jihad‘ and women

The Kerala high court has given an official stamp of recognition to idea of ‘love jihad’ manufactured by Hindutva groups, going as far as to order the state’s DGP to conduct a comprehensive investigation into cases of ‘love jihad’. Citing a previous Kerala high court judgment which had “taken note of the functioning of radical organisations pursuing activities of converting young girls of Hindu religion to Islam on the pretext of love,” the judges decided that “such activities are going on around us in our society”.

Now that the existence of ‘love jihad’ has been “confirmed” by the court, let’s look at where gendered bodies are located in this narrative. What apparently happens is that Muslim men, with the intention of jihad, falsely profess their love for Hindu women in order to convert them to Islam at the time of marriage. So while some jihadis pick up guns and bombs, others just marry Hindu women to further their aims.

What if we were assume this to be true? What would that mean for a woman’s identity? It infantilises her, assumes that she is completely incapable of knowing when someone wants to use her. She won’t know why someone wants to marry her and will go ahead with it without thinking twice.

There is hardly any empirical research or documented evidence on the numbers of such cases and what happens to these marriages. Do these women realise after marriage that the love was a pretence or do they continue to feel true love post marriage? We don’t know, but then this is not about women as humans, is it? It’s about women as objects, as wombs, as producers of children. So when a Hindu woman becomes a Muslim, so does her womb and all the children that will come out of it in the future. That means an increase in the Muslim population, ergo jihad complete, ergo nationalism in danger.

‘Love jihad’ myth and ‘honour’ killings: Two sides of the same coin

Patriarchy controls a woman’s body by restricting who she can marry, who she can have sex with and when, where she can go and her access to public spaces. The love jihad myth and ‘honour’ killings are then based on the same logic – a world in which women are incapable of knowing what’s best for them. Think about this: On May 17, 2017 a man was killed in his home in Jaipur, allegedly at the behest of his in-laws for marrying their daughter against their wishes. On May 19, 2017, barely two days later, a man beat up his daughter and then threw her into a canal when she insisted on marrying the man of her choice in Bharatpur. In March 2016, a 30-year-old woman was burnt alive in public by her brother because of her marriage to a man of another caste. We’re used to reports like this – we see them almost every day.

‘Honour’ killings and the love jihad myth are two sides of same coin – both are designed to control women’s bodies and their reproductive capacity. The Kerala high court only nullified Akhila’s marriage and not her conversion, so she continues to be a Muslim. This indicates that the nation is a stakeholder not in her personal faith but in her marriage. I assume Akhila’s father will eventually marry her off to a man of his choice, presumably from the same religion and caste, and thereafter Akhila’s offspring would belong to that identity. The nation has been saved.

Daughters as fathers’ property

Finally, in what seems like a cruel joke, the judgment delves into a woman’s independent ideas about her life and future. It reads,

“It is clear that Akhila has no consistent stand or a clear idea about her life or future. It is also clear that she is in a situation where she is acting on the diktats of some others who are bent upon taking her away from her parents.”

Why does it seem like Akhila’s story is every Indian woman’s story? Indian women are often seen as having no independent understanding of their future goals. The central government ran a big campaign for girl children, ‘Beti Padhao, Beti Bachao’, with the objective of improving the sex ratio, better healthcare and higher quality education. But where is the campaign to inculcate the view that women are human? That a woman must always have a complete right over her life and body?

Muslim organisations in Kerala are now protesting against the judgment. Because in a world where women are not humans, this issue is not a women’s issue but only a religious one.

Sanjukta Basu is a TED Fellow, feminist writer, photographer and scholar.

Kerala High Court Upholds College’s Decision to Expel Student Couple For Living Together

The couple living together before the male student was of legally marriageable age was enough to expel them, in the judge’s eyes.

Credit: Wikimedia Commons

According to Live Law, the Kerala high court on Friday dismissed the petition of a female student of Mar Thoma College of Science and Technology, Chadayamangalam, who was challenging her dismissal from college after authorities accused her of eloping with a classmate.

The couple was living together in a lodge in Thiruvananthapuram, from where they were apprehended by the police based on a missing persons complaint and produced before a magistrate. The magistrate then released them to their respective parents. The college took disciplinary action against both students, forcing them to leave college.

The female student, who is currently in the fourth semester (of six) of a bachelor’s in english language and literature, said in her petition that the only thing she could be accused of was “falling in love with a classmate”. This was not a legitimate reason for dismissal, she said, especially given that she was two-thirds of the way through her course and had an excellent academic record.

Justice K. Vinod Chandran, however, said that the college was “rightly” worried about this “indisciplined” act. Even while recognising the couple’s agency as adults, the court went on to accept the college’s decision to govern students’ private lives.

“This is not a mere case of falling in love; but two students taking the drastic step of eloping and living together without even contracting a marriage. As consenting adults they could definitely act according to their volition. But, here they could not have even legally entered into a marriage. When taking such drastic step for the sake of love, as adults, they should also be ready to face the consequences. The Management’s concern of setting an example to the other students and ensuring maintenance of discipline in the educational institution cannot be easily brushed aside.

The impulsive act of the petitioner has resulted in the drastic consequences. Having gone through the report of the five member Committee as also the order of the Principal and also noticing the fact that the petitioner along with a classmate had eloped and had been residing elsewhere from where they were apprehended by the Police, this Court is not inclined to exercise discretion in favour of the petitioner to interfere with the orders passed by the Management.”

The judge’s statements have raised eyebrows among womens rights activists, who say they seem to have a lot more to do with his ideas on relationships and social norms surrounding them than with the legality of the case, since he barely mentions the latter. There is no talk of the college rules and regulations that the couple may have broken or any laws that their acts might have gone against, only repeated mentions that a “fair” inquiry was carried out internally. He mentions in the order that the male student was not yet of legally marriageable age (21 for men and 18 for women) as justification for the college’s action, even though the couple had not, in fact, got married.

“Without even contracting a marriage…” the court order reads, hinting perhaps that it was the judge’s sensibilities that were hurt rather than his idea of justice. Offending these sensibilities was then seen as fair justification for depriving this young couple of their education.

Temple Plan to Melt Down Golden Antique Rouses Descendants of Cochin Royals

Melting down the traditional gold headgear without assessing its antique and commercial value is against the letter and spirit of the constitutional protection to antiquities, the petitioners have argued.

Melting down the traditional gold headgear without assessing its antique and commercial value is against the letter and spirit of the constitutional protection to antiquities, the petitioners have argued.

Thomas Astley, ‘The King of Kochin riding on an elephant attended by his Nayros’. London, 1747.

New Delhi: The officials of the Cochin Devaswom Board – who were preparing to destroy the only example of antique golden headgear in Kerala and perhaps, the whole of India – are in for a formal surprise when a case on the matter before the Kerala high court is heard Wednesday.

Although they might have learned of it from other sources, they will be presented with a copy of the Supreme Court’s order, passed by the vacation bench on May 23, staying the destruction of the antique headgear.

Taking no chances with electronic transmission of the order, a special messenger carrying the court’s order flew down from New Delhi on May 24 in order to hand over a copy to the board officials, who were scheduled to assemble on Wednesday to implement their decision.

The Supreme Court’s vacation bench comprising justices Prafulla C. Pant and D.Y. Chandrachud heard Sanjay Varma, a member of the Cochin royal family, through his counsel, on May 23, and issued notice on the special leave petition against the Kerala high court’s order upholding the impending destruction. The bench directed both Varma and the other petitioners and the board to maintain the status quo in respect of the headgear prevailing as on date.

The Supreme Court’s interim order, according to experts to whom The Wire spoke to, has far-reaching significance.

First, at a time when the question of the return of the Kohinoor diamond from Britain is engaging the attention of the Supreme Court, here is an instance of judicial intervention to save a part of India;s heritage which remains within the country, they say.

Second, Prime Minister Narendra Modi’s gold monetisation scheme, announced last year, targets, among others, the release of ‘idle gold’ lying with temples, in order to reduce the adverse impact of gold imports on the current account deficit. The scheme has attracted lukewarm response from some temples because they claimed the melting of gold for refinement under the scheme would come in the way of the religious beliefs of devotees who had donated gold to the temples.

Insofar as the Supreme Court’s interim order in the Cochin Devaswom Board case is based on the devotees’ reservations over melting temple artefacts including gold, the propriety of the gold scheme will also be called into question, as it sends strong signals that antiques should not be touched, whatever the compulsions, experts told The Wire.

Ancient gifts

Research suggests that there were 15 golden headgears, whose antiquity is more than 400 years. The erstwhile Cochin maharaja had donated 14 of them to the British to build the Shornur railway station, in Kerala, 200 years ago.

The CDB is the trustee which has been taking care of the lone headgear which has survived all these decades.

The CDB, being a statutory body, was influenced by temple officials to take a formal decision to destroy the lone surviving headgear in India, ostensibly for the purposes of preparing a new one for the deity at Sree Poornathrayeesa at Trippunittura.

The deity, who is a minor (in legal terms), owns the headgear, as the erstwhile royal family members had donated it to the deity. The deity can’t speak for itself, and the board, a statutory body, can’t misuse its powers, acting on behalf of the deity. What the board has chosen to do in this case, is the opposite of what it is expected to do, the petitioners allege.

When the board, acting as a trust on behalf of the deity, abdicated its responsibility and took a decision to destroy the headgear, members of the Cochin royal family stepped in to stop it. They did so, even after the board had allegedly surreptitiously included the names of some of the members of the erstwhile royal family as parties to the litigation, in order to persuade the Kerala high court to permit the melting of the headgear.

The members of the erstwhile royal family were concerned not because they had donated it to the deity, and therefore, had a vested interest in its preservation. They were anxious because the antique value of the headgear, made in the 16^th century, cannot be measured in monetary terms.

On March 3, 2016, it was reported in a Malayalam newspaper that the work to make a golden headgear using around 8 kg of gold to adorn the forehead of the elephant which will be carrying Lord Sree Poornathrayeesa during the festival procession would commence at the temple hall.

The reason given for melting the antique headgear and making a new one out of it is that the existing golden headgear has been in use from the times of Cochin maharajas and that this is not suitable for big elephants.

Another report which subsequently appeared in the Malayalam newspaper, Mathrubhumi said that the antique headgear is assumed to be more than 200 years old and the board has already decided to dismantle it by melting and remove the invaluable gems from it.

The heritage value of the antique headgear would have been irrecoverably lost if the board had its way.

Following reports in the local media, four members of the erstwhile Cochin royal family approached the Kerala high court at Ernakulam by filing a writ petition seeking not to dismantle or alter or destroy the existing traditional golden headgear of Sree Poornathrayeesa temple, Thripoonithura for making a new one.

On March 23, the high court passed an order that no portion of the old headgear shall be utilized for the purpose of the making of the new headgear and all dismantled items from the old headgear and enlisted in the report of the Advocate Commissioner shall be retained in ‘as is where is’ condition safely, awaiting further orders from the high court.

On April 1, 2016, however, the high court passed another order stating that the ornaments which have already been broken down and the materials obtained, including in the form of gold, silver, stones etc., can be utilised in the making of new items including golden headgear. This direction, the high court held, would apply to the existing headgear as well. This will ultimately lead to the making of the new golden headgear utilising the existing golden headgear and other materials, the high court said. The other ornaments which are not broken down as noted above, will be separately retained. The high court postponed considering whether those ornaments have to be assessed by any particular expert to identify and classify them, either on the basis of commercial or antique value.

The petitioners before the Supreme Court alleged that the high court did not consider the fact that the damage arising out of the destruction or breaking down of the traditional golden headgear cannot be ascertained in terms of its monetary value.

Respect for antiquity

Melting down the traditional gold headgear without assessing its antique and commercial value is against the letter and spirit of Articles 49 and 51A (f) of the constitution, the Supreme Court was told by the appellants in the case.

Article 49 deals with protection of monuments and places and objects of national importance. It says that it shall be the obligation of the state to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament, to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export, as the case may be.

The absence of a law made by parliament to declare the headgear of national importance should not come in the way of invoking this article, as nothing prevents parliament from enacting such a legislation or declaring so for this purpose, say experts.

Article 51A (f) says that it shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture.

The munsiff court, Ernakularm had issued an interim injunction on March 10, 2016, to maintain status quo, thus banning any attempt to melt the headgear. On March 14, the Sree Poornathrayeesha Seva Sangham filed a petition in the form of an affidavit before the high court. But the High Court’s April 1 order precipitated the steps to melt the headgear.

The Supreme Court was persuaded to grant a stay on melting the headgear as the balance of convenience was clearly in favour of the petitioners in as much as the damage cannot be ascertained in monetary terms. If the Supreme Court did not grant interim relief, the suit would have been infructuous and it would cause irreparable injury to the petitioners, it was argued. The Supreme Court implicitly accepted the argument, and granted the stay.

More significantly, the Cochin Devaswom Board, under Section 62(2) of the Travancore-Cochin Hindu Religious Institutions Act, 1950, has been specifically excluded from the regulation and control of all rituals and ceremonies in the temples of Sree Poornathrayeesa at Trippunittura and in the Pazhayannur Bhagavathy temple at Pazhayannur, which the Act says, shall continue to be exercised as hitherto by the Ruler of Cochin.

(The Wire thanks the Supreme Court advocates, Suvidutt M.S. and Arnold Harvey, who are Ph.D. scholars with Amity University, Noida, and who shared the results of their research for writing this story)

No Country for Religious Women

What does the exclusion of women from Sabarimala say about their status in the country when the state, religion and community give overt sanction to this denial of their rights, and the high court too upholds this discrimination?

What does the exclusion of women from Sabarimala say about their status in the country when the state, religion and community give overt sanction to this denial of their rights, and the high court too upholds this discrimination?

Managing the crowd of devotees at Sabarimala. Credit: ragesh ev/Flickr CC 2.0

Eighty years after the ‘backward castes’ of Kerala – who were barred from entering shrines and banished even from roads leading to them – struggled and won the right to enter temples, it is time for a second temple entry movement in the state. For women of all ages to chant Swamiye Saranam Ayyappa, climb the hill and enter the Sabarimala temple. As the Supreme Court takes up the issue on February 8, the question it must decide is whether brazen misogyny can supersede rights protected by the constitution. As men and women who claim to be “true” believers insist that rituals be honoured even if they exclude women, the question before the court, and the whole of society, is simple: Should the gods reflect our basest instincts or our noblest aspirations?

Chief Minister Oommen Chandy, whose own position has become untenable in the wake of allegations of corruption and obstruction of justice, has already said that his government would not interfere on issues of “customs and beliefs” and that this would be conveyed to the apex court. The day before Chandy made his statement, the government-controlled Travancore Devaswom Board, which manages the temple along with several others, said that it is part of the temple tradition to bar the entry of women between the ages of 10 and 50, roughly, the ages of menarche and menopause. This means that women who could possibly menstruate cannot enter the shrine of Ayyappa where millions of men, age and religion no bar, come to pray every year.

The myth of ‘time immemorial’

The Kerala high court (in S. Mahendran vs Secretary, Travancore Devaswom Board) also upheld traditions in its judgment on Sabarimala in 1991:

“The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.”

This raises a few questions. What did the court mean by “time immemorial”? Do we allow traditions of the past, however arbitrary, prejudiced and discriminatory these may be, to bear upon the present? Do we allow thantris (priests) and devaprasnam (a curious astrological practice in Kerala to divine god’s will) to bar the freedoms of citizens, or do we follow the constitution that allows everyone the freedom to practise religion? Everyone. There is no clause anywhere that says, “except women, who are likely to bleed this or the next month, in Sabarimala”.

The court said “time immemorial”. We should be careful with such words. Look at the origin stories. Lord Ayyappa, the legend goes, is Hariharasuthan, born of the union of Vishnu in the form of the beautiful woman Mohini and Shiva. This has been read as an epic moment for fluid gender identity and homosexual union. But as experts like Bibek Debroy point out, there is no mention of Lord Ayyappa or Sastha in any of the 18 major puranas or the epics. We have a master’s thesis at Carleton University, Canada, by Radhika Sekar, who refers to a 19th century Sanskrit text called Bhutanathopokyanam. However, there was something more interesting in her dissertation: Sekar did enter the temple during her research in 1986-87 – although she could not take the famous 18 steps, she entered the shrine through the northern entrance; although she had a darshan in the morning, she was restricted from attending an evening puja “both from a point of view of my safety and the sentiments” of the pilgrims.

The Sabarimala legend is part of stories and songs, which are passed down over the years, with accretions and deletions. If Ayyappa, as the legend goes, had a Muslim companion called Vavar, then the story emerged after the advent of Islam in 7th century AD. Meanwhile, there have been others who saw in Ayyappa an appropriation of the Buddha by the Saiva and Vaishnava traditions. The ringing call, “Swamiye Saranam Ayyappa”, recalls “Buddham Saranam Gachami” and its vow of abstinence for 41 days recalls Buddhism’s premium on celibacy. Then the story could have emerged between the 8th century – when Buddhism’s decline began in Kerala – and the 12th century.

Our past is a palimpsest. Our traditions are layered and our stories multiple. Which is why when one narrative is chosen as the authorised version, it becomes problematic and should be contested especially when it furthers prejudices, misogyny and discrimination, when it tosses aside women as “polluted” creatures who should not be allowed in front of the lord.

Traditions, rotten and invented

We should be careful when we talk about honouring traditions, steeped as they have been in medieval darkness and discrimination. Here are some “immemorial” traditions that were done away with: women in Kerala could not cover their breasts until 1865, avarna children would not be admitted to government schools until the beginning of 20th century, and lower castes could not enter a temple until 1936. It was only recently that another of Sabarimala’s glorious traditions – the “divine” Makaravilakku hovering in the horizon on January 14, for which millions of pilgrims congregated at the temple – was debunked as the secret handiwork of humans.

If Radhika Sekar could enter the shrine about four years before the high court order, we can safely assume that the wink-wink arbitrary permission given to women became a rigid code banning them from Sabarimala only recently – in fact with the high court judgement just 25 years ago. The 1991 case was filed after the then Devaswom commissioner, J. Chandrika conducted the annaprasan of her grandchild at Sabarimala in the presence of other women. The Devaswom Board, which then defended the presence of the women at the temple, said women were allowed on the first five days of every month but not during the festival season of November-January. The queen of Travancore is also reported to have visited the temple in 1940 when she might have been just 45.

Now the argument is that women between the age of 10 and 50 cannot keep the 41-day vow because they will become polluted when they have their period. It is interesting how sanitised even that high court judgment is: there is not even one mention of the word “menstruation”. Instead, it says: “Women of the age group 10 to 50 will not be in a position to observe vratham continuously for a period of 41 days due to physiological reasons.”

This has become a stick to beat women with, to publicly shame women. The head of the Travancore Devaswom Board, Prayar Gopalakrishnan, had the temerity to say that women will not be allowed in as long as there is no device to measure their “menstrual purity”. Does he have a device to measure the purity of men and tag their bodily fluids? Does he stand at the sanctum sanctorum to check if the men have sneezed or salivated, urinated or masturbated or had wet dreams?

Protecting the lord, or patriarchy?

The other “reason” that is given in and out of court is that Ayyappa is a brahmachari and should be protected from the sight of women. Let us not foist our basest urges on Ayyappa and turn him into this young man who will be tempted at the sight of a woman. Let us not reduce woman into a temptress of man and god, as if she has nothing better to do. If you need a myth to counter your myth, here is one. The woman who loves Ayyappa, Maalikapurathamma, is next-door, waiting for the day he would marry her. If he can resist her charms, then he can surely manage hordes of women in black who only seek a few random blessings.

There have been chants from the cosmopolitan cafes of Delhi about why women in Kerala should fight for entry into a temple when they should be fighting for equality at homes and in offices. The fight is at all levels and the battle cry will be the loudest if the state decides to sanction sexism. I am in Thiruvananthapuram now, startled by the fact that I am living in the midst of a community that vehemently denies women entry into a temple. By giving access, you are giving a signal, you are saying “No” to a pernicious mindset that believes women and men are not equal.

I will keep an irumudi (a double knot that every pilgrim carries on the head) ready. The Supreme Court has to let me climb the hill and say “Swamiye Saranam Ayyappa” at the Sabarimala temple.