Thursday, September 15, 2016

Legal Praxis in a Political World : Re-Reading Kizhvenmani, Babri-Masjid and Bhanwari Devi Judgements

S.V. Narayanan

 All social institutions that we created and experiencing operate within a particular political environment. The values and ethics associated with these institutions are to a larger extent being shaped and disciplined by the larger socio-economic context in which they function. This structural relation and its understanding will help us in critically evaluating the purpose and functioning of these institutions. Law, being a socio-legal institution, which is identified as objective and scientific, also operates within this larger political context, carrying and reflecting its values and influences. Indian legal system operates within the class and caste ridden society, which influences its interpretation and judgement, by reinforcing the societal values over and above the objectivity and scientific nature of legal studies. This paper will critically evaluate the important interpretations made in three important legal cases in India, which is significant in reflecting our regressive social values in the higher legal institutions; The Kizhvenmani massacre in 1968 in Tamilnadu where 44 dalits were burned alive, the Ayodhya judgement in 1986 which opened the gates of communal politics at the national level and Bhanwari Devi case judgement in 1995 which combined casteism and patriarchy in its interpretations. The underlying assumptions behind the judgement and the social values associated with them will be critically analysed rather than dwelling deep into the judgement and its legal merits.



Law and Politics
The legal institution's rules and decisions cannot be comprehended convincingly, if we look it independently without locating it in a larger social context. Since law is embedded within the society and it reflects and influences the culture in which it operates, the legal institutional functioning can be understood properly by situating it within society and its nature (Mather, 2008). The societal values and understanding, influences the decisions of legal institutions, as the individual decision makers or judges are part of this societal conglomeration. According to Cerar (2009), the law could be a goal, a means or an obstacle in relation to politics. The politics can identify certain legal values as its goal, the law could be used as means for achieving certain political interests or it could be identified as an obstacle while achieving certain political goals. Thus, the legal institutions and its values are strongly intertwined with the political context in which it operates.

Even though Marx and Engels did not write in detail about the place and function of law and its institutions, their analysis of 1834 Poor Law Amendment and Corn Laws, has given certain direction for the Marxian politics to develop the concept further. They considered law, similar to politics (Liberal Democracy), as a tool which was used to cover up the capitalist exploitation. Law also transforms itself according to the changes in the economic sphere to strengthen the exploitative apparatus within the capitalist political economy (Stone, 1985). Thus, the legal institutions are consistent in not only protecting property rights, but also in protecting the property owners, who forms the basic foundation of capitalism.

Within the study of the relationship between law and society, the decision-making process in courts is one of the important area which tries to understand the socio-economic structure and its influence in the judicial process and its outcome. Class, race, caste, gender and other forms of discrimination gets reflected in the judicial judgements, which is nothing but the reflection of our societal values and practices. The economic structure, cultural values and other forms of societal influences forms the context in which the court judgements needs to understood (Mather, 2008). Thus, from the above discussion we understand that the economic structure and shared cultural values in a society does have an strong influence over the judicial decisions in the court of law. From this understanding, we will try to look critically, how such societal condition and values have influenced the judgement in Kizhvenmani, Ayodhya and Bhanwari Devi case judgements. We will try to glean the important observations of the judges in these cases, rather than complete analysis of the judgement, to understand the values that influenced the decision-making process.

Politicized Legal Interpretations
In this section, we will critically look at the three important judgements, in independent India, to understand its rationale and context.

Kizhvenmani Case
Kizhvenmani, a remote village of erstwhile Thanjavur in Tamilnadu came to highlight in 1968, when 44 dalit agricultural labourers ( Mostly women and their children) were burnt alive, by landlords,  for protesting and demanding higher wages. Thanjavur, was a fertile region in 1960's with generous rice and paddy production making it agriculturally rich area. But the land ownership was dominated by few rich landlords, who controlled and oppressed the majority of lower caste landless agricultural labourers. According to EPW (1973; 927),

" In 1961, 3.8 per cent of the cultivating households, owning more than 15 acres each, held 25.88 per cent of the cultivated area, while 76 per cent, owning up to 5 acres each, held only 37 per cent of the area. Thanjavur also has the highest proportion of landless labourers: for every 10 cultivators, there were 9 labourers in 1961. The 1971 Census found 41 per cent of the rural population to be landless labour while the state average was 29 per cent. Thanjavur also has the highest percent-age of Harijans (Dalits) among the landless. A combination of these factors had made Thanjavur a classic setting for feudal oppression. It was here that feudal serfdom had fully developed. A pannaiyal (attached labourer) pledged the services of himself, his wife and their children to be born to the landlord until the loan, usually taken for marriage, of about Rs 50 was fully recovered. Considering the pittance of a wage that he received, the recovery of the loan not unusually took longer than the life of the pannaiyal".

The green revolution, in effect had increased the agricultural production and the prices during 1960's, which made the dalit labourers, organised under communist party, to demand higher wages from the landlord (Gough, 1976). The dalit labourers demand of half a litre more of rice as wages has been stoutly resisted by Paddy Producers Association ( PPA) under the leadership of Mr.Gopalakrishna Naidu, the president of PPA. These landlords brought labourers from outside the village, which infuriated the local labourers and culminated into a conflict where one Mr.Pakkirisamy Pillai, from landlord side, was killed in the clash. In response to this, the landlords organised themselves and attacked the Kizhvenmani village, shooting the labourers and finally burning down 44 dalits (Viswanathan, 2006). But, the killing of Mr.Pakkirisamy was only a trigger, the real reason lies behind the class and caste based accumulated anger, where the landlords were not able to digest the dalit labourers uprising against them and questioning their authority, which was unassailable for many centuries due to caste and class oppression. This is very apparent in the conversation by a landlord with the EPW(1973; 926 - 927) author,

 "Things used to be very peaceful here some years ago. The labourers were very hard-working and respectful. But now . . . the fellow who used to stand in the backyard of my house to talk to me comes straight to the verandah wearing slippers and all. At 5.30 pm sharp he says, 'Our leader is speaking today at a public meeting. I have to go'. His leader holds a meeting right next door to me and parades the streets with the red flag. These fellows have become lazy and arrogant, thanks to the Communists. They have no fear in them anymore."

The common perception that prevailed in this period reflects the century old caste and class based discipline and behaviour, which was the main basis for exploiting the labour of lower-caste people. The landlords should be treated with respect, they cannot be questioned, they cannot be wrong, their words are final and whoever opposes these rules, the landlords have the inherent right to punish the violators. The caste position also gave the landlords complete freedom to punish the perpetuators, where the Manusmriti, the Hindu religious code, gives punishment based on the caste position, favouring the upper caste. These perception were reflected in the court judgement, where all the landlords, who burnt and killed 44 dalit labourers were let free, but the dalit labourers, who was indicted in killing Mr.Pakkirisamy was punished.

In Mr.Pakkirisamy murder case, out of the eight accused, one was given life sentence and others were given rigorous imprisonment, where the Nagai sessions court agreed that the attack against him was not a planned attack. But, the sessions court considered the killing of 44 dalit labourers as a preconceived and deliberate attack and sentenced the accused to 10 years of rigorous imprisonment. When both of them went to Madras High Court, the punishment for the labourers were upheld and the punishment for the landlords were quashed (Kanagasabai, 2014). More than the judgment, the observations of the Madras High Court judges in this case regarding the landlords and their involvement in killing of 44 dalit labourers was more shocking and reflecting the common perception of people in a caste and class divided society. The judgement was delivered by Mr.Venkataraman and Mr.Maharajan on April 6th 1973, in the criminal appeal no: 1208/1970  and 593/1971. The judges observed in their ruling,  

“… there was something astonishing about the fact that all the 23 persons implicated in the case should be mirasdars. Most of them were rich men, owning vast extent of lands and Gopala Krishna Naidu possessed a car. However much they might have been eager to wreak vengeance on the kisans, it was difficult to believe that they would walk bodily to the scene and set fire to the houses, unaided by any of their servants. They were more likely to play safe, unlike desperate hungry labourers. One would rather expect that the mirasdars, keeping themselves in the background would, send their servants to commit the several offences which according to the prosecution the mirasdars personally committed… The evidence did not enable their lordships to identify and punish the guilty”(Balu, 2009; 435).

Further, the court held that the people who kept fire for the house are unaware that 44 people were inside and they had no intension to kill them. Are they so innocent to not hear scream or lock a hut which is empty without any human being inside? Based on certain frivolous interpretation of the evidences, the judges have decided that the workers and communist leaders conspired to trap Gopala Krishna Naidu in the case. The Supreme court also upheld this decision to set free the landlords. The judges observation clearly accepted the caste position and economic status of the landlords, and made this as basis to clear them of any criminal intension. The land and cars owned by the landlords not only made them superior, but also excluded them from involving in the cheap and direct act of killing labourers. The judgement implies that only desperate hungry labourer ( lower caste) are capable of doing such stupid things and landlords being economically wealthy ( upper caste) will not even enter the lower caste dwellings and they are smart enough to play safe by using their workers to do such acts. These observations clearly reflect the caste and class perception of judges in deciding a case, whereas these observations were not uniquely the societal understanding of judges, but these were the common perception, even among the working class and lower caste population during this period.

Babri Masjid - Ayodhya Case
The Ramjanmabhoomi - Babri Masjid controversy is still one of the major communal conflict in India, where a site in Ayodhya was claimed by Muslims as a Mosque (Babri Masjid) and Hindus claim it to be birthplace of Lord Ram. Even though, the issue is there from the time before independence, it mainly got flared up and became an national issue after 1986 district court judgement, which opened the gates for Hindus to conduct prayers. This judgement triggered the communal issue to develop as one the biggest communal conflict between Hindus and Muslims in independent India. This became a great challenge to the secular fabric of India, which indeed has led to nation-wide communal conflicts between Hindus and Muslims. A major political reshaping in India happened due to this conflict in post-independence period. The Bharatiya Janata Party (BJP), which was at the fringes of electoral politics was able to make use of this communal conflict to mobilise and also polarise Hindu votes in its favour. So, more than religious issue, it has to be seen as a political issue, which created space for the right-wing party in the parliamentary politics.



Rather than looking in detail, the Ayodhya controversy, we will look into the 1986 judgement by Justice K M Pandey, who gave judgement opening the gates for worshipping by Hindus. On December 22nd, 1949, the Hindu right wing miscreants secretly planted the Ram idol inside Babri Masjid, to garner further support from the radical Hindus to claim the Masjid site for Ram Temple. Both Hindu and Muslim sides filed civil suits for the ownership of the disputed plot. Till 22nd December 1949, Muslims were offering Namaz in Babri Masjid site, and the government locked the gates after that as the matter was sub-judice (Puniyani, 2010). Even though the gates were locked, the idol of Ram, which was installed illegally, was not removed and restricted access to conduct pooja was given Hindus. For the next 35 years, Hindus were having access to the disputed site and Muslims were not allowed. At this period, the demand of the Hindu right wing forces was to open the locks of the gate for unlimited access for Hindus to worship at the disputed site.

The 1986 judgment, which opened the gates of communal fighting in India, has finally conceded to the demands of Hindu right wing forces, which not only changed the political landscape, but also taken numerous Hindu and Muslim innocent lives due to communal conflict. The district judge K M Pandey, in his judgement,

"…it is not necessary to keep the locks at the gates for the purpose of maintaining law and order or the safety of the idols. This appears to be an unnecessary irritant to the applicant and other members of the community. There does not appear to be any necessity to create an artificial barrier between the idol and the devotees. It appears that the opposite parties have remained a prisoner of indecision for the last 35 years. Somebody in his wisdom thought fit to put locks at the gates at any point of time and nobody since then has seen whether there is any necessity to retain locks or not"(Puniyani, 2010 ; 43-44).

Further he observed:

"after having heard the parties it is clear that the members of the other community, namely the Muslims, are not going to be affected by any stretch of imagination if the locks of the gates were opened and the idols inside the premises are allowed to be seen and worshipped by the pilgrims and devotees. It is undisputed that the premises are presently in the court's possession and that for the last 35 years Hindus have had an unrestricted right or worship as a result of the court's order of 1950 and 1951. If the Hindus are offering prayers and worshipping the idols, though in a restricted way for the last 35 years, then the heavens are not going to fall if the locks of the gates are removed. The district magistrate has stated before me today that the members of the Muslim community are not allowed to offer any prayers at the disputed site. They are not allowed to go there. … If this is the state of affairs then there is no occasion for any law and order problem arising as a result of the removal of the locks. It is absolutely an affair inside the premises. There is no justification for retaining locks after the positive statements of the district magistrate and the SSP Faizabad that the law and order situation can be very well kept under control by other means as well and for that end it is not necessary to keep the locks on these gates"(Puniyani, 2010 ; 44).

This opening of the locks for unrestricted access to Ram idol inside the Babri Masjid, has not only strengthened the right wing communal forces , but also shifted their demand towards having the ownership right for the disputed site for building Ram temple and destroying the Babri Masjid structure, which is there for more than 400 years. The district judge K M Pandey's decision was criticised by many ( even the 2010 Allahabad High Court judgement criticised it), for his haste in opening the locks, which had a disastrous impact on the communal situation and the minorities in the country. But, later when K M Pandey wrote his memoir "Voice of Conscience", published in 1996, he gave a reason for his decision on that day as

" On the date of the order when orders for opening locks was passed, a Black Monkey was sitting for the whole day on the roof of the Court Room, in which hearing was going on, holding the flag-post. Thousands of people of Faizabad and Ayodhya who were present to hear the final orders of the Court had offered him ground-nuts, various fruit. Strangely the said Monkey did not touch any of the offerings and left the place when the final order was passed at 4.40 pm. The District Magistrate and SSP escorted me to my bungalow. The said Monkey was present in the verandah of my bungalow. I was surprised to see him. I just saluted him treating him to be some Divine Power"(Pandey, 1996; 215).

The judge decision to open the locks was not only in haste, but also firmly rooted in his Hindu religious belief, which was politically constructed to be in opposition to Muslims due to the Ayodhya- Babri Masjid conflict. The Judge in this case failed to uphold objective and scientific way of analysing the situation and being persuaded by his own belief system to come out with such a judgement, which impacted the peaceful communal landscape of India. Initially, by installing the idol inside the Mosque in 1949, the Muslims were denied the right to worship and finally by this decision, the Babri Masjid was made as de facto temple. Similar to Kizhvenmani case, where the judges  were influenced by  narrow understanding of class and caste, set free the criminal Mr.Gopala Krishna Naidu, who burned and killed 44 Dalits for demanding higher wages, here the judge being influenced by his narrow religious understanding and superstition had deepened the communal divide within Indian society by favouring religious Hindu section of the population, ignoring deliberately, the fair and objective justice.

Bhanwari Devi case
Bhanwari Devi was a Kumhar ( Dalit) women, around 40 years old, who was brutally gang raped by upper caste Gujjar men in her village Bhateri, 55 km from Jaipur, Rajasthan in 1992. She was trained as Sathin ( Grassroot Worker) to work in Women Development Programme of Rajasthan government. Being a grassroot worker, she campaigned on many issues, including a attempted rape case with the support of people from village. But when she took up the issue of child marriage, which was prevalent in her society, she was slowly alienated from the people. She carried forward the Rajasthan state governments programme to end the child marriage. The Gujjar caste, which was dominant in her village, was not happy with her campaign. The main contention started when she tried to convince Ram Charan Gujjar, to stop marrying his one year old girl child. Even though the marriage of that one year old girl was stopped by the police initially, it was held the next day. After this incident, the Gujjars started targeting Bhanwari Devi, accusing her of informing police and interrupting their cultural practices. This targeting has forced her husband, who was a rickshaw puller in Jaipur, to come back and stay with her to give her protection. In this hostile environment, on 22nd September 1992, at 6 PM in evening, Bhanwari Devi and her husband were attacked by five Gujjar men. They also brutally gang raped her. The husband and wife, after much difficulty, filed a case against the criminals. But, the police, medical doctors and the village community were not cooperating at any stage, which led to delay of more than 52 hours in conducting medical examination (Mathur, 1992).


The rapist tried to give her compensation for not going ahead with the legal case against them. But, she bravely filed case against them and fought in the court of law. The district sessions court judgement in November 1995 shocked the conscience of all who fought for Bhanwari Devi to get justice. The Judge said that an upper caste man could not have raped a dalit women. The other main observations of the court are

" a man could not possibly have participated in a gang rape in the presence of his nephew; Bhanwari Devi could be lying that she was gang raped as her medical examination happened a full 52 hours after the said event; and that her husband couldn’t possibly have watched passively as his wife was being gang raped — after all, had he not taken marriage vows which bound him to protect her?"(Vij, 2007)

The case went for appeal, but the evidences were fabricated and still they are waiting for the justice. The heights of casteism and patriarchy was displayed, when after the district sessions court judgement, the state BJP MLA organised a rally in support of the five rapist (Virani, 2001). But this case and its judgement led to large public outcry and a many more public interest litigation against the sexual harassment of women in workplace. Finally, the Supreme Court issued Vishaka guidelines to be followed by all public and private organisations and institutions to stop sexual harassment of women at workplace. This case judgement shows the patriarchal attitude, which is prevalent in our society, also influenced the judgment where a women complaining against dominant men was not an acceptable behaviour. The casteism was also displayed where the judge asks how a upper caste men can rape a lower caste women? Such common perceptions that were prevailing in our society gets reflected in the judgment, ignoring the objective and scientific way of bringing justice for the oppressed sections of our society.

Observations
As we saw in the beginning, even though the domain of law and its institutional structure seems to be independent and objective in bringing justice to everyone, it is still being impacted by the societal attitude and values in its outcome, as it is part of the larger societal structure. The three case judgment Kizhvenmani, Ayodhya ( 1986) and Bhanwari Devi that we analysed here shows how the existing societal values of casteism, patriarchy and communalism are dominant within the legal institutions, which apparently gets displayed in the final judgments. Thus trying to comprehend the legal institution and its outcome, without locating it in a larger political society and its values, will be a futile exercise, resulting in mere technical analysis of law and its provisions, devoid of any political space to use law as an effective tool for fighting against all forms of exploitation.

References
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Virani, P. (2001, March 4). Long wait for justice. Retrieved August 21st, 2016, from The Hindu: http://www.thehindu.com/2001/03/04/stories/13040611.htm
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The author is an associate professor at Department of Political Science and International Relations, College of Arts and Social Sciences, University of Asmara, Eritrea. His email id is svnarayanan15@gmail.com

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