Brahmanical Courts and the Death of Justice

 

N. Sukumar and Shailaja Menon

"Though justice is depicted as blind-folded, as popularly said, it is only a veil not to see who the party before it is.... and not to ignore or turn the mind/attention of the Court away from the truth of the cause or lie before it, in disregard of its duty to prevent miscarriage of justice".

 ~ The Supreme Court of India- Best Bakery Case, April 12, 2004.

"...There is no automatic guarantee of success by the mere existence of democratic institutions...The success of democracy is not merely a matter of having the most perfect institutional structure that we can think of. It depends inescapably on our actual behaviour patterns and the working of political and social interactions. There is no chance of resting the matter in the 'safe' hands of purely institutional virtuosity. The working of democratic institutions, like all other institutions, depends on the activities of human agents in utilizing opportunities for reasonable realization..."1

tsunduru judgment

For an average hapless citizen, the courts hold out the final beacon of hope. However, the legal fraternity has many a time rendered such hopes futile by delivering judgments which make a mockery of the entire judicial paraphernalia. The winding course of justice tests the emotional and financial resources of the victims and at the end of the day, they are left bereft of any semblance of redressal of their grievances. April 22nd, 2014 is yet another scar on our pock marked democracy when the Andhra Pradesh High Court Division Bench set free all the accused in the infamous Tsundur massacre of August 6th 1991.

"I Have No Homeland"2

Eight decades ago, Babasaheb mentioned to Gandhi that "I have no Homeland. No Untouchable worth the name will be proud of this land". This poignant statement strikes a chord even today as our democratic landscape is littered with putrefied bodies of countless victims whom the state and civil society callously ignored with impunity.

In order to address the atrocities committed against the Scheduled Castes and Tribes due to various historical, socio-cultural, political and economic reasons, the Legislature in its wisdom, has enacted various legislations -both preventive and punitive- in an attempt to strike at the root of the problem. The political will notwithstanding, the ground realities and the various stakeholders determine the success or otherwise, of a social legislation such as the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 which came into force from 30-1-1990. The Act is a special legislation seeking to impose strict punishment for crimes committed against SCs/STs, redressed through Special Courts set up for this purpose thus ensuring speedy disposal of cases. While the larger vision under the enactment is creative and progressive, several studies have indicated that administrative problems, financial bottlenecks and a lack of sensitivity on the part of the police and the judiciary hamper the realization of objectives of the enactment3. In the case of Tsundur, the accused were charged under the POA Act and the Special Court in July 2007 convicted 21 persons to life imprisonment, 35 sentenced to a year's punishment and 123 acquitted. The accused appealed against the verdict to the High Court which set them free citing that the prosecution failed to prove the exact time of death, place of occurrence and the identity of attackers4. Presumably, any caste or communal conflagration will be conducted with a prior notice, the identity of both the victims and perpetrators evident and the location also being fixed. Having said this, one needs to take cognizance of the shoddy forensic investigation which is routine in India. In the Khairlanji violence, there was no mention of any sexual brutality though bodies of Surekha and Priyanka Bhotmange were mutilated. The rationality behind both the judgements is extremely unfathomable. Both the Courts sifted through the similar evidence and went through same arguments. What changed in the interval of seven years (2007, Special Court) and 2014 (High Court Division Bench)? Apparently, the Special Courts are eyewash to bamboozle the marginalized groups that the institutional mechanism is alive and kicking.

Babasaheb Ambedkar characterized Hindu caste society as a veritable chamber of 'horrors' and for the victims of Tsunduru, Karamchedu, Laxmanpur-Bathe, Jehanabad, Khairlanji, Mirchpur, Laxmipet, Dharmapuri... the list continues, such judgements are a blow to their self-esteem, a mockery of their struggle and the realization that they are not the privileged citizens of the Brahmanical state. What rubs salt in their wounds are the grandiloquent sentiments, "every endeavour must be made by persons and organizations to inculcate human values and mutual respect."5 It is akin to asking the sheep to lie down with the wolves. When the accused and the victims both inhabit the same social space, does the High Court expect them to sing 'bhajans' and 'kirtans' together for peace and harmony? To forgive and forget, life goes on... sound very noble but can we assume that Bhaiyyalal Bhotmange can survive in Khairlanji encountering the rapists of his wife and daughter? Many eons ago, Shylock spoke, "If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that."6

The Brahmanized7 Body Politic

The contemporary structural-functional nature of society, where the modern Indian body-politic has embraced Brahmanical attitudes and mind-sets, produces a complex nexus between caste and class on the one hand and caste-bureaucracy and politics on the other. The extent of modern-Brahmanism thus is not only limited to the upper caste-group, but it has spread over rich and backward castes on the one hand and penetrated the institutional set-up such as administration, judiciary and politics on the other. In this context, it is argued that the Indian state under the directives of the constitution is expected to play the role of an interventionist to bring social transformation, eradicating the feudal social order, based on Brahmanical ideology and building an egalitarian secular modern society providing all citizens social, economic and political justice8.

If we look at the historical development of the relationship between modernity and Brahmanism, the colonial period was the golden era in the reproduction of Brahmanical philosophy and practices which got entangled with modernity. At this point in history, rationalization and nationalization of Hinduism took place both explicitly and implicitly. The dominant nationalist ideologies legitimized the 'Sanatana Dharma' in the minds of people. On the other hand, collaboration of Zamindars, bureaucracy and politicians who were basically from upper-caste Hindu community captured the institutions of power. Despite his efforts, Ambedkar had to settle for positive reservations in place of separate electorates for Dalits while fighting against the entrenched Brahmanical forces.

In a society like India where power is inequitably shared and used, force is often intentionally applied for the protection and promotion of the vested interests of certain sections (upper caste) of society to the detriment of the interests of others (lower caste). While power of a person is to persuade and influence, force is the intentional application of this power in a given social context to promote and protect an individual or group/ community's interests as against the interests of others. Hence, power is the innate capacity to influence others, force as its intentional application controls and even suppresses liberty of thought and choices. The exercise of power and force hence is innate to the act of violence. Power can give rise to force, and force in return can transform itself into violence in the continuum, thus making violence the heightened form of power in the dynamics of caste equations. While force can maximize the capacity or ability of the person to exercise more power in the future, violence can reinforce the existence and exercise of power and force over the affected sections. In other words, violence produces and reproduces power and vice versa, which can be understood in Althusserian9 sense as well. Here hierarchical social relations and caste bigotry are continuously being reproduced. Indeed the best or most used means of 'reproduction' of relations of hierarchy and discrimination is violence and atrocity. Since, the upper castes have enjoyed unlimited socio-cultural control, legitimized by the Manudharmashastra, over the Dalit bodies, even their right to exist can be denied with impunity. The modern 'avatars' of Manu zealously guard their turf. The statue of Manu adorning the Rajasthan High Court Complex in Jaipur reveals the faultlines of our caste ingrained society.

The Indian Constitution pompously proclaims, "We the citizens of India", but this "we" is highly exclusive, contested and discriminatory in both public and private domains. In the December 16, 2012 Delhi case, the Prime Minister was forced to issue a statement, the UPA Chairperson went to the airport to receive the dead body of the victim. The opposition party created a ruckus in Parliament. The Verma Committee was constituted to revisit the gender crimes in India. The Maharashtra Home Minister opined that he will provide police escort to every female photo journalist after the Shakti Mills case in Mumbai. Will the state ensure justice to the denizens of Kunan Poshpora, Thangjam Manorama, Kauser Bano, the Bhotmange family? Some bodies are more equal than others. If one was to join the dots of all the unwept, unhonoured and unsung victims of caste and communal conflict in 'Bharatvarsha', it is evident that they are the children of a mlechha God. If you are unfortunate enough to get killed, it's your fault and karma, after all who wastes tears if 'a puppy comes under the wheels'10.

"If the Fundamental Rights are opposed by the community, no law, no Parliament, no judiciary can guarantee them in the real sense of the word. What is the use of Fundamental Rights to the Negro in America, the Jews in Germany and to the Untouchables in India? As Burke said, there is no method found for punishing the multitude."11 In the immediate aftermath of the judgement, the anguished sufferers can seek solace in the Supreme Court. It is another matter that much water will flow in the irrigation canal (where the dead bodies of the victims were dumped to destroy the evidence in Tsundur) before the final verdict is given. Ambedkar eschewed all forms of violent upheavals and advocated a socio political transformation through constitutional means. For a populace, abandoned by political institutions, denied space by society and with hunger gnawing their bodies, seeking solutions to assuage their dignity, it was left to the Naxalites, whom the state labels as 'Red Terror', to avenge Karamchedu and Laxmanpur-Bathe. For an average Dalit and Tribal battling state/brahmanical terror, they appear as saviours. If Ambedkar were to witness our troubled times, he would have given a clarion call to blow out the structure of political democracy which has been rendered impotent. The space for dialogue is shrinking, hope is dying out and in an impatient atmosphere, the 'untouchable citizens' would have no option but to seek alternatives, however aggressive they may be.

~

Notes

[1]. Amartya Sen, The Idea of Justice. 2011 Harvard University Press.

[2]. Dhananjay Keer, Dr. Ambedkar Life and Mission, Popular Prakashan, Bombay, 1954/1990, 167

[3]. For a Detailed Study on the Special Courts, refer, http://idsn.org/fileadmin/user_folder/pdf/New_files/India/Performan_of_courts_SCST_act-_Study.pdf, Accessed on 23/04/2014, 5.10 pm

[4]. The Hindu, opcit, 23/04/2014

[5]. Justice L Narasimha Reddy and M S Jaiswal, Andhra Pradesh High Court Division Bench while delivering the Judgement, The Hindu, April 23rd, 2014, p 7 (Delhi Edition)

[6]. http://shakespeare.mit.edu/merchant/merchant.3.1.html, Accessed on 23/04/2014, 4.15 pm

[7]. The idea is borrowed from G.Aloysious, Brahmanism Inscribed in the Body Politic, Critical Quest, 2010

[8].  Ghanshyam Shah, Cultural Subordination and Dalit Identity, Vol.2, Sage Publication, New Delhi. 2001.

[9].  Althusser, Ideology and Ideological State Apparatuses, in Lenin and Philosophy and other Essays, Monthly Review Press, London. 1971 http://www.rlwclarke.net/courses/LITS3304/2010-2011/07Althusser,IdeologyandIdeologicalStateApparatuses.pdf, Accessed 23/04/2014, 11 pm

[10]. http://indiatoday.intoday.in/story/narendra-modi-2002-gujarat-riots-puppy-under-wheel-remark-stirs-row-india-today/1/291035.html, Accessed 23/04/2014, 5.45 pm

[11]. Babasaheb Ambedkar, Writings and Speeches, Govt of Maharashtra, 1992, Vol 1, p 222

~

Please also read another article on the same issue:Tsunduru says: 'You just fight back' by Unnamati Syama Sundar.

~

 

N. Sukumar teaches Political Science at Delhi University. (This email address is being protected from spambots. You need JavaScript enabled to view it. )

Shailaja Menon teaches History at the School of Liberal Studies, Ambedkar University, Delhi
(This email address is being protected from spambots. You need JavaScript enabled to view it. )

Drawing by Unnamati Syama Sundar.

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