NO BEEF
I’m not religious. I believe in God, but also that faith is not proven only through ritual. I enjoy my alcohol and am an occasional meat eater (mostly white). The only ‘Hindu’ belief I follow is to not eat beef – that too because it’s the only thing my grandmother ever asked me for. Besides I don’t like red meat, rarely ever eat mutton and so this beef ‘tyag’ rarely impinges on my lifestyle. Now had she asked me to give up crispy bacon…. it would have been a different story altogether!
So why am I boring you with my lack of religiosity today? Because the events of this week have left me disturbed. And because I heard the word ‘religiosity’ being used 10,934 times on television on Thursday!
NO SNOBBERY!
Yes, like most urban Indians - not South Bombay though, which in its own quiet way can often be very rabid; rabid Jain, rabid BJP – I too would like to leave the mandir-masjid issue behind and prefer to experience the same fury of debate on, let’s say, the lack of drinking water, sanitation facilities, rotting foodgrain, industrial pollution, good governance or any such issue of basic survival.
But that would be snobbish. To believe that my priorities, or atleast what I think should be national priorities must prevail over what thousands or millions of other Indians believe. If they believe religion is as much a priority, I have no right to snigger at them.
RAMALINGA RAJU ON NEW ACCOUNTING STANDARDS!
And so, even though I’d prefer to bury the Ayodhya conflict and move on, India would rather perpetuate it, helped generously by power-hungry, vote bank driven political parties and in some part also by desperate TRP seeking television anchors! No, I’m not being harsh on my own fraternity, but there’s no other way I can explain why one english news channel carried a peace platitude near its logo but invited Uma Bharti to spout her ‘bhavya mandir’ views. She’s not even a party leader any more. Her only significance is the criminal act of destroying the Babri Masjid. It’s like inviting Ramalinga Raju on a discussion on new accounting standards!!!
NOT ANOTHER KASHMIR?
Well anyways, to get back to the point – my lack of religiosity cannot mean that other Indians, who are religious, are wrong to be so. Which means whether I like it or not, Ayodhya is an issue we have to deal with. Saying that roti, kapda, makaan are the need of the hour, is like sweeping the issue under the carpet – which is a temporary solution, not a lasting one. Well-known historian Ram Guha said on tv this Thursday that he’d be happy if the Ayodhya case pends with the Supreme Court for another decade, by which time another generation would have passed and India would have outgrown the mandir-masjid issue. I say that is ‘wishful thinking’ for a dispute that refuses to go away despite the passage of time. Yes, the conflict’s most violent and criminal manifestation occurred 20 years ago, but the conflict itself has existed for hundreds of years. So what makes Mr. Guha believe that future generations will not be as religious? If that were the case, wouldn’t the Israel – Palestine conflict have petered out? That too, is about land and religion. As is Kashmir. Different conflicts, but all arising from a common issue of religious identity. I see no proof of any trend that points towards a substantial and continuous decline in religiosity across the world, or in India. And so, Ayodhya must be dealt with, soon.
PROVE THAT RAM DID NOT EXIST?
How? And by whom? Can a court rule on matters of faith? In a property dispute that dates back several hundred years, with no concrete evidence of original ownership, can the application of unemotional, clinical, sterile law produce a ‘fair’ result?
The Hindu parties involved are rejoicing that the Court has upheld the existence of Ram. How foolish! Would Ram have not existed if the Court had said otherwise? Can anyone prove that Ram did exist? Or, can anyone prove that he didn’t? And can any proof increase or diminish the faith that exists or doesn’t, in those who believe in the Maryada Purushottam? It is an absurd reaction.
The Muslim parties involved claim that because in recent times a masjid existed on that land, the land is theirs. Let me ask this – if a thousand years ago, the Church had taken over Mecca and built a cathedral there, would Muslims be wrong in asking for the land back today?
Or if today, an important Hindu structure is torn down by Muslims, who believe it is of great, religious importance to them, will all those peace-loving, laddu-stuffing Hindu leaders forgive them?
WHEN HUMANITY FAILS…
There are no rational answers to the questions above. Only those that emerge from the generosity of spirit and the ability to co-exist. When faiths clash, rationality goes out of the window. And that’s why what the Lucknow Bench has pronounced is the only available judgment to make, when an irrational, emotional matter of faith looks for a clinical, legal resolution.
For those who criticise the Lucknow Bench Judges I say – when humanity fails to achieve reconciliation, how can law succeed? Law is ultimately based on humane principles of fair play!
SC TO THE RESCUE!
The problem, I suspect, is of over-dependence. At a time when conventional forms of governance are crumbling and civil society is greedy and apathetic, the burden of bizarre, unreally high expectations has been placed on our judicial system. A system that is struggling to overcome its own weaknesses and inefficiencies.
Taj Mahal at risk, SC to the rescue
Police Reform lagging, SC to the rescue
Sexual Harassment, SC to the rescue
Too many Mayawati statues, SC to the rescue
Hindu – Muslim Dispute, SC to the rescue
The (higher) Judiciary is among the few institutions that the Indian public still has faith in. And so when the law falls short, is shoddily or vaguely written, when governance fails and politics disappoints, we look towards the Courts. We expect Judges to plug the gaps, weed out the inequities, re-balance the system and offer some relief when all else has failed. We ask them to be fair and just in situations where the fair and just outcome would be acceptable to noone or would wreak havoc.
The same argument applies to a very non-religious, commercial matter.
THE VODAFONE TAX BATTLE!
Every tax expert and counsel I speak to, has high praise for the intellectual superiority and technical sharpness of Justice Chandrachud who has ordered that, though the Vodafone-Hutch deal is an overseas transaction that cannot be taxed in India and though the law recognises form over substance, there is some nexus in India and hence tax must be apportioned. Several experts have commented on a seeming lack of connectivity between the beginning of the judgment, which upholds legal theories that do not support taxability and the end, which concludes that there is taxability.
Without meaning any disrespect to the Honourable Judge and imputing motives to him, to me his judgment reads as if he knew, in his heart and head, that this transaction was all about India and an Indian asset, without which there would have been no transaction. But the law did not support taxability. And so using a ‘middle of the road’ approach he has ruled taxability, but not full, only partial. Giving both sides some reprieve and making an already complex matter even more so**!
When the law is lacking and companies would rather avoid tax*** (whereas the rest of us middle-class Indians, with no access to Cayman Islands or Mauritius, pay through our noses) what else can a judge do?
We have come to depend on judicial activism* - I use the term loosely to describe instances of when the Judiciary steps up to fill gaps not of its making - to save us from ourselves. When even Lord Ram needs a lawyer, Vodafone should not feel too bad (or grumble about Harish Salve’s bill!)
*
Justice P N Bhagwati
The judge is not a mimic. Greatness of the bench lies in creativity. It is for this reason that when a law comes before a judge he has to invest it with meaning and content. There are cases where a decision one way or the other will count for the future, will advance or retard sometimes much, sometimes little, the development of the law in a proper direction. It is in these types of cases where the judge is to leap into the heart of legal darkness, where the lamps of precedent and common law principles flicker and fade, that the judge gets an opportunity to mold the law and to give it its shape and direction. This is what we have been trying to do in India.
**
Prime Minister Manmohan Singh
March 2006
***
Tax Geek on Vodafone Issue (Identity withheld on request)
Post crisis – equity, fairness, etc… are becoming cornerstones in the construct of tax and fiscal laws worldwide. Courts are institutions of our society and cannot ignore the broader sentiments of society on a matter that has larger public interest. Those sentiments maybe inconsistent with extant law, in which case the courts should point that out and rule in favour of the law – but for that you require gumption. I believe the Supreme Court, as the highest judicial institution, will have that gumption.
The gentleman quoted above suggested a more provocative title for this blog
Ram, Vodafone & Harish Salve…
Once I know for sure that the neither Ram nor Salve will sue me I’ll change the heading. I can’t afford to anger the former and simply can’t afford the latter!