The Beef Issue and Kashmir’s Identity

The State of Jammu & Kashmir is “a Hindu State, situated in Muslim surroundings”, Vallabhbhai Patel wrote to one C. Parmeswaram of Kashmir Metal Mart on 19 June 1946 (Sardar Patel’s Correspondence; Vol. 1, p.4). On its accession to secular India, the State lost its Hindu personality. As Prime Minister of the State, Sheikh Mohammed Abdullah did  the rest, earning Patel’s hostility, of the communal ruler Hari Singh and his followers in Jammu, the Praja Parishad. The BJP is its descendant.

But, remnants of what was an admittedly Hindu State survived. Among them were the notorious Sections 298A and 298B of the Ranbir Penal Code 1932, which banned cow slaughter and imposed draconian punishment for the offender. The law was first introduced in 1896. This law signified the Hindu character of the State. That State is dead. Its remnants survive on the statute book. The problem is how to get rid of them now in the face of opposition from Hari Singh’s political heirs.

On 8 September, a Division bench of then State’s High Court at Jammu, comprising Justices Dhiraj Singh Thakur and Janak Raj Kotwal, directed the DGP to enforce those Sections. It said “strict action shall be taken in accordance with the law against those who indulge in this activity”. Judges do not live apart from the society and the State to which they belong. The Judges could not possibly have been unaware of the impact of their ruling in the Muslim majority Valley. When it concerned the execution of Afzal Guru and Yakub Memon, Judges of the Supreme Court cited public opinion.

As Justice Felix Frankfurter of the U.S. Supreme Court remarked “Constitutional law is not at all a science; but applied politics, using the word in its noble sense”. Judges must not stoop to become politician; but they must practice judicial statesmanship. A ruling of the U.S. Supreme Court triggered of the American Civil War. In Dred Scott vs. Sanford 19 Howard 393; 15L Ed. 691, the Court held that the people of the negro race “are not included, and were not intended to be included, under the word ‘citizen’ in the Constitution … they were at the time considered as a subordinate and inferior class of beings”.

Predictably, there was an angry uproar over the ruling by the Jammu Bench in the Valley and cattle were slaughtered defiantly with impunity. Clashes erupted. On 16 September another Bench at Srinagar issued notice on a Petition to strike down those provisions. The National Conference, the CPI (M) and Sheikh Abdur Rashid calmed the waters by tabling Bills for the deletions from the Ranbir Penal Code of Sections 298A, 298B, 298C and 298D. The BJP, predictably, voiced its opposition to the Bills and its support to the Court’s ruling.

At this point the Speaker of the State’s Assembly, Kavindar Gupta, improperly jumped into the fray by telling Greater Kashmir, well before the Assembly met on 5 October and before he could hear the movers of the Bills, “I will not allow any Bill or Resolution which can create controversy and disturb the peaceful atmosphere in the State”. He added, “things which can deteriorate (sic.) law and order situation in the State won’t be allowed as part of the proceedings of the House”. The Deputy Chief Minister Dr. Nirmal Singh joined the battle and claimed “The BJP-PDP Coalition is committed to implement the order of the J&K High Court”. He was not contradicted by the Chief Minister Mufti Mohammed Sayeed on his claim to a coalition decision.

When the Assembly first met on 5 October the Speaker Kavinder Gupta carried out his threat. No sooner had the Assembly reconvened, after the 15-minute adjournment, than he announced that he had rejected the Resolution and the Adjournment Motion seeking a debate on the beef controversy. When some MLAs accused him of bias as an “RSS man”, the Speaker said that he was “a proud RSS man”. On 5 October, the Supreme Court requested the Chief Justice of the High Court to constitute a larger Bench of three Judges and kept the Jammu Order in “abeyance”; no formal stay.

On these facts, three issues of cardinal importance arise: (1) The Assembly’s power to override the Jammu ruling; (2) The Speaker’s status, his powers and the consequences of any derelictions of duty on his part; and (3) The sub-judice rule. Does it prevent a legislature, Parliament or State Assembly, from discussing an issue merely because a legal proceeding is pending in Court.

1. The Assembly’s Powers: No legislature can overturn a Court’s judgment in adjudicating an individual dispute. But a legislature can change the legal basis of a judgment even with retrospective effect. The classic case is  Indira Gandhi vs. Raj Narain (1975) Supplement Supreme Court Cases. The Constitutional amendment to oust the jurisdiction of the Courts was struck down. The retrospective amendment of the election law, on points on which the PM had lost, was upheld. Justice H. R. Khanna said “It is also permissible to amend a law which is basis of the decision of a court with retrospective effect and rely upon the provisions of the amended law in appeal against the above decision of the court. The court of appeal in such an event gives full effect to the amended law even though such amendment has been made after the decision of the original court.” (p. 100; para 227). In the 40 years that have elapsed since, the law has been declared repeatedly and with certainty by the Supreme Court.

Retrospective application of the law removes the basis of the judicial decision which is a valid exercise of legislative power and cannot be considered an encroachment on the judicial power. Tirath Ram Rajindra Nath v. State of U.P., (1973) 3 SCC 585: AIR 1973 `SC 405; I.N. Saksena v. State of M.P., (1976) 4 SCC 750: AIR 1976 SC 2250; Misrilal Jain v. State of Orissa, (1977) 3 SCC 212: AIR 1977 SC 1686. Cauvery Water Disputes Tribunal, re, 1993 Supp (1) SCC 96, para 76.

The motions for the repeal of S. 298A and 298B of the Ranbir Penal Code are therefore perfectly valid. Indeed, it was the duty of the Mufti Government, bearing in mind the wishes of the people, itself to promulgate an Ordinance or at least move a Bill for their repeal. Its appeal in the Supreme Court was an act of cowardly escapism and abdication of duty. What next? When the larger Bench gives a ruling, the case goes to the Supreme Court and it languishes there. Other States will apply to be heard as interveners. But this is a matter of Kashmir’s identity and honour as it has shed the character of Patel’s “Hindu State”. With it should go the emblems of that State. The Bill could provide that the slaughter of cows should not be exposed to the public view so as not to offend the sentiments of others. With this statutory proviso, it would have given a lead to other States.

But Mufti was afraid that the Coalition would breakup – and he would lose power. It is sad to see sacrifice of the public interest to the lure of power. There is still a Way Out – let the Bills be moved and the ruling coalition allow its MLAs a conscience vote; a free vote without any party whip. There are umpteen precedents for this in the history of Britain’s House of Commons and other Parliaments and Lok Sabha. Let the Assembly decide freely. This is not a matter for litigation. It is a matter for legislation.

2. The Speaker’s Status and Powers:  Such a legally valid and politically sound course requires the Speaker to abandon the course  he had announced before the Assembly met and carried out when it met on 5 October.

The Courts are not powerless. The Constitution of India as well as of J&K bar judicial intervention if the Speaker errs and commits an irregularity; not if an illegality is committed; least of all if there is usurpation of power Kavinder Gupta is no one to judge the law and order situation. He has put himself out of court by (1) announcing his decision in advance, and (2) by carrying it out before hearing any side. When Speakers misbehaved, thus before, one of two results followed – President’s rule since there was a clear case of a Constitutional breakdown or judicial intervention. On 29 November 1967 and again on 14 February 1968 the Speaker of West Bengal’s Assembly B. K. Banerjee adjourned it sine die without any business could be transacted because in his opinion the Ghosh Ministry was illegal.

The Speaker of Punjab’s Assembly Joginder Singh Mann opined that the Governor’s order summoning the assembly to be illegal. In both cases the Speaker advised President’s rule and with it fresh elections. In Punjab even the Budget was not passed. The Governor promulgated an Ordinance to summon the Assembly and directed it to consider the Appropriation Bills. The Speaker held the Ordinance to be void and adjourned the House for two months. The Deputy Speaker took the Chair and the Bills were passed. In the State of Punjab vs. Satpal Dang AIR 1969 S.C. 903, a full bench of the Supreme Court unanimously upheld the Ordinance and the proceedings of the Assembly and thus restored the parliamentary system.

A.R. Mukherjee, Secretary to West Bengal Assembly wrote an erudite work Parliamentary Procedure in India. He quotes Bourinot’s authoritative opinion “The Speaker will not give a decision upon a constitutional question, nor decide a question of law though the same be raised on a point of Order or privilege”. Other authorities he cites, including Speakers’ rulings, occupy nearly a quarter of a page. Legality is for the Courts alone to decide. Of course, if a requisite prior sanction of the President or the Governor is absent, the Speaker can disallow it. This is confined to cases when the sanction is mandatory.

In this case the Speaker’s decision marks a brazen “usurpation of power” to use the words of Lord – He has judged legality as well as politics. His proud declaration of loyalty raises, in the light of his conduct, a more fundamental issue. Erskine May said in the Bible on parliamentary procedure “Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure and many conventions exit which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised” – not by himself, but by the House and the public.

Does Kavinder Gupta enjoy their confidence? One of the conventions for ensuring impartiality, which May mentions, is detachment from the party. His declaration that he is an RSS man shows that he is totally devoid of detachment. Moreover the RSS is not a political party. It is a militant fascist body recognised to be such as far back as in 1944. It has been indicted for complicity in riots.

The options before the opposition are: a motion of no-confidence in him; boycott of the Assembly so long as he presides; resignation en-masse and public agitation. None of them is advisable. The proper course is to insist that the Assembly do debate the Bill and to press the coalition to allow a free vote without a whip and thus force it to take a stand.

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. Sub Judice Rule: The Assembly is not precluded from exercising its legislative power and authority because of the pending cases. They concern legality. The Assembly seeks legal change. The pertinent Rules in all legislatures say that “a member while speaking shall not … refer to any matter of fact on which a judicial decision is pending.” Likewise, “a question shall not ask for information on a matter which is under adjudication by a court of law …” This is generally invoked when a criminal case is being tried or an individual civil dispute is.

But even the law of contempt of court, does not bar all public discussion of matters of public policy. In the famous Sunday Times case, lord Diplock observed that “Discussion, however strongly expressed, on matters of general public interest of this kind is not to be stifled merely because there is litigation pending arising out of particular facts to which general principles discussed would be applicable. If the arousing of public opinion by this kind of discussion has the indirect effect of bringing pressure to bear upon a particular litigant … this must be borne because of the greater public interest in upholding freedom of discussion on matters of general public concern.”

A.R. Mukerjee, points out in his able work that only those comments which may amount to a contempt of court will not be allowed to be made in the House. Otherwise it would lead to the absurd result of members of parliament enjoying less freedom of speech than the citizens. At the heart of the matter is exorcising the ghost of Patel’s “Hindu State”. It concerns more than the law. It concerns Kashmir’s self-respect, its very soul.