Saturday, September 15, 2007

Taking affidavits seriously: Was the furore over Ramar Sethu affidavit justified?

The Union of India has been compelled to withdraw its counter-affidavits filed in the Ramar Sethu case, following the uproar over certain paragraphs of the counter-affidavit filed by the Archaeological Survey of India, questioning the factual basis of the characters and events in Ramayana. But was the uproar justified at all?

Is the affidavit a true indicator of the Government’s intention?

In the Ashoka Kumar Thakur case, currently being heard by the Constitution Bench, the Pasayat-Panta Bench had earlier gone into this question, while examining whether the case had to be referred to a Constitution Bench. Harish Salve, a counsel for the petitioners, had submitted that in the counter affidavit filed by the UOI it had been specifically stated that, there was no question of law much less of substantial nature involved, and the issues raised were covered by various decisions of this Court, more particularly, Indra Sawhney v. UOI. If that be so, Salve argued, there was no substance in the present stand of the Solicitor General that substantial questions of law were involved. Salve, thus, suggested that the cases can be decided on the pleadings made and the acceptability of stands.

Countering Salve, K.Parasaran and Ram Jethmalani, counsel for the respondents had argued that the stand taken in the counter affidavit could not be determinative.

In paragraph 5 of the judgment delivered by the P-P Bench on May 17, 2007, the Supreme Court referred to its decision in Sanjeev Coke Manufacturing Co. V. M/s Bharat Coking Coal Ltd. (1983 (1) SCC 147). The issue in that case was whether the Executive Government spoke for Parliament. It was held that no Act of Parliament might be struck down because of the understanding or misunderstanding of parliamentary intention by the executive Government or because their spokesmen did not bring out relevant circumstances but indulge in empty and self-defeating affidavits. Validity of legislation was not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find.

The P-P Bench then went on to justify the reference to the Constitution Bench of this case, irrespective of what the UOI’s counter-affidavits said. It is possible to suggest that Sanjeev Coke case involved the question of determining legislative intention. Yet, the P-P Bench used this to decide whether the UOI’s counter-affidavits in the Mandal II matter must be relied upon to determine whether the case merited reference to the Constitution Bench.

In the light of the P-P Bench’s reasoning, should the counter-affidavits in Ramar Sethu case be interpreted the way much of the media and the political class chose to interpret? If what the ASG claimed in his submissions before the Court, before withdrawing the controversial affidavits is true, then the conclusion is inescapable that both the Court and the Government had succumbed to the political compulsions, rather than let the Court’s stand on the affidavits prevail over the misguided politico-religious sentiments being exploited outside the Court. The ASG, in his submissions, clearly explained that the affidavits did not intend to touch upon the freedom/articles of faith or belief of any section. If the Government was so convinced, then why succumb to the political compulsions, rather than explain the position of law?

1 comment:

jyotsna said...

It's not a question of what the legal weight of the affidavit is. It is up to the court to determine whether or not it wants to accept or reject the government's position and nobody questions that.

The reason why the affidavit generated furore is because it is outrageous that a government or an organ of the government takes upon itself the mantle of propunding upon the historicity of a well entrenched religious belief - something that goes against the basis of secularism (as a separation of religoin and the state) and offends freedom of religious belief. No other government of any other country would have dared do this nor with respect to any other religion.