Saturday, May 10, 2008

Sethusamudram & M.F.Husain cases: A study in contrast

On May 8, the Supreme Court, before adjourning the hearing of the Sethusamudram case to July 22, asked the Centre to consider an alternative alignment for the proposed canal, without damaging the Ramar Setu, and to consider whether an archaeological study could be conducted to declare Ramar Setu a national monument.

The Court did so, before hearing the counsel for the respondent, the Union of India, Fali S.Nariman whose turn was yet to come. The court did so on the technical plea that the Madras High Court's direction to the UOI to conduct an archaeological study had not been complied with. The plea was that the direction had not been stayed, even though the connected cases had been transferred to the Supreme Court. The UOI must have asked for the stay of the High Court's direction, as it was also the subject matter of the SLP before the Supreme Court.

The Supreme Court must have heard the UOI to know whether it considered alternative alignments, before choosing the one touching the Ramar setu, and whether it also considered the demand seeking the status of national monument for Ramar Setu. The Court simply assumed that the UOI did not consider alternative alignments (based on the arguments of petitioners), and that it did not even consider conducting an archeological study on Ramar Setu. Surely, the UOI has strong reasons to offer on both. Did the Court allow itself to be swayed by emotional considerations, before even hearing the UOI?

MESSAGE: If there has to be a choice between respect for people's so-called beliefs and development compulsions, choose the former.

On the same day, the Delhi High Court Justice Sanjay Kishan Kaul quashed three of the six cases pending against 90-year old painter M.F.Husain, for allegedly hurting public sentiments through his paintings of Hindu Goddesses, which were termed obscene. The Judge said in his judgment: "Our culture breeds tolerance both in thought and action. I have penned down this judgment with the hope that it is a prologue to broader thinking." He said there are many artists who embrace nudity as a part of contemporary art.

Message: If there ought to be a choice between respect for one's so-called beliefs and sentiments and freedom of artists, choose the latter.

Rarely, Judges assert their independence without being influenced by the prospect of public outrage. That is why the judgment of Justice Sanjay Kishan Kaul deserves to be celebrated.. The online link to this judgment can be found on this blog in a couple of days.

Article Alert: Rajeev Dhavan discusses the concept of obscenity in this Mail Today article in the context of Justice Kaul's judgment.

6 comments:

Dilip said...

Any idea what criteria need to be fulfilled for a structure to be classified as a national monument?

ravi srinivas said...

Will the Act that was passed after
Babri Masjid demolition to maintain
status quo in places of worship as
on 15th August 47 be applicable here.
Was the consel of UOI present when the Court made the observations and
what was his intervention. I could not find anything on this in the media. Meanwhile Organizer has some
news on SriLanka watching this case and whether this can become
a dispute for ICJ.

ravi srinivas said...

"The Supreme Court must have heard the UOI to know whether it considered alternative alignments, before choosing the one touching the Ramar setu, and whether it also considered the demand seeking the status of national monument for Ramar Setu. "

Well, was not the UOI expected to address these in the affidavits
filed before the SC. Is the
affidavit(s) silent on these?.
My understanding is UOI concluded
that no other alignment was possible and the envisaged one
was the only option.

ravi srinivas said...

"If there has to be a choice between respect for people's so-called beliefs and development compulsions, choose the former. "

This is not so simple because irrespective of Ramar Sethu serious
doubts have been raised on the
ecological impact and economic
viability of the project.
There is no so called belief
there, it is a belief. How to deal
with that is a different issue.
In cases like this the belief
cannot be dismissed just like
that.I think we should try to
look at the larger questions,
than the specificities of Ramar
Sethu.Tomorrow a similar case on
the belief of some other community
might arise.How does a secular
polity deal with these issues.
Should it stick to the stand that
beleif and faith have no place when
it comes to development projects

V.Venkatesan said...

For Dilip,
These are relevant paragraphs from my article in Frontline: The link:
http://www.frontline.in/fl2419/stories/20071005501101600.htm


In his petition, Swamy contended that the Union of India’s inaction in not taking steps to investigate the history and origin of Adam’s Bridge was clearly arbitrary and violative of Article 49 and the Ancient Monument and Archaeological Sites and Remains Act, 1958. Swamy had earlier written to the government urging that Adam’s Bridge be declared an ancient monument of national importance under Section 4 of the Ancient Monument and Archaeological Sites and Remains Act, 1958. The government did not respond to the request.

Article 49 of the Constitution says it shall be the obligation of the state to protect every monument or place or object of artistic or historical interest declared by or under legislation made by Parliament to be of national importance from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

The petitioners, including Swamy, referred to the “ancient history of India”, and the “epic, Ramayana” in support of their demand that Adam’s Bridge be considered an ancient monument. Therefore, it was important for the government to explain why it could not, on the face of it, accept the claims of the petitioners in this regard.

The government found that there was no concrete evidence for the claims of the petitioners and that they just wanted a “fishing enquiry” into the history of Adam’s Bridge to determine their claims that it was historic and ancient.

Therefore, the ASI analysed the ingredients of the definition of “ancient monument” under Section 2(a) of the Ancient Monument and Archaeological Sites and Remains Act, 1958. Under this law, to qualify as an ancient monument, the “monument” must be of historical, archaeological or artistic interest. In paragraph 32 of the affidavit, the ASI concluded: “In the light of the scientific study conducted, the said formation cannot, therefore, be said to be a man-made structure. The same is merely a sand and coral formation which cannot be said to be of historical, archaeological or artistic interest or importance.”

The ASI was categorical that its obligation under Article 49 of the Constitution must be fulfilled on the basis of scientific study and analysis with total objectivity. Excavations of sites and analysis of physical remains form an essential part of this scientific inquiry, and the ASI has so far not found any evidence to suggest that Adam’s Bridge is a man-made bridge. It concluded that there was no merit whatsoever in the claim to warrant any action on its part under the Act.

For Ravi:

The counsel for UOI was indeed present, but I guess he was helpless, as the Bench had made up its mind, without hearing him. If the UOI complies with this interim direction/suggestion of the Bench, then the matter may become infructuous, when the hearing resumes on July 22.
It is not exactly a place of worship, but a place of belief structure. No prayers on a daily basis are held there.
The prospect of Sri Lanka taking it at the ICJ level was raised by Dr.Swamy during his submission, as an additional factor which ought to dissuade the UOI from going ahead with the project. But Dr.Swamy said he was objecting only to the possible damage to Ramar Setu, he was not against the project itself and if the UOI comes up with an alternative alignment, not touching Ramar Setu, he would withdraw his petition. But much of his attack was on the project as a whole. The possible dispute with Sri Lanka is an instance of this.

tarunabh said...

The Delhi High Court judgment, at least from the excerpts in the Indian Express, looks fantastic. A bold unequivocal judgment upholding the right to offend in a democracy!