By invoking Faiz Ahmed Faiz's verse in a judgement (Gopal Das vs. Union of India) appealing to the Pakistan government to release an Indian prisoner in Pakistan on humanitarian grounds, Justice Markandey Katju of the Supreme Court of India demonstrated not only his love, and respect for the poet and understanding of his verse, but also his understanding of universal humanitarian values. The verse quoted in that judgement reads:
"Qafas udaas hai yaaron sabaa se kuch to kaho
Kahin to beher-e-khuda aaj zikr-e-yaar chale"
His love, respect and understanding of Urdu poetry is reflected in another judgement, in the case of an altercation between villagers in Tamil Nadu in Arumugam Servai vs. State of Tamilnadu [SLP(Crl.) No.8084 of 2009] delivered on 19.4.2011 by Justices Katju and Gyan Sudha Misra.
The judgement begins with a quote from an Urdu sher of Firaq Gorakhpuri.
"Har zarre par ek qaifiyat-e-neemshabi hai
Ai saaki-e-dauraan yeh gunahon ki ghadi hai"
The judgement also quotes the American Declaration of Independence, 1776: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness".
The case involved an altercation between the appellants who belonged to a backward caste, and the complainants who belonged to a Scheduled Caste, over a petty matter (the method of tying bullocks at a temple festival). In India the backward castes, called OBCs or Other Backward Castes are regarded superior to the Scheduled Castes but inferior to the so-called upper castes.
This altercation led to caste abuse and physical violence by the members of the backward caste.
The judgement referred to the decision of the Supreme Court in the case of Kailas vs. State of Maharashtra in Crl. Appeal No. 11/2011 decided on 5.1.2011, that "we must take care not to insult anyone's feelings on account of his caste, religion, tribe, language, etc. Only then can we keep our country united and strong."
Justice Katju upheld the conviction of the accused under the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, and further directed that the district magistrates/superintendents of police of the area must be suspended and charge-sheeted if any atrocity like 'honour killing' or caste insult/violence takes place. In some states, like Haryana, Rajasthan, and western U.P.
caste bodies called 'khap panchayats' often overtly or surreptitiously order or encourage 'honour killing' of someone who marries outside the caste or religion.
The judgment also cited a previous judgment by Justice Katju which had observed that "all communities and groups must be treated with respect, and no one should be looked down upon as an inferior" [Swaran Singh & Ors. vs. State thr' Standing Counsel & Anr. (2008) 12 SCR].
It also cited an earlier decision by Justice Katju regarding an inter-caste marriage. The judgment [Lata Singh vs. State of U.P. & Anr (2006) 5 SCC 475] had noted that several such instances had been coming to the court's knowledge of "harassment, threats and violence against young men and women who marry outside their caste". An extract:
"The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished.
This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage."
The judgement directed the administration/police authorities throughout India to ensure that any adult couple transacting an inter-caste or inter-religious marriage are not harassed, threatened or subjected to violence, "and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law".
The judgement further referred to the issue of `honour' killings of those involved in inter-caste or inter-religious marriage of their own free will. It notes:
"There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism".
In subsequent emails discussing the meaning of Firaq Gorakhpuri's verse used in the judgment, Justice Katju pointed out that the word 'qaifiyat' in Urdu means 'condition', 'neem' means 'half' and 'shab' means 'night'. He said that this sher is one of the greatest shers ever written and ranks along with the best shers of Ghalib. In a marvel of condensation, it illustrates the transitional era in history, which both India and Pakistan are going through (transition from feudal agricultural society to modern industrial society).
"The transitional era [daur] is always a very painful and agonising period in history, as a study of European history from the 16th to the 19th century discloses, full of turbulence, turmoil, disorder, wars, crimes, chaos, revolutions, intellectual ferment, and social churning (manthan). Only after going through this fire did modern society emerge in Europe. Our subcontinent is presently going through this fire.
"One wishes that this era could be painless, but that is not how history functions. The vested interests in the old order will never give up their vested interests without a fierce struggle.
"For instance in India, Pakistan and other third world countries we see everywhere disorder, crime, corruption, feudal practices like 'honour killing', etc.
"It is a 'gunahon ki ghadi' (era of sins) from both the point of view of the feudal minded people, as well as from the point of view of the modern minded people. The feudal people regard inter-caste and inter religious love marriages as a gunah [sometimes deserving honour killing].
"They regard dating with a person of the opposite sex before marriage, or sex before marriage, as a gunah (sin). Many such persons regard education for women as a gunah. They regard grant of equality to people of 'low' caste as a gunah.
"On the other hand, modern minded persons regard 'honour' killing as a gunah. They regard keeping a woman uneducated or without equal rights as a gunah. They regard the caste system as a gunah.
"Thus this is a 'gunahon ki ghadi' whichever way you look at it, because it is a transitional period in which both feudal and modern ideas co-exist, battling with each other. You would remember Shakespeare's line in Macbeth: "Fair is foul and foul is fair". This is precisely the situation in the transitional era. Values of the old era crumble, and are often reversed in the new era. What was regarded good in the old era, e.g. the caste system is regarded bad in the new era (at least by the advanced, modern people), and vice versa.
"In my opinion this transitional period will last for another 10 to 20 years, after which a modern society will emerge in our sub-continent, but this 10 to 20 years is going to be terrible. A storm is going to blow through our subcontinent to clean out the filth (the feudal values and practices) but how many of us will survive the storm is impossible to predict.
"'Qaifiyat-e-neemshabi' means literally 'condition of half night'. This means: Firstly, we are living in an age which is neither night nor day, neither the one nor the other, neither medieval nor modern, but somewhere in between. This transitional era is very painful [for the middle classes in particular] as a study of European history from the 16th to the 19th century discloses. The whole of society has been thrown into convulsions, turbulence, and strife. During this period thorough social churning [manthan] is taking place. What was regarded right earlier is regarded wrong today [at least by the enlightened people], and what was regarded wrong earlier is regarded right by many people today. Examples are: honour killing, live in relationship, caste system, religious bigotry, etc.
"During this transitional period there are wars, revolutions chaotic conditions, corruption, scams, crimes etc. Both India and Pakistan are presently passing through this terrible transitional period, which I guess will last another 10 to 20 years. Only thereafter will modern society emerge in our sub continent. I have explained this earlier.
"Secondly, the word 'neemshabi' indicates a mental condition of being dazed, as we often are when we wake up in the middle of the night due to some reason. 'Neemshabi' implies that the night is only half complete. The words 'har zarre' (each particle) indicate that everyone is in a dazed and stupefied mental condition in this transitional era."
By invoking verses from eminent poets and other classical texts, Justice Markandey Katju provides an additional, thought-provoking dimension to his humanistic judicial pronouncements. And by drawing on Urdu poetry, this learned judge from India is in his own way contributing to 'aman ki asha'.
-- Beena Sarwar
Wednesday, May 04, 2011
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