On Sat, Jan 22, 2011 at 9:28 AM, Anand Manikutty <[email protected]>wrote:
> For Advocates of consociotionalism and multi-culturalism, this judgement > may be acceptable, but to me, it is disturbing. This is in regards to case > involving the alleged persecution of a tribal woman. My sympathies are with > the woman if such an incident indeed happened, but when I tried to learn > more about the case, I was a bit disturbed by what I found. The draft of the > judgement is on the website and is easy enough to find (please see > information below). The concluding words of the judgement were the > following: > > *37. The well known example of the injustice to the tribals is the story > of* > *Eklavya in the Adiparva of the Mahabharat. Eklavya wanted to > learn* > *archery, but Dronacharya refused to teach him, regarding him as low born. > * > *Eklavya then built a statue of Dronacharya and practiced archery before > the* > *statue. He would have perhaps become a better archer than Arjun, but > since* > *Arjun was Dronacharya's favourite pupil Dronacharya told Eklavya to cut* > *off his right thumb and give it to him as `guru dakshina' (gift to the > teacher* > *given traditionally by the student after his study is complete). In > his* > *simplicity Eklavya did what he was told.* > * > 1* > *38. This was a shameful act on the part of Dronacharya. He had not > even* > *taught Eklavya, so what right had he to demand `guru dakshina', and that > too* > *of the right thumb of Eklavya so that the latter may not become a better* > *archer than his favourite pupil Arjun?* > * > * > *39. Despite this horrible oppression on them, the tribals of India > have* > *generally (though not invariably) retained a higher level of ethics than > the* > *non-tribals in our country. They normally do not cheat, tell lies, and do > * > *other misdeeds which many non-tribals do. They are generally superior in* > *character to the non-tribals. It is time now to undo the historical > injustice to* > *them.* > * > * > *40. Instances like the one with which we are concerned in this case* > *deserve total condemnation and harsh punishment.* > * > * > *41. With these observations the appeal stands dismissed.* > > I would like to note that it is completely inappropriate for a judge in the > Supreme Court to cite instances of doubtful historical accuracy to support > rulings pertaining to the present day. > I haven't read the full text of the judgment as yet, but from the quoted text can't quite understand your indignation. The judges have not relied upon the story of Eklavya because it is historically accurate or as a basis for the judgment. The story is used as a means for making the point clearer rather than for basing it on logic. The basis of the judgment will lie in the Constitution or in legislation and not in mythical stories such as the Mahabharata. > In particular, it is unclear that the incident involving Ekalavya and > Dronacharya ever even actually happened as described in the Mahabharata. > But it is the popular understanding of the incident that matters. In fact, I'd go further and say that the reason the Court can deal with the incident in too much detail is because it is assumed to be myth. So the Court is only laying down the contours of the myth as commonly understood to further clarify a point. The point to writing a judgment is not merely to adjudicate a dispute. Rather it is also to put one's point across as clearly as possible. The judges in this case have used the mythical story of Eklavya as a tool. We can agree or disagree on whether it does clarify the point further, but I think it would be far-fetched to state that the judges ought not to be using such devices at all. > If such sort of citations were allowed as a matter of course, what is to > prevent someone else from using another fictional account (say, the > treatment of flying animals in "Avatar") to support whatever conclusions > they want to arrive (say, better treatment of jet fighters maintained by the > military). > Again, my understanding is that the Eklavya Myth is not being used as the basis for the judgment. The judgment has to be based on sources of law such as the Constitution or any other law or any custom or usage accepted by the Constitution. > > Furthermore, the contention that "[tribals] are generally superior in > character to the non-tribals." is completely unsupported by data. Judging by > what I read in the American press, people do not consider themselves any > less in character simply because they are not tribals. > This observation of yours I do find generally more pragmatic. But just to play Devil's Advocate here, I think that all judges bring an element of subjectivity. I think the judge's point is that the illiteracy and simplicity of life in tribal areas makes deviousness a less likely trait. This may well be completely scientifically incorrect but it has formed a part of the judge's experiences, which is a subjective element that will come through in any judgment. It has come to inform the judge's view. Gyan Sudha Mishra was Chief Justice of the Chhattisgarh High Court where she dealt with a number of cases dealing with tribal rights. It is possible that her views have developed in the course of her tenure as CJ. My point is simple: I know this observation seems disturbing off hand, but we have to accept that subjective satisfaction will always form a part of judicial decision-making. Scalia is a good example, though obviously far more intellectually rigorous, of a judge who doesn't shy away from applying the subjective element. The justification is that a judgment cannot be purely theoretical; it has to be informed by the practicalities and realities of daily life. Some observations from practical life will typically cover the gaps in the theoretical reasoning or reinforce it. On the whole I do find this data point unusable absent scientific inquiry or basis. And I also think that it is an irresponsible statement to make. Added to this is the fact that I don't like Gyan Sudha Mishra as a judge. Her style while Chief Justice of the Chhattisgarh High Court was most unjudicial, to say the least. Plus the rumors about corruption haven't ever gone away. She represents someone who is on the Court for much the same symbolism that brought Pratibha Patil to Rashtrapati Bhavan. But she's here and she's going to lean on her experiences as much as any other judge does. It's a different matter that she's unsubtle and generally ill-informed, but that's what you get when you make an appointment to accommodate a female judge whose track record otherwise has been disappointing. > >
