Pandering to religion, Maharashtra government checkmated by judge
Maharashtra chief minister Devendra Fadnavis is regarded as upright and approachable. His wife Amruta, vice-president of a bank, is a modern working woman. She refused to give up her job despite in effect being Maharashtra’s “first lady”. Mrs Fadnavis displayed her independent spirit by shooting a music video with Amitabh Bachchan.
Handpicked by Prime Minister Narendra Modi and party president Amit Shah to run Maharashtra, Fadnavis has tackled the state’s Byzantine politics with finesse. The BJP’s lumpen alliance partner Shiv Sena has been muted, the NCP neutralised and the Congress marginalised.
In recent weeks though, Fadnavis has stumbled badly. Corruption charges against senior ministers in his cabinet have been brushed aside pending an inquiry. But the most extraordinary mistake of Fadnavis’ tenure occurred last week.
A senior judge of the Bombay High Court, Justice Abhay Oka, was heading a division bench hearing a PIL against the Maharashtra government for diluting the law on silence zones around Mumbai and the rest of Maharashtra.
This followed a sudden amendment by the Fadnavis government on August 10, 2017 that effectively removed all earlier restrictions on noise decibel levels in the vicinity of hospitals, schools, colleges, courts, and institutions of religious worship. The Bombay High Court, in a progressive judgment in August 2016, had ordered that all such sensitive locations be regarded as silence zones within a radius of 100metres.
Under pressure from religious groups – principally those celebrating the Ganpati festival which began on August 25 and ends on September 5 – the Fadnavis government amended the Noise Pollution Rules 2000 on August 10, 2017, just 15 days before the Ganpati festival began. The link did not escape the Bombay High Court.
Hearing a clutch of petitions against the government’s sudden amendment, the court said its earlier order of August 2016 on silence zones would stand. It rejected the government’s amendment of the Noise Pollution Rules 2000. The amendment was also widely criticised by activists as regressive and pandering to religious sentiment.
If the government’s egregious amendment of August 10, 2017, is allowed to stand – as it currently does – the entire city would be stripped off all its silence zones. In an unprecedented move, the government last week, citing bias, sought the recusal of Justice Abhay Oka who had stood firm against accepting the government’s amendment diluting the Noise Pollution Rules 2000.
Even the state’s attorney-general, Ashutosh Khumbhakhoni, conceded in open court when seeking Justice Oka’s recusal: “If it was personally up to me, I would have taken a different stand.”
Justice Oka then told the attorney-general that he would not recuse himself, in effect challenging the government to force his recusal through the Chief Justice of the Bombay High Court, Manjula Chellur.
Chellur immediately obliged the state government and transferred the case to another bench, leaving citizens’ groups aghast. Senior lawyers pointed out that this was possibly the first time in the Bombay High Court’s history that the state government had sought the recusal of a judge.
The division bench hearing the case led by Justice Oka was replaced by a new division bench comprising Justice Anoop Mehta and Justice Girish Kulkarni.
Lawyers representing citizens’ PILs against the government’s amendment on silence zones were scathing in their indictment of the government’s motives. Birendra Saraf, counsel for the NGO Awaaz Foundation, said: “This is nothing but to make the Ganpati festival a fait accompli. This is done because the government wants to get popularity by playing loud music during Ganpati.”
On August 26, the Advocates Association of Western India (AAWI) passed a resolution: “The managing committee strongly condemns the government of Maharashtra’s tactic in alleging bias against Justice Abhay Oka at a point of time where the matter was substantially heard.” The Bombay Bar Association weighed in with its own strong condemnation of the government’s action.
Chief Justice Manjula Chellur, confronted by growing public anger, reversed her decision on August 27 (a Sunday). She reinstated Justice Oka and reconstituted a larger three-judge bench headed by him which will now hear the case on an urgent basis. The government meanwhile apologised to Justice Oka and unconditionally withdrew its allegation of bias against him.
On Friday, September 1, the new larger bench led by Justice Oka held the government's amendment of Noise Pollution Rules 2000 unconstitutional and restored all original silence zones in a stinging rebuke to the Fadnavis government.
Religious sentiment vs. public interest
The Maharashtra government’s failed attempt to bully the judiciary is part of a larger attempt to place religious sentiment ahead of public interest. The cattle slaughter ban, for example, plays to religious sentiment but eventually results in animal cruelty. It is unlikely to survive ongoing legal scrutiny.
The mismanagement of arson and violence following the arrest of Gurmeet Ram Rahim Singh in Haryana revealed how even religious cults exercise political influence. The CBI court proved both the strengths and limitations of the judiciary: it ordered the arrest of Ram Rahim but could not prevent the jail administration from initially providing him with a VVIP room and a personal lady companion described ingeniously as the Dera leader’s “adopted daughter”. His sentencing to 20 years in jail underscores how the judiciary, for all its faults, serves as a guarantor of last resort.
In Mumbai an upright judge like Justice Abhay Oka, who stood up to the government and upheld the public interest, found his chief justice succumbing to government pressure to force his recusal before submitting to public pressure and reinstating him.
Fadnavis is travelling down a slippery slope. Once you give in to religious “sentiment” there will be no end to claimants seeking exemptions and favours that allow private interests to override the larger public good.
Noise pollution is a serious issue. The Maharashtra government’s amendment of Noise Pollution Rules 2000 will embolden religious organisations to flout long standing norms. The move, for example, to lower the volume of the daily pre-dawn azaan, calling the faithful to prayer, will suffer a setback. Mosques use loudspeakers every morning at 4.45am in thickly populated residential areas. Most Islamic countries have banned the use of loudspeakers for the daily azaan. India must do so too.
China’s Hualong Hui Autonomous County in Qinghai province recently removed loudspeakers used for azaan in over 300 mosques. China may not set a good example in most areas but this is one move which India should emulate.
However, with the state government caving into Hindu sentiment over ear-splitting noise levels during the Ganpati festival, taking action on muting azaan volumes is unlikely.
Noise pollution, whether from deafening Ganpati processions or the pre-dawn azaan on loudspeakers, must end.