A fresh round in the internal debate within the Supreme Court over the limits of Judicial activism

Today’s newspapers are devoting considerable attention to a recent decision of a division bench of the Supreme Court consisting of Justices AP Mathur and Markandey Katju. This is how the news-item in the Indian Express begins:

In the strongest censure of itself in recent times, the Supreme Court, admitting that judicial activism is disturbing the “delicate” balance of powers “enshrined” in the Constitution, has sent an unequivocal message to the judiciary: restrain yourself. And has even gone to the extent of questioning a slew of recent orders by the Delhi High Court — on several issues from demolitions to nursery admissions — calling them “illegal.”

The title of the report in the Hindustan Times reads: “Supreme Court raps Delhi High Court activism.” The report in the Hindu prefers to adopt a less sensational reporting style, and also opts for longer quotations from the judgment.

I tend to be skeptical of news coverage of important court decisions in India, and sought to read the full text of the judgment. Fortunately, the full text of the judgment in the case, titled Divisional Manager, Aravali Golf Club v. Chander Hass (“the Aravali Golf club case”), is available on JUDIS here. After reading through the decision, I cannot help thinking that the newspapers are justified in making a big deal of the decision, and its implications. There are indeed many singular aspects of this decision.

The facts at the heart of this case are seemingly innocuous and my first impression was that this was what is referred to as a “typical service” matter. The case arose out of an appeal from the decision of a single judge of the High Court of Punjab and Haryana in litigation relating to an employment dispute. The Supreme Court judgment is quite a short one, extending to 41 paragraphs. The Mathur-Katju bench sets out the basic facts and its decision on them (which consisted essentially of holding that the single judge of the High Court of P & H was wrong, and reversing his decision) in the first 16 paragraphs. The 'dramatic action' that is the focus of the news-reports begins at para 17, which reads as follows:

17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.

In paras 18-40, the Mathur-Katju bench expands on this theme, and draws upon an eclectic array of sources (prior decisions of the Indian Supreme Court; a quotation from Montesquieu; the views of retired Chief Justices, JS Verma and Anand; and several U.S. Supreme Court decisions) to buttress its central argument. In the process, as emphasized in the newreports, the Mathur-Katju bench called into question specific decisions of the High Court of Delhi (at para 27) and two decisions of the Supreme Court (at para 28, referring to the Jagadambika Bal and Jharkhand assembly cases).

The Mathur-Katju decision should be viewed as a follow-up to Justice Katju’s decision in the Bisht case (May 2007), where he had outlined a similar argument, relying at times upon the similar reasoning and the same sources (see this previous post which provides further details about the case). The Bisht case saw a spirited dissent by Justice Sinha; this time around, Justice Katju seems to have found a sympathetic ally in Justice Mathur.

What is unusual about this case is that a division bench of the Supreme Court has, arguably without justification or cause (since the case before the Court had no factual or direct legal connection to the Supreme Court decisions that were disparaged), called into question the correctness of larger bench decisions of the Supreme Court. This is the aspect that is focused upon in this news-report in the HT, where, ironically, former Chief Justice Anand is quoted as expressing disapproval of the ruling in the Aravali Golf Club case on this score.

Another striking feature of this ruling in the Aravali Golf Club case is that it calls into question the validity of several decisions of the High Court of Delhi (the HT has this short piece identifying these cases in greater detail), some of which are, to my knowledge, still pending. Once again, the facts that gave rise to the decision in the Aravali Golf Club case have no clear connection to the decisions of the High Court of Delhi that were criticised in it. While the Supreme Court is fully entitled to castigate the reasoning in decisions of High Courts that are properly before it, the wisdom of offering unsolicited advice on the legality of decisions of High Courts that are either being implemented or have not yet being challenged on appeal, surely is questionable, to say the least.

There is, therefore, considerable irony in the fact that the Mathur-Katju bench, in making its case for judicial propriety, is itself open to the charge of having breached judicial norms. Justice Katju is fast emerging as the outspoken judicial critic of ‘activism’ among the current generation of Supreme Court judges. In doing so, he carries on a long tradition, that dates back to the earliest years of the history of the Supreme Court. Whatever one thinks of the merit of his views, the mode that he (in common with Justice Mathur) has chosen for expressing his views is generating a fair bit of controversy. In the past, Justice Katju has used extra-judicial fora to express his controversial views that are somewhat out-of-step with mainstream judicial thinking (see this post outlining his relatively bold views on current contempt laws). One may wonder why he did not choose a similar vehicle for expressing his views here - while they would still have generated controversy and debate, the reasons would have more to do with their substance than with the process concerns that dominate here.

The judges who decided the two named Supreme Court decisions in the Aravali Golf Club case have since retired. I suspect that the real focus of the Aravali Golf club case is upon decisions that continue to emanate from the Supreme Court while exemplifying the judicial philosophy which the Mathur-Katju bench is strongly critical of. It will, therefore, be interesting to follow the reactions of other judges to this ruling, especially of those who see themselves as constituting the more 'activist' members of the Court.

Narendra Modi -Sonia Gandhi spat: Limits to how Election Commission can intervene

There are limits (read self-imposed) to what the Election Commission can do with regard to its powers to stop an ongoing corrupt behaviour of candidates to secure votes. Currently, the E.C. is examining the reply sent by the Gujarat chief minister, Narendra Modi to its notice sent on December 6 seeking his explanation on his alleged violation of Model Code of Conduct. Specifically, the E.C. pointed to his speech at Mangrol on December 4, and the complaint that it amounted to open exhortation to violence and misuse of religion for political ends, and so violative of the MCC. The EC also recorded its prima facie view that references to the late Sahrabuddin (who was killed in a fake encounter in Gujarat, and which incident is being probed under the direction of the Supreme Court), and linking his name to terrorism, made in the speech, amounts to indulging in activity which may aggravate existing differences , creating mutual hatred, and causing tension between different communities, and would involve violation of clauses (1) and (3) of Item I of the MCC.

In his reply to the E.C. Modi has admitted that he said the following:

Modi: You tell what should be done to Sohrabuddin?
People at the rally: Kill him, Kill him.

Modi denies he said the following, which has been attributed to him in the media reports, and which is not there in the video-recording of his speech, sent to the E.C.

Modi: Well, that is what I did. And I did what was necessary.

Modi’s other defences are as follows:

*That he is entitled to his right of free speech and reply to political opponents.

*His political opponents used expressions such as “merchants of death” and “Hindu Terrorism”, and despite complaints by the Gujarat unit of the BJP, the E.C. has not so far taken any action.

*E.C.’s obligation to conduct free and fair election will not extend to preventing him from expressing his strong views against terrorism.
* That he has made a reference to the Sohrabuddin’s case and mentioned the allegations against him, and that he accused the Congress of suggesting that he had engineered a fake encounter. He did not justify the specific encounter of Sohrabuddin’s case. He did not explicitly refer to the religion of any person.

Q.1: Is Modi’s reply acceptable?

If one accepts Modi’s reply on the face of it, this is what he should have said at the meeting:

Modi: The Congress accuses me of engineering a fake encounter in the Sohrabuddin’s case. Do you believe in it? (To which the crowd could have responded saying No). Had he said this, then there would not have been any problem and the E.C. would have no option but to accept his defence.

Modi’s very question to his audience – and the response it elicited from the audience – and the fact that he did not correct the audience’ response immediately - suggests that he believed Sohrabuddin was a terrorist and that killing was a natural response to such terrorists. What Modi denies having said, is something which can be easily inferred, even without his saying it.
While considering speeches, it is not what the exact words used by a speaker which must be considered, but their total effect on the audience.

Q.2. Did Modi violate Model Code of Conduct?

A: I would tend to agree with Modi that he did not intend to refer to Sohrabuddin’s religion, and therefore, did not violate MCC.

Q.3 But did he contradict his Government stand in the Supreme Court on the Sohrabuddin matter?

A: One would certainly think so. But it does not involve violation of the MCC, and therefore, no corrupt practice. The interview given by Mr.K.T.S.Tulsi to Tehelka makes it clear, he was not taken into confidence by Modi on this.

Q 4: Now, what are the E.C.’s options?A: Send notices to Sonia Gandhi and Digvijay Singh on the basis of the BJP’s complaint: This is the safe option, as it would help to cool the political temperature. Digvijay Singh has denied that she used the remark “merchants of death”, to accuse Modi personally, and therefore, there is no violation of MCC. He may well be correct. But E.C.’s linking these two notices, makes no sense. The E.C. must take an independent decision on Modi’s reply. The linkage is not explicit, but obvious. The notices are here.

B. Hold Modi guilty of violation of MCC. Possible, on the basis of its prima facie opinion. However, as Modi has said he reserves his right to give a detailed specific reply to the notice later, no immediate punitive action is possible by the E.C. even if it is dissatisfied with his preliminary response.


C. Reprimand both Modi and Sonia and close the matter: Very likely, as the E.C. had never taken any punitive measures against those held guilty of violating MCC.

Q. 5: Does it mean, if Modi or Sonia are indeed guilty of corrupt practices under the R.P.Act and the IPC, no remedy is available?

A: R.P.Act helps an aggrieved person to approach the court after the election is over, and the damage is done. IPC can help to register cases even during the elections, but unlikely unless the EC forms an opinion, and wants an investigation to further proceed in the matter. The particular example being cited by the complainant, the speech in which Modi is alleged to have appealed to communal feelings or that his speech might have aggravated in mutual hatred or tension between different communities may well be an offence under the RPA, but this seems to be a stretch , as his focus appeared to be on terrorism, and he did not make an allusion to Sohrabuddin’s religion.

Q.6: Could Modi's speech be construed as open exhortation to mob violence and vigilante justice?

A: One can't rule it out, because he did not care to correct the audience's response to his question. The other view that both Modi's question and audience response must be understood in the context of the campaign, and therefore, nothing much must be read into it also appears to be sensible.

Trial Court judgment in the Uphaar Tragedy: "A Much Needed Precedent"

The quotation marks in the heading of this post refer to the title of a recent EPW editorial, which begins as follows:

The judgment delivered recently by a Delhi sessions court that upholds the guilt of the 12 accused in the Uphaar cinema tragedy sets a much-needed precedent. The judgment proves vital in that, on the one hand, it exemplifies how a sustained campaign by the people, as seen in the struggle waged by the Association of the Victims of Uphaar Tragedy (AVUT), can propel the justice machinery, on the other, it draws attention to the need for closure in instances of similar other disasters, where public safety has been deliberately given short shrift. On June 13, 1997, 59 people, several of whom were children, died mainly of asphyxiation, after a fire caused by a poorly functioning transformer broke out in Delhi’s Uphaar theatre, during the screening of a film; in addition, 103 persons sustained grievous injuries. The wait for justice has been pro­longed, and has been possible because of the unflagging cam­paign waged by the AVUT that was formed within a fortnight of the tragedy.

An initial committee of inquiry headed by a deputy commis­sioner, Naresh Kumar, and later a Central Bureau of Investigation probe established the culpability of several players, including six from the government, i e, from the Delhi Vidyut Board, the Municipal Corporation and the Delhi Fire Service. The Naresh Kumar report in its every detail has convincingly shown how building by-laws, electricity norms and rules ascribed by the Cinematograph Act 1952 were violated. Along with four theatre employees, the court, in its judgment of November 20, held these government officials guilty of “culpable homicide”, as they had issued no objection certificates (NOCs) permitting several ille­galities such as the construction of a mezzanine floor, the block­ing of exits so as to add to balcony seating space, and locating the transformer in the theatre’s parking space. The Ansal brothers, Sushil and Gopal, too have been held guilty, albeit of lesser charges, i e, of causing “death by negligence”. The Uphaar verdict has seen several legal twists and turns. Victims of the tragedy are agitated about the “lesser” guilt imposed on the Ansals, but to pin responsibility on powerful corporations remains difficult.

The editorial goes on to place the case in the context of other recent cases, while also setting out problems with our Indian legal system that seem all too familiar:

In being a first in several ways, the verdict also has familiar echoes with judgments received in the recent past – the Jessica Lall and the Priyadarshini Mattoo cases in particular – where the call for justice was driven by well-organised middle class protests against entrenched apathy and callousness. And while the plight of the mainly poor victims of the Bhopal gas tragedy of December 3, 1984 has been highlighted by associational groups of the victims, Dow Chemical Company, which has inherited Union Carbide’s liability for the Bhopal legacy, persistently denies its responsibility. The long-delayed process of compensation remains riddled with problems: the lok adalats have been accused of corruption and the compensation amount, as survivors’ groups have pointed out, has been too little to take care of severe health problems or those that have manifested themselves years after the tragedy.

Several newspapers have carried stories about the valiant struggles of the family members of those who died in the Uphaar tragedy. In my view, the best account of this is to be found in a detailed article in a recent issue of Tehelka, which not only documents the heroic elements of this story, but also focuses on the legal strategy employed by AVUT. (This is also an opportune time to put in a plug for the new, improved version of Tehelka, which continues to provide some of the most insightful and critical commentary on contemporary events in India). The Uphaar case is by no means over, as both the AVUT and the lawyers for the Ansals have promised to take the case up on appeal.

Apart from other issues, this case points to the persisting problem of delay in our legal system. On the occasion of Law Day (which falls on November 26), the head of the judicial system in India, Chief Justice Balakrishnan, sought to directly address this problem (among others) in his annual speech that is by convention delivered on the lawns of the Supreme Court. Another speech addressing the problem of delay in delivering justice that was delivered, interestingly enough, in China, is available here. Though these speeches cover well trodden paths (and arguments), they provide interesting insights into the manner in which the officials at the helm of our judicial system perceive and respond to the problem, while also providing details about new and proposed initiatives.

These links are from the website of the Supreme Court of India, which has started making a lot of interesting information available to the public, including a regular newsletter called “Court News.” The latest issue of this newsletter provides information about appointments as well as the exact number of cases that were "disposed off" as well as those that are still pending at every level of the judicial system for the period between June-September 2007. These initiatives are to be welcomed, and one hopes that the Court (as well as the judicial system at large) will take further steps to improve transparency about the inner working of this vital wing of government.

Update, Dec 06: In the speeches linked above, CJ Balakrishnan seeks to present a picture of an understaffed, overworked judiciary that is striving to tackle the ever-increasing number of litigated cases. This image would be rendered more credible if the facts set out in this newsitem, which mentions that at present the Supreme Court has only 176 working days in a year, were changed (link to the newsitem via Nanopolitan). The CJI's argument would certainly apply to the High Courts and lower courts which are woefully understaffed, but this has not been true at the Supreme Court itself for some time. Recent issues of 'Court News' bear out the depressing fact that cases pending at the Supreme Court are increasing because the number of cases instituted consistently outpaces those decided. This situation calls for more drastic solutions, and reducing the large number of holidays at the apex court would send out a strong signal to the rest of the system, while also demonstrating good leadership by showing a willingness of those at the highest level of the system to subject themselves to harsher working conditions.

It may also be a good idea to compile and distribute (in future issues of 'Court News' for starters) information about the workload of individual judges (at the Supreme Court, for starters). Many other apex courts around the world release such figures, and academics study them to analyse individual voting behaviour of judges, as well as larger trends on specific subject areas. Providing such information publicly will also act as a more effective check on those judges who are falling behind, while acting as an incentive for those who carry more than their share of work.In the past, Rajeev Dhavan has compiled such information about the Supreme Court, but his writings on this issue always note the difficulty he experienced in obtaining such figures.

Gujarat Elections: Development v. Communal Agenda

My view of a possible chasm between the political class and the voter on the question of seeking political mileage from communal violence met with a well-articulated critical response from Dilip in the comments section.

Today, I found some endorsement for my stand in the article written by Dipankar Gupta in Mail Today. Gupta is fascinated by the similarities in the electoral success of Vladimir Putin and Narendra Modi. He says: “Both are ruthless yet they enjoy enormous popularity. This appears contradictory. How can people forget Godhra? How can Russians forget Chechnya? Easy, just don’t think about it!”

Although Putin’s popularity is based on well-documented facts, Modi’s popularity, I would suggest, is the creation of the media. Gupta says Modi has set up small dams, hydel projects, better transportation systems and enterprises that spell jobs. Modi has claimed at the recently-held HT summit in New Delhi that Gujarat leads the country in power generation, in education, and water distribution, and school drop out rates are down to 3 per cent. The State purportedly has more than 18000 villages with uninterrupted power supply. Much of these claims is drawn from Ernst & Young’s Gujarat: Beyond the Obvious, released with State Government’s support in early October. For a critique of the Ernst & Young report, see this news item.

I have not found any serious examination of these claims of the State Government in the media, even in the context of the ensuing assembly elections. Therefore, I am eagerly awaiting the results to know whether the Modi got a mandate for his development agenda.

The purpose of this post, however, is to draw support for my thesis of a chasm from Prof.Dipankar Gupta. Gupta says:

In 2002, Modi just about made it as CM if one were to look at the percentage of votes received. In 36 constituencies it was neck and neck with the Congress. Then there were places where the BJP won by just 0.5% of votes. In numerous contests, such as Gondal and Jodiya, the BJP would have lost had the Congress, NCP and Janata Dal come together. That is why reports of Modi’s popularity today are all the more striking. If after riding the passions of the post-Godhra riots his vote share was not that impressive, how is it that today, many years later, when tempers have cooled, he is still so popular?”

Gupta suggests Modi’s continuing popularity rests on laurels other than riots, though it is true that he capitalized on the riots and got quite a bang for his money.

If I am correct, I cannot recollect any ruling party or a combination of parties in recent times in any State or at the Centre (except Left Front in West Bengal and Digvijay Singh in 1998 – there may be a few more exceptions) securing a second term at the hustings on the development agenda.

Supreme Court upholds ban on a Kannada novel on questionable grounds

"Dharmakaarana", a Kannada novel, might well turn out to be the first work of literature in Indian languages to be banned by the State Government for carrying certain objectionable paragraphs seen to be derogatory by a class of persons, with the Supreme Court rejecting all liberal challenges to the ban.

As indicated in the previous post, the Supreme Court may not have yet pronounced on the legitimacy of the ban imposed by the Maharashtra Government on the book on Chhatrapati Shivaji. But in a ruling, likely to be seen by many as bordering on absurdity, a two-Judge Bench of the Supreme Court, on May 2 this year, has upheld the ban imposed by the Karnataka Government on the Kannada novel, Dharmakaarana.

The judgment, which appears to have been missed by the entire media, is interesting for two reasons. One, unlike the Bombay High Court, which rightly believed it was bound by the Supreme Court’s three-Judge Bench Judgment in the Manzar Sayeed Khan case, the B.P.Singh-Bedi Bench in the Sri Baragur Ramachandrappa case did not think so, and has apparently set an unfortunate precedent to Pasayat-Kapadia Bench which is currently hearing Shivaji book ban case. Secondly, the Dharmakaarana judgment is absurd because it cites at length, the same paragraphs, which were found to be objectionable by the Government before imposing the ban. The Dharmakaarana judgment is here.

One of our regular readers, who wishes to remain anonymous, asks:

a)If something is held to be promote feelings of enmity and hatred between different classes of the citizens of India as envisaged under Sections 124-A,153-A,153-B, 292, 293 and 295-A of the Indian Penal Code, do you enshrine the offending portions in a judgment upholding a ban on the book?

b) The Supreme Court has concluded that Section 95 of the Cr.P.C. is not violative of Art.19(1)(a) of the Constitution, as the action taken thereunder is of a preventive nature and that a extremely efficacious remedy under Section 96 of the Code is available to an aggrieved party or person.

The judgment says: "It is significant, and it is clear from the very large number of judgments that have been cited before us, that most of the matters pertain to attacks on minorities or religious and social groups or individuals who are perceived as being prodigals or heretics and therefore unacceptable to the conservatives amongst the mainstream. It cannot ever be over emphasized that India is a country with huge diversities in language and religion and the weaker amongst them must be shown extra care and consideration".

Our reader asks, after citing this paragraph:“Does it not put a gun in the hands of hardliners who can ban anything that even incidentally comments on some aspect of their cause?"

Mr.Pratap Bhanu Mehta writes:

Thanks very much for your post about Dharamkaaran. I
have mentioned it in at least 6 columns since the
judgment came (the first time was within days of the
judgment),but have been as disappointed as you that no
one has taken it up. It is a dangerous judgment, and
is post facto vindication of "Satanic Verses" ban. The
interesting thing in this case is also the fact that
the High Court said that if the author removed the
offending passges, the book could be circulated. But
the author refused on grounds of "artisitic integrity"
of the work. This "obstinacy" was then taken to be
implicit evidence of malicious intent.

Social censorship and the legitimacy of book bans

Today, Rajeev Dhawan has written an interesting article in Mail Today on the Tasleema Nasrin controversy. With the controversy on the film Aaja Nachle also throwing up similar issues, there is likely to be extraordinary interest on free speech jurisprudence. In today’s piece, Dhawan remarks:

Where free speech is not bona fide but malevolent, free speech must also be confronted with free speech. Death threats, physical intimidation and coercion can never be the right answer. The limit to free speech is that it should not be malevolent or invite breakdowns of law and order. But even hate speech must be answered with free speech and protest and not coercion, threats and mayhem.

Referring to Taslima’s apology, he said:

Writers cannot be coerced into an apology. But where apologies are offered ( as in the case of the painter Hussain), they must be accepted in good faith as part of peaceful living….Blind in its perceptions, India’s colonial law on censorship contains the formula of prosecute, persecute, forfeit and punish. Malicious prosecutions have made Hussain an outlaw. …Taslima may be provocative, but appears to espouse social reform and not hurt the sentiments of others – even if she looks back in anger.”

Dhawan concludes that Taslima may not be controversial, but simply one caught up in a controversy.

Even as I liked Dhawan’s exposition of the principles that ought to govern this debate, I discovered a major factual error in his piece. He wrote: “Left to itself, the law may be wiser and more astute. The Supreme Court upheld the striking down of James Laine’s book on Shivaji even though Hindutva’s lumpen forces burnt the book and attacked the Bhandarkar Institute under circumstances that could only be regarded as shameful.”

These are the facts:
1. The Supreme Court on April 5, 2007 quashed the FIR registered against Laine by the Maharashtra Government for causing disharmony between communities through his book on Chhatrapati Shivaji, published in 2003. The order is here.
The Court reasoned in this case that it is the sole responsibility of the
State to make positive efforts to resolve every possible conflict
between any of the communities, castes or religions within the
State and try every possible way to establish peace and
harmony within the State under every and all circumstances.

The Court accepted the submission of the appellant’s counsel in this case, Soli Sorabjee that the book was written with its objective to review the historical facts of a great historical figure, therefore, the book has to be read and examined as a whole and a solitary paragraph does not provide any cogent ground to file FIR against the appellants, being publisher and printer of the book.

2. Based on this judgment. the Bombay High Court lifted the ban on the book. The judgment is here.

3. The Maharashtra Government challenged this order in the Supreme Court through SLP (Civil)8931 of 2007. (State of Maharashtra v. Sangharaj Damodhar Rupawate). Supreme Court has stayed the operation of the High Court’s Order, thus allowing the ban to continue. The last hearing of the case was on October 11, 2007.

Outcome of 2002 Gujarat assembly elections: An Analysis

As Gujarat goes to the assembly elections, the question whether the BJP can continue to seek political mileage from the 2002 carnage in the State is often raised. The answer to this, as we saw in the previous posts (and in the comments section) , has been mixed. To seek further clarity on this issue, I sought to know how Yogendra Yadav interpreted his survey results in the 2002 elections.

In an article written in Frontline, prior to the polls, YY and P.M.Patel wrote:

In response to a direct question, as many as 19 per cent of all respondents say Godhra and post-Godhra developments influence their decision about voting. This figure alone is not enough to conclude that the swing-back towards the BJP is due to communal violence. A detailed analysis of the exact nature of the impact of the recent communal violence on voting decisions does not lead to clear conclusions, for many of these voters could not specify the exact nature of this effect. It would be too hasty and perhaps unjust to think that all these ordinary voters approved of the massacre of Muslims and jumped on to the BJP bandwagon. But it is clear that the BJP has succeeded to keep the Godhra incident as an unrelieved experience on an unresolved tension for a large number of Hindus and use it to its advantage. For many respondents Godhra and post-Godhra violence is something that can overpower all other considerations.

They further wrote:

On the face of it, an average Gujarati does not approve of the post-Godhra carnage ("ramkhan" or "hullad"). When asked directly to chose between three possible responses to this violence, two involving degrees of approval and one expressing complete disapproval, an overwhelming majority of 72 per cent said it was "completely unjustified". This is as true of the Hindu respondents as of those who intend voting for the BJP. But this consensus breaks down as soon as we pick up the role of the State during this violence that invited widespread censure and condemnation. On balance more people disapprove the State government's handling of the riots than approve of it, but this is a contentious arena where partisan differences begin to play a role. Similarly, the government's cussed handling of the post-riot relief work also invites popular censure. A majority of the respondents, including a majority of Hindus, believe the government did not do enough or did nothing.

The survey attempted to probe deeper than these direct questions could and went into the popular psyche on the communal issue. A series of statements were read out to the respondents and they were asked if they agreed with them. The answers do not reveal as communally polarised a situation as is sometimes believed or projected. But it does bring out deep prejudices, social distance and hostility. On balance, most of the soft communal statements won approval from a majority of Hindu respondents. A majority agreed that one cannot have the same empathy for followers of other religions as one has for one's own, and that democracy means the rule of the majority community, that religious conversions and inter-religious marriages should be banned by law. The majority of Hindu respondents are not directly opposed to democracy but hold a strongly majoritarian understanding of what democracy should mean. But all the responses do not fall in this line. A general statement about all religions being the same also gets approval, while the demolition of Babri Masjid invites more disapproval than approval. Besides, it should be noted that the approval for communal statements is seriously contested by a large number of Gujarati Hindus.

It would be hard to provide clear survey evidence that the BJP's apparent comeback is directly related to the anti-Muslim carnage and the communal polarisation. But the survey does provide some clear pointers. If all the communalism-related questions are put together to form a measure of intensity of communal feelings, we see a direct association between this measure and the vote for the BJP

.

In an article in Frontline, explaining the post-poll findings in 2002, YY wrote:

Violence often serves to redraw boundaries of identity and affiliation. This is what seems to have happened with Gujarat. An analysis of the 65 constituencies that saw significant anti-Muslim violence in early-2002 brings out the dark shadow on this verdict of the widespread massacres.

Although the overall number of seats held by the BJP and the Congress has remained about the same, as many as 76 seats have changed hands between this and the previous round of Assembly elections. The BJP has lost 29 seats to the Congress, but has more than made up for it by snatching 35 seats. But it is important to note that 22 per cent of all voters mentioned the Godhra carnage or the post-Godhra violence as the decisive consideration. A quarter of the BJP's voters and one-sixth of the Congress' voters mentioned either of these considerations. Other secular considerations weighed more heavily for the Congress voters than those of the BJP, but there were no sharp divergences here.

What followed was a contradiction of YY’s initial finding that the violence-affected constituencies tended to return the BJP candidates. YY asked:

Did the riots play a role in swinging voters back to the BJP even in areas that did not see any riots? The answer, according to the CSDS post-poll survey, is a clear `yes'. The proportion of Hindu respondents who say that Godhra mattered a `great deal' in their voting decision is about the same in the riot-affected regions as in the rest of the State. If anything, respondents in the riot-affected areas were more circumspect in discussing this and keener than the others to deny any connection with Godhra. The Sangh Parivar has succeeded in turning Godhra from a local event to a generalised icon; the proximity of Godhra to a voter has had nothing to do with the geographical distance.

When asked to agree or disagree with a series of statements concerning Godhra and its aftermath, a majority of Hindu respondents endorsed the post-Godhra riots while trying to distance themselves from their consequences. A clear majority of 55 per cent of Hindu respondents (73 per cent of those who had any opinion on the matter) agreed with the suggestion that the post-Godhra riots were "necessary to teach a lesson to anti-national elements" (read Muslims). While this category includes a larger proportion of BJP voters, it is worth noting that 47 per cent of the Congress voters (69 per cent of Congress voters who have any opinion on this question) also agreed with this communal statement. At the same time, it is also true that an ordinary Hindu does not want to look back now. Two-thirds of them agree that both Hindus and Muslims should now forget Godhra and its aftermath. Oddly for a people who are prepared to endorse the massacre of Muslims, nearly everyone agrees that those found guilty of violence in the riots must be punished.

On a simple reading these are contradictory answers. But these contradictions bring out the state of the mind of an average Gujarati Hindu. A Congress supporter could use these as the justification of the soft-Hindutva line that was deliberately adopted by the Gujarat Congress during the election campaign.

Does the truth lie behind these contradictory findings? I doubt.

(Those interested in knowing the methodology adopted by CSDS in these surveys may read this report which appeared in The Hindu in 2003)