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Friday, Nov 26, 2004

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Opinion - Leader Page Articles

The Sankaracharya case

By Rajeev Dhavan

The controversy over the arrest of the Sankaracharya of the Kanchi Mutt exposes the hypocrisy of political Hinduism.

BAIL IS a matter of civil liberty. People cannot be denied bail unless there are good reasons for doing so. India's prisons are full. The National Human Rights Commission reports that on June 30, 2001, there were 3,19,065 prisoners in jail against an authorised capacity of 2,19,880. Of these, 74.18 per cent are under-trial prisoners. The conditions in prisons are bad with the incidence of mental depression increasing. Justice V.R. Krishna Iyer's celebrated slogan, `bail not jail', reminds us of these facts. Prison in India in any form is a punishment — even for the innocent until proven guilty. But however strong the bias in favour of granting bail, it is not a right without reserve.

India has a responsible law on bail. Bail is granted in bailable cases. In non-bailable cases, bail may be refused if there is a strong prima facie case for a serious offence. But the relevant factors that are considered are whether the person detained will abscond; will interfere with witnesses and investigation; is needed for police interrogation; or the due process of justice requires his detention. Apart from India's unique provision of anticipatory bail, as soon as a person is arrested there is a judicial oversight by the magistracy with further remedies for bail to the District Judge, the High Court and the Supreme Court. If the investigation is not completed in 60 — or an extended 90 — days, bail is granted. This balance has to borne in mind while considering `bail or jail' for the Sankaracharya of the Kanchi Mutt, Sri Jayendra Saraswathi.

But both in law and practice, Indian law favours the rich and powerful. Within the law, the privileged claim to have a fixed abode, find sureties easily and furnish large bail bonds. Outside the law, the privileged are influential with the police, those in power and, possibly, the judicial system. Sometimes, this influence is all pervading. When the rich and powerful are arrested, it is news. So is their release. The police are accused of giving in to influence — both when they oppose bail and when they do not. But in India, powerful people do interfere with the investigation. Witnesses are intimidated, influenced and bought to live in fear. In Indian conditions, the powerful message of `bail as civil liberty' may result in the death of witnesses and victims. We have yet to recover from the Zahira Sheikh episode in the Best Bakery case.

The Acharya's case is not controversial, but is one that is caught up in political controversy. The crime he is accused of is murder. One of his detractors, Sankararaman, was brutally murdered by six persons inside the Varadaraja Swamy temple, Kancheepuram, on September 3, 2004. The Acharya's implication allegedly stems from details provided by the co-accused, Kathiravan, Rajni and others, the traceability of the funds for the contract killing to currency drawn from the Mutt's account in Kancheepuram, and the cell phone contact with the Seer's phone at the time of the killing. The alleged motive — Sankararaman had been exposing the Acharya and the activities of the Mutt since 2001 and more strongly in letters dated May 13, 20 and 24, July 12 and 30 and August 8 and 30, 2004 with revelations to the Tamil magazine, Nakkheeran. The allegations included graft and misappropriation of the Mutt's funds.

On November 23, 2004, the Acharya was also charged with serious offences, including attempt to murder and causing hurt with dangerous weapons to S. Radhakrishnan, a former associate of the Mutt, in September 2002. These also stem from the statements of the co-accused, Kathiravan (who retracted them on Wednesday).

In the Sankararaman killing, 19 of the 22 accused are in custody. The present campaign by the BJP and other Hindutva parties pleads that the most powerful and influential of the alleged conspirators — the Acharya — be released on grounds of his holiness. Under the law and practice of bail, the crime of murder is serious, there is a strong prima facie case, witnesses may be influenced, there is some evidence of a possible absconding and the conspiracy requires police interrogation. No doubt, the Seer should be treated with respect. In time, he should be released with the usual stringent conditions of reporting to the police, sureties and undertakings that he will not interfere with the witnesses and the investigation.

The Acharya has always been controversial. Born in 1935, installed as a successor in 1954, caught in a succession controversy between 1983 and 1987, he became the Sankaracharya of the Kancheepuram Mutt in 1994. By that time, he had changed the activities of the Mutt fundamentally. From the 1980s, the Acharya veered the Mutt from its primary activities of religion, Vedas and prayer towards people's mobilisation (through the Jan Kalyan and Jan Jagran movements), a direct interest in elections and politics and lucrative welfare schemes to create schools, universities and hospitals — many run with profit in mind. The finances of these ventures and of the Mutt need scrutiny.

The Acharya's interest in politics and public affairs, including the controversial anti-conversion legislation of 2002, increased. In 2002 and 2003, he made proposals in the Babri Masjid controversy to persuade Muslims to permit activity on the undisputed and, later, the disputed lands in Ayodhya. Muslims saw through this as supportive of an approach that was in line with that of the Sangh Parivar. Critics of the Mutt's transition from traditional religion to its new public and political reincarnation were given short shrift. Strangely, Hindu devotees seemed unconcerned about the most fundamental change in the Kancheepuram Mutt since its inception. Or has Hinduism lost its interest in the faith and is only interested in its leaders?

Mauled in the general elections, the BJP and the Sangh Parivar have constantly threatened to bring India to a halt and revert to their temple agenda. The building of a Ram temple on the Babri Masjid site was revived with ferocity. The Acharya's case proved to be `a godsend' to be instantly politically appropriated. That all this is unworthy and unscrupulous politics needs repetition.

But out of this controversy has emerged a demand that Sankaracharyas — and, perforce, religious leaders — should get immunity from criminal prosecution or at least, require a sanction for investigation and prosecution. Surely, this cannot apply only to Hindu leaders? If it does, to which ones does it apply? Today we have temples and leaders at every street corner. Many are the fiefdom of doubtful characters engaged in still more doubtful activity. If extended, such immunity must extend to every Muslim maulvi, Buddhist monk, Christian, Jain and Sikh priest. Even this does not exhaust the list.

The concept of total immunity is alien to our governance. Even Presidents and Governors have to answer for criminal acts after they demit office (Article 361 of the Constitution). In the Hawala case (1998), the Supreme Court removed the Single Directive requiring permission to investigate civil servants who have illegally brought this directive back. Any immunity for Hindu or any religious leaders would violate the equality provisions or prompt all Indians to become religious leaders.

Under the religious freedom clauses, since 1954, the Supreme Court has laid down that the state cannot interfere in the `essential practices' of religious endowments. But this can never be a licence to commit theft, murder and other crimes. For centuries, religious endowments have been hotbeds of corruption. Today, many earn crores. All religious endowments are `trusts' for the people — not a law unto themselves.

Since 1863 — followed by existing legislation of 1890 and 1920 — all endowments have been under regulatory control. Apart from the general law, there is special legislation for Muslim Waqfs. The special State legislations for Hindu endowments were to protect the Hindu faith from its own manifold corruptions. Hindu endowments have received more restorative and other State grants than any other faith. How can such endowments not be accountable for the funds they get from devotees and governments?

Ultimately, the controversy over the arrest of the Acharya of the Kanchi Mutt exposes the hypocrisy of political Hinduism. Are Hindus no longer interested in what happens to Hindu institutions? Does it not matter to them that the fundamental nature of the Mutt is undergoing a change? Is defending the faith about political campaigns of defending Hindu leaders accused of crime? The politicised Hindutva campaign over the Acharya's arrest symbolises a surrender to politics at the expense of Hinduism's soul.

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