Thursday, 5 May 2022

Ishtiaq Ahmed putting Jinnah back in the bottle.

Prof Ishtiaq Ahmed of Stockholm University has published an 800 page political biography of Jinnah who he says was determined to dismember India. The Fair Observer states that he 

analyzes everything Jinnah wrote and said from 1906 onward, the year Pakistan’s founder entered into public life.

The problem here is that politicians don't necessarily say or write what they mean or want. 

Ahmed identifies four stages in Jinnah’s career. In the first, Jinnah began as an Indian nationalist.

Or a guy whose career would benefit by appearing to be a nationalist. Jinnah rose in Congress as an anti-Muslim Leaguer.  But this meant he could join the League on his own terms and gain a leadership position at a time when Muslims wanted to make a mutually beneficial deal with Congress. Was he sincere when he told the Joint Select Committee, in 1919, that he thought the Muslims would give up separate electorates quite soon? He identified himself as a nationalist at that time. Was that the whole truth? 

Perhaps. He himself could be a plausible Prime Minister of a united India. He had merit. He had experience. He had brokered the deal with Congress which resulted in the Lucknow Pact three years previously. The Brits could see he was a sensible man who stuck to his guns but with whom they could do business. 

Then Gandhi and Khilafat turned Indian politics into a madhouse. Khilafat eclipsed the League. Gandhi turned Congress into a personality cult propagating a religion of Ahimsa which repulsed the Muslims. Had Gandhi not unilaterally surrendered in 1922, Jinnah would have been relegated to some second tier post- Advocate General, Ambassador to the League of Nations- but the country would have gone in a direction he personally would have found repugnant.

 Jinnah's problem was that the Muslim masses were backward and divided and thus his own role as spokesman and negotiator could disappear overnight. Sooner or later power would pass to the religious leaders and rural notables. Urbane lawyers would be dispensed with.  Jinnah as an Ismaili convert to the Twelver Shia sect was in a weak position. However, once Khilafat (which was Hanafi) was in the back window, he could make a comeback. The crux of the matter was the 1927, 'Delhi proposals'  or 'Mussalman proposals' to Congress which it accepted. This conceded joint electorates in return for separation for Sindh, Provincial status for NWFP & Balochistan, majority seats in Bengal and Punjab (in accordance with population) and one third seats at the Center (in excess of population). Jinnah's contribution was to dilute the share of Punjab and Bengal which thus made him appear the champion of the minority Muslim. However, this caused a split within the League. The lesson for Jinnah was that the Muslim majority areas might ditch the Muslim minority and do a deal with the Hindu majority states thus leaving the great mass of Muslims out in the cold though it was their numbers which had enabled the majority states to get a bigger share of power. 

In the second, he turned into a Muslim communitarian.

Only after Gandhi & Khilafat revived medievalism. Leftists, like Hasrat Mohani and Swami Kumaranand could play footsie with Gandhi and Khilafat and any other nonsense that might crop up because they needed a bridge to the masses. Other upper crust lawyers might patronize leftist students or get radical journalists to run their newspapers or even organize Trade Unions so as to rise politically. But Jinnah had already been President of the League and the moderate wing of Congress's rising star. He felt he was above that sort of thing.

What were Jinnah's choices? He couldn't be accepted as a Sindhi or Punjabi or Bengali leader. His strength lay with the minority Muslims. But the Brits could easily have cut that ground from under him by taking separate electorates off the table and finding an alternative way to do 'minority protection'.

Indeed, this was the wider problem the Muslims faced. The Parsis and Hindu banias had a head start. What if they had found a way to bribe the Brits? As it was, the Muslim Provinces viewed the franchise which the Brits settled on for the 1937 election with grave suspicion. The fact that the Brits were supposed to be favoring them convinced Muslims they were being led down the garden path. After all, even Gandhi had managed to fool them. Motilal and C.R Das kept appeasing them by granting them disproportionate representation even though they said their stated purpose was to frustrate the workings of the elected councils. If Hindus do such obviously stupid things, the reason must be for some very smart reason. What could that be? The only possible explanation was that the Brits would ditch the Muslims at the last minute for some reason no one had begun to suspect. 

After the Khilafat fiasco, Jinnah's career revived. He was considered a good negotiator who could get more reservations, etc., from Congress- at least so long as Motilal Nehru was his opposite number. After Motilal's death, Jinnah's star faded once again as the Mahacrackpot launched yet another doomed mass movement. 

I should mention that the Nehrus had initially gained salience because they were closer to the North Indian Muslims. However, Jawaharlal was able to reposition himself as a Socialist and thus could take an independent line. This meant Jinnah had a narrowing window of relevance. The abject failure of Nehru's 'Mass contact' program for rural Muslims as well as other grievances- e.g. Wardha education scheme promoting 'Ahimsa', flying of the national flag, use of Hindustani etc- meant that the League became the party of choice wherever Muslims were in the minority. In any case, both Hindus and Muslims realized that it was no fun being the minority under elected Governments. Thus, by 1938, the Muslim League could get money from wealthy Muslims in Hindu majority areas. They were winning byelections. Moreover, since Muslims were only a quarter of the population, they didn't want a Federal Government to function. Muslim majority provinces might do a deal with the Hindu provinces while leaving the minority Muslim in the lurch.

In 1940, the Lahore Resolution won widespread support and laid the foundation for the Muslim League monopolizing the Muslim vote in 1946. Jinnah got both the praise and the blame for what subsequently happened. A lawyer's career attains apotheosis not when he defeats his opponent- Justice or injustice may prevail in any case- but when he ruins his own client. 

In the third, Jinnah transformed himself into a Muslim nationalist.

Unfortunately his own nation turned out to be on the wrong side of the border. Jinnah transformed his own people into second class citizens. True Pakistan and Bangladesh got to ethnically cleanse Hindus and Sikhs but even the Kashmir Valley could do so. In other words, ethnic cleansing would have happened wherever Muslims were in the majority or were better organized. What they lost because of Jinnah was reserved seats in India and a disproportionate share in power. But for Jinnah, Muslims would held the balance of power in Parliament. On the other hand, Jinnah- whose family were fairly recent converts- may have been correct about one thing. Islam could not co-exist with Hinduism. It required 'hijrat' or 'jihad' of its adherents. 

In the fourth and final stage, he emerged as the founder of Pakistan where he is revered as Quaid-i-Azam, the great leader, and Baba-i-Qaum, the father of the nation.

The majority of Pakistanis- who spoke Bengali- soon came to hold a very different view of him. Interestingly, Jinnah's own descendants are Indian and non-Muslim. Whatever it was he was the father of, his progeny wanted nothing to do with it.


Ahmed is a political scientist by training. Hence, his analysis of each stage of Jinnah’s life is informed both by historical context and political theory. Jinnah’s rise in Indian politics occurred

at a time when Tilak and Gokhale were the most important figures in Mumbai politics. Jinnah was with the 'naram dal' and got into the Imperial Legislative Council in 1909. He initially opposed the League whose setbacks- e.g. reversal of partition of Bengal- meant they had to make terms with him so as to get an effective negotiator. He brokered the 1916 deal with Congress which gave Motilal salience as a Hindu who was liked by Muslims. 

at a time when leaders like Motilal Nehru,

had not yet emerged on the national scene.

Mahatma Gandhi,

was still in South Africa 

Sardar Vallabhbhai Patel,

whose elder brother entered politics as part of the Bombay Provincial Council while the Sardar concentrated on earning money for the family. Later he rose much higher than his brother who died in 1933. But, Jinnah was President of Muslim League and an All India politician in 1915 when Gandhi and Motilal and Patel were insignificant provincials.

Jawaharlal Nehru,

who rose as his father's political secretary 

Maulana Abul Kalam Azad

Azad started of as a revolutionary; the British jailed him in 1916 

and Subhas Chandra Bose

who returned to India only in 1921. He rose as C.R Das's deputy but Das was a late bloomer. My point is that Jinnah was senior to all these figures from 1916 itself. Furthermore, he had defended Tilak on sedition charges at about the same time as C.R Das gained national fame thanks to the Alipore case. In other words, Jinnah was the coming man in Indian politics. Sadly he was from the wrong religion and the wrong part of India. He had to himself create a country so as to get to head it. 

were also major players in India’s political life and struggle for freedom. Jinnah’s role in the tortured machinations toward dominion status and then full independence makes for fascinating reading.

Sadly all those 'tortured machinations' were otiose. The Brits would have transferred power in any case- probably sooner rather than later because India was taking up too much of Westminster's time. 

Ahmed also captures the many ideas that impinged on the Indian imagination in those days from Gandhi’s nonviolence, Jinnah’s religious nationalism

Jinnah was a British style lawyer-politician. He discovered that there was only one way for him to get to the top and some other Muslim politicians in a similar position agreed and decided to cling to his coat tails. Was this 'religious nationalism'? No, because orthodoxy- proclaimed by Iqbal as much as Azad- was that you could either be 'wattaniya' (nationalist) or you could be islam-pasand (Islamist) but not both. On the other hand, there had been confessional states in Islam- e.g. the Hanafi Ottomans vs the Safavi Shias. 

and Nehru’s Fabian socialism.

Which wasn't really Fabian- i.e. focused on building up from municipal socialism to the regional and state level. The British had no objection to the Indian's taking this gradualist approach. Indeed, Olivier, as Secretary for India, expressed the Fabian view- the Indians were refusing to build from the bottom up towards representative Government. It is here that Jawaharlal and his dynasty failed.  They talked as though their peons had already down the spadework. There were plenty of peons but what they had built was merely whatever they could build- which was not much but which gained them a rent. The truth is you can't have Socialism unless you have a Society. India didn't. It had people who might get along with each other well enough but who had grave doubts they could achieve anything desirable by working together. 

The problem was two-fold

1) Indians didn't want to pay taxes for 'municipal services' or anything else. Why dispose of faeces? Let shit pile up in the streets. Who wants proper schools with teachers who get paid? Let children 'earn while they learn' how to spin cotton or milk cows. 

2) Indian politicians liked making stupid speeches. They didn't want to actually do anything sensible. After all, you don't have to be a Mahatma or a Qaid to do smart stuff. It is only by doing really stupid shit that you get your name in the history books- provided you come from a shithole and your dynasty pays those who write history books. 

Jawaharlal's Socialist credentials were strongest in the late Thirties when he was espousing a 'United Front' politics. This was bound to fail because the sort of Imperialism he was against was Democratic and on the side of the angels. Hitler and Tojo had to weaken the British enough for Nehru to get his way. Still, it was only Bose who was foolish enough to join hands with the Japs. Gandhi seems to have thought they would win. He truly had a genius for always backing the worst possible horse. 

Jinnah’s Tortured Journey

As an Indian nationalist, Jinnah argued that religion had no role in politics.

The problem was that Indian politics had no role in India's politics. Westminster made all the important decisions. True, they did occasionally think that consulting Indians might help. But the Indians turned out to be stupider and more factionalized than even the diehard Tories painted them as. Ultimately, Netaji Bose, like Aung San in Burma, convinced the Brits that they couldn't trust native armies. They had better leave rather than get suckered into Palestine type 'peace-keeping' roles. Let the natives ethnically cleanse each other to their hearts' content. They'll soon pay us more for guns than they ever yielded us in revenue. 

His crowning achievement during these days was the 1916 Lucknow Pact. Together with Congress leader Bal Gangadhar Tilak, Jinnah forged a Hindu-Muslim agreement that “postulated complete self-government as India’s goal.” That year, Jinnah declared that India was “not to be governed by Hindus, and … it [was] not to be governed by the Muslims either, or certainly not by the English. It must be governed by the people and the sons of this country.” Jinnah advocated constitutionalism, not mass mobilization, as a way to achieve this ideal.

In other words, either Indian politicians would make India easier and more profitable to administer- in which case they were welcome to take their place with other Dominion Premiers- or else they would fuck up and get dismissed and Governor's rule would be imposed till a more sensible bunch of people got elected. This may have been good for India but it was little fun for Indian politicians. Capable Dewans or engineers or businessmen might displace vaunted Mahatmas and Netas and Qaids.  


When the Ottoman Empire collapsed at the end of World War I, Indian Muslims launched a mass movement to save this empire.

They had already been protesting Turkish territorial losses in Libya etc. Amba Prasad Sufi and Ajith Singh and others had been trying to get Indian soldiers in Iraq etc to rebel. Maulana Azad and the Ali brothers had been jailed in this cause during the War itself.

Among them was Jinnah who sailed to England as part of the Muslim League delegation in 1919 to plead that the Ottoman Empire not be dismembered and famously described the dismemberment of the empire as an attack on Islam.

Kidwai and others pretended that Jinnah and the Aga Khan had betrayed the cause because they were Shias. Khilafat soon collapsed with various people being accused of embezzlement. Jinnah was well out of that dog's breakfast. It must be said, Jinnah's marriage had damaged him. His wife was too westernized and, worse still, she had a soft spot for Gandhi. Still, he could have had a career as a junior partner to Motilial's Swaraj party. Under, Jawaharlal who- like some other younger men, e.g Chaghla- thought Indian politics had to be about land reform and other economic issues- Jinnah ceased to be an attractive partner for Congress. After 1937, Muslims in non-Muslim majority provinces were running scared. They slit their own throats by backing Jinnah though some could migrate and make good in Pakistan.

Did Jinnah have a 'threat point' which he failed to use in a sensible manner? Not really. India could not have had a strong federal center save as a place which could drive Hindu reform and forge a more progressive 'Hindutva' identity which could defeat the fossilized caste system and the stupid 'status competition' involving being more-vegan-than-thou it engendered. 

Sadly, India refused to tackle the primary reason it was conquered in the first place- viz. it had a shit navy and wouldn't make lots of nice guns for its soldiers. If you can't defend yourself, you may as well also neglect feeding yourself. Nehru's 'nanga bhooka Hindustan' was such a shithole that neither the Commies nor the Capitalists wanted it. West Pakistan did build up its Army but it didn't really follow a sensible economic policy either. 

To support the caliph, Indian Muslim leaders launched the Khilafat Movement. Soon, this turned into a mass movement, which Gandhi joined with much enthusiasm. Indian leaders were blissfully unaware that their movement ran contrary to the nationalistic aspirations of Turks and Arabs themselves.

The thing was hilarious. The Caliph ordered the killing of Ataturk. An Indian Khilafati turned up promising loads of money but he was an assassin in British pay. Ataturk killed him and abolished the Caliphate. 

Incidentally, around the time Gandhi unilaterally surrendered, the Muslims discovered that the Viceroy had gone to bat for them. In other words, the Viceroy was a better friend than the bania crackpot. By 1924, Delhi Muslims were openly saying that British rule was better than Hindu rule. They were right. Most had to flee in 1947 and Nehru & Co. changed the law barring them from returning to reclaim Indian citizenship. 

Later, Islam would emerge as the basis of a rallying cry in Indian politics.

It had been that since the time of the Sultanate. 

The nationalist Jinnah started singing a different tune: He argued that Muslims were a distinct community from Hindus and sought constitutional safeguards to prevent Hindu majoritarianism from dominating.

Sri Lanka got that as the price for universal suffrage in 1931. Gandhi's genius was to unite all the minorities- even non-Brahmin Hindus in Madras against the INC at the second Round Table Conference.  

In the 1928 All Parties Conference that decided upon India’s future constitution, Jinnah argued that residuary powers should be vested in the provinces, not the center, in order to prevent Hindu domination of the entire country.

The problem was the army. Either the non Muslim 75 percent of the country controlled the Army- in which case 'residuary powers' for the provinces would be meaningless legalese- or else the Brits had to stay on indefinitely at the Center. The trouble is that the Brits wanted to transfer power at the Federal level as the next step to responsible self-government. This raised the mirage of a Pakistani army powerful enough to protect Muslims in India. 

Ahmed meticulously documents how the British used a strategy of divide and rule, ensuring that the chasm between the Congress and the Muslim League would become unbridgeable.

The Brits wanted to keep control over Defense and External Affairs. The Indians did not want to admit their dependence on the British Navy which, after all, was what had created the Empire in the first place. They thought of the Army as a purely internal tool. The truth is the Indians weren't ready for independence. Indeed, the Indians had a British admiral for their Navy for the first decade after independence. Even now, it is obvious that if India wants to stand against China it can only do so as part of Quad. Defense procurement, of course, because of a post-Independence decision to keep the Army weak-  remains a shit-show. 

As India turned to mass politics under Gandhi, Jinnah retreated to England. After a few quiet years there, he returned to India in 1934 and was elected to the Central Legislative Assembly, the precursor to the parliaments of both India and Pakistan. Jinnah argued that there were four parties in India: the British, the Indian princes, the Hindus and the Muslims. He took the view that the Congress represented the Hindus while the Muslim League spoke for the Muslims.

In 1939, Gandhi said that Congress was a High Caste Hindu party. Since Hindus are all wedded to Ahimsa, if the Brits left the Muslims and the Punjabis would overrun the country. That is why the Brits must hand over control of the Army to Congress. 

Ultimately, Jinnah got his Pakistan- however 'moth-eaten'- because his 'mass-contact' program was better than Nehru's or Gandhi's.  

Importantly, Jinnah now claimed that no one except the Muslim League spoke for the Muslims.

While Gandhi had always claimed that the INC spoke for the entire nation. That's why he wanted the Brits to transfer all power to the INC. 

This severely undercut Muslim leaders in the Congress.

But not other Muslim leaders who had their own parties- e.g. Unionist Party in Punjab or Krishak Praja party in Bengal. 

Jinnah had a visceral hatred for the erudite Congress leader Azad, who was half Arab

and half Afghan.  

and a classically-trained Islamic scholar with an encyclopedic knowledge of the Quran, the hadith and the various schools of Islamic thought.

But he became a journalist and then a revolutionary agitator. Had India not been partitioned, Azad may have had an important role. But, it turned out that he had merely been a 'show-boy'. He declined into insignificance and is said to have become fond of the bottle.  

Furthermore, Azad’s mastery of the Urdu language stood unrivaled. He wrote voluminously in this pan-national Muslim lingua franca. In contrast, Jinnah was an anglicized lawyer who wrote in English and spoke poor Urdu.

Yet, Jinnah prevailed. In 1946 the League got about 87 percent of the Muslim seats. 

Jinnah’s argument that the Muslim League was the only party that could represent Muslims was not only conceptually flawed, but also empirically inaccurate. Muslims in Bengal, Punjab, Sindh and the North-West Frontier Province (NWFP) supported and voted for regional political parties, not the Muslim League.

But the Premiers of the provinces supported the Lahore Resolution. The hold out was NWFP but Badshah Khan's Gandhian tactics proved useless against the cry 'Islam in danger!'

In fact, voters gave the Muslim League a drubbing in 1937.

Thus, it was only experience of Congress rule which drove Muslims into the hands of the League. 

This hardened Jinnah’s attitude, as did the mass contact program with Muslims that the Congress launched under Nehru.

Which failed utterly. Nehru wasn't good at that sort of thing. 

When the Congress broke its gentleman’s agreement

Previously 'dual membership' was usual. To understand why Nehru was intransigent on this we should remember that, like his father, the fool had wanted to sabotage the 1935 Act. The Brits cunningly increased the franchise (or else they simply did what was sensible and feasible- which amounts to 'cunning' due to they had white skins) and so the Congress won more seats than it expected. I believe, Zetland thought Congress would do badly as 'local notables' would sway the vote towards Loyalist candidates.

Congress's success in the elections sharpened its hungered for office. Nehru started thinking of Congress as being like the Kuomintang- a truly National party which could make rapid progress towards Socialism and Secularism sans sexy shenanigans.  

with  the Muslim League to form a coalition government in United Provinces (UP) after winning an absolute majority, Jinnah turned incandescent.

He did more. He greatly expanded League membership by dropping the fees. However, Congress incapacity, corruption, and discriminatory behavior soon delivered the Muslim vote into his hands- in non-Muslim majority Provinces. 

In retrospect, the decision of the Congress to go it alone in UP was a major blunder.

Not really. It would have been blamed either way because its administration would still have been shitty. The difference is that the Mahasabha would have mobilized against 'Muslim appeasement' and this would have put an end to Nehru's dream of taking Congress to the Left. 

After taking office, the Congress started hoisting its flag instead of the Union Jack and disallowed governors from attending cabinet meetings. Many leaders of the Muslim League joined the Congress, infuriating Jinnah. He drew up a list of Congress actions that he deemed threatening to Islam. These included the Muslim mass contact campaign, the singing of Vande Mataram, Gandhi’s Wardha Scheme of Basic Education and restrictions on cow slaughter. Jinnah came to the fateful decision that he could no longer truck with the Congress and the die was cast for a dark era in Indian history.

It wasn't dark for Hindus in Hindu majority areas- i.e. the vast majority of Hindus.  

The Two-Nation Champion

In March 1940, Jinnah threw down the gauntlet to the Congress. At a speech in Lahore, he argued that India’s unity was artificial, it dated “back only to the British conquest” and was “maintained by the British bayonet.” He asserted that “Hindus and Muslims brought together under a democratic system forced upon the minorities can only mean Hindu Raj.”

It could have meant sensible Raj. But Hindus aren't sensible- Jinnah was right about that. But the same was true of Muslims. 

In this speech, Jinnah argued that Hindus and Muslims belonged “to two different civilisations which are based mainly on conflicting ideas and conceptions.” He claimed that Muslims were “a nation according to any definition of a nation, and they must have their homelands, their territory, and their state.” Ahmed rightly points out that this speech was Jinnah’s open declaration of his politics of polarization. From now on, Jinnah had set the stage for the division of India.

Which is the only way he could have a political career if the Brits left.  

Ahmed also goes into the claims of Chaudhry Sir Muhammad Zafarullah Khan, popularly known as Sir Zafarullah, an Ahmadi leader who was Pakistan’s first foreign minister.

Brilliant man. Sadly, the Ahmadis were declared non-Muslim by Bhutto's government some thirty years later. The Ahmadis had slit their own throat. 

Khan and his admirers have claimed credit for the Muslim League’s Lahore resolution for Pakistan, following Jinnah’s historic speech. It turns out that Khan was implicitly supported by British Viceroy Lord Linlithgow who cultivated Khan and extended his tenure as a member of the Viceroy’s Executive Council. This indicates that Jinnah’s bid for Pakistan had the support of a canny Scot who wanted Indian participation in World War II, something the Congress was opposed to without the promise of postwar independence.

This was a 'no-brainer'. Congress was crazy. The Commies were on Hitler's side because of his pact with Stalin. Anyway, Muslims are good soldiers and won't suddenly start babbling about Ahimsa. Meanwhile Gandhi, in 1939, had said Congress, being high caste Hindu, wouldn't lift a finger to protect itself let alone anybody else. 


While Jalal might trumpet Jinnah as the sole spokesman of the Muslims, the historical record reveals a very different picture. Within a month of Jinnah’s Lahore speech, the All India Azad Muslim Conference met in Delhi.

Its convener was assassinated a couple of years later.  

Its attendance was five times that of the Muslim League’s Lahore session. This conference opposed partition, repudiated Jinnah’s two-nation theory and made a strong case for a united India.

But they turned out to have no power alter to the outcome. 

Others argued for a united India too. Ahmed tells us that Bhimrao Ramji Ambedkar, the towering Dalit social reformer who drafted India’s constitution, reversed his position on partition and on Pakistan. After the Lahore resolution, Ambedkar wrote a 400-page piece titled “Thoughts on Pakistan” that advised Hindus to concede Pakistan to the Muslims.

Ambedkar hoped to create an anti High Caste Hindu coalition. His pal JN Mandal made the mistake of choosing Pakistan where he was Law minister. Then the poor fellow had to run away to India. Sad. 

By 1945, Ambedkar had come to the view that “there was already a Pakistan” in the Muslim-majority states.

What Ambedkar and Ambedkarites never acknowledged was that the Muslims had no interest in helping Dalits. During Partition, scavengers in Pakistan were forbidden from emigrating (unless they were Sikh- because Sikhs are good fighters). Ambedkar got his own back by taking away any type of affirmative action from Dalit Muslims. (Christians had already been barred by the 1935 Act) 

As a Dalit, he also turned against the hierarchy in the Muslim community where the high-born Ashrafs lorded it over the low-born Ajlafs and women had very limited rights.

As a Dalit, he also married a Brahmin Doctor and then converted to Buddhism which exported untouchability all the way to Japan- which has no Brahmins. Bali has Brahmins but no untouchables. Incidentally, Ambedkar banned images of Ganesa- which are popular in Japan. What can I say? The man was a politician. Politicians do stupid shit.  Churchill destroyed the Empire he so loved by taking a shilling of Income Tax rather than give it to the Navy when he was Chancellor. 


Jinnah took the haughty view that Muslims were not a large minority but a political nation entitled to self-determination. In 1941, he claimed that Muslims “took India and ruled for 700 years.”

Under non-Indian dynasties- sure. All that the previous thousand years of Indian history had shown was that Indians are shit at running things on their own.  

So, they were not asking the Hindus for anything. He was making the demand to the British, the rulers of India. Jinnah might have been arrogant but he had a genius for propaganda. He constantly fed the press with stories about impending dangers to Muslims once the Congress took over, fueling insecurities, distrust and division.

But Congress was clearly useless. It didn't get that asking the Brits to 'Quit India' when the Japs were at the door was incredibly stupid. Netaji Bose went a step further by allying with those criminals. Congress had a genius for always doing what was worst for the country.  

While Jinnah was ratcheting up the pressure, the Congress made a series of political blunders. It vacated the political space when World War II broke out in 1939. Gandhi idealistically opposed the British while Jinnah collaborated with them, extracting valuable concessions from his colonial masters. When Field Marshal Archibald Wavell took over from Lord Linlithgow as the Viceroy, Jinnah wormed himself into Wavell’s confidence. It helped that Wavell despised the anti-colonial Congress. Ahmed observes that this British general “wanted to ensure that Britain’s military interest in the form of bases and manpower was secured.”

How strange! Why did this 'British general' not want to offer up his own arse to the Japanese for the kind favor of punitive sodomy? 

Jinnah offered him that option while Gandhi did not.

Gandhi offered very good advise to the British in 1940-  You will invite Herr Hitler and Signor Mussolini to take what they want of the countries you call your possessions. Let them take possession of your beautiful island, with your many beautiful buildings. You will give all these but neither your souls, nor your minds. If these gentlemen choose to occupy your homes, you will vacate them. If they do not give you free passage out, you will allow yourself man, woman and child, to be slaughtered, but you will refuse to owe allegiance to them.

American friends of India published an edition of Nehru's 'Discovery of India' in which Jawaharlal made it clear that Gandhi was a harmless lunatic. The Congress Party was business-like and backed by big business. Its 'Socialism' was of the Chiang Kai Shek sort. Reading this, the Americans were reassured. They thought Nehru was a man they could do business with. Sadly, Nehru preferred to buy British crap and employ a British admiral. He truly was the last Englishman- a stupid one- to rule India. 

Jinnah was bloody-minded and shrewd but he was also plain lucky. Many of those who could have contested his leadership simply passed away. Sir Mian Muhammad Shafi, an aristocrat from the historic city of Lahore and a founder of the Muslim League, died in 1932. Sir Mian Fazl-i-Husain, a founding member of Punjab’s Unionist Party who served as counselor to the British Viceroy, died in 1936. Sir Sikandar Hayat Khan, the towering premier of Punjab, died in December 1942. Allah Baksh Soomro, the premier of Sindh, was assassinated in 1943. Sir Chhotu Ram, the co-founder of the National Unionist Party that dominated Punjab, died in 1945. With such giants of Punjab and Sindh dying, the Gujarati Jinnah gained an opportunity to dominate two Muslim-majority provinces where the Muslim League had struggled to put down roots.

If they hadn't died, they'd have been assassinated. Jinnah had no difficulty getting rid of the even more towering Badshah Khan.  


Last-Ditch Efforts to Preserve the Indian Union

It was not all smooth sailing for Jinnah, though. In 1945, the Conservatives led by Winston Churchill lost the general election. Clement Attlee formed a Labour government committed to India’s independence. By this time, Jinnah was in full-fledged confrontation mode. When Wavell convened the 1945 Simla Conference, Jinnah had insisted that the Congress could not appoint any Muslim representatives. As a result, the conference failed and the last chance for a united independent India went up in smoke.

It was the 1946 election which was decisive. 

Ironically, Jinnah wanted the partition of India but opposed the partition of Punjab and Bengal.

Equally ironically, Congress supported the partition of Bengal- which it had vehemently opposed in 1905- while pretending it didn't want to get shot of Jinnah and his Muslims.  

In December 1945, Wavell observed that if Muslims could have their right to self-determination, then non-Muslim minorities in Muslim areas could not be compelled to remain in Pakistan against their will. Therefore, the partition of Punjab and Bengal was inevitable. Jinnah would only get his moth-eaten version of Pakistan.

East Bengal made a mistake by throwing in with this monstrosity.  


By now, the British wanted to leave. The 1946 Naval Uprising shook British rule to the core.

It showed them that India was indefensible because soldiers and sailors could no longer be trusted to follow orders. Let the place fall apart on its own.  

There was another angle to this. The Royal Navy and Merchant Navy needed the natives of ports in the Indian ocean to remain friendly to Jolly Jack Tar. There was a danger than the Ratings Mutiny would spread along the Gulf and Swahili court. Even Singapore was in danger. Mountbatten did a good job in conciliating the Indians who kept on a British Admiral till about 1958.

Weary after World War II, a revolt by naval ratings, soldiers, police personnel and civilians made the British realize that the loyalty of even the armed forces could not be taken for granted. During World War II, large numbers had joined Bose’s Indian National Army and fought against the British.

If the Japanese would let them. By contrast, Indians who joined the Waffen SS on Bose's urgings wouldn't fight anybody. They preferred to get drunk and sleep with prostitutes. Sadly the Free French took to slaughtering them and so they ran hither and tither looking for British soldiers to surrender to.  

After the 1946 uprising, the writing was on the wall.

America would not pay to keep a British Lord in the Viceroy's Palace. Sad. 

Soon, the Cabinet Mission arrived to discuss the transfer of power from the British government to Indian political leaders. It proposed provinces, groups of provinces and a federal union. The union was to deal only with foreign affairs, defense and communications, and the power to raise finances for these three areas of government activity. The remaining powers were to be vested in the provinces.

Provinces like Bengal where millions had starved while a few got rich.  


Everyone rejected the Cabinet Mission Plan. Jinnah did not get his beloved Pakistan. The Congress was unwilling to accept such a weak federal government. The Sikhs bridled at the prospect of being “subjected to a perpetual Muslim domination.” Needless to say, the plan was dead on arrival.

Azad liked it. Thus it must have been shit.

Even as deliberations about the transfer of power were going on, members to the Constituent Assembly were elected during July-August. Of a total of 296 seats for the British provinces, the Congress won 208, the Muslim League 73 and independents 15. British India also had 584 princely states that had a quota of 93 seats in the Constituent Assembly. These states decided to stay away from the assembly until their relationship with independent India became clearer. This turned out to be a historic blunder.

Or simply a recognition that the Princes were a historical anomaly. 

By now, the British had decided to leave. On August 24, 1946, Wavell made a radio announcement that his government was committed to Indian independence and that an interim government would be formed under the leadership of Nehru and that the Muslim League would be invited to join it. Initially, no member of the Muslim League was in the first interim government formed on September 2, but five members joined this government on October 26 that remained in power until India and Pakistan emerged as two independent states.

So, nothing was Mountbatten's fault.  

The Run-up to Partition

Before the two main parties joined the same coalition government, riots broke out across the country. Jinnah called for Direct Action Day on August 16, 1946. Calcutta, now known as Kolkata, experienced the worst violence. SciencesPo estimates that 5,000 to 10,000 died, and some 15,000 were wounded, between August 16 and 19.

Shurawardy thought the Muslims would win. Calcutta would go to Pakistan.  

At the time, Bengal was the only province with a Muslim League government, whose chief minister was the controversial and colorful Hussain Suhrawardy. During the “Great Calcutta Killing,” his response was less than even-handed, deepening divisions between Hindus and Muslims.

He gambled and lost. Still he got to be Premier of Pakistan- for a bit. Then, there was a coup and he went to jail.  Jinnah too was not secure. Had he not died, he'd have been assassinated like Liaquat or unceremoniously turned out of office once elections were held. Cancer saved him from ignominy.


Right from the outset, India and Pakistan embarked on different trajectories. Mountbatten remained as governor-general of India, an interim position instituted in 1947 and abolished in 1959 to facilitate the transition to full-fledged Indian rule. In contrast, Jinnah took over as governor-general of Pakistan. This move weakened both Parliament and the prime minister. As the all-powerful head of a Muslim state, Jinnah left no oxygen for the new parliamentary democracy of Pakistan.

Parliamentary democracy was impossible in the West Wing and, because the East had the majority and, though poorer, was more developed politically, it was obviously impossible at the Federal level. 

Pakistan initially pursued even stupider economic policies than India. However, precisely because it was politically so undeveloped, its people could rise a little more rapidly by their own efforts- at least in the West wing. 

Nawabzada Liaquat Ali Khan, an Oxford-educated aristocrat from UP, took charge as prime minister. Yet it was an open secret that Khan had little authority and Jinnah called all the shots. In India, Rajendra Prasad took charge as the president of the Constituent Assembly of India and the Dalit scholar Ambedkar became the chair of the drafting committee. In contrast, Jinnah was elected unanimously as the president of the Constituent Assembly of Pakistan that failed to draft a constitution and was acrimoniously dissolved in 1954.

Constitutions don't matter. The fact is elections couldn't be held in Pakistan for obvious reasons- the 'tilyars' would have been expropriated. The locals would have taken power. 


This assembly might not have amounted to much, but a speech by Jinnah lives on in history books and is a subject of much debate. On August 11, 1947, Jinnah declared: “If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste, or creed, is first, second, and last a citizen of this State with equal rights, privileges, and obligations, there will be no end to the progress you will make.”

nor any beginning to it either.  

Jinnah summoned his 1916 self that championed Hindu-Muslim unity and blamed the colonization of 400 million souls on internal division. His rhetoric took flight and he claimed that “in course of time all these angularities of the majority and minority communities, the Hindu community and the Muslim community — because even as regards Muslims you have Pathans, Punjabis, Shias, Sunnis and so on, and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalees, Madrasis and so on — will vanish.”

Poor chap, he'd turned senile. There were no 'Madrasis' in Pakistan.  


Jinnah also made a grand promise to Pakistan’s citizens: “You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan. You may belong to any religion or caste or creed — that has nothing to do with the business of the State.” Toward the end of his speech, Jinnah’s rhetoric soared. He envisioned that “in course of time Hindus would cease to be Hindus, and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State.”

Nehru was making equally shite speeches. These guys fucked up. They should have worked with the Brits to learn the ropes of bottom up representative democracy in the Twenties. In the Thirties they should have learned about Military strength and Industrial policy to furnish the sinews of war. Only after India had become truly independent- i.e. able to defend and feed itself- should it have started talking about anti-Imperialism and non-violence and so forth.  Nehru & Jinnah put the cart before the horse. Gandhi was a nutter who believed in reincarnation. He went off happily to some planet where nobody would have sex or say anything interesting or eat anything tasty. But Nehru & Jinnah were Edwardian atheists who died knowing they had lived in a make-believe world. 

No scholar has analyzed this speech better than Ahmed. This professor emeritus at Stockholm University points out that Jinnah neither mentions Islam nor secularism as a foundational principle of the state. Instead, Jinnah refers to the clash between Roman Catholics and Protestants in England. It seems this London-trained barrister is looking at the constitutionalism of Merry England as the way forward for Pakistan.

England has an established Church. The head of State must be an Anglican.  


Ahmed makes another astute observation. Jinnah’s speech might have been addressed less to his audience in a rubber stamp assembly and more to his counterparts in the Indian government.

Fuck they'd care about that cretin?  

Jinnah did not want another 30 to 40 million Muslims from Delhi and UP immigrating to Pakistan, adding even more pressure on an already financially stretched state.

They were welcome to die where they found themselves.  

If these Muslims were driven out in retaliation for what was going on to Sikhs and Hindus in West Punjab and East Pakistan (Bangladesh since 1971), then Pakistan could well have collapsed.

Nope. Watching refugees die can be great fun. Ask the Shurawardy. He didn't lose any sleep, as Minister Civil Supply, during the Bengal Famine.  


Ahmed’s Evaluation of Jinnah

Jinnah excites much emotion in the Indian subcontinent.

One Gujju crackpot responded to another Gujju crackpot. A plaque on both their houses! 

For some, he is the devil incarnate. For others, he is a wise prophet. Ahmed evaluates Jinnah in the cold light of the day with reason, judgment and, above all, fairness.

Jinnah and Gandhi were narcissists who fucked up. Let them both be Fathers of Nations from which sensible people run away as far as Stockholm.  

Jinnah was indubitably an impressive character with wit, will and vision. He forged a disparate nation of Balochs, Pashtuns, Sindhis, Punjabis and Muhajirs, the Urdu term for refugees in the name of Islam, including those coming from India in the west and Bengalis in the east.

No he didn't. What Jinnah put together only the Army could keep from flying asunder- unless the Indian Army intervened.  

However, Jinnah never attained a status worthy of Thomas Carlyle’s heroes.

The Pakistanis made a film about him but Christopher Lee was cast in the leading role. Needless to say, the film was never released. 

Unlike Gandhi, Jinnah did not come up with a new way to deal with the existing political situation.

He was less stupid. 

Gandhi insisted on ahimsa and satyagraha, non-violence and adherence to truth.

Which kept the Brits in business. Jinnah, for some reason, was in a hurry to get rid of them.  

He put means before ends. He was a mass leader

but not an elected leader.  

but was only the first among equals in the Congress Party, which had many towering leaders.

who did stupid shit coz Gandhi told them to do stupid shit 

Gandhi was outvoted many times and accepted such decisions, strengthening his party’s democratic tradition.

till those cretins turned back to Gandhi and did stupid shit because, truth be told, they were all as stupid as shit. 

On the other hand, Jinnah was determined to be the sole spokesman who put ends before means and did not hesitate to spill blood to achieve his political ambitions.

We only say that because he did achieve his ambition. The truth is he was sane enough till Khilafat & Gandhian craziness derailed Indian politics. Then he organized one wing of the resistance to it. But Buddhist Burma had already broken away in 1937. The 'Madrasis' too were tempted to go their own way because of the stupidity of Gandhi, Rajaji &c. The Chinese Invasion put paid to that because au fond Madrasis are Hindus. They just hate Brahmins- more especially Gandhian virtue signalling Brahmins. 

It is true that Gandhi erred in calling Jinnah a Gujarati Muslim in 1915 when Jinnah would have been preferred to be known as an Indian nationalist. Yet Gandhi genuinely believed that everyone living in India was an Indian and had equal rights as citizens.

Unless they were cows, in which case they had superior rights. 

Jinnah championed the two-nation theory and argued that Muslims in India were a separate nation.

He proved his point.  

For him, religious identity trumped linguistic, ethnic or national identity.

It turned out that Hindus wanted democracy and constitutionalism and needed to unite to defend both against Muslims, Maoists and- more recently- a dynasty dying nasty.  

Ahmed’s magnum opus might focus on Jinnah but Gandhi emerges as a true hero in his book.

Though Gandhi caused the mischief which took Jinnah down a separatist path. 


In the short run, Jinnah succeeded. Pakistan was born.

He also succeeded in the long run. Nobody wants to interfere in that shithole. Even America has learnt its lesson. The Chinese will soon follow suit.  

Yet Jinnah also left Pakistan with many of its current problems. He centralized all power, reduced states to the level of municipalities and postponed the drafting of a constitution.

If these things could have been done, they would have been done. Why blame an elderly man already mortally ill? 

Even though Jinnah himself neither spoke his native Gujarati or urbane Urdu fluently, he made Urdu the official language of Pakistan.

Instead of what? French? 

This infuriated East Pakistan, which eventually achieved independence in 1971. As Atul Singh, Vikram Sood and Manu Sharma point out in an article on Fair Observer, the rise of ethnic nationalism threatens the further disintegration of Pakistan for which Jinnah must take some blame.

Why? How is it his fault if the place is a tribal belt or an Army with a country rather than a country with an Army?  

Ahmed’s book also brings into the spotlight the role of facts, factlets and factoids. His facts are based on sources that are empirically verifiable. Factlets are interesting asides, which have value in themselves but may or may not have a bearing on the meta narrative. Factoids are just plain lies that are repeated so many times that many people start believing in them. The biggest factoid in the Indian subcontinent about the partition is the assertion that a majority of Muslims in British India wanted Pakistan.

The League won 87 percent of Muslim seats. True, many Indian Muslims thought they themselves would be in a Pakistani enclave. Had Gandhi lived perhaps they would have got something of the sort. It is perfectly rational to want special treatment.  

Another factoid is the belief that the Congress Party was as keen on Partition as the Muslim League.

Getting shot of the NWFP was a good thing. East Bengal too didn't look too appetizing.  

Ahmed’s book is strong on facts, keeps the readers interested by providing riveting factlets and demolishes several factoids.

Three Takeaways for Today

Ahmed’s masterpiece offers us three important lessons.

First and foremost, facts matter. For a while, myth may obscure facts, narratives might cloud truth, but eventually a scrupulous scholar will ferret out facts. As the English adage goes, “the truth will out sooner or later.”

The same can be said of feces.  

Second, religion and politics may make a heady cocktail but leave a terrible hangover.

Nonsense! Theistic Religion is about how we all get to go to Heaven where we will discover that all the distinctions we made on earth were mischievous and delusive. Thus, while on earth, we should arrange matters such that we all have a good time and then each take the Heavenly elevator assigned to our own sect and then discover everybody we loved but were divided from by some trivial circumstance there to greet us. 

Don't get drunk if you don't want a hangover. You can still party hearty and eat lots of tasty tidbits and sample some delicious beverages. 

At some point, things spin out of control, riots break out on the streets, fanaticism takes over, jihadists go berserk and a garrison state emerges with a logic of its own.

This is nonsense. If there are no Muslims there are no jehadis. Religion played a big role in the rise of the Labor party of the various Christian Socialist parties. But this had no untoward consequences.  

Such a state can be deep, oppressive and even somewhat effective but is largely disconnected from the needs and aspirations of civil society.

But 'civil society' can be utterly shit. Look at the Weimar Republic.  

Such a state is also unable to create a dynamic economy and most people remain trapped in poverty.

Like Saudi Arabia- right? 

Last but not the least, the zeal of new converts becomes doubly dangerous when religion and politics mix. These new converts can turn into fanatics who outdo their co-religionists. As the adage goes, they seek to be more Catholic than the pope. The noted Punjabi Hindu leader Lala Lajpat Rai’s father returned to Hinduism after converting to Islam.

And Kripalani's elder brother converted to Islam. So what?  

Master Tara Singh, the champion of an independent Sikh nation, was born a Hindu but converted to Sikhism in his youth.

There was little distinction between Khattri Sikhs and Hindus at that time. 


Jinnah’s grandfather, Premjibhai Meghji Thakkar, was a Bhatia Rajput who converted to Islam after orthodox Hindus excommunicated Thakkar for entering the fishing business.

And his descendants embraced the religion of their maternal ancestors. That Pakistan business was more stinky than the fishing business. They were well out of it. 

Similarly, Pakistan’s national poet Muhammad Iqbal, who studied at Trinity College, Cambridge and the University of Munich, came from a Kashmiri Brahmin family. Iqbal’s father, Rattan Lal, was a Sapru who reportedly embraced Islam to save his life and was consequently disowned by his family. Pakistan was not created by a Pashtun like Abdul Ghaffar Khan or a half-Arab, blue-blooded sayyid like Maulana Abul Kalam Azad but by a Rajput and a Brahmin who were recent converts.

Who led people who had converted for similar reasons some generations previously. We may also mention a Hungarian Jewish convert who helped Pakistan's new masters learn a little about Islam. 

Ironically, this nation now names its ballistic missiles after Turkish invaders, makes it compulsory for its children to learn Arabic and pretends its roots lie in the Middle East instead of the Indian subcontinent.

Nothing wrong with that. Learn Chinese or English or any other language. Claim that your roots lie in California or some other desirable place of domicile. But do ensure Jinnahs can crawl into a bottle in between raking in cash at the bar, rather than uncork the evil genie of yet more partitions and fratricide.



Wednesday, 4 May 2022

Mani Shankar PK Congress ko revive karega

Mani Shankar Aiyar writes approvingly of Prashant Kishore's ideas for reviving Congress. Unfortunately, he doesn't get that Congress needs a Manager, not a Consultant. If PK were running Congress, factionalism and intrigue would fall because there would be confidence that decisions were being made on an objective basis and with the goal of winning elections, forming governments and presenting a united front to defeat anti-incumbency.

It is certainly unusual for consultants to wish to become executives.

Consultants can 'head hunt' executives capable of implementing the new business plan.  There is no reason why a consultant might not be on such a list- if the market has confidence in him. 

I doubt that McKinsey or Boston Consulting Group or Ernst & Young have ever suggested that they get co opted to the board to ensure that their recommendations are carried out.

Having been a McKinsey consultant greatly increases your chances of becoming a CEO. Indeed McKinsey has been called a CEO factory. Plenty of Accountancy firms supply CFOs to their clients some of whom may become CEOs.  

That is for the company who hired them to make up their minds.

If it has a mind. 

I suspect that some PK recommendations will eventually be accepted and some not; sometimes, the recommendations accepted would be those that really matter; sometimes, it is only the fringe suggestions that would find acceptance.

In other words, Congress will continue to do stupid shit.  

PK has brushed aside all nonsense of running the Congress without the Gandhis.

So, this is a family firm. But the family can step back to ceremonial roles while a professional is brought in as CEO. Had PK been that CEO, Congress would have gained credibility. As things stand, talented people continue to leave the party. 

He has suggested alternative scenarios of the role the Gandhis may play but in each of them, he has ensured that the Gandhi triumvirate is accommodated in the highest positions.

Ceremonial positions.  

This will displease the armies of Gandhi-baiters but will resonate with the Congress rank-and-file as the family is built into their DNA.

But defection is even more strongly built into their DNA.  

Among those whose DNA is not so constructed are to be found the defectors and potential defectors,

i.e. people who, conceivably, some other party might want or those who have the gumption to form their own party. 

but for those who do not abandon ship even at this critical juncture, there is the deep and abiding conviction that it is the Gandhis who together constitute the glue, or the bonding adhesive, that keeps the party together and gives it an all-India profile.

Sadly, Rahul is so utterly incompetent that all over India, Congress candidates have got a bad name. Moreover, factional intrigue within the party, fostered by Rahul, brings down even those leaders who attracted votes off their own bat.  

They are, of course, aware of the dire straits in which the Congress finds itself at present but are each persuaded that our condition would be even worse but for the pervasive presence of the mother and the siblings in the party leadership. Recognition of this is one major merit of the PK proposals.

This is foolish. It was obvious that either the dynasty would hire PK to run things or else they'd muddle along as usual. Their instinct is correct. PK is young. If he gets his feet under the table, Rahul will be cut off from the type of sycophancy and intrigue which he enjoys. Priyanka will have to take a back seat so her son's career can develop. The fact is she has proved useless in UP. Sonia can finally retire. 


The other major merit is that his proposals open the doors for elected leaders to occupy key positions from which to guide the party out of the shoals.

But those 'elected leaders' will use the cachet they gain thereby to jump a sinking ship.

That is what G-23 mean by “collective leadership”. Instead of a group of favourites constituting a non-transparent coterie around the leader,

which is the essence of dynastic rule 

PK’s proposals give various alternatives that would ensure the presence of elected and, therefore, “representative” and “responsible” voices in the deliberations of the key policy and organisational bodies of the Congress. (These two phrases are not PK’s but Rajiv Gandhi’s in the context of Panchayati Raj).

This would create the familiar problem of a tussle between the 'rank and file' members (some of whom would be 'entryists' representing extreme ideologies) and caucus of elected or electable legislators from the Party. The BJP benefits from having the RSS behind it. This limits the scope for factionalism and intrigue. Had PK taken over the management of Congress, people would have had confidence that sensible decisions would be made and that the party would become electable, be able to form stable governments and even defeat anti-incumbency.  


To my mind, the most persuasive of these is the proposal that Priyanka Vadra be made the general secretary in charge of coordination.

This is a terrible idea. Coordination must be an executive function. Put her in charge of the women's wing or something of that sort while ensuring she gets enough TV time to build a fan base- as she is well qualified to do.  

While this may cause some heartburn to the current and any aspiring general secretary (organisation), I would reckon hard decisions emanating from Priyanka after due consideration and debate on controversial issues would carry wider sanction within the party than from other sources.

Unless it was PK or some other guy known to be smart and focused on winning elections 

This is essential to keep the party together.

The party can afford to lose senile fools like Aiyar. It can't afford to keep losing elections and getting wiped out in State after State. 


The crux of my argument is that PK has given the party a great deal of hard data and many suggestions on which to collectively reflect.

Did it really not have access to this before?  

Those points remain on the table, with it being open to wiser heads to give their own presentations. There is nothing “take-it-or-leave it” about PK’s proposals

which is why they are useless. I suppose PK wanted to leave himself an escape hatch.  

— even if the man’s personality and personal attitudes give the impression of a know-it-all

There are other good consultants but PK has made himself a brand. 

who would be rebuffed if anything were changed. However, by suggesting alternative scenarios at every turning, the proposals, in themselves, leave it to the party to pick the preferred route or even to explore yet other alternatives.

moving deckchairs on the Titanic is never a good idea. 

What is important is not each particular but preserving the integrity of the perceptions and predictions that inform the PK narrative. They are less rigid and self-assured than the proposer might be personally.

So, they are useless but PK's brand hasn't been dented. Moreover, he has kept the door open for 'repeat business'. Smart. 

Tuesday, 3 May 2022

Salman Khurshid's illiterate insistence on hijab

Salman Khurshid whose Mum didn't wear hijab- which, maybe, is why he said Sonia was his Mummy- writes in the Wire.


The hijab judgment has much to recommend but clearly remiss in reasoning on the point at hand. The high court celebrated secularism as part of the basic structure but failed to accept that wearing of hijab was essential to the practice of Islam.

So Khurshid accepts that his Mummy wasn't a good Muslim. She did not practice an essential feature of Islam. On the other hand, his wife- Louise- is accused to embezzling plenty of money. That is an essential practice of Congress.  

The problem was in aligning two thoughts: secularism supports hijab or prohibits it.

Secularism does not support foot-binding, hijab, or stoning of adulterers. Embezzling money, however, is par for the course.  

The high court took the latter view.

It did not prohibit the hijab. It upheld the right of Schools and Colleges to impose a common dress code. The School has a superior right. Religion could provide an immunity provided hijab was an 'essential practice'. But it isn't which is why the Muslim judge on the Bench did not wear it. 

The court cited S.R. Bommai, “Several races have converged in this subcontinent. They brought with them their own cultures, languages, religions and customs. These diversities threw up their own problems but the leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance….”

Which Muslims refused to heed. They set up Islamic Republics or did ethnic cleansing of Hindus and Sikhs where they could get away with it.  

Yet the hijab did not get the benefit of accommodation and tolerance.

Nor did suicide bombing.  

The court underscored developments in the law in Shayara Bano

triple talaq 

and Indian Young Lawyers Association.

Sabarimala Temple 

Curiously, having rejected hijab as “essential to Islam”, the court equated it with the wearing of visible items of religious identity, not to be encouraged in an educational institution. So the hijab is religious but not essential. If it had been otherwise, as for the five Ks of Sikh religion, an exception would have been allowed.

And the Muslim Judge on the Bench would have stood condemned as a person violating an essential feature of her Religion. The question is whether organs of the State managing institutions for the Muslim minority have to make girl students wear hijab as an essential practice of their religion. The answer is no. It is a religious practice but it isn't essential. Islam says a woman should not wear face covering when on Hajj or when in the company of other women or those mahram to her.  


Interestingly, the Shirur Mutt judgement

where the Bench took on itself the onus of deciding what is or isn't an essential practice 

was cited, “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observations, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observations might extend even to matters of food and dress…”

but permit the Khurshids to embezzle money to their heart's content without deeming it irreligious in any way 


For essential religious practice, other than the doctrines of the religion, evidence was needed of the practice and it being tested on the trinity of constitutional values of ‘liberty, dignity and equality’. In other words Article 25 and 26 are subject to the latter rather than being integrated.

Salman Khurshid should wear hijab. He is as cute and sexy as any girl. Kejriwal has had the hots for him since 2012.  


In the Indian Young Lawyers Association, the apex court had said, “There are a multiplicity of intersecting constitutional values and interests involved in determining the essentiality of religious practices… the test of essentiality is infused with these necessary limitations.” This goes beyond the doctrines of the religion or another way of saying that constitutional values have an order of preference rather than being an integral whole.

In other words, Court judgments have ratios in which one particular principle is held to have superior applicability to other principles.  

A similar analysis in the Kashmir 4G case had placed security above liberty.

This has nothing to do with Religion or matters of Conscience. 

For essential practice the court rightly focused on the holy Quran and Hadith to source the tenets of Islam. However, reading of the relevant Quranic verses and Hadith persuaded it that hijab is not an essential practice. In common parlance, full body covering includes the head, particularly where neck and bosom are mentioned. The court noticed that the Quran provides that women need the over garments so as not to be confined to their homes.

Sura xxiv 58-64) (Nur)

And say to the believing women
That they should lower
Their gaze and guard
Their modesty; and they
Should not display their
Beauty and ornaments except
What (must ordinarily) appear
Thereof; that they should
Draw their veils over
Their bosoms and not display
Their beauty…

Which Religion encourages its women to flash their tits or waggle their naked buttocks?  


The court sought support from the commentary of Abdullah Yusuf Ali

who was a Khoja and an ICS officer. Sadly, his marriage to an English woman did not work out too well. 

that mentions jilbab, an outer garment, or veil to cover the body.

JIlbabab was disallowed by an English court which said hijab in schools were okay.  

Does the court realise that it has implicitly endorsed the outer garment as an essential practice?

But such outer garments are not be worn indoors in classrooms. One does not wear a hat and trench-coat while sitting in class.  

The high court considered possible other grounds to uphold the hijab in view of the jurisprudence of privacy, dignity and conscience. The latter was rejected for the absence of cogent evidence and Articles 19 and 21 rights (freedom of expression and choice ), for being subject to reasonable restriction. The restriction on grounds of decency, morality and public order was bypassed by the right of society over the individual.

This is nonsense. The Court did not say that burqa can't be worn in the streets and in other public places. It can't be worn in the class-room if the School stipulates otherwise.  

The harm principle was given short shrift, although no harm was shown to be caused by hijab.

The harm was obvious. Girls had become polarized by the issue. Hindu girls were wearing saffron scarf and enmity between them and Muslim girls was being fanned up

An educational institution is hierarchical and imposes rules on students. Authority is undermined and harm is caused when students refuse to obey the rules.  

In the absence of harm, relying on the three reasonable restrictions in Article 19 seems arbitrary.

In the opinion of a politician who considers the charges of embezzlement levelled against him and his wife as arbitrary rather than flowing from his own family's unjust enrichment.

Article 29, which provides the right to preserve the culture of minorities, was not considered.

Hijab harms Muslim women. It is not part of the culture of educated Muslim women in India. It is something insisted on by crazy terrorist organizations like Islamic State. 

Article 25 guarantees freedom of conscience, subject only to public order, morality and health.

Hijab could be banned on all three considerations. It is immoral that a burden be placed on one sex. Public order had clearly been affected by the hijab row which soon escalated in a dangerous manner. Health is promoted by rational costume. Today it is hijab, tomorrow jilbab, day after there will be a return to full purdah. A woman will only leave her 'chaar divari' on the day of her death. Otherwise her only exposure to the sun would be in the andaroon courtyard. The trouble is the poor have no such inner luxury. Their women will have soft bones because of lack of Vitamin D.  

Noticing the concept of ‘heckler’s veto’, the court nevertheless did not interfere with the order only because hijab was not an essential practice. But how that negates conscience remains puzzling.

There may be a separate case on the grounds of conscientious objection to letting other girls see your face on the grounds that they might not think you are, as you have informed them, prettier than Alia Bhatt when in fact you are a bearded 59 year old man.  


School uniform is the given primacy for education. Uniform being an equaliser for pupils of different backgrounds, creating a sense of shared identity is familiar. But there are other views as well.

Muslim girls should be brainwashed into becoming ISIS cadres.  

In any case, hijab is a marginal addition in compatible school colours. The inclusive practice of Kendriya Vidyalayas left the court unimpressed. Saying hijab-wearing girls stand out ignores that names, as indeed food preferences, do the same.

Kendriya Vidyalayas are co-educational. The affected Colleges are Single Sex.  

Such personal preferences are respected and accommodated. Why then be rigid about the hijab and reject accommodation seen in other institutions?

Because the purpose is mischievous. The P.F.I and other extremist organizations are recruiting in this area. If violence breaks out, the minority will suffer disproportionately.  

Interestingly, the court chose to ignore Malaysian judgments

which discriminate against minorities 

but whether hijab is an Islamic practice cannot be confined to Indian data.

Nor can the question of whether Islam is motivating terrorism and secessionism around the world.  

It remains unclear whether the restriction on hijab has been upheld as a binding government regulation or as an independent choice of schools.

Schools have to observe 'binding regulations'.  

The maximum autonomy of private institutions held in T.M.A. Pai, and also underscored in this judgment, has yet been given a miss.

TMA Pai was 'minority' by reason of language (Konkani) and referred to unaided institutions. It is not relevant. 

The court rejected the findings of independent researchers that ‘most Hindu, Muslim and Sikh women cover their heads outside their homes’ as a social reality.

This is irrelevant when class-rooms in single-sex institutions are concerned. 

This touches an important dimension of our social existence. The court surely knows the practice of covering our heads, both women and men, when in a place of piety. Similarly, the wearing of a tika on the forehead, sporting a ghoongat or keeping a bodhi are established social behaviours.

So is dancing and singing. But they can't be done in the classroom.  


Is there no place for these in constitutional values or is it that the pockets of ‘qualified public places’ like schools, courts, war rooms, defence camps etc. are subject to a different regime?

Obviously! I have a constitutional right to shit and piss. I don't have a constitutional right to enter a Court room and do so. 

Will the many lady lawyers who frequent the premises of the Supreme Court too shed the hijab not questioned thus far?

Why is Khurshid's English so bad? He studied at Oxford. I suppose what he is getting at is that if the Supreme Court allows one thing why should a School not allow it too? The answer is that the purpose of the Court is different from that of a School. It is important that all manner of people gain access to courts. It is not the case that any type of person should be permitted to enter a School.  

Monday, 2 May 2022

Gautam Bhatia's batty argument re. Hijab ban

Why are women not allowed to cover their face in single sex spaces- e.g. Schools- in Saudi Arabia? The answer is that it must be possible to check they are not males. This is supported by Islamic law. A person wearing face covering must remove it in single sex spaces otherwise they can't get admittance. It would be crazy to let in anyone wearing burqa because that person may have a penis which he intends to use on the females present. 


Hopefully, it not for any such reason that Gautam Bhatia writes on his blog-

It is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself.

It is a fact that Judges respond to arguments made by advocates. They chose the framing of the question that they consider is better supported by law. 

In today’s judgment by the Karnataka High Court upholding a ban on the wearing of the hijab within classrooms,

so the question was framed with respect to classrooms. What specific sorts of classrooms? Those under the minority wing of the State Government. This State had a law re. school uniforms. Thus the question was framed by the circumstances of the case itself as having to do with classrooms where school uniforms were worn.  

that giveaway can be seen at page 39 of the judgment, where the Full Bench frames four questions for consideration. The second question reads: “Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?“

If the answer to this question is 'not permissible' the ban could be immediately struck down. 


It is notable that the Court asks itself a question that nobody else had asked, and indeed, nobody could ask, given how absurd it is: whether a school uniform is itself unconstitutional.

There is nothing absurd about it. Can a kid be forced to wear a school uniform? Suppose he identifies as female. Can he come to school in a skirt? These are perfectly proper questions to ask.  

But that framing allows the Court to elide the fundamental argument before it – i.e., that the wearing of the hijab alongside a school uniform is consistent with the broader goals of constitutionalism and education

it may be 'consistent' but that is not germane. What is germane is whether Schools can enforce a dress-code. If not, the ban must be struck down.  

– with the sanctity of the uniform itself.

Uniforms don't confer sanctity. Priestly vestments might but not stuff kids wear to school. 

A close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page,

because that is what the case is about. Would Bhatia be happier if the Court was haunted by Easter bunnies?

topped off by the extraordinary remark on page 88, where the Court says that “no reasonable mind can imagine a school without a uniform.”

I can. However, what was meant might be- 'no reasonable mind can imagine some schools without a uniform dress code'. The meaning is that we are all familiar with schools where all the kids are dressed in an identical manner.  I recall being shocked, when I came to England, to find Sixth Form students were not obliged to wear a uniform. They could dress like Punks or Hells Angels. Middle class Indians of my generation think good schools have strict policies regarding uniforms. 

The unarticulated premise of the judgment is that the claim to wearing the hijab is a claim against the very idea of a school uniform,

This is not the premise. It is that everybody in class looks the same and thus would tend to act the same and, ceteris paribus, make equal progress in their studies. If some kids are dressed in expensive garments while others are in rags, a quite different atmosphere would prevail. This is the plotline of numerous films about American High Schools where the 'mean-girls' are all dressed in designer outfits and speak offensively to 'trailer trash' girls.

and that allowing the former would destroy the latter. Respectfully, this elision leads the Court into misconstruing and misapplying a range of settled constitutional principles, and for those reasons, the judgment ought to be overturned on appeal.

There is no elision. This crazy fellow has got it into his head that 'hijab goes against the very idea of school uniform'. The fact is most Hindus would imagine that a school in Saudi Arabia would have integrated hijab into school uniform. Apparently this is not the case because Islam considers it very silly to wear hijab within a single-sex classroom or campus.  


Introduction

First, a quick summary: the Court’s decision to uphold the ban on the hijab rests upon three constitutional grounds. The first is that the wearing of the hijab does not constitute an “essential religious practice” under Islam,

which is why the Muslim judge was not wearing hijab while deciding this case. It is obvious that if Islamic Republics like Pakistan and Bangladesh have had non hijab wearing Heads of Government, then the thing is not an 'essential religious practice' at all.  

and is therefor not insulated from the regulatory power of the State (pp. 53 – 79, pp. 85 – 87); secondly, that to the extent that wearing the hijab is an aspect of the freedom of expression, or the right to privacy, the ban is reasonable restriction upon the exercise of those rights (pp. 88 – 112); and thirdly, as the Government Order under challenge is facially neutral and non-sectarian (i.e., does not single out the hijab), there is no unconstitutional discrimination against Muslim women students (pg. 96).

Essential Religious Practices

I do not want to spend too much time on the first argument. I have written before why framing the argument in terms of the essential religious practices test is unsatisfactory, both in general, but also specifically in this case, not least because it strips Muslim women of any agency in the matter,

Muslim women- and men- have no agency in deciding what God chose to reveal to the Holy Prophet or what hadith he uttered or any thing else which has issued from Divine inspiration or command.  

and essentially argues that the wearing of the hijab is not a matter of choice (no matter how situated, complex, or otherwise messy the context of that choice may be), but is objectively compelled by the tenets of Islam.

Bhatia is mad. The Court says 'you don't have to wear Hijab to be a good Muslim woman'. He says wearing Hijab is 'objectively compelled by the tenets of Islam.  

Additionally, there is nothing particularly noteworthy about the Court’s analysis of this point, either way: surveying the sources (in particular, the Qur’an), the Court finds that the Petitioners have failed to prove that wearing the hijab is essential to Islam – i.e., that is is mandatory, non-optional, and that Islam would lose its identity if women did not wear the hijab.

A Religion's identity is established by God. It can't be lost by what somebody decides to wear.  

Under the essential religious practices doctrine, these are broadly the parametres of the analysis (leave aside the fact – as most people have pointed out – that neither the Court, nor external commentators, are particularly well-placed to conduct this analysis).

Very true. The girls should not have gone to court. They should have made their appeal to a hospital.  

Having established this, the Court is therefore able to hold that, as a matter of religious freedom, the right to wear the hijab is not insulated from State regulation.

There is, of course, a problem with the analysis in that it effectively denies to the Muslim women the ability to frame their argument as one of religious choice, and requires, instead, for them to argue in the language of religious compulsion.

This is not the case. The girls could have said 'burqa is not essential to the Religion but it is essential to our expression of Religion'. The outcome would have been the same. The School would have a superior right to enforce its dress-code.  

This is particularly ironic when we think of the right as the “right to religious freedom”;

which does not trump superior rights others possess. My right to religious freedom does not permit me to baptize Bhatia with my urine.  

the blame there, however, lies squarely with the essential religious practices test, as it has evolved over the last seventy years, and it is clear that there is no way out of this hall of mirrors until that test is overruled.

Goody! Then Muslims could be forced to eat pork and pray to Chairman Xi even though both actions violate essential elements of the Islamic faith.  

Freedom of Expression and Privacy

Let us now come to the argument where, in my respectful submission, the Court’s analysis is mistaken. Previously, on this blog, it has been argued that the freedom of expression and the right to privacy are important rights implicated by this case. To sum up the argument in brief: as held by the Supreme Court in NALSA v Union of India,

this concerned transgender people 

dress can, on certain occasions, and depending upon the context, be a form of “symbolic expression” that is protected by Article 19(1)(a) of the Constitution (why it should be treated as such in this case has been argued in the linked posts).

 I am not obliged to admit a naked man into my house even if he is, as he claims, a 'Sky-clad' monk. Bhatia does not grasp that the School has a superior right which, moreover, serves the public interest. 

The application of the right to privacy – in terms of decisional autonomy – is also evident. Note that the freedom of expression and privacy arguments are not cleanly separable from the religious freedom arguments:

Yes they are. Both freedoms subsist regardless of any other freedoms.  

indeed, it could well be – in certain cases – that the very reason why wearing the hijab is a form of symbolic expression is because it is worn as a defence of a beleaguered identity.

Rapists qua rapists represent a beleaguered identity. They are beaten and jailed. Should they be allowed to enter Bhatia's house wearing T-shirts inscribed with vivid descriptions of what they will do to his rectum? Surely they have a right to education from him? How will they learn the proper way to rape and beat him if they are not allowed to experiment in the privacy of his own home? 


Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions, where the test of proportionality applies. Proportionality requires, among other things, that the State adopt the least restrictive method in order to achieve its goals.

Thus it should affirm the superior right of dress-code enforcement of the College.  

Thus, where something less than a ban would suffice, a ban is disproportionate.

It is disproportionate to interfere with the rights of an institution because of a stupid law suit brought by cretins.  

The proportionality framework provides the broad intellectual scaffolding within which multiple jurisdictions across the world, as well as India in the NALSA judgment, when dealing with cases involving dress codes and uniforms, have adopted the test of reasonable accommodation.

In this case the vast majority of students were non-Muslim. These students had expressed their hostility to these budding terrorists. It is they who will be 'accommodated' one way or another.  

Reasonable accommodation requires the Court to ask whether, in a setting where a certain default exists, a particular claim for departing from that default, founded in constitutional rights, can be reasonably accommodated by the State (or private party), without the activity in question losing its character.

The Court could certainly have twiddled its thumbs until a sufficient number of the hijab wearers had been beaten and raped. The sad fact is Courts have never been able to prevent ethnic cleansing in India. They have turned a blind eye to extra-judicial killing on a massive scale. Bhatia belongs to the majority religion. He has no skin in this game.  

In case of the hijab, the claim for reasonable accommodation is straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the uniform, without damaging or in other ways vitiating the overall public goal of education.

But the Hindu girls had taken to wearing Saffron scarfs. Things could easily escalate. Minorities don't fare well when the killing begins.  


How does the Court respond to the argument? The reasoning is somewhat scattered in different parts of the judgment, but drawing it all together, this is how the Court’s argument goes: Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and therefore weaker (page 99).
The classroom is a “quasi-public space”, where the operation of rights is weaker (page 100).
Given (1) and (2), and given the overriding salience of the uniform in a classroom, the proscription of the hijab is reasonable.

The judgment was certainly of much higher quality than some others which have made headlines for their barbarous mangling of the English language.  


With respect, this analysis is flawed. It is true

it is irrelevant 

that in US jurisprudence – such as the O’Brien judgment – visible manifestations of expression (such as clothing) can be regulated by the State; however, that is in the context of the American First Amendment, which in cases of State restriction upon speech, is more or less “absolute”. O’Brien only says that where you move from speech to visible manifestation, that “absolute” protection goes. However, in a proportionality-focused jurisdiction such as ours, whether speech is verbal or a visible manifestation, the test remains the same.

and has been properly applied. 

This flows from the Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1)(a) of the Constitution.

No. An organ of state was, by mandamus, prevented from seeking to impose an illegal restriction on the activity of the petitioner on his own premises. 

Secondly, it is unclear what exactly the concept of a “quasi-public space is”, since the Court does not undertake a genealogy of the phrase.

Much is unclear to Bhatia- that much, at least, is clear.  

At one point, it lists “schools, courts, war rooms, and defence camps” (page 104) as examples of quasi-public spaces, and you really have to wonder what on earth unites a classroom and a defence camp;

they are characterized by discipline and hierarchy and distinctions in what must or can be worn.  

but in my view, it is in any event a misreading of the NALSA judgment to argue that the salience of symbolic expression diminishes in a “quasi-public space”.

Very true! Hijras are constantly barging into 'war rooms' and dancing around. Generals have to pay them money to go away.  

Indeed, whether it is the public sphere or the quasi-public sphere, the whole purpose of recognising a right to symbolic expression – as manifested through dress – is to recognise that our “public” is diverse and plural, and that diversity and plurality (as long as it does not violate anyone else’s rights) is to be affirmed and not censored.

Why go go dancers are not being allowed into Court? How come, naked prostitutes are not being given police protection so that they can dance in mosques? The answer is that the 'purpose of recognizing rights' is not to create chaos. There is plenty of censorship in India. It is perfectly constitutional.  


But it is the final part of the analysis where, in my view, the main error lies. The Court’s response to the reasonable accommodation claim is that the hijab cannot be accommodated because it would deprive the uniform of its uniformity. At page 107, it notes that:

The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.

This is certainly true. If the class room is divided between some girls in Hijabs and others in saffron scarves, there will be tears before bedtime. Soon girls will be inviting in their brothers or local hoodlums to beat and rape those of the rival gang. The purpose of the College will be defeated.  


But that is patently circular: by definition, the doctrine of reasonable accommodation assumes the existence of a default uniformity, and argues that the default is insufficiently accommodating of a diverse and plural society;

But Karnataka is not diverse. It is 85% Hindu. The Law will always have to accommodate the majority more particularly because it is richer and more cohesive. It is foolish to pretend that any great 'accommodation' will be shown to a fractious and reviled  minority.  

what the reasonable accommodation (and proportionality) analysis requires of the Court is to ask whether accommodation is such that it would undermine or otherwise destroy the purpose for which the default rule exists in the first place: which, in this case, is the purpose of education.

Hijabs are not associated with better than average educational outcomes. They are associated with ignorance and poverty.  

The crucial error the Court makes is that it sanctifies the uniform instead of sanctifying education;

No. What it gets right is that getting an education is not compatible with doing stupid shit- like insisting on wearing hijab inside a girl's school.  

instead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right to education (and which would, therefore, require accommodation where accommodation would better serve that goal),

It is the Hindus who have to be 'accommodated' because it is they who have the capacity to do ethnic cleansing. Complacency in this matter is mischievous. Mahatma pretended Congress would never do anything violent. Then, in Bihar, he said that he knew which Congressmen had killed innocent Muslims. Of course, he didn't actually suspend them from the party or anything of that sort. He just collected money and decamped to Delhi where some other Hindu shot him.  

it treats the uniform (and its associated values of sameness, homogeneity etc) as the goal itself.

No. It, quite reasonably, holds that kids in school should not get distracted by what other kids are wearing. They should all come up in studies together by concentrating on what teacher is saying.  

Thus, by mixing up levels of analysis, the Court’s proportionality and reasonable accommodation analysis is constitutionally incorrect.

Bhatia mixes things up. The Court made a sensible decision though, no doubt, the judgment could have been better drafted. Nevertheless, it is regarded as much better than average.  

And the root of this error – as I have pointed out above – is the Court’s assumption that education is uniform – that “no reasonable mind can imagine a school without a uniform.”

There is no such assumption. Furthermore it is true that Schools are depicted in Indian films and on TV as containing kids who are all dressed alike. American High Schools are a different story.  

Where the Court does attempt to move the analysis to education itself, its conclusions are suspect. For example, on page 96, it notes that by creating “one homogenous class”, the uniform “serves constitutional secularism.”

That is true enough. People of different faiths are treated equally. Bhatia would prefer the girls in hijab being beaten and chased away by girls wearing saffron. But that is not the outcome the constitution aims for.  

But this is inconsistent with the Court’s own analysis in a previous part of its judgment, where it notes that the Indian concept of “positive secularism” does not require the proverbial “wall of separation” between religion and State, but is much more accommodating towards religious pluralism within the overarching public sphere.

Which is why there is no real constitutional bar to any State turning into a full blown theocracy in all but name.  

On page 97, the Court holds that the Petitioners’ argument that “the goal of education is to promote plurality … is thoroughly misconceived.”

Bhatia thinks the goal of chemistry education should be to promote hijra dancing as well as goat milking. It ought not to aim at creating Chemists.  

But the Court provides no citation or source that the goal of education – note, not the goal of a uniform, but the goal of education – is uniformity at the cost of pluralism.

Because the thing is obvious. Bhatia may sometimes wonder why so many people who studied law with him are now lawyers. Why are not more of them hirjras dancing in the street? How come so few of them have taken to milking goats? Why is none of them as stupid as he is himself? Is it because Constitution is not 'accommodationist' enough?  

On page 101, the Court quotes this argument again, and this time – regrettably – chooses to ridicule it instead of engaging with it, noting that it is “hollow rhetoric” and redolent of the “oft quoted platitude” of “unity in diversity”.

Because wearing Hijab or dancing like a Hijra is not the type of diversity a School should be encouraging.  

Ironically, after ridiculing this as a platitude, the Court immediately afterwards cites the Supreme Court judgment in Re Kerala Education Bill that uses the exact same phrase!

For a reason Indians well understand. Interference in minority educational institutions is a touchy subject. The Kerala Government was dismissed for this reason.  

 

Even more ironically, in the same paragraph, the Court then cites the UK House of Lords judgment in Regina v Governors of Denbigh High School,

which is pertinent because, as in Karnataka, the existing uniform was modest and had always been previously accepted by Muslim parents till some silly girl decided she wanted to wear 'jilbab'. This was refused. Britain introduced stringent laws by which teachers had to report on students like this who were showing signs of terrorist brainwashing. This is the so called 'Prevent Duty'.  

where, in paragraph 97 of her speech, Lady Hale notes that “a uniform dress code can play its role in smoothing over ethnic, religious, and social divisions.” Unfortunately, however, the Court omits to cite what Lady Hale goes on to note in paragraph 98, which is this:


It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation.

How is this relevant? Bhatia lives in England. He knows that Britain is racially diverse. Karnataka isn't. There had been no sudden influx such that the policy on uniforms needed to be changed to satisfy parents.  

The judgment of the UK House of Lords in Denbigh High School, indeed, is a model of exactly the kind of analysis that the Karnataka high Court steadfastly sets its face against in its hijab judgment: Denbigh involves an extensive discussion about how schools in plural and diverse societies should accommodate difference instead of insisting upon uniformity;and the correct question to ask – which is always a contextual question – is at what point does reasonable accommodation tip over into a demand that is inconsistent with the goals of education (in Denbigh, it was the wearing of the jilbab). It is therefore somewhat extraordinary that the Court cited the judgment in support of its ruling, when the very next paragraph after the paragraph it cited explicitly noted that the wearing of the hijab in a school was a good example of reasonable accommodation!

The School had the right to make that accommodation. But it was also right to refuse to go any further down that road to bedlam. I need hardly say that as Muslims in Britain get more affluent, they are willing to pay a lot of money to get their daughters into posh schools where there is no nonsense about hijabs and jilbabs.  

In fact, the Denbigh judgment is an excellent example of why the fear that really seems to be animating the Court’s judgment is no fear at all.

Does Bhatia really not know of the 'Prevent Duty'? A girl who tries this sort of trick now gets immediately reported along with her crazy brother. The entire family will be under surveillance.  

On page 105, the Court notes:


An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.

Hindus turning up with trishuls and Muslims with scimitars represent 'unity in diversity'. They are joined by dancing hijras and go on to earn big bucks milking goats.  


But nobody – nobody – ever really advanced this “extreme argument.” Denbigh in fact shows that it is actually fairly straightforward – and well within the domain of judicial competence – to examine cases on an individual basis, and draw principled lines based on context. Trotting out a hypothetical parade of horribles to deny a constitutional right is not good judicial practice.

Good enough for India at any rate. The country is very poor.  

Indeed, the fact that the Court is itself fully capable of drawing these distinctions when it wants to is made abundantly clear by the next case that it discusses: the South African judgment in MEC for Education, Kwa-Zulu Natal (discussed in previous blog posts), where the controversy involved the wearing of a nose-stud by a Hindu student. The Court distinguishes the case on the basis that “the said case involved a nose stud, which is ocularly insignificantly (sic), apparently being as small as can be.” (p. 108) Now in my respectful view this distinction is quite bogus (more on this below), but that is not the point I want to make here: the point I want to make is that the “extreme argument” that the Court articulates – where everyone would ask to choose their own attire, and there would be general chaos – is an argument that it doesn’t even seem to believe in itself, given how easily – almost facilely – it distinguishes between the hijab and the nose-stud.

Bhatia's argument is facile. He does not inquire into the role 'ocular significance' might play in the ratio. A good lawyer would discuss this. Is there relevant case law which might open a gate here?  


Non-Discrimination

Earlier on this blog, detailed arguments were made about how the hijab ban violates the constitutional guarantee of non-discrimination. The Court addresses this argument very briefly, noting only that the proscription – based on the Government Order – was facially neutral and non-sectarian (pg. 96). Unfortunately, while this argument applies to direct discrimination, it does not apply to indirect discrimination, where facially neutral rules and regulations have a disproportionate impact on different people. The doctrine of indirect discrimination has long been accepted by the Supreme Court, and is therefore part of Indian jurisprudence.

Indirect discrimination can't arise by reason of per se illegal acts. Thus if we find x percentage of a particular class are incarcerated though they represent much less than x percentage of the population, we can't claim indirect discrimination if that population commits more than x percentage of all serious crimes. There is direct discrimination against criminals. They are incarcerated at a higher rate than the innocent. But there is no prima facie case of indirect discrimination here. 

Crazy girls who want to wear hijab inside a girl's school are being directly discriminated against on the grounds that they are breaking a rule for a crazy reason. There is nothing indirect about it.

In fact, it is the Court’s own analysis – in particular, its distinguishing of the South African case – that shows how indirect discrimination is squarely applicable to the present case.

We may easily overlook a nose stud, if small and 'ocularly insignificant'. It is difficult to ignore a burqa clad girl sitting among other girls who are dressed in school uniform. 

The Court’s distinction between the “ocularly insignificant” and (presumably) the “ocularly significant” is a classic example, in discrimination law jurisprudence, of a “facially neutral rule” (which, in the Court’s reading, would allow “ocularly insignificant” adornments to a uniform, but not others) that has a disproportionate impact, in this case, grounded at the intersection of religion and burden.

How so? Saffron scarves too were banned.  

In my respectful view, the Court’s failure to consider this ground at all provides another compelling reason for why this judgment should be set aside on appeal.

Bhatia's view may be respectful but it is foolish.  


Addendum: A Case of Conscience

From pages 80 to 88, the Court undertakes a brief analysis of that forgotten cousin of the freedom of religion – the freedom of conscience. The main judgment, of course, is the iconic Bijoe Emmanuel case, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld. The Court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars.” This is not entirely unreasonable, and perhaps offers valuable guidance to future cases (and indeed, this case on appeal). If indeed one is making a claim based on the freedom of conscience, then it needs to be specifically pleaded, with the acknowledgment – of course – that conscience is subjective. For example, an anti-war activist can refuse conscription by arguing that war conflicts with their pacifist beliefs – but they do have to spell that out in specific terms. In this case, perhaps, it may be necessary for the petitioners to spell out, perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience – an argument that, of course, overlaps with the argument from symbolic expression.

So Bhatia admits that the Court had to judge the case as it was represented not as he thinks it ought to be represented. The problem with the 'conscience' claim is that those putting it forward would have to show that they exhibited similar behavior in other areas of their life. The solution might be a Tribunal which examines those with conscientious objections and grants them an immunity. Something similar might happen for those who by reason of a medical or psychological problem deserve different treatment.  


What is less convincing is the Court’s attempt to show that Bijoe Emmanuel was not a case of conscience at all, but one of religious freedom, despite the fact that Bijoe Emmanuel specifically uses the phrase “matters of conscience.”

Jehovah's Witnesses are a separate religious sect. They may gain an immunity on those grounds alone- as I believe happened in the case referred to above. However, a particular person may have some qualm of conscience, arising perhaps out of a personal communication by an angel, and that person may be granted a specific immunity by a Court or Tribunal.  

It is important to note that conscience might flow from religious convictions (for example, I may be a pacifist because I am religious), but it need not do so. In that way, the clean-cut separation that the Court attempts between conscience and religious freedom is, in my respectful view, unsustainable – and might materially have altered the outcome of this case.

This is not the view of Islam. The promptings of your inner voice are either consistent with what has been Revealed, or they are delusive but Allah knows best. 


Conclusion

There are two important things to note, by way of conclusion.

The first is that the Court is explicit that its judgment applies to classrooms (i.e., not even school premises, but classrooms). It notes this specifically on page 124, after some rather (in my view) unfortunate remarks about how banning the headgear is emancipatory “for women in general, and Muslim women in particular”: it notes that:


It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.

The scope, thus, is limited to classrooms.

Because there had been reports of hijab wearing girls sitting outside classrooms. 


Secondly, for the reasons advanced above, I believe that the judgment is incorrect, and should be overturned on appeal. It is incorrect for the following reasons: first, it mistakenly holds that the rights to freedom of expression and to privacy are diminished, or derivative, in this case;

They are certainly not absolute because College authorities have a superior right. 

secondly, it misapplies the reasonable accommodation test,

But Bhatia is not a 'reasonable man'. He thinks Karnataka, at the present time, is a place where Muslims will be accommodated. This simply isn't the case.  

and does not show how allowing the hijab for those who choose to wear it, as a uniform accessory, is incompatible with the goal of education;

It isn't. It is merely incompatible with receiving an education in certain classrooms. 

thirdly, it fails to consider that the ban amounts to indirect discrimination against Muslim women;

because the discrimination is direct and affects all who violate the dress code. 

and fourthly, it wrongly elides freedom of conscience and religious freedom.

The cretin means 'conflates'.  

This creates an overarching framework of reasoning where the sanctity of the uniform is placed above both the goals of education, and the exercise of constitutional rights.

This is nonsense. The uniform is held to contribute to the goal of education. There is no constitutional right to do stupid shit. Girls wearing hijab in a class full of other girls are being very very silly.  

I submit that a correct calibration calls upon us to recognise that educational spaces in a plural and diverse society ought to reflect its plurality and diversity,

Hijras should dance while Hindus with trishuls march around. Majorities can be very plural- some are hijras other are Hitlerites. All should be welcomed into girls' schools.  

and facilitating the freedom of choice and expression is one crucial way to achieve that.

Sadly the freedom of choice of 84 percent of the population may well interfere with the freedom of choice of the rest. Still, if Courts do stupid shit- as Bhatia would like them to do- the issue will be settled in a manner which will brook no appeal.  

Such an approach is more consistent with our Constitution.

But that would be an approach where people could assert their religious right to baptize Bhatia with their urine.