1. ‘Moplah rioters’ not freedom fighters: report
ICHR member Issac seeks removal of Malabar Rebellion leaders from martyrs list
- A report submitted to the Indian Council of Historical Research (ICHR) in 2016 had recommended the removal of the Wagon Tragedy victims and Malabar Rebellion leaders Ali Musliyar and Variamkunnath Ahmad Haji, and Haji’s two brothers from a book on martyrs of India’s freedom struggle. The report sought the removal of names of 387 ‘Moplah rioters’ from the list of martyrs.
- The book, Dictionary of Martyrs: India’s Freedom Struggle 1857-1947, was released by Prime Minister Narendra Modi last week.
Martyrs from the south
- C.I. Issac, an ICHR member, submitted the 2016 report to the Council, recommending the deletion of the names when the fifth volume, covering martyrs of the freedom struggle from south India, came up for review.
- The report, accessed by The Hindu, describes Haji as the “notorious Moplah Riot leader” and a “hardcore criminal,” who “killed innumerable innocent Hindu men, women, and children during the 1921 Moplah Riot, and deposited their bodies in a well, locally known as Thoovoor Kinar”.
- Haji was arrested by the army, tried by an army court and shot dead on January 20, 1922, the report said.
- The ICHR recently constituted a three-member committee, including Mr. Issac, to review the entries in the dictionary, including those of Haji and Ali Musliyar.
- The review report said, “Almost all the Moplah outrages were communal. They were against Hindu society and done out of sheer intolerance. Thus, the following names should be deleted from the yet-to-be published project.” Mr. Issac is also the vice-president of the Bharatiya Vichara Kendram.
‘For taking part in riots’
- “None of those who died in the Wagon Tragedy were freedom fighters of India as they hoisted the Khilafat flag and established Khilafat and Khilafat courts for a brief period. They were arrested by the army for participating in riots. Around 10 Hindus who participated in the riots too are on the list of persons to be removed from the dictionary,” said Mr. Issac.
- The British convicted the rioters after proper trial. While some were hanged to death, some died in jail and some others in hospitals. These dead were never recognised as freedom fighters elsewhere, he added.
- Muslims had arrived in Kerala in the 7th century AD as traders via the Arabian Sea even before north India was invaded by Muslim armies from the west.
- They were given permission to carry on trade and settle by the native rulers. Many of them married local women and their descendants came to be called Moplahs (which means son-in-law in Malayalam).
- Before Tipu Sultan’s attack on Malabar, in the traditional land system in Malabar, the Jenmi or the landlord held the land which was let out to others for farming. There were mainly three hierarchical levels of ownership including the cultivator, and each of them took a share of the produce.
- The Moplahs were mostly cultivators of the land under this system and the Jenmis were upper caste Hindus.
- Many Hindu landlords fled Malabar to neighbouring areas to avoid persecution and forced conversions.
- During this time, the Moplah tenants were accorded ownership rights to the lands.
- After the death of Tipu Sultan in 1799 in the Fourth Anglo-Mysore War, Malabar came under British authority as part of the Madras Presidency.
- The British set out to restore ownership rights to the Jenmis who had earlier fled the region.
- Jenmis were now given absolute ownership rights of the land which was not the case previously.
- The peasants were now facing high rents and a lack of security of tenure.
- This caused a series of riots by the Moplahs starting from 1836. Between 1836 and 1896, they killed many government officers and Hindu landlords.
The course of Moplah Rebellion
- The Khilafat Movement had started in 1919 in India in support of the restoration of the caliphate in Turkey. The Indian National Congress (INC) was aligned with it.
- The Khilafat meetings in Malabar incited communal feelings among the Moplahs and it became a movement directed against the British as well as the Hindu landlords of Malabar.
- There was large-scale violence which saw systematic persecution of Hindus and British officials. Many homes and temples were destroyed.
- The prominent leaders of the rebellion were Ali Musaliyar and Variyankunnath Kunjahammed Haji.
- From August 1921 till about the end of the year, the rebels had under their control large parts of Malabar.
- By the end of the year, the rebellion was crushed by the British who had raised a special battalion, the Malabar Special Force for the riot.
- In November 1921, 67 Moplah prisoners were killed when they were being transported in a closed freight wagon from Tirur to the Central Prison in Podanur. They died of suffocation. This event is called the Wagon Tragedy.
Consequences of Moplah Rebellion
- The Moplah Rebellion is considered is often considered as one of the first cases of nationalist uprisings in Southern India. However, it is widely debated as a few experts mention the Moplah revolt to have a communal touch. Some say that it has to be considered as the struggle against British supremacy while some mention that it culminated in an Anti-Hindu movement.
- The brutal violence, widespread forceful conversions, and destruction of property suggest that the motive went beyond what could have arisen from class conflict and took on religious colours.
- Sir C Shankaran Nair, a former President of the INC, criticised Gandhi’s support of the Khilafat Movement as one of the causes of the violence.
2. Kesavananda Bharati, a saviour of the Constitution
His plea helped preserve the Basic Structure of the statute
- Kesavananda Bharati Swamiji, who passed away on Sunday, was the sole unwitting petitioner in the historic Fundamental Rights case which prevented the nation from slipping into a totalitarian regime.
- Though the judgment is a landmark case, he did not win any relief in the case. The amendments in the Kerala land reforms law, which he had challenged, were upheld by the Supreme Court in 1973.
- It was senior advocate Nani Palkhivala, representing Swamiji, who extended the ambit of the case. Mr. Palkhivala saw an opportunity through Swamiji’s case to challenge a series of constitutional amendments introduced by the Indira Gandhi government, granting unlimited power to Parliament to alter the Constitution.
- “Courtroom Genius”, a biography of Mr. Palkhivala co-authored by senior advocates Soli Sorabjee and Arvind Datar, said the seer never met or spoke with the great lawyer. In fact, the book said, Swamiji was quite surprised at the time to see his name in the newspapers every day and wondered why his case, challenging only certain land reforms in Kerala, was taking so long.
- By sheer statistics, leave alone the law it laid down, the “Kesavananda Bharati versus State of Kerala” case is unique. The case was heard by a Bench of 13 judges — the largest formed in the Supreme Court. It was heard over 68 working days from October 1972 to March 1973. The judgment was a mammoth 703 pages.
- The Kesavananda Bharati judgment innovated the Basic Structure doctrine which limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution, like secularism and federalism.
- The verdict upheld the power of the Supreme Court to judicially review laws of Parliament. It evolved the concept of separation of powers among the three branches of governance — legislative, executive and the judiciary.
- But democracy won that day on a wafer-thin 7:6 majority. The judges were split down the middle until the 13th judge, Justice H.R. Khanna, supported the view that constitutional amendments should not alter the “basic structure” of the Constitution.
- The aftermath of the judgment also saw the supersession of three judges of the Supreme Court — J.M. Shelat, A.N. Grover and K.S. Hegde — for Chief Justiceship. All three were part of the majority verdict on the Bench. They resigned in protest amidst public furore.
- The Emergency was proclaimed shortly after the judgment was delivered on April 24, 1973.
- The Kesavananda Bharati judgment proved timely and thwarted many an attempt on democracy and dignity of individual during those dark years.
The concept of ‘basic structure’ came into existence in the landmark judgment in Kesavananda Bharati vs State of Kerala case (1973) 47 years ago.
- Since the adoption of Indian Constitution, debates have started regarding the power of the Parliament to amend key provisions of the Constitution.
- In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad case (1951) and Sajjan Singh case (1965).
- In both the cases the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
- This means Parliament had the power to amend any part of the constitution including Fundamental rights.
- Article 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of contravention, be void.”
- However, in the Golaknath case (1967), the Supreme Court held that Parliament could not amend Fundamental Rights, and this power would be only with a Constituent Assembly.
- The Court held that an amendment under Article 368 is “law” within the meaning of Article 13 of the Constitution and therefore, if an amendment “takes away or abridges” a Fundamental Right conferred by Part III, it is void.
- To get over the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case (1970), and Madhavrao Scindia case (1970), the then government headed by Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th).
- All the four amendments brought by the government were challenged in the Kesavananda Bharati case.
Kesavananda Bharati case
- In Kesavananda Bharati case, a relief was sought against the Kerala government vis-à-vis two state land reform laws, which imposed restrictions on the management of religious property.
- The case was challenged under Article 26, concerning the right to manage religiously owned property without government interference.
- Question underlying the case: Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
- The Constitutional Bench in Kesavananda Bharati case ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.
- However, the court did not define the term ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
- The ‘basic structure’ doctrine has since been interpreted to include
- the supremacy of the Constitution,
- the rule of law,
- Independence of the judiciary,
- doctrine of separation of powers,
- sovereign democratic republic,
- the parliamentary system of government,
- the principle of free and fair elections,
- welfare state, etc.
- An example of application of basic structure is the SR Bommai case (1994).
- In this case the Supreme Court upheld the dismissal of BJP governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.
- Arguments related to Basic structure
- Critics of the doctrine have called it undemocratic, since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
- Origin: The basic structure theory was first introduced by Justice Mudholkar in the Sajjan Singh case (1965) by referring to a 1963 decision of the Supreme Court of Pakistan.
- Chief Justice Cornelius of Pakistan had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.