Judicial Activism to Judicial Overreach to Judicial Encroachment: Birth of a Monster
by Radha Rajan on 07 Sep 2012 10 Comments

The irony could not be more damning given the fact that all High Courts driven by the Supreme Court are hubris-bent on demolishing “religious encroachments” (read Hindu street temples) from public places. It is a monumental pity that the bulldozers employed by the courts to demolish our temples cannot be used to bring down the monstrous structure which ordinary Hindus call Judicial Encroachment.    On 1 September 2012, agitated neighbours rushed to the writer’s house with news that the Chennai Corporation demolition squad had bulldozed the 20-year old street-corner Ganesha temple and reduced the small shrine to a pile of rubble in less than five minutes; and this when Ganesh Chaturthi was just days away!


Dropping everything, the writer ran to the corner but the deed was done; the temple was gone. Chennai Corporation authorities who came in two imposing government SUVs (bought with ordinary Hindu taxpayers money) and the man sitting behind the wheels of the bulldozer (also bought with ordinary Hindu taxpayers’ money) were unmoved by the tears and anger of local residents and passers-by who had all worshipped at the shrine for over two decades. “Orders”, said one Authority with a smirk, while second Authority told us sarcastically to go to the Court for redress.


Deja Vu; it was 2010 all over again.


No court in the country, including the Supreme Court, was going to listen to the voice of hundreds of thousands of very ordinary Hindus (adherents of Abrahamic faiths are not “ordinary”, they are a special breed spawned by secularism) who build, offer worship and maintain these street temples, among which are temples that stand at the junction of three roads or ‘muchhandi’ as they are called in Tamil.


This article is about how the fate of street temples is even now being decided away from public scrutiny and in total secrecy by state governments, the central government and the Supreme Court. Ordinary Hindus – auto-rickshaw wallahs, roadside idli vendors, fruit and flower vendors, local residents whose temples have been demolished in 2005 by the AIADMK government and then in 2010 by the DMK government – do not have access to the Chief Minister, Chief Secretary, Commissioner of the Corporation, the Mayor or the High Court.


The ordinary Hindu would not even dream of daring to approach the gates of these imposing and intimidating offices to get them to hear his/her voice.  


Building street corner Ganesha temples, popularly known as muchhandi Pillaiyar, is a thousands of years old Hindu tradition. Ordinary Hindus like the writer believe that these street-corner shrines or sthana devta watch over the people living close-by and we can see these roadside street-corner Ganesha (or other divinity) shrines across the country.


Muslim-majority Indonesia continues to practice this ancient Hindu tradition and street corners in Java even today are sanctified by shrines to Srirama and/or Hanuman. What happened to the little street-corner Ganesha shrine in Chennai on September 1, 2012 has its origins in May 2, 2006, Ahmedabad.


The writer knows a lot more today than she did in 2010 about the nature of the secretive and joint covert operations launched against ordinary Hindus by state governments represented by their Chief Secretary, Sonia Gandhi’s UPA, and the Supreme Court which is ridding all public spaces across the country of its Hindu face and Hindu identity while leaving religious structures of the Abrahamic minorities strictly alone.



Briefly, the sequence of events leading up to September 1, 2012 is:

-        End of April, 2006 - Narendra Modi’s government (Vadodara Municipal Council) demolishes several structures in Vadodara in the name of development; including several Hindu temples and one dargah


-        1 May 2006 - The Muslim community did what it does best – let loose organized violence and mayhem on the streets including attacking the District Court at Vadodara (Nyayamandir); a Muslim mob pelted stones at buildings and passers-by in the court and also damaged vehicles parked inside the court premises


-        2 May 2006 – The very next day, adding fuel to the fire and with the deliberate intent to inciting the Muslim community again and watch how Narendra Modi dealt with Muslim riots, the Times of India Ahmadabad Edition published a provocative news report. ToI dug into the city’s past and fished out a survey conducted by the Ahmedabad Municipal Corporation which stated that there were 1200 temples and 260 “Islamic Shrines” which had encroached upon Ahmedabad’s public spaces and that “no local authority has the guts to go about demolishing them”


-        Reacting to the ToI news report, the Gujarat High Court made the issue into an exercise of its suo motu jurisdiction and ordered the High Court Registrar to convert its exalted interest into a writ petition


-        The Gujarat High Court made ToI the writ Petitioner and made the State of Gujarat Respondent No.1 and the Director-General of Police Gujarat, Respondent No.2. To this impressive list the Gujarat High Court added Commissioners of Police of Ahmedabad, Vadodara, Surat and Rajkot besides the Commissioners of the Municipal Corporation of the four cities and their Urban Development Authority as co-Respondents in the petition


-        And then in classic off-with-their-head style, the Gujarat High Court ordered immediate destruction of all temples and Islamic shrines across the state if they stood on what the court deemed public space. “Meanwhile all the respondents are directed to take immediate steps for removal of encroachment of religious structures on the public space without any discrimination and submit their reports”.


What the Gujarat High Court did not say was “and to hell with the consequences”.


Muslim violence in reaction to the demolition of one dargah in Vadodara had not only escalated, but had spread to other cities in Gujarat too. We may never know if the Gujarat High Court order sent Narendra Modi into a tizzy, but with 260 Islamic shrines destined to be brought under the bulldozer, the Congress pressed the panic button.


Sonia Gandhi rushed Additional Solicitor-General Gopal Subramaniam to the Supreme Court on 4 May to file a Special Leave Petition. The main prayer of the UPA government in the SC was to appeal against the Gujarat High Court order dated 2 May. The central government also sought an interim relief seeking immediate stay of the operation of the impugned order. The Supreme Court granted leave and admitted the petition and also stayed the Gujarat High Order of 2 May 2006.


Readers are urged not to lose sight of the following facts:

-        The central government’s SLP was filed only as an appeal against the Gujarat High Court Order dated 2 May 2006; to emphasise, the UPA government’s SLP in the SC when it was filed on 4 May 2006 concerned itself only with Gujarat and the Gujarat High Court Order


-        In February 2005, a division bench in the Madurai Bench of the Madras High Court comprising two Christian judges, Justices Ashok Kumar and Dinakaran, over-stepping their brief and transgressing the scope of a small case that was before them, ordered the Madurai corporation and all local municipal authorities and panchayats to demolish and remove all encroachments. Considering what we know about these two judges today, it may not be far-fetched to suppose that the judges knew exactly what they were doing and why. Moving swiftly to fulfil the orders of the Madurai Bench, Jayalalithaa’s men went on the rampage bulldozing everything in their path - homes, shops and Hindu temples. Over 250 temples were demolished in Madurai, Tiruchy and Kanyakumari, including temples that had stood for twenty, thirty and even fifty years. Some of the temples and other revered structures threatened with demolition were over a hundred years old! The samadhi of Muthuswami Dikshitar of revered memory and one of the three Mummurtis or saints of Carnatic Music, the hoary Bhoothalingaswamy temple believed to have been consecrated by Maharishi Patanjali and the dearly loved, famous Madurai landmark Ganesha-under-the-peepul-tree were three such ‘illegal encroachments on public land’ facing Jayalalithaa’s guillotine.

In this asuric orgy of destruction, only one church and one dargah were demolished.



Hearing on the UPA government’s SLP in the Supreme Court dragged on for two years with no decisive movement forward with regard to the appeal against the High Court Order asking for 1200 temples and 260 Islamic shrines to be removed in Ahmedabad. But in a bizarre turn of events, probably encouraged by the docility with which Hindus in Tamil Nadu accepted the order of Justices Ashokan and Dinakaran and certainly encouraged by the impotence of Tamil Nadu’s Hindus who stood by and watched Jayalalithaa’s government destroy their temples, Sonia Gandhi decided to aim high.


Sonia Gandhi’s UPA, surviving on the jizya being paid in varied forms, decided to offer jizya from the debris of Hindu temples from across the country. In an inexplicable leap even for judicial overreach, on 25-03-2008 the Supreme Court delivered the Order expanding the scope of Sonia Gandhi’s SLP. From Gujarat, the theatre of war against Hindu street temples had expanded to include all States and Union Territories.


This Court, while issuing notice on the Special Leave Petition on 4th May 2006, had stayed the operation of the impugned order.

Learned ASG states that the Central Government after convening a meeting of all the concerned Secretaries of the respective States would try to take a consensual decision to deal with the problems such as in the present case all over the country and seeks time for this purpose.

Put up after summer vacation”.


It was within the powers of the Supreme Court to reject expanding the original scope of the SLP, to have confined the same to Gujarat and delivered a speedy judgment on the central government’s petition appealing against the Gujarat High Court Order of 2 May 2006.


Instead, in what is seen by ordinary Hindus as unwarranted activism, the Supreme Court went along with the UPA government and broadened the canvas to now include religious structures (the real target being Hindu temples) throughout the country.


23 September 2009 – “I had taken a meeting with the Chief Secretaries of the States on 17-09-2009 with a view to evolve a consensus on the problem of encroachment of public spaces by religious structures. I am glad to report that after the meeting the following consensus emerged:

(1)   No unauthorized construction of any religious institution namely temple, church, mosque, or gurudwara etc shall be permitted on public street/public space.

(2) In respect of unauthorized constructions of any religious nature which has taken place in the past, the State Governments would review the same on a case by case basis and take appropriate steps. This will be done as expeditiously as possible.

In the light of the above, the matter may be brought before the notice of the Supreme Court for appropriate action. If any affidavit is to be filed a draft affidavit based on the above consensus may be filed in the Supreme Court. I understand the case is coming up for hearing on 29th September, 2009”.

(Signed Gopal K Pillai, Home Secretary, Government of India, to Gopal Subramaniam, Solicitor General of India)


29-09-2009 – After reiterating that no new temple, church, mosque or gurudwara should be allowed to be built on “public streets, public parks or other public places etc, the Supreme Court concluded its Order on the 29th September 2009 with, “In order to ensure compliance of our directions, we direct all the District Collectors and Magistrates / Deputy Commissioners in charge of the Districts to ensure that there is total compliance of the order passed by us. They are directed to submit a report within four weeks to the concerned Chief Secretaries or the Administrators of the Union Territories who in turn will send a report to this Court within eight weeks from today.

List this matter for further directions on 7th December 2009”.

(Justices Dalveer Bhandari and Mukundakam Sharma of the Supreme Court)     


List this matter for 7 December for further directions said the judges, and making good their promise, on 7 December 2009, the Supreme Court slammed the last door on the face of ordinary Hindus.


7th December, 2009 – After the by now familiar no new temple, church mosque gurudwara etc, and the token gesture made to the people from whom the judiciary derives its legitimacy about reviewing pre-existing religious structures on a case to case basis, the Supreme Court dropped this bomb on our heads:

Place this petition for further directions on 4th February, 2010. Looking to the gravity of this matter, we direct that no order or direction inconsistent to our orders shall be passed by any other Court in the country

(Justices Dalveer Bhandari and AK Patnaik (Thiruvananthapuram Shree Anantha Padmanabha Swamy open-the-vaults- notoriety) of the Supreme Court)


That all States and Union territories must arrive at a consensus was creative thinking by the Home Secretary and not mandated by the SC. It is not clear why the Home Secretary insisted on consensus, and more intriguing, why no State sounded the “federalism under threat” alarm; instead the Chief Secretary of all States and Union Territories rushed to the SC to present their report card.

These thoughts have plagued the writer ever since she got to read all documents pulled out from the SC on this issue:

-        Is not the issue of what kind structures can or cannot come up on roads, on which roads they may be permitted to be built, and the guidelines governing all construction, the domain of elected governments?

-        The Gujarat High Court assumed for itself the role of urban development authority when the State had an elected government to administer it; never mind good, bad or ugly.

-        When Narendra Modi had already embarked on a demolition mission even without court directive, why did the High Court encroach upon executive domain and order removal of encroachments?

-        When no individual or agency had approached the High Court with a complaint or for redress, was the Gujarat High Court justified in taking up an issue which was not a matter of life and death or of gross violation of human rights?

-        More to the point, why did Narendra Modi not tell the court that it was treading on executive toes and that the judiciary must respect well-demarcated line between judicial and executive jurisdiction?


Even more shameless was the affidavit presented by the Addl. Solicitor-General on behalf of Sonia Gandhi’s UPA, praying for leave to appeal against the Gujarat High Court Order. This deserves to be quoted in some length and readers are urged to recollect Jayalalithaa’s demolition spree in 2005.


The central government’s SLP is a remarkable document for the language used. Without going into too many details the opening words of all paragraphs are reproduced to demonstrate the anxiety and passion with which Sonia Gandhi is dealing with wounded Muslim sentiment because one dargah was demolished.


1.      That the Instant Special Leave Petition has been filed preferred by the Union of India against the order dated 2.5.2006 passed by the Division Bench of the Hon’ble High Court of Gujarat. Special leave to appeal is sought for on, inter alia, the following grounds which are taken without prejudice to one another.

2.     That the impugned judgment is erroneous...

3.     That the High Court has acted in excess of its jurisdiction...

4.     That the High Court ought to have exercised circumspection....

5.     That the Hon’ble High Court erred in directing demolition...

6.     That the Hon’ble High Court erred in passing the impugned order....

7.     That the Hon’ble High Court had no material before it in the form of any official documentation...

8.     That the Hon’ble High Court erred in acting on the basis of a news item....


And it goes on and on about how the High Court had erred, was erroneous, failed to be circumspect, had no basis for its action and much more. Sonia Gandhi’s UPA threw the dictionary at the Hon’ble High Court. But the reasons cited by the Addl. Solicitor-General should be an eye-opener for Hindus. Readers please keep Tamil Nadu temple demolition 2005 and 2010 in mind.  


Union of India is only interested in ensuring that the law and order situation in the State of Gujarat does not go out of hand and it is with this objective that the Union of India is praying for a stay of the impugned judgment. Grave and serious, irreversible prejudice would be caused to the State of Gujarat and its citizens of the impugned order were not stayed pending disposal of the Instant Special Leave Petition.


The petitioner is deeply concerned about the safety and security of the citizens of the State of Gujarat and the prevailing law and order situation and is therefore constrained to institute the ISLP....


......it is imperative that it (the Petitioner) be permitted to file the ISLP in as much as the impugned order, if not stayed immediately, would have serious and grave consequences upon the law and order situation in the State of Gujarat but would also have severe ramifications on unity, integrity and security of the Nation. (Excerpts from the ISLP filed by the UPA through the Addl. Solicitor-General in the SC asking for an immediate stay on the impugned order of 2.5.2006 and petition appealing against the Gujarat High Court Order)


That is the power of organized, orchestrated and well-organized violence with which Muslims across the country bring national governments and as seen in this case, even the judiciary to its knees.


Narendra Modi, Mamata Banerjee, Jayalalithaa, Nitish Kumar and Naveen Patnaik have in recent times refused firmly to co-operate with the union government on several occasions citing federalism-under-threat as reason. And yet, no state government, no political party challenged the Supreme Court ordering them to remove all religious structures which the Supreme Court called encroachments.


These Chief Ministers also did not express any dissent with the general view that these religious structures had to be removed. No one asked, ‘why’? There is a lesson here for Hindus, a big lesson which they never seem to learn no matter how many times different governments have rubbed the collective Hindu nose in the dirt.


Why did the UPA government not intervene when a Division Bench of the Madras High Court at Madurai passed a similar order and the then Chief Minister demolished over 250 Hindu temples.


Why is it when Hindu temples are destroyed routinely by governments like evil boys tearing the wings of a butterfly, the central government does not rush its Addl. Solicitor General to the SC panting communal harmony is at stake, unity, integrity and security of the nation is at stake or that law and order will get out of hand?


Because Hindus have still not mastered the science of organized and co-ordinated violence or understood the need for expressing our sentiments with force which compels attention?    


By September 2010 when the Tamil Nadu Chief Secretary submitted the report, all States and Union Territories had submitted state-wise statistics of total number of religious structures encroaching public spaces, how many have been removed, how many relocated and how many regularised.


When the writer went to the High Court in October 2010 to protect one old street temple from demolition, the Chief Justice ordered the civic authorities not to demolish it, but did not demand answers from the state government for destroying 158 temples in 2010 before October. Because the Supreme Court had ordered High Courts not to pass any order not in line with its directive to remove all religious shrines from public places.


Angry Hindus wondered how many churches and mosques had been removed by the AIADMK in 2005 and by the DMK in 2010. We do not know the numbers for 2005 but the numbers for 2010 should make Hindus sit up if there is even an iota of self-esteem left in them.


According to the report filed by Tamil Nadu’s Chief Secretary in the Supreme Court on 8 September 2010, there were more than 70,000 religious structures on public spaces. Acting upon the orders of the Supreme Court, the Tamil Nadu government demolished 151 structures altogether of which 138 were Hindu temples, 4 churches, 5 mosques and 4 ‘others’.

Those familiar with Tamil Nadu would know that the Generic Church has poured thousands of crores of rupees into Tamil Nadu in the last twenty years and more. Much of this money has gone into buying large expanses of real estate to build imposing churches blotting the sky-line. Idli vendors, autorickshaw drivers, local residents and street hawkers do not receive money from foreign churches and western nations to build imposing temples. They build small street temples as sthana devtas to watch over them and their trade.

The TN Chief Secretary’s remark explains why the both Jayalalithaa and Karunanidhi chose Hindu temples to prove their obedience to the Courts:


It is also submitted that in the past cases of Religious Encroachments, in almost all the cases of encroachments, it may be noted that once the persons encroach upon the lands and construct some sort of structures, they obtain Electricity, Water Supply, Drainage Connections and based on this they had assumed that they have a right over the encroached land. Further these religious encroachments thrive on the sentimental feelings of the local mass and thereby exploit the innocent public to the detriment of the society and Public Amity.



These were in fact the exact same words that the Chief Justice of the Madras High Court, Shri M.Y. Eqbal threw on the writer’s face in November 2010. Of course there are no other scandals in the country and no other swindlers except the small Hindu who builds and maintains street temples.


The author is Editor, www.vigilonline.com

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