Constitutional amendments made in bad faith prove tough to reverse when they become tools in the hands of political lobbies
All Constitutions authored by nation-states from the 18th century onwards have their roots in what is often referred, by political scientists, as the “enlightened Constitution model.” It is largely based on the ideas of several 17th and 18th century European philosophers, especially Thomas Hobbes, John Locke and Jean-Jacques Rousseau.
Even though various forms of codified Constitutions have existed before the 18th century, it is the “enlightened model” that continues to shape Constitutions to this day. Therefore, a Constitution of any country is understood to be inherently pluralistic, setting guidelines for Governments to legislate laws that would ensure socio-political and economic stability and repulse discord and turmoil in society.
The “enlightened model” supports robust debate and an equally vigorous process of tabling a Bill before it is passed as law or an amendment. The idea is to achieve as wide a consensus as possible among all branches of the legislature, the executive and the polity. Yet, one has often seen how fast sometimes majorities in a Parliament have passed Bills and made amendments without much debate or input from stakeholders.
Recently, a controversial Act in the Indian Parliament was passed in just one day. The Citizenship (Amendment) Act (CAA) was introduced by the BJP Government on December 9 and passed the very next day. Denounced by the Opposition and human rights groups as being “anti-Muslim” and against the “secular spirit of the Indian Constitution”, the passage of this Act has triggered widespread riots in India.
This is a stark example of an amendment staining a document that was originally constructed on the pluralistic pillars of the enlightened Constitutional model. An amendment made in bad faith that creates discord in the polity can be problematic. Certain Constitutional amendments, which trigger discord in society, become rather tough to reverse, especially when they become political tools in the hands of strong lobbies.
Take, for instance, the Second Amendment in the US Constitution. Ratified in 1791, it gives US citizens the right to bear arms. The amendment became controversial in the latter half of the 20th century when there was an alarming increase in cases of youth indiscriminately gunning down fellow students in schools.
Despite massive rallies calling to repel the amendment, American Governments have found it tough to do so because the amendment is supported by the powerful and financially strong “gun lobby” and by segments of the polity in the more conservative Southern States. Both groups have an impact on the electoral careers and fortunes of a number of members of the US Congress and Governors.
The Second Amendment in the Constitution of Pakistan is another interesting case in point. Unlike the 1986 Article 295-C that introduced the death penalty in the country’s blasphemy laws, the second amendment in the country’s Constitution was not enacted in a hurry or without debate. A robust debate did take place. Mahboob Hussain’s book, The Parliament of Pakistan, provides a detailed account of how this amendment, which ousted a community from the fold of Islam, managed to become part of a Constitution built on the enlightened model.
In May 1974, a clash took place between a group of Ahmadiyya youth and members of the student-wing of the Jamaat-i-Islami (JI) in the city of Rabwah. A week later, the Leader of the Opposition in the Punjab Assembly demanded that the Ahmadiyya be declared a minority. Soon, the Opposition in the National Assembly moved a motion to discuss the incident in Parliament. The law Minister refused the motion stating that the issue was provincial.
Until June 4, 1974 the Government used various tactics to keep the debate on the issue away from the Parliament. The then Prime Minister, Zulfikar Ali Bhutto, maintained that the “90-year-old question” (of whether the Ahmadiyya were Muslim or not) was a theological one and, thus, could not be discussed in Parliament. According to Hussain, the Prime Minister asked religious parties that if this issue was so important, why had they not discussed it when the Constitution was being framed (with their input) in 1973. The speaker of the National Assembly stated that no debate can take place on the matter because the Constitution had already defined the minorities. On June 14, the Opposition called for a general strike. The strike turned violent in Punjab, killing dozens.
After threatening to use the military against the rioters, the Prime Minister finally appeared on TV and promised that he would allow the issue to be discussed in Parliament. In his book, Hussain writes that the fact that the military was already engaged in fighting an insurgency in Balochistan, and the manner in which certain Ahmadiyya leaders based out of Pakistan began suggesting (via foreign media) that the Bhutto regime was incompetent, forced the Prime Minister to allow a debate. A special parliamentary committee was formed to investigate the Opposition’s demands. Theological experts from all Muslim sects in Pakistan, including those from the Ahmadiyya community, were invited for in-camera sessions with the committee.
Bhutto’s party, the Pakistan Peoples Party (PPP), had been overwhelmingly supported by the Ahmadiyya during the 1970 election. In 1972, Bhutto had even appointed new chiefs of Air Force and Navy, both of whom were Ahmadiyya. According to Hussain, Bhutto continued efforts to neutralise the situation but since Punjab was the PPP’s electoral bastion, violence in the province threatened his regime at the centre.
Rafi Raza, one of the authors of the 1973 Constitution, wrote in his 1997 book, ZA Bhutto and Pakistan, that many members of PPP’s Punjab Assembly agreed to support the Opposition on the issue after portions of the special committee’s report were “leaked.” Raza wrote that certain “controversial statements” made by the Ahmadiyya figureheads during their meeting with the committee turned the tide in the Opposition’s favour. He didn’t mention exactly what these statements were.
After four months of debates and commotion, the Bill to declare the Ahmadiyya a minority was allowed to be tabled. On September 7, 1974, it was passed. All parties — religious and secular — in the Assemblies and the senate voted in its favour. Editorials of almost all newspapers commended the Parliament for resolving the issue “peacefully.”
Yet, even though the Government and the Opposition declared that a 90-year-old issue had been resolved through democratic consensus, the fact is, this “resolution” ended up opening a Pandora’s Box that the State and polity of Pakistan are still trying to shut. This was a box from which sprang out not only religious and sectarian monstrosities but also the question: Exactly how adjustable should a Constitution based on the “enlightened model” be? Is this adjustability actually a vulnerability?
(Writer: Nadeem Paracha; Courtesy: The Pioneer)
Hats off to the judiciary for its death sentence to Musharraf. The Army must learn how to behave, instead of regarding itself above the law
Pakistan Army officers and Pakistani Ministers seem enraged and are shouting themselves hoarse against the recent verdict of a three-member Special Court in Pakistan sentencing former Army chief General Pervez Musharraf to death for high treason. To my mind, there can be no manner of doubt that the verdict is correct.
Article 6 of the Pakistani Constitution states, “Any person who abrogates or subverts or suspends or holds in abeyance the Constitution, or attempts to do so, by use of force or show of force or any other unconstitutional means, shall be guilty of high treason.”
The former President was clearly guilty of high treason, as in 1999 he suspended the Pakistani Constitution after staging a blatantly unconstitutional army coup. He was guilty of high treason in 2007 when he again suspended the Constitution, declared martial law, illegally suspended the Chief Justice of Pakistan and dismissed judges of the Supreme Court and High Court who did not take oath of allegiance to the Army.
The Pakistan Army spokesman, Major-General Asif Ghafoor, has said that the verdict “has been received with a lot of pain and anguish by the rank and file of the Pakistan armed forces. Someone who served for 40 years and fought wars in the defence of the country can never be a traitor.”
But this statement overlooks Article 6 of the Pakistan Constitution. Should a judgment not be given just because it causes pain and anguish to someone?
Prime Minister Imran Khan had once been a strong critic of Musharraf and had demanded that he be tried for treason. However, now, due to his lust for power, he has changed his tune, cozied up to the military and is widely perceived as its puppet.
His Ministers are falling head over heels in condemning the verdict. His Sancho Panza, Science and Technology Minister Fawad Chaudhry, has said that the judiciary has “pushed the Army against a wall. It is an honour-based institution. If you keep doing so, won’t they react?”
The response to this is that the judiciary has not pushed anyone against a wall. It has only gone by what is clearly stated in the Constitution. Plus, the Pakistan Army can hardly be called “an honour-based institution.” In my article, The Truth about the Pakistan military and in Ayesha Siddiqa’s book Military Inc details have been given of how the Pakistan military has looted the country, having penetrated into almost every sector of the economy through the Fauji Foundation, Army Welfare Trust, Shaheen Foundation and so on. How can it be called “an honour-based institution”?
Ever since General Ayub Khan staged a military coup in 1958, the Pakistan Army has behaved like a tiger which has tasted human blood. Following the dictum “power grows out of the barrel of a gun” it has terrorised all sections of Pakistan society who dare not question its misdeeds, fearing terrible consequences.
It has ruled directly over Pakistan for 33 years and indirectly for much of the rest. Its senior officers are staunch supporters of the retired Generals, and oppose any action against their misdeeds, first because the latter were their superiors to whom they still have a sense of loyalty and second because they themselves will one day retire and may face similar action unless a precedent is established that Generals are immune.
So suddenly, the military, which has called the shots till now, finds itself in a position where it is being made to pay for its past crimes. And the judiciary, which has a long history of genuflecting before the Army and dismissing all challenges to martial law imposed by military dictators before Musharraf, namely Ayub Khan, Yahya Khan, Zia-ul-Haq, is now flexing its muscles.
But are Generals above the law ? In the Nuremberg Trials, Field Marshal Keitel and Gen Jodl, and in the Tokyo Trials, Generals Tojo and Yamashita, were sentenced to be hanged. The law is above everybody, howsoever high.
It is the first time in Pakistan’s history that a military leader has faced any kind of accountability for his misdeeds from a civilian authority, in this case the judiciary. The Pakistan apex court should be praised for showing the guts in checking General Bajwa’s extension.
Three cheers to the Pakistan judiciary for its death sentence to General Musharraf. The Pakistan Army must now learn how to behave, instead of regarding itself above the law. The Generals should know that for acting unconstitutionally the gallows await them just as they do any common man who flouts the law of the land.
(Writer: Markandey Katju; Courtesy: The Pioneer)
The pre-Budget period is critical for formulating the new economic path. CAA protests could derail the dialogue apart from lowering demand
The nationwide conflict over the Citizenship Amendment Act (CAA) could not have come at a worse time as economic activities are at a minimal; industrial production is at its lowest; consumption is hit; purchasing power is ebbing and the prices of commodities are skyrocketing. Food inflation jumped to a 71-month high in November, adding to the people’s woes. Now these countrywide protests and violence against the Citizenship Amendment Act (CAA), leading to disruptions in traffic, transportation, internet and telecom services, are resulting in more losses and delays in production, which are not easy to assess. However, industry leaders maintain a studied silence over such issues lest they be tagged as political activists. But the fact remains that the Delhi-National Capital Region (NCR) has come to a standstill at a time when the floundering industry is demanding succour from the budgetary process.
The Government should have launched a move to educate people on the CAA through public discussion, debate and attempt a national consensus. It also might have chosen a better time to bring the CAA so that the last fiscal quarter did not become victim of the public outcry that it should have anticipated in the first place. Now the fiscal health of the country has become a victim of the violence that has gripped the nation for days together. Public properties have been damaged right from Delhi to Uttar Pradesh (UP), Bengaluru, Ahmedabad and Assam. The country’s largest mass transporter, Indian Railways, says it has lost Rs 100 crore in West Bengal alone as its properties were damaged, just the way it lost around Rs 73 crore in Haryana during the Jat agitation. Now the Railways is thinking of claiming damages from the West Bengal Government and its standing counsel in Kolkata has made it clear that a civil suit against the State Government is under active consideration. This announcement has sparked off yet another political battle between the Centre and the State, worsening the already tenuous relationship between the two. Though West Bengal Chief Minister Mamata Banerjee says that she would defy the CAA and never allow implementation of the National Register of Citizen (NRC) in her State, the citizens are rushing to Aadhaar Seva Kendras to get their cards made in apprehension of facing the same disruption that unsettled Assam. Many States and even a half-ally of the BJP, the BJD supremo and Odisha Chief Minister Naveen Patnaik, who supported the CAA earlier, is opposing the NRC now.
The CAA agitation has added to the woes of the Government also as it has come at a time when preparations for Budget presentation have begun and States are demanding their piece of the Goods and Services Tax (GST) pie. The States in their interactions with Finance Minister Nirmala Sitharaman are complaining that delay in release of their share of the GST is causing immense problems for them and affecting their financial and economic activities. For a better future they are also seeking an increase in their fiscal deficit limits. However, the Centre is not in a happy state either as revenue collection is at its lowest. Both GST and direct tax collections have been contracting for the last few months. Now, in a bid to ramp up collections in the last four months of 2019-20, the Centre has revised GST and direct tax targets. It also wants to book tax-evaders and ask many of them to file revised tax returns.The RBI still does not see the slowdown stemming. Its Governor Shaktikanta Das says that capital expenditure of States has remained stagnant around 2.6-2.7 per cent of their Gross State Domestic Product (GSDP) over the last few years. Das says that there is need to focus more on manufacturing and the growth could be pushed by increased investments by both the Centre and States.
Moody’s Investor Services on December 16 expressed concern over the country’s weak household consumption. It says this will affect growth of the economy and weigh on credit quality in a number of sectors. Moody’s lowered growth from 5.8 per cent to 4.9 per cent in 2019-20 because of rural financial stress, low job creations and liquidity constraints. But would the recent nationwide stirs hit the economy? It is not easy to say. Post-Parliament session troubles may do so. It can be linked to the performance of microfinance institutions in the wake of the NRC and CAA troubles in Assam. Chairperson of Microfinance Institutions Network (MFIN), Manoj Nambiar says that Assam disturbances have hit many microfinance companies. Their disbursements and collections have been affected as normal operations could not be carried out because of the deteriorating law and order situation. The International Monetary Fund (IMF) chief economist Gita Gopinath calls for boosting productivity and supporting employment creation in India. The pre-Budget period is critical for formulating the new economic and financial path. Disturbances could derail the dialogue apart from lowering demand. The Centre needs to call all stakeholders to the negotiating table to help boost the economy.
(Writer: Shivaji Sarkar; Courtesy: The Pioneer)
The SC may argue that pleas are frivolous but the fact is a filter kills the very purpose of ensuring transparency
Ever since it became a reality, the Right to Information Act (RTI Act), which guarantees transparency in governance and ensures its accountability to citizens, has been defanged by successive regimes. It all began with the Manmohan Singh government when establishment hawks claimed that the law was being misused by “frivolous and vexatious” requests for information. Another canard was also spread about RTI being used as blackmail, a ruse to stifle it as more and more cases of corruption tumbled out of the cupboard following even simple requests for information. This thread was picked up by Home Minister Amit Shah who asserted that citizens do not have the need to file RTI applications because the Modi government is anyway transparent. Obviously, the RTI petitions had led to embarrassing revelations on demonetisation, Aadhaar and even bank NPAs. The judiciary, too, has not been proactive on this as questions have begun to be raised about the lack of transparency in its functioning. Agreed every law has advantages and pitfalls and the RTI could probably do with some caveats but when the Supreme Court, too, plays up the establishment’s anxieties, then the implication becomes serious for the common man. On Monday, the court ruled that the misuse and “criminal intimidation” of RTI should be stopped and that only petitioners, who are connected or involved with the issues raised, would be entertained. Describing the huge flow of applications under RTI as a “serious problem”, the Bench said though it was not opposed to the transparency law, there was a need to evolve some mechanism to ensure that only the affected or concerned person has the recourse to power. The problem with such filtering mechanism is that you first isolate the information seeker, making it that much easier for the powers that be to hound or silence him/her than when it is a class action plea. Far too many reports have emerged of RTI activists being killed. According to the Commonwealth Human Rights Initiative, 84 RTI activists have been killed in India since October 2005. Second, information on a policy matter of far-reaching consequence can never be a matter of personal but general interest. For example, no political party or politician will seek or be a party to a scrutiny of the electoral bond scheme, the working of which impacts voter preferences. Also, if a bidder in a government contract loses out over suspected foul play, will the individual/organisation pursue a petition, the effort for which may disqualify them from future contracts as a trouble-maker? The top court, however, directed the Centre and various State Governments to fill up vacancies of information commissioners, which have further held up crucial files. Independent studies have shown that at one time there were four vacancies in the 11-member Central Information Commission (CIC) while pendency had been rising every month to touch 33,000. The studies also found out that an appeal in the Andhra Pradesh State Information Commission could take 18 years for scrutiny. That time taken in Bengal and Odisha would be five and four years.
The RTI is slowly becoming another casualty of democracy, the government having whittled down its efficacy and the institutions formed by it with an amended version. The new RTI anyway strips the Information Commissioners from the immunity that is given to Supreme Court judges and Chief Election Commissioners, subjecting their service records, tenure and salaries to the discretion of the government or the Executive. Effectively, it means defanging them as the Government can remove them when it considers them unsuitable to its design. A fixed tenure and autonomy regardless of the government of the day would enable them to pursue fair probes. Otherwise, they would be afraid to be independent. Even our first Chief Information Commissioner, Wajahat Habibullah, and several other bureaucrats had written to the Prime Minister Narendra Modi to not bring the amendments and dilute what actually empowers the common man. Modi, who made running a corruption-free government his professed mantra since 2015, lost credibility by pushing something antithetical to that spirit. But now that he has the heft of the Lok Sabha verdict, he is beyond any criticism of the citizenry that voted him. Information Commissions are crucial links in allowing access to the workings of the Government. The system was anyway dependent on retired bureaucrats and now has loyalists. As it appears, RTI is now a robotic ritual than democratic intervention.
(Courtesy: The Pioneer)
The overall utilisation of Nirbhaya Funds allocated to States till date is just 11 per cent, which is only Rs 252 cr of the Rs 2,264 cr sanctioned for ensuring the safety of women
Seven years ago today, the country witnessed an act of monstrosity, when a 23-year-old woman was gang-raped, had a rod inserted in her private parts and was left to die on the roadside in Delhi. Despite battling hard for many days, she couldn’t survive, and, to honour her courage, was named Nirbhaya (fearless).
Due to the ghastliness of the crime, the citizens of the country came out on the streets demanding justice for Nirbhaya and safety for all women. Candle marches and protests were held all over and many PILs were filed. The protests showed results and the then Government introduced the Nirbhaya Fund in the Budget for the Financial Year 2013-14, for the safety and protection of women.
Circa 2019. It has been seven years but the situation remains unchanged and women continue to be unsafe in public spaces. On November 27, a 27-year-old veterinarian was gang-raped and burnt to death, her charred body recovered the next day. This was followed by reports of a nine-year-old girl being raped and strangled to death in Karnataka, the rape and murder of a six-year-old in Rajasthan, a 37-year-old being gang-raped in Odisha, the Unnao rape victim being burnt to death by the accused out on bail and another girl being threatened with the same fate by her tormentors if she testified against them. These are just a few among many more similar heinous crimes against women reported in recent days in the country. These cases led to another outcry in the nation and once again got everyone thinking about the safety of women in their families.
Questions were once again raised in the Parliament on the utilisation of the Nirbhaya Fund, following which, the Minister of Women and Child Development, Smriti Irani, presented data in the Lok Sabha on its use.
The Nirbhaya Fund was created with a corpus of Rs 1,000 crore in 2013 and this was increased to Rs 3,600 crore in the last six years. Of this, Rs 2,264 crore, which is 63 per cent of the corpus, was allocated to various States and Union Territories (UTs), by various departments, including the Ministry of Women and Child Development, Home Affairs, Justice and Road Transport and Highways.
To understand the ways the disbursed money had been used, the Kailash Satyarthi Children’s Foundation (KSCF) carried out an analysis of its utilisation by States/UTs. It revealed that despite an increase in crimes against women and children every year, the overall utilisation of Nirbhaya Funds allocated to States/UTs till date was a mere 11 per cent, which is only Rs 252 crore of the Rs 2,264 crore sanctioned. It was appalling to learn that none of the States/UTs could spend more than 50 per cent of the funds allotted till the financial year 2019. Shockingly, the BJP-ruled Maharashtra had failed to use a single rupee allotted to it, while Tripura and Tamil Nadu had just spent three per cent of the funds. Manipur had spent four per cent and Daman & Diu, West Bengal, Gujarat and Delhi used five per cent of the total funds allocated to them. Further, out of the 36 States/UTs for which data is available, the utilisation in 18 States/UTs has been less than 15 per cent, which is a testimony of their utter disregard towards women’s safety. The analysis also revealed that States, including Telangana, Karnataka and Odisha, where the recent cases of crimes against women were reported, have spent only six per cent of the funds allocated to them. In Uttar Pradesh, where the Unnao rape victim was burnt to death, 79 per cent of the funds had remained unspent. The highest utilisation of funds, which was 50 per cent, was done by just two States, Mizoram and Uttarakhand, with just three States, Haryana, Nagaland and Chhattisgarh showing spending of more than 30 per cent of the funds allocated.
The report shows that crimes against women and children have been on a constant rise from 2015 to 2017. The total crimes against women reported in 2015 were 329,243 which increased to 338,954 in 2016 and 359,849 in 2017. Similarly, crimes against children went up from 94,172 to 106,958 and 129,032 in 2015, 2016 and 2017, respectively. The latest annual Crime in India, 2017 report issued by the National Crime Records Bureau (NCRB) showed that in 2017, 32,559 cases of rape were reported, of which 17,382, (53 per cent) were those of minors. A review of the report from 2013 onwards shows that every year over 30,000 women and girls fall victim to the heinous crime.
The huge non-utilisation of the fund, especially set up for the protection of women, is a testimony to the complete lack of political will and utter disregard for the importance and seriousness of the issue of women’s safety. The Nirbhaya Fund was created for the implementation of projects and schemes exclusively designed for providing safety and security to women in public places. Some major schemes, where the States were supposed to use the funds, included the establishment of an Emergency Response Support System, Central Victim Compensation Fund, Cyber Crime Prevention against Women and Children, One Stop Centre Scheme, Mahila Police Volunteers, and Universalisation of Women Helpline Scheme.
However, meagre spending of the fund has resulted in the sub-optimal operationalisation of these schemes, with the country failing to achieve, even partially, the objectives for which it has been created.
Over the years, there have been demands for setting up special courts, appointing more women police officers, installation of CCTV cameras and street lights in every nook and corner and taking other measures to make the streets safer for the fair sex.
There is a need for strengthening the judiciary through the appointment of more judges, public prosecutors and other officials for time-bound disposal of sexual assault cases. It is imperative to train police officers to ensure timely filing of strong chargesheets against criminals with a diligent investigation to make watertight cases, among other things.
While recently, some policy developments have taken place, including creation of special courts for speedy disposal of cases related to Protection of Children from Sexual Offences (POCSO) Act; further strengthening of the POCSO Act; launch of the fast track special courts (FTSC) scheme for expeditious disposal of cases of rape and the POCSO Act, 2019 (which calls for establishing 1,023 FTSCs), much more needs to be done.
The KSCF has also been working relentlessly for the last several years to raise awareness against these crimes, demanding that India be made a country safer for women and children. A major step taken was the launch of Bharat Yatra, a national march against sexual abuse of children in 2017 and the Rape Free India campaign before the Lok Sabha elections, earlier this year.
The recent incidents of rape and other crimes against women are a wake-up call for State Governments. There is a need for States/UTs to formulate schemes for the safety of women and girls and implement them on a war footing. They need to utilise the Nirbhaya Fund placed at their disposal, and if necessary, allocate a budget from their funds for implementation of these schemes.
The women and children of the country have remained unsafe for long. It is high time that steps are taken to make them feel secure as they go about their daily business, at home and outside.
(Writer: Rakesh Senger; Courtesy: The Pioneer)
Increasingly, rape cases have seen an outpouring of public anger where the demand for death has reached a high pitch. Only reforms in the police and judicial systems can help
No matter what problems one may have with fairness of social media platforms like Twitter, posts here do make up for an interesting read and allow one to gauge the mood, if not of the country, definitely of the chattering class. Reactions to the rape and murder of a young veterinary doctor in Hyderabad were telling. Several Twitter users advocated not just death penalty but some even argued that the perpetrators be lynched. This kicked in a fevered discussion and even found its way into the Parliament where several MPs, across party lines, argued in favour of lynching of the rapists. Not a State-sanctioned death penalty but public lynching.
The irony, at a time when people are talking about bringing anti-lynching provisions into the law, was not lost on some. People’s anger stemmed, in no small part, due to the fact that December 2019 marks seven years of the horrific gang-rape in South Delhi, where a young physiotherapist was brutally assaulted and left for dead. The perpetrators of this horrific crime, despite being convicted and given the death penalty, have successfully eluded the sentence that was handed down to them. This is death of our conscience by using every available aspect of the law to delay their execution.
But isn’t this the right of every prisoner? The ability to use every possible means to prove his innocence or mitigate his sentence or even delay it, particularly when it is a matter of death? The only other major democracy that regularly executes prisoners is the US, which has several provisions in its statute books. Even the Governor of a State can issue a last-minute pardon to prisoners if appeals to the US Supreme Court fail. To deny them that would potentially mean convicting an innocent man or woman to death. In college and school debates, we have held discussions on justice delayed is justice denied but it is almost certain that a rushed judicial process is dangerous. It is gratifying that the Chief Justice of India, Sharad Arvind Bobde, realised this. While commenting on the murders of the four undertrials in the Hyderbad rape and murder case, he said, “Justice should not be revenge. I believe justice loses its character as justice if it becomes revenge.”
Those — including not just liberal ideologues in the country but also Right-wing thought leaders — against death penalty have a simple argument: Who is a man to judge a crime? But how do you explain this in the Indian context, because at our core, we remain a deeply tribalistic society where the 18th and 21st centuries have had a troubled relationship. Anyone who has been 50 kilometres outside India’s major metropolitan areas, particularly the national Capital, will understand this. When crimes are committed in such a brutal manner and scale, there is an expectation of punishment matching the act. India is not Norway, where a mass murderer can be allowed to live and also fight the State for human rights. No, we are India, where we have a very specific set of criminal issues. We should not pretend to be a socially developed State. Indeed, it can be argued that India’s social problems will likely get worse before they get better and the country will have little choice but to execute certain citizens.
We have to, however, take every single possible precautionary measure to prevent the possibility of an innocent man/woman going to the gallows. We cannot accept even one wrongful death sanctioned by the State. That said, when it is proven beyond any iota of doubt that an accused is guilty of those “rarest of rare” cases, where State-sanction is justified, then the executive and the judiciary both should ensure that the punishment is delivered swiftly. To keep a man or a woman on death row for an indefinite time is technically, cruelty. Of course, one may not sympathise with the murderers but constant appeals bouncing around the judiciary and the Union Home Ministry for years is plainly ridiculous. If someone has been sentenced to death for a heinous crime, the death penalty should not be handed out like candy by the lower judiciary. If the sentence has been confirmed by the Supreme Court, the Home Ministry and the President should get on with their jobs.
We have had Presidents who have delayed the signing of death warrants because it went against their conscience. Fair enough, but Presidents should come out and be vocal about it instead of delaying matters until the next head of the State assumes power.
This is a peculiar Indian issue — putting off tough decisions instead of acting on them. It took a century to bring natural justice to the Ayodhya case. On top of that, the fate of the Delhi rapists is still hanging in the air. This is one major reason why there is so much pendency in courts. Forget about the failure of the bureaucracy and the executive to take decisions. Of course, there are other reasons, too, such as delay in filling judicial vacancies, which coupled with the lack of education and knowledge across the board, including that of the legal profession, has completely broken the criminal justice system in the country.
So when incidents like the Hyderabad rape case happen, there is public anger. The same sentiments run across among the local population when alleged child snatchers or cattle hustlers are lynched. We know how people get worked up over vigilantism.
Our justice system has failed us completely and needs to be revved up with meaningful implementation of processes. Increasingly, people have started taking matters into their own hands. If this isn’t a sign of a banana republic, no one really knows what is. It is, therefore, imperative for the executive and the judiciary to work towards fixing this. While policing is a State subject, there needs to be a comprehensive federal re-evaluation of policing and the judiciary, just like the indirect taxation system was overhauled to the Goods and Services Tax system. But we cannot afford to bungle anymore. India needs police and judicial reforms now in sync with the severity of the emerging crime graph.
(Writer: Kushan Mitra; Courtesy: The Pioneer)
It would be helpful if lawmakers choose to listen and readjust some principles when examining the Data Protection Bill, 2019
India has finally brought the Personal Data Protection Bill, 2019 in the public domain. The legislation, which has been more than a year in the making, went through a committee headed by a retired judge, with public consultation. This was followed by a Ministry of Electronics and Information Technology-led public consultation but something changed midway. Of the over 600 public comments received by the Government on the first draft of the Personal Data Protection Bill, none are available in public domain. The entire exercise, that began on a participative note, suddenly changed course.
This raises a flurry of questions from stakeholders who are not sure about the intent and implications of the proposed legislation. Let us take a look at some intriguing questions regarding the Personal Data Protection Bill, 2019.
The initial Bill had chosen to define personal data based on the characteristic trait or any other feature of identity of the data subject. The new Bill’s text also encompasses inferences drawn for profiling as personal data. This leads to a question regarding the nature and degree of inferences which can be categorised as personal data.
Along similar lines, the definition of sensitive personal data, has, in the new Bill been left with additional jurisdiction overview of the Central Government, whereas the first draft had left it at the door of the proposed Data Protection Authority. In the same breath, it may be added that the very selection process of the chairperson and members of the proposed Data Protection Authority in the initial draft had been suggested to be in consultation with a person with judicial qualifications whereas the new Bill puts the onus on a bureaucrat from the legal affairs department to advise on the selection process. These co-joined clauses from the text of the new Bill have led many to question the intent behind removing the judicial intervention oversight of the Data Protection Authority.
The most contentious questions, however, arise on a new clause 91, inserted in the miscellaneous section of the Bill. The clause reads, “The Central Government may, in consultation with the (Data Protection) Authority, direct any data fiduciary or data processor to provide any personal data anonymised or other non-personal data to enable better targeting of delivery of services or formulation of evidence-based policies by the Central Government, in such manner as may be prescribed. Explanation — for this sub-section, the expression ‘non-personal data’ means the data other than personal data.”
The most common questions on the classification of data into personal and non-personal throw up issues around possible Intellectual Property Rights, copyright violations and boundaries of personal vs derived vs processed vs non-personal data. Many have asked the relevance of forming a non-personal data committee, which has been tasked to arrive at legislation through a consultative process.
This committee, comprising senior officials from two Ministries as well as some private sector representatives has already had informal discussions with a couple of big-tech companies. The non-personal data committee, which is yet to come out with a background paper or even a formal consultation process, perhaps loses its stature on any proposed legislation on non-personal data. Industry operators would be greatly benefitted if they knew the definitions and nuances of non-personal data and the enforcement guidelines strategy.
This sets the tone for a lively clause-by-clause debate on the Bill. The Government has referred it to a Joint Select Parliamentary Committee bypassing what many would have assumed to be the Standing Committee for Information Technology, in Parliament. It could potentially allow relevant stakeholders to make brief presentations regarding their issues and key concerns with the personal data protection legislation. The question is, will they?
Let’s shift our attention for a while and focus on basic premises. While data is precious, no benefit comes out of it till aggregated, processed, analysed and effectively used for human good. While everyone wants to have access to ever-growing terabytes of every individual’s data, only a handful, perhaps, have a will to do so for charitable purposes. Do they have the necessary skill sets to collect and analyse data? Then come the questions related to intent, purpose, business and many such puzzles.
If we add to it a machine-influenced set of “data principles” i.e. those that are not fully controlled by human jurisdiction, a new crystal starts to deflect the sunrays. We may agree to the fact that we perceive much of the world through the colour of the light we look at it through. That means there is ample scope for illusionary demons lurking in transparent, faraway landscapes. Do we, therefore, stop believing or do we readjust /refocus constantly? If that’s the case, coming back to our original set of questions, it would be helpful if lawmakers choose to listen and readjust if required some principles when examining the Data Protection Bill, 2019.
(Writer: Kumardeep Banerjee; Courtesy: The Pioneer)
Justice hurried is infact Justice buried
As the common people continue to cheer what appears to be a staged encounter by the Telengana police, of all the four accused in the brutal rape and murder of a woman veterinarian – we as a Nation must ponder over this incident with emotional sentience. Remaining adrift from the debates and the binaries of right or wrong around what transpired, let’s just analyze if it was really ‘just’ as per the doctrines of natural justice.
Imagine the harrowing brutality the woman veterinarian was made to suffer. Her only fault was her being a women in this society and culture, nurtured by patriarchy and toxic masculinity. Being a Vet by profession she used to crusade tirelessly for the most voiceless and the most marginalized- the animals. On the fateful night she was abducted when her two wheeler broke down, and gang raped several times. The accused didn’t stop with this they then tried to strangle her multiple times, only to set her ablaze in the end when she was most probably alive. The pictures we saw in the media narrate the chilling tale of this barbaric crime. Imagine the pain, trauma and horror she was going through before her tragic end.
Is it even possible to fathom what she must have felt during those extremely painful and tragic moments. The physical and mental trauma she was subjected to, only because she was a women. In this light, can we really conclude, that the encounter that followed was justice? Does a swift death by a bullet really does real justice to the accused in this case? This is nothing but an easy getaway for those criminals, and an even easier escape for the Telengana police, who firstly failed in providing and ensuring women security and then staged a visibly fake encounter, only to ensure a comparatively trivial punishment to the accused.
I feel These men deserved much more than this- something similar to what was inflicted upon their unsuspecting victim. Their real punishment would have been if an equivalent level of physical and mental suffering was extorted upon them over a longer duration- which would have served two extremely valuable purposes. Firstly subjecting the perpetrators of this evil act to a proportionate level of suffering and pain would guide their subconscious towards a corrective realization and maybe some amount of experiential guilt. Secondly, the harshness of such a sentence would act as a deterrent for such crimes in the future, by sending a clear message to sexual predators roaming freely in the society- that if they choose to take such a path, their life would be agonizingly painful and torturous. However I believe this punishment should be given only by the Judiciary, so that everyone is satisfied in knowing that the criminals are undoubtedly proved guilty and not just used as an escape goat by the authorities for winning over the praise of the media. The courts must speed up the trial system and immediately punish the criminals. If this part is not corrected my apprehensions are that in future cases the police will again take the law into their own hands and it’s quite possible an innocent person could be caught, punished or even killed.
Deana uppal
Entrepreneur & Miss India UK
It’s time to fix the rot in the criminal justice system to stem the rising demand for wanton killing of rapists-killers. Further laxity will make Nov 6 Hyderabad encounter an epitome of a parallel justice delivery system
If the misery of the poor be caused not by the laws of nature, but by our institutions, great is our sin.
— Charles Darwin, Voyage of the Beagle
The vagaries of the human mind seen in the binary of crime and punishment in the past fortnight — the rape-murder of a veterinarian in Hyderabad and the immolation of a rape survivor in Unnao in one side, and the encounter killing of all the four accused on the same crime spot on the outskirts of Hyderabad on the other — are so complex that for a concerned citizen speaking up is difficult, but keeping silence is impossible.
Violence against women is not a new phenomenon; it is existent in varying intensity in all societies, patriarchal or matriarchal. In India, after every few years, we witness paroxysms of public outrage over ghastly rape incidents, triggering demands for an effective criminal justice system. The narratives always ensue in across-the-board support for amendments to make laws more stringent, but the sluggish implementation keeps drawing people’s ire. Nevertheless, the public outrage has rarely precipitated into the redressal of grievances by trigger-happy policemen as was seen in Hyderabad.
However, rather than going into the veracity of the claims of “fake” or “genuine” encounter in which four men accused of raping and killing the vet were shot dead during the recreation of the crime scene in the wee hours of November 6, it is more pertinent to study why the extrajudicial killings have gained so much traction among the common people. The assessment is warranted all the more so because many of those singing the praises of the police believe the cops had taken vengeance on the rapists-murderers by shooting them in cold blood. The fortune of the Cyberabad Police, which had taken brickbats for initial delays in the filing FIR over the jurisdiction issue, has turned around with this “heroic” act in the eyes of the commoners.
Seen in this perspective, for those living in the ivory towers, it is imperative to acknowledge the reasons for the euphoria over the encounter deaths, rather that resting their case just by blaming the cops and the “mass hysteria”. Whether genuine or fake, the encounter deaths reflect the rot in grievance redressal mechanism as the elation among people points to their belief that such encounter killings will serve the purported purposes of the criminal justice system: First, by punishing the wrongdoer; second, as deterrence for potential criminals; and third, by delivering speedy justice without the rigmarole of the unending procedure. The long seven years wait for the execution of Nirbhaya’s rapists-killers is a case in point for them.
Therefore, terming the jubilation over the encounter killing of rapists-immolators as perversion is pregnant with the possibilities of misunderstanding the ground situation. Social reality is not shaped by those legal codes which are divorced from the desires and demands of the people. It is vital for the lawmakers and enforcement agencies to understand that the perceptions of justice or injustice are always coloured by the values and interests of the particular society. The Cyberabad Police did what the irate people were looking from the criminal justice system that has failed to deliver to the satisfaction of the aggrieved.
It points to dangerous outlook. If people push for extrajudicial killings for swift justice, it means they have lost trust in the criminal justice system. Credible institutions are the foundations of a strong democracy. If one institution usurps the role of another, it will lead to anarchy and loss of accountability. Police can’t be the end process in the criminal justice system; it rests with the court of law. But if justice is delayed or denied, it is natural, though unlawful, for the outraged mass to seek alternative methods.
It’s high time we fixed the rot in the criminal justice system in order to stem the rising demand for wanton killing of rapists-killers, otherwise, the vacuum will be filled by unwanted and unaccountable elements. Any further laxity will make the Hyderabad encounter an epitome of a parallel justice delivery system.
(Writer: Swarn Kumar Anand; Courtesy: The Pioneer)
Till we internalise the concept of marriage as one of equal partnership and not just about legalised sex, abuse within it won’t even be considered a problem
They are rape survivors, too. Perhaps the most neglected and traumatised among women in our country. Yet they do not draw eyeballs, nor are they allowed to speak up. There is no law to help them. Nobody rages over them simply because their horror and humiliation aren’t dramatic enough to get a whole nation to turn vigilantes overnight or simply because they have become too normal compared to the abnormal excesses of a Nirbhaya or a Disha. They have the pain of an old wound, which becomes unbearable at times but then dulls out as one of life’s many humiliations that you learn to live with. Yet they are brutalised daily in their own homes, by the men they are supposed to trust the most, their husbands. So there is no triumphalism in rescuing them, simply because they are in the custody of spousal security. Hence, they are best forgotten.
Marital rape, which can be as gruesome when it comes to bestial practices, if not more, is hardly ever up for discussion. This despite the Justice JS Verma Committee recommending that it be criminalised while reviewing rights protocols post Nirbhaya. Yet it continues to be the darkest cloud over a woman’s autonomy on her own body, her choice, her free will and her right to say no, simply because her consent is believed to have been implied, nay signed off, in her marital status. Worse, marital rape is the least reported of sexual violence against women in police files. According to some estimates, 99 per cent of such cases are not reported. Some studies show that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others. Even among aware women, in high literacy States like Tamil Nadu and Karnataka, reporting of violence is dismal. So consider the disfranchisement of women when it comes to States that have a low female literacy, awareness and empowerment. In States such as Bihar, Uttar Pradesh and Jharkhand, less than 0.5 per cent incidents of violence against women were reported.
While unwilling sexual contact between a husband and a wife is recognised as a criminal offence in almost every country of the world, India is one of the 36 nations that still has not criminalised marital rape. Rape, as defined in Section 375 of the Indian Penal Code, includes all forms of sexual assault, involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over 15 years of age though in a recent judgment, the Supreme Court criminalised non-consensual sexual contact with a wife between 15 and 18 years of age. This has opened the floodgates of appeals to challenge the entirety of Exception 2 as a whole. This is particularly gaining traction as it undermines Article 14 of the Constitution, which guarantees equal rights to all citizens.
And for all empowerment initiatives by the Government, the fact of the matter is that they are governed by the old patriarchal mindset of deciding what a woman needs, an imposition of grants and doles from the male gaze rather than respecting the most basic of human rights, that of a woman’s mind. And till this thinking changes, we will continue to be known to the world as a “Rape Republic” than a “Republic of Women.” Till we revise the concept of marriage as one of equal partnership, prize it as a long-standing companionship and not just about legalised sex, marital rape won’t even be considered a problem.
The societal bias is so deep-rooted that even the educated elite is not immune to certain assumptions. And the prolonged silence of women has come to be interpreted as their acceptance. Most men confronted with questions that they might be forcing themselves on their wives usually come up with a predictable set of replies or counter questions. Doesn’t by virtue of agreeing to marry, a woman give her perpetual consent to sexual relations? Nobody asks if she wants it or not on her terms. Why marry if she is uncomfortable with the idea? Nobody understands that sex is just a sub-set of the entirety of vows made by a man and woman. Isn’t it better that sexual relations are with the wife instead of another woman? So loyalty and infidelity have come to be dependent on a man’s right to the basest form of gratification like an on-demand service. Why should sexual incompatibility not be seen as a problem? Because it is not, it is a process of adjustment and can be solved. Do men realise that they may be raping their wives? No. It does not amount to violence against women.
Such cultural conditioning is so deeply embedded in our DNA that it has over the years resulted in discriminatory laws, biased behaviour, skewed relationships and a severely gendered view of marriage as an institution. Even family members confine marital rape to a simple relationship hurdle between man and wife rather than looking at it with the seriousness it deserves. Despite consistent debates on criminalising marital rape, its critics deny the need for legislation saying a woman’s concerns were well protected under Section 498 A and the Domestic Violence Act. Fact is both deal with an umbrella of abuse and not sexual violations per se. The Domestic Violence Act provides for civil, not criminal redress. Counselling works when there is an acceptance of guilt, not in its denial. Besides, Section 122 of the Indian Evidence Act prohibits disclosure of communications during marriage in court unless one spouse is being prosecuted for a crime against the other.
Some degree of offensive and aggressive behaviour by the husband has been normalised by society as a male habit that married women are expected to internalise. The justice system, too, as a product of society, becomes wary of interfering in what is unofficially considered a private territory of a man-woman relationship. In unitising a marriage, it overlooks an individual’s rights, sovereignty and most importantly the woman’s inviolability. It is also the easiest way of stifling her demands for economic rights in her marital home, particularly in the rural scenario.
Without any legal prop of reassurance, abused women simply clam up for fear of being disbelieved, insulted, joked about or abused further. Violence, therefore, becomes a tool of power play, of negotiating a woman’s place in society on a man’s terms. Assaulting her body becomes the easiest way to subjugate her self-worth. In fact, in a horribly lopsided template, we are pushing girls’ rights to education and a healthy life, yet clipping them when it comes to their marital rights, subsuming them to the will and exploitation of their husbands.
As per the Constitution of India, every law which is passed must be in conformity with the principles and ideas as enshrined in the Constitution. Any law which fails to meet its required standards can be considered ultra vires, struck down or be declared unconstitutional. Therefore, we need to acknowledge marital rape. Would India, which is positing itself as an emergent power, want to be bracketed with countries where marital rape is permitted by law, namely Ghana, Lesotho, Oman, Singapore and Sri Lanka, according to a study by Equality Now?
What of our lawmakers, whom we have empowered to change our systems? They only take us back to putrid medievalism in the name of holding up Bharatiya sanskar. Consider the following remarks made across the political spectrum. For former Bihar Health Minister Mangal Pandey, “virgin” means the same as “unmarried” and “pure”, implying that married women do not qualify for discussion. In April 2014, while opposing death penalty to three men convicted in a gangrape case, former Samajwadi Party supremo Mulayam Singh Yadav had said, “Boys will be boys, they commit mistakes.” And that endorsement continues when they become men. In 2013, Congress general secretary Digvijaya Singh crassly described Meenakshi Natarajan, party MP from Mandsaur, as a “sau tunch maal” or a desirable object. In 2013, Rashtriya Swayamsevak Sangh (RSS) chief Mohan Bhagwat had said rapes were an urban crime caused by Westernisation and do not happen in rural India imbued with traditional values. And in 2012 itself, Haryana’s former Chief Minister Om Prakash Chautala sanctified marriage as the best armoury of women’s honour and justified a khap panchayat’s advocacy of child marriage, saying, “People used to marry their girls to save them from Mughal atrocities.”
We are still horribly gendered in our thinking and depending on the evolutionary scale in society, each stratum still sees women as negotiable tools of fantasy, desire and even sadism. Men know they can legitimise all of them within the “sanctified” construct called marriage. Yet it is the most desanctified space for women, simply because in no other role is a woman presumed to be so subservient.
(Writer: Rinku Ghosh; Courtesy: The Pioneer)
Only that can dilute if not settle the putrid political mess in Maharashtra. The sooner a House session is called, the better
The political ambush in Maharashtra — for nothing else can describe the opportunistic division of the power pie among electoral rivals, the BJP and a Nationalist Congress Party (NCP) breakaway — needs to be rectified by an immediate constitution of the House. That alone can set off processes leading to a floor test, all of which are time-taking but can restore order. Now that a new Government has been sworn in by the Governor, it is incumbent upon him to call a House session, which will then elect a pro-tem Speaker. He will administer the oath to MLAs, conduct the election of the full-time Speaker, which in itself will show how the numbers are stacked, and then let the latter handle the floor test. Although the Supreme Court in its infinite wisdom considers the technical aspects of the plea, that is if the letters of support by BJP and NCP MLAs to the Governor were indeed genuine or not, the fact is it must really hasten conditions required for a floor test. Letters now mean little. Yes, it must consider the delicacies of the case but cannot disregard how the Opposition front of the Congress, official NCP and Sena have also submitted a list of 154 MLAs to the Governor and court as counter-claimants to power. All the more reason that a House session and floor test are made possible at the earliest to legitimise claims. Considering the muddied waters since daybreak Saturday, with each side claiming defections and overlapping loyalists, the top court is expected to do everything right to restore public confidence in and uphold democratic principles. Otherwise, it will be perceived to have allowed the cloak and dagger feudalism that has come to justify itself as Constitutional practice. November 30, by which the Governor wants the floor test, is just four days away. So a breather has anyway been got. Also, the top court would recall that in the Karnataka scenario, it had moved in swiftly, at the midnight hour, to order such a session. BS Yediyurappa couldn’t pile up numbers in a subsequent floor test.
Now that a new Government has been sworn in, there is no ground for dilly-dallying. BJP Chief Minister Devendra Fadnavis says he has support of 170 MLAs, 105 MLAs of his own, all 54 MLAs from the NCP and 11 Independents and smaller parties. The Congress with 44, the NCP (still claimed by Sharad Pawar as his and not of his nephew and deputy Chief Minister Ajit Pawar) at 54 and Shiv Sena, now no longer a BJP ally, with 56 seats and some Independents have furnished a list of 162. Both sides have common support and cross the halfway mark of 144. There are bizarre stories of resort politics, with each camp shepherding its legislators from inducements by competitors, as if they are a gullible lot who do not have a mind of their own to decide or are terrorised into the barracks. Fact is, they are following established practice to treat their seats as assets and sell them to the highest bidder. Undoubtedly democracy has been made a mockery of far too many times in this country to become an ugly truth. And it sadly continues as part of competitive point-scoring and whataboutery. What gives our politicians the right to emulate indecorous examples, simply because they had been executed by their rival at some point in time and continue to be a precedent? Meanwhile, the parading games have started. The BJP, which has made anti-corruption the credo of its Congress-mukt Bharat, has not only bought over the tainted Ajit Pawar but decided to hide his black book. Reports now indicate that investigation in nine cases related to the Rs 70,000 crore Maharashtra irrigation scam was closed on Monday, two days after Ajit Pawar was sworn in. What a travesty considering the first thing that Fadnavis did when he became the Chief Minister in 2014 was to register these same cases. Of course, the BJP has made brazenness the new normal, not bothered about perceptions. But it is still difficult to believe why the original NCP chief Sharad Pawar is tepid in handling the consequences of a palace coup? For starters, there has been no action against Ajit Pawar beyond his suspension as a legislature party leader. There has been no talk of expulsion. Does the old Maratha strongman fear that expulsion would also lead to an exodus of his own MLAs in large numbers? Yet Ajit Pawar claims that NCP still has one leader and that is senior Pawar. So one wonders how the NCP chief, whose status has been hugely compromised by the assumption that he is in the loop of things, is still willing to be fall guy. Speculation that his nephew doesn’t have so much as a dare to stand against him and that his daughter would ultimately find a place in the Union Cabinet seems to be growing. If all of this is proven, it will be the death of democracy as we know it.
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