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.

The only way to explain indecisive electoral outcomes is the growing gulf between the rich and the rest in almost every democratic country

Homo economicus’ is dead. Long live ‘homo tribuarius’! That’s not really something to celebrate but it’s certainly true that in most democratic countries economic self-interest is no longer the most important factor in voters’ choices.

Tribalism of various sorts is taking its place and that is not an improvement. Take three quite different countries that are all stalled in the middle of political transitions that would have been done and dusted in no time 20 years ago: Spain, Israel and the United Kingdom (UK). Spain has just had its fourth election in four years and the stalemate is worse than ever. Prime Minister Pedro Sánchez went back to the polls in the hope of increasing his centre-Left PSOE party’s seats in Parliament enough to make the arithmetic work. He had no chance of winning an overall majority, of course but maybe with a few more seats and a more willing coalition partner….Not a chance. He went back to Parliament with a few less seats and so did his skittish intended coalition partner, Unidas Podemos. They have now swallowed their pride and agreed on a coalition but they still need 21 seats from elsewhere for a majority, and it’s hard to see where that will come from. This is not how things used to be. A couple of decades ago the PSOE and its centre-Right rival, the People’s Party, used to sweep up 80 per cent of the vote, leaving just scraps for the “minor” parties. In last April’s election, the two historic “major” parties only got 48 per cent of the votes between them.

Or consider Israel, where two elections this year failed to produce any set of political parties — out of a total of nine — with enough common ground to build a coalition government that works. The two ‘major’ parties together got only 51 per cent of the votes. Benjamin Netanyahu’s Likud party tried and failed to form a coalition Government. Benny Gantz’s Blue and White Party is still trying and there is talk of a power-sharing “grand coalition” between the two biggest parties but otherwise Israel is probably heading for a third election within months. Even if there is a deal between Likud and the Blue and White Party, the resulting Government would be prone to fall apart at the first bump in the road. As that perspicacious political observer Donald Trump said on Monday, “They keep having elections and nobody gets elected.”

And then there’s the UK, stuck in the Brexit swamp for over three years and still looking for the exit. The two big traditional parties, Labour and the Conservatives, managed to win 80 per cent of the vote in the last election but subsequent defections from both the big parties made a decision on what kind of Brexit it should be (if any) impossible. Why is this happening?

In Britain, the Labour-Conservative disagreement used to be basically economic. Labour sought to redistribute the wealth, the Conservatives tried to defend the existing order and most people made their choices according to their position in the economic pyramid. That was never entirely true, of course. Some intellectuals in posh houses voted for Labour and the Conservatives always managed to attract some working-class votes by stressing racial, sectarian and “values” issues. But most people did vote for their economic interests. Not now. The Conservatives are the pro-Brexit party but 42 per cent of their traditional voters supported “Remain” in the 2016 referendum on leaving the European Union. Similarly, one-third of traditional Labour voters backed “Leave.” Never mind the economy; the referendum was driven by English nationalism. Or tribalism, if you prefer.

You can find similarly indecisive outcomes all over the place. The two traditional “major” parties in Germany got only 54 per cent of the vote in the last election. In 2017, the Netherlands went 208 days without a Government. In 2018 Sweden went four months “ungoverned” before a coalition was finally formed.

You can’t blame these outcomes on the internet, although that certainly makes it easier to spread disinformation. You can’t just blame it on proportional representation voting systems, either: The UK has a simple winner-takes-all (or first-past-the-post) system. You probably can blame it on a rising level of anger everywhere but then you have to explain the anger. The one common denominator that might explain it is the growing disparity of wealth — the gulf between the rich and the rest — in practically every democratic country. Since the 1970s, income growth for households on the middle and lower rungs of the ladder has slowed sharply in almost every country, while incomes at the top have continued to grow strongly. The concentration of income at the very top is now at a level last seen 90 years ago during the “Roaring Twenties” — just before the Great Depression. We could fix this by politics, if we can get past the tribalisation. Or we could fix it by wars, the way we did last time.

(Writer: Gwynne Dyer, Courtesy:  The Pioneer)

The brawl between police officers and lawyers over a parking lot was the manifestation of a misplaced sense of entitlement at work. The episode should lead to corrective introspection

Submission to an inviolable sense of justice, order and probity ought to be at the heart of professionals rendering policing and legal services to society. The nobility of purpose in both these professions mandates a certain code of conduct and ethics that posits the responsibility to the citizenry at large and, thereby, the nation. Many such mandates have been legislated, ingrained and templatised in the form of standard procedures, processes and even uniforms that they bear with aplomb and responsibility. The allegorical personification of Lady Justice (originally Lustitia, the goddess of justice in the Greek mythology) with a blindfold, a balance and a sword is deeply symbolic of those who uphold its tenets as protectors of justice.

Similarly, the khaki uniform of the police personnel is freighted with the citizen’s charter that explicitly seeks, among other things, the “maintenance of law and order in civil society” as a common bond between the two services. Many illustrious lawyers and policemen (and policewomen) have conducted themselves with the highest dignity, civility, service and personal sacrifices that have been the pride of the society and the nation.

Yet, the unfortunate spectacle of the violent clash between policemen and the lawyers at the Tis Hazari court in the national capital shamed the edifice of justice, which is the shared responsibility of these two callings. In an age of reckless social media, the free flow of visuals of the fights, accusations and the public protests was a reflection of institutional breakdown at various levels.

The immediate impact of this wholly avoidable fracas goes way beyond the perceptions about these two professions. It speaks volumes about the institutional one-upmanship, prevailing societal anger and above all, a misplaced sense of entitlement that some individuals may carry — all of which could taint the entirety of their services. For the sake of national security and order, institutional blame-game must be contained with immediate effect. The High Court-appointed judicial inquiry must ascertain individual acts of misdemeanour and those involved must be punished, irrespective of their professional callings.

However, the lazy and wanton lust to sully the reputation of either of the institutions can have unfathomable repercussions that the nation can ill-afford, given that both are unique and irreplaceable services, often the only source of ensuring justice to the citizenry. To that extent, the act should be treated as a matter of individual (at best a group of individuals) culpability or complicity as opposed to a situation where the top-brass of either institutions lock horns on behalf of their colleagues. The fact that the violence was triggered by a seemingly innocuous dispute over a parking space reeks of ego, vanity and a sense of fiefdom that was involved. The proverbial “turf-war” further eroded the citizen’s waning trust, faith and decorum about governmental and judicial arms, who are in dire need for reforms and reassurances.

In the melee of excesses  was the regrettable irony of the Delhi Police’s motto of “Shanti, Sewa, Nyaya” (Peace, Service and Justice) or indeed, the fact that the lawyers are the ultimate restorers of the law of the land. The hapless citizenry could only mull and reminisce their own experiences at the hands of either of these two.

Such incidents also give a parallel vent to latent concerns that have remained unaddressed for far too long but contextualising the same to this incident is to distract from the immediacy and specificity of action. The unwarranted politicisation of the incident, with political parties assuming positions that suit their immediate narrative, can only fan the fire. Sane voices, who are either in positions of seniority in the respective hierarchies or those who have retired from official service, would do yeoman service by insisting on isolating the individuals concerned in the violence, as opposed to taking institutional positions.

Other collateral concerns like work conditions and officer-soldier relationship in the police among others, however true and important in their own right, are a matter of separate enquiry and resolution. In fact, there has been a plethora of committees and commissions that have identified various reforms pertaining to the efficacy of the judicial and policing services. Unfortunately, political will has been lacking and even institutional lethargy to undertake the recommendations made by experts in the field.

A more reassuring arm of the Government has been the armed forces. The principal factor for this has been the relative isolation from the politicisation of its environment, functioning and ethos. In cases of individual culpability pertaining to the rare wrong-doings of a soldier of the armed forces, care is taken to isolate them from institutional framework as discipline cannot be compromised.

Discipline, leadership and soldiering ethos are made to walk the talk in the armed forces. The finest example of this is the “officer-to-soldier” fatality ratio, which is the highest for any military in the world. It is the professional culture and standard that are at stake when murmurs abound of creeping politicisation even in the armed forces.

The onus is on the Government to contain this incident with speedy intervention, resolution and then usher in the much-delayed institutional reforms. No society can thrive where a revenue officer is burnt alive during the conduct of his/her duty, where police-lawyers vandalise public property, where policemen in uniform protest raising slogans, where suicide attempts for justice by lawyers are made. Indeed, forgotten from the recent limelight is the unprecedented tragedy of the war heroes of the armed forces sitting on roadside, asking for what was rightfully promised in OROP.

There is certainly a power play of institutional relevance, elbow-room and assertion at play. The fight over the parking lot was symbolic of the misplaced sense of entitlement that is at work with a few that shame their own institutions. This incident should lead to corrective introspection and cooling of tempers as opposed to a field day for those who have vested interest in TRPs, partisan concerns or perpetuating the existing systemic rot.

Writer: Bhopinder Singh

Courtesy: The Pioneer

President’s Rule in Maharashtra must be shot down by the SC. Elections are a costly affair and a poor country like India can ill-afford frequent polls

In my opinion, the recent imposition of President’s Rule in Maharashtra under Article 356 is unconstitutional and needs to be declared as such by the Supreme Court (SC). In the recent elections to the 288-member Maharashtra Legislative Assembly, the BJP got 105 seats, the Shiv Sena got 56, the NCP 54 and the Congress 44. Although the BJP and the Shiv Sena had fought the election in alliance, after the poll it fell apart on the issue of power-sharing. No single party got a majority in the House and no alliance could be formed claiming a majority. Hence the Governor of the State recommended President’s Rule, which was imposed. Now, a similar situation had arisen in Uttar Pradesh (UP) in 1996 where also President’s Rule was imposed soon after the Legislative Assembly elections for the same reason, viz no party, nor combination of parties, had a majority in the House.The imposition of President’s Rule was challenged in the Allahabad High Court (HC) and a full Bench of the HC, of which I was a member, held the imposition unconstitutional, vide HS Jain vs Union of India case.

The reasoning which the full Bench gave in that case squarely applies to the imposition of President’s Rule in Maharashtra too and it was this: “It has been held in the authoritative judgment of the Supreme Court in Bommai’s case, (1994) 3 SCC 1 (in paragraphs 109, 120, 383 and 391) that imposition of President’s Rule should not be resorted to unless all other recourses have failed.”

In paragraph 112 of my decision, I observed: “The Governor should have sent a message to the House under Article 175(2) of the Constitution, after summoning it under Article 174(1) stating that despite his best efforts he was unable to find out who can command the confidence of the House and hence the House itself should inform him about such person. The Governor in this message should have asked the House to assemble and decide the matter within a reasonable period of time and then inform him. In this message the Governor could have also warned the House that if it did not make up its mind within a reasonable period of time, the House may have to be dissolved.” In paragraph 128 of my decision, I observed that in case of a fractured electoral verdict, where no party or combination of parties appeared to have a majority in the House, “the only legal alternative left for the Governor is to ask the Assembly to inform him about the person in whom it has confidence. Who can be in a better position than the House itself to inform the Governor in whom it has confidence?” And in paragraph 131 of my verdict I stated, “Although this course of action has not been expressly mentioned in the Constitution, it logically flows out of Article 164(2) and is the only democratic alternative short of dissolution. In today’s era of fractured verdicts, it is the only logical method.”

I referred to Article 6 of the Japanese Constitution which states, “The Emperor shall appoint a Prime Minister as designated by the Diet” (the Japanese Parliament is called the Diet) and observed “Although we do not have a similar provision in our Constitution, while judicially interpreting it we can borrow from the democratic spirit of the Japanese Constitution.”

Thus, when the Governor of Maharashtra could not find any party or combination of parties, which appeared to have a majority in the Assembly, before recommending imposition of President’s Rule he should have sent a message to the House under Article 175(2), after summoning it under Article 174(1), asking the House to assemble, deliberate and then inform him within a reasonable period of time in whom it has confidence, so that he could be appointed Chief Minister.

In Bommai’s case it was held that imposition of President’s Rule was a very serious step and was a last option, to be resorted to only when all other recourses failed. In Maharashtra, as in UP in 1996, there was an option left, as referred to above. Hence without resorting to it, recommending imposition of President’s Rule straightaway was clearly unconstitutional.

Some people may ask what use such a step would have been when the political leaders were unable to come to a compromise?

The answer was given in paragraph 134 of my judgment. “In my opinion, if the elected members are permitted to come together and meet in the House, then a Socratic debate may take place and it is possible that a solution may emerge. When two or more persons are sitting separately they may not be able to resolve their differences but when they come together it is possible that by discussions and negotiations some compromise may come about. This is the democratic method also. The elected representatives may put pressure on their leaders to give up their intransigent and uncompromising attitude and adopt a more flexible approach.”

It must be remembered that elections are a costly affair and frequent polls are a recourse which a poor country like India can ill-afford. Also, frequent elections were one of the causes of the collapse of the Weimar Republic and Hitler coming to power in 1933. Hence every effort should be made to avoid them.

If elected representatives are not allowed to meet in the House, should they meet in a tennis court, as happened in France during the French Revolution of 1789?

Writer: Markandey katju

Courtesy: The Pioneer

Following the suspension of a prominent lawyer’s account, liberals ask if Twitter is wrong

There is a problem with both sides of the narrative in the media nowadays. They both are so extremely wedded to their views that they refuse to even concede a point to their opposition. And that becomes relevant when it comes to social media as well. The suspension of a prominent lawyer on Twitter has several commentators of an allegedly “liberal” nature hopping up and down screaming censorship and calling for the platform to be either monitored by the Government or rescinding the suspension of the lawyer. The user himself has filed a petition in court demanding that Twitter reinstate him and asked, ironically given his positions on several issues, for support from the Indian Government. One can rest assured that this is unlikely to happen. However,  this brouhaha raises a pertinent point. While all internet services have their specific “Terms of Service” under US law, when they start serving a critical function in another country and another jurisdiction, who is liable for what? Who determines hate laws and freedom of speech?

Is Twitter commentary protected by the US’ First Amendment or is freedom of expression restricted as per the Indian Constitution? Frankly, these are unlikely to be answered by the courts in India in this particular case though increasingly it is becoming apparent that the Indian Government is reining in the Wild West. Foreign technology companies have so far operated on Indian soil with impunity, and the companies themselves, while being asked to bend, appear to be keeling over, fearful that access to 1.25 billion consumers might be cut off. A few things have to be kept in mind. India does not, as mentioned, have absolute freedom of expression with some ridiculous provisions in the penal code as well as the hysterical concept of criminal defamation. India might have a right to privacy but it has been a nation paranoid about security issues since the Sikh militancy and frankly, the entrenched security establishment has no idea how to deal with technology. Switching en masse to another service by those of a certain persuasion will not help either since that will be like moving from one echo chamber to another, but most likely any alternative service will have to adhere to Indian rules. That said, it would be good if Twitter, Facebook and other services were more open about their arbitration processes of dealing with suspensions and content takedowns. As for those on social media, while criticising the Government is warranted quite often, making fun of those of the opposite persuasion is trolling, no matter how smartly you wrap it.

Courtesy: The Pioneer

Sweeping changes in the judiciary are must in order to modernise it so that it can provide timely and affordable justice

When it comes to assessing governance, it is usually the performance of the Executive and the bureaucracy that is scrutinised by the media and experts. But a sound, effective and independent judiciary is equally important in a country to protect the constitutional rights of the people. The hallmark of an efficient judicial system is how fast it delivers justice. Today more than 3.5 crore cases are pending in Indian courts and the number is increasing every year almost at the rate of 9.7 per cent. In the Supreme Court (SC) alone the number of pending cases as on July 2019 was 58,669. The Chief Justice of India (CJI) took up the matter with the Prime Minister for increasing the retirement age of judges to deal with this backlog. Though this idea might have some merit, the real issue, however, is the absence of quick, affordable and accessible justice for a vast majority of our people. The causes of pendency are also the way our judicial system functions. The Government must seize this opportunity to discuss with an open mind the restructuring of our faltering judicial mechanism so that a futuristic, natural justice regime is created which is quick, fair and affordable not only at the district level but right up to the apex court.

On many national issues of public interest, the judiciary has come to the rescue of citizens, right from enforcing  fundamental rights to ensuring conservation of the environment, protecting the basic features of the Constitution, independence of institutions and also firmly correcting aberrations in discharging duties as per the law by the executives and primarily the bureaucracy.  However, the moot question is why the judiciary is perceived to have failed on the issue of providing quick access to justice to commoners. The cost of getting justice is very high, cumbersome and time consuming and powerful people get away with their misdeeds in many cases. Therefore, there is a need for sweeping changes in the judiciary in order to modernise it so that it can provide timely and affordable justice by mirroring the needs of present day society.

On visiting a court, the first impression is that getting justice is a tedious process, especially in civil suits, due to constant delays in court proceedings. The law and its interpretation is so cumbersome that in frustration many people leave their fight midway and the rich and powerful who can afford costly advocates get their way. This is particularly true in case of property disputes among close family members. Here the law, instead of finding contours of natural justice, gets trapped in the nitty-gritty of interpretations.

During the early eighties, judicial reforms brought many tribunals into existence so that domain expertise is used in handling cases on specific subjects along with judicial scrutiny and in order to give quick delivery of justice and to reduce the work of High Courts. Many tribunals however, have become the biggest impediments for justice in many cases. Take for instance the National Consumer Dispute Redressal Forum (NCDRF) and the Central Administrative Tribunal (CATs). These bodies constituted under two different Acts of Parliament, have become another sinecure for retired judges and a few bureaucrats. They are the antithesis of the purpose they were set up for, holding up cases for many years. There is a case being heard in the Bench of a retired bureaucrat in the NCDRF for the last four years against the Amrapali Group in Noida. The member is extening dates after dates with a gap of 10-12 months and it seems like he is helping the builder more than the litigants. Interestingly, the same issue is being heard by the SC and the consumer forum should have closed the case as its decision had been overridden by the apex court in any case. The situation is no different in CATs. In the Guwahati CAT, the simple case of one officer has not been decided for the last seven years as the members are either on leave or keep postponing the matter on flimsy grounds. Needless to say, the officer is suffering. The Law Ministry should appoint a committee to examine if the purpose of creating these bodies is achieved. There may be umpteen cases which can be cited to invoke the conscience of our SC and the Government to see if the country can review its legal framework and at least simplify it in many cases. The judiciary must evolve a protocol so that judges decide the cases within a time limit and develop a mechanism to quickly deal with intricacies of cases. Another issue is of providing judicial assistance and the exorbitant fee charged by lawyers. It should also be examined if the profession of judges could be separated from lawyers. It will bring more professionalism and effectiveness into the system. For tribunals and other such bodies, only serving judges should be appointed so that they are accountable for what they do. However, the SC should constitute a panel of experts of domain knowledge to assist the judges on subject matters if the need arises. Hope this piece can attract the attention of  the CJI, the Prime Minister and the Law Minister and spur some thinking on the issues raised here.

Writer: VK Bahuguna

Courtesy: The Pioneer

It would be easy to attribute such mindset to the resurgence of revisionism or a stoking of primal instincts. But male behaviour in this era is linked to political contexts

Enough has not yet been said of the brutality of the “One India” narrative and the brazenness with which it legitimises the lowest common denominator of societal attitudes and a viral thinking. Two incidents over the last few days embody a deeply disturbing and distressing fallout of the muscular leadership in the political space degenerating into gender triumphalism in the social space. One that automatically assumes muscularity and decisiveness as admirable male traits and everything else as supine and feminine frailties. Is “toxic masculinity” then the new national character? Now codified almost?

The first case was of the Unnao rape accused Kuldeep Sengar, now expelled by the BJP, wishing a speedy recovery for the survivor with not even a twitch of emotion or even betraying his predatory nature, one that he had used to hound, scare and subjugate her for two years. The girl, whose family was neutralised or eliminated through means foul and his intimidation, had to threaten self-immolation in front of the UP Chief Minister’s residence for her ultimate appeal to justice. And a national conscience. Sengar is in custody, booked under serious charges and now even guilty by evidence, but that hasn’t stopped him from squashing his female victim where it hurts the most. As she fights for every breath of her life in a hopeless situation, Sengar publicly insulted her effort by “wishing her well,” the final blow to her dignity, patronising in dispensing grace while being the perpetrator of her humiliation. Some distorted charity that he thinks will earn him clemency. Sadly, it has for the last two years.

The second instance was even more belly-churning. As the government road rolled its way into changing the character of Jammu and Kashmir by abrogating Article 370 and bifurcating the State into Union Territories, a majority of reactions on social media were about how every Indian male could now marry “fair Kashmiri girls,” buy property and settle down in the Valley, the implication reeking of feudal conquests of the darkest ages of civilisation, where women were traded as spoils of war. A forceful integration amounts to a war on people over land. Nobody even stepped in to condemn such irresponsible and crass humour, which was relished by many. And considering that a certain level of awareness, power and education can be assumed of online citizenry, this truly was a new low, no different from the mentality of an invading, occupation force of the medieval era. Since when were Kashmiri women prevented from marrying outside the State? Many have already done that out of free will, knowing full well that it would entail relinquishing claims to their family inheritance. Of course, to the avaricious male, she can now be entitled to her birth heritage. Is that the implication? Also did anybody ask why Kashmiri women would agree to marry outsiders, particularly in challenged circumstances as now? Or why they are not a voiceless tribe and just like other women in the rest of India? Yet there is a sweeping assumption of their acquiescence to a new order in this pernicious propaganda warfare that is deeply problematic. By denying them their equal, civil space and appropriating their human rights of choice and decision-making, it shows that political control is equivalent to a patriarchal social authoritarianism. Also, by equalising marriage with a Kashmiri woman and acquisition of land in Budgam for a summer chalet, the script-writers are blanking  out consent and will of the other side and force-feeding choices.

It would be easy to attribute such behaviour and mindset to the resurgence of revisionism or a stoking of primal instincts. But male behaviour in the millennial era has considerably changed organically, lending heft to the definition of metrosexuality. This then is not latent expression but an adjunct of hardening politics worldwide, where sexism and gendered violence are being redefined as a masculine privilege of power. In the Indian context, it is about inequality of political power and the way it is dispensed. It is about a certain male chest size which can be the nation’s armoured shield like no other. One has only to look at the way political decision-making process has converted the democratic process as a fait accompli. Nowhere is this totalitarian might more evident than in Parliament, where productivity is about steamrolling legislation and the consultative, cooperative process is seen as wasting time and energy, where opposition is about anti-nationalism and considered opinions are national deterrents to possibilities, where plurality is pointless and negotiation an extinct tool of trade. In a system, where monotheistic and simplistic decision-making is blurring out layers and complexities, and power flowing from an iconised perception of maleness, it must follow that society will react to it. For it is only real life conditions and forces that sustain popular culture, in our case a brainwashed sort. One where institutions and purveyors perpetuate the sentiment rather than political thought. This explains why the Hindi film Kabir Singh, which celebrates toxic masculinity and a subjugation of gender roles, finds crores of takers in the 21st century and is frighteningly endorsed by the youth in middle and small town India. This is so different from the “angry young man” of the 70s, who was fighting the establishment against such ruthless toxicity of power.

What confounds the discourse is attributing male superiority to our cultural DNA when fact is an eco-system has been created to foster an old construct for easier acceptance. A study conducted in the US on alcoholism may be cited here to explain the context. The alcohol industry there had funded research to deny the relationship between alcohol and violence and instead blamed “masculinity” and “cultures of drinking.” But the study uncovered strong evidence that the density of liquor shops in a given geographic area increased the local rate of domestic violence and recommended that  any serious framework for preventing violence against women would have to address alcohol availability as well as sexist mindsets. In other words, such a mindset is being engendered by systematic and selective blanking out of existing narratives and pushing convenient ones with brute force.

The problem with this approach in our society is that we have still not begun to respect women’s rights as evolutionary but as an imposition of grace by a male order. We have not been able to pass the Women’s Reservation Bill at a time when it was required to ensure proportional representation that would ensure inclusive participation and policy-making, not even now when a flurry of other Bills have made the cut. All women and child-friendly schemes of the government are bestowed rather than earned. The very act of “empowerment” assigns the agency to an external power of dole rather than claiming rights. And with so much muscularity of purpose on display, embracing the virtues and strength of femininity as a man upsets operable binaries. If reason, counsel and civility are now emaciating characteristics, then the idea of power automatically gets slotted in the privileged domain of a raw, hunter-gatherer masculinity. The otherness gets lumped in baskets of minorityism, liberalism or feminism. Of these, feminism is the easiest to target as the tide of opinion still favours men. Generations of women in India have worked tirelessly to rebalance the equation between sexes, often mistakenly acquiring masculine qualities and benchmarks to do so. Now they have a far tougher political context of endowment to battle, one where humaneness is predicated on the dehumanisation of others.

(The writer is Associate Editor, The Pioneer)

Writer: Rinku Ghosh

Courtesy: The Pioneer

The Triple Talaq Bill was an easy sail in the Rajya Sabha not because of the BJP’s skills but Opp disunity

First things first. Now that the Triple Talaq Bill is law, an archaic practice of oath-based separation, which anyway had little use in the modern context, has been done away with and at least empowered the lesser privileged and backward Muslim women. It further allows Muslim women to go through a legal process of reconciliation without the Nikaah Halala or the practice of marrying another man before seeking to remarry the old husband, mainstreaming them with not only the rest of India but many Islamic nations as well. Of course, there is the niggling issue of criminalising the errant husband, some saying a jail term would mean a sudden economic crunch as maintenance for the affected woman, but the Bill proposes some filters against the exploitative potential, which need to be reviewed on the ground. In the end, the implementation will throw up fresh challenges. But the short-term optics have been done. However, the bigger story is its political dimension. The ruling BJP has managed to pull off a pro-minority women stance and position itself as a progressive counterpoint to the Congress which failed to do so in the Shah Bano case, choosing to yield to the normative compulsions of the day. The triple talaq law would now become a revolutionary marker for the Modi 2.0’s “New India” narrative, clearly lending an edge to its competitive propaganda as a performing government. The bill passage also bears testimony to the NDA’s aggressive floor management skills and transactional politics in the hostile Rajya Sabha although the numbers are stacked against it. Many BJP leaders, in fact, had quite reconciled themselves to the idea of a gradual increase in the ranks of the Upper House through newly-elected members over the next two years. Post the mammoth Lok Sabha verdict, it was anyway expected that while the BJP could have its way in the Lok Sabha, the Rajya Sabha would act as the nation’s moral conscience and be its speed breaker. Analysts had even thought the ruling party wouldn’t be gung-ho about aggressive legislations till it was sure of the numbers. But the way it ensured the passage of the RTI and Triple Talaq Bills by winning over fence-sitters like Biju Janata Dal, AIADMK and YSR Congress, engineering abstentions and soothing anxieties of non-Congress Opposition parties over the interpretation of various clauses shows that the Opposition is just now a notional requirement in the House. That it stands completely defanged by its self-imposed irrelevance, unpreparedness, worse willing acceptance of brute force. In such an environment, more controversial legislations may be steamrolled, amendments to Article 370 and 35A, sooner rather than later. All MPs know that abstaining only helps the ruling regime as missing members would only bring down the total strength, particularly Opposition numbers. They would have proved their point by opting to vote “no” instead. So, clearly the integrity of the vote has also been compromised, though a few, like the NDA ally Janata Dal-United (JD-U) claimed a fake show of conscientiousness by the act of walking out.

How else does one explain that the Congress, despite a whip, saw its benches empty at the time of voting? At least four party MPs were missing, and in the season of migratory birds, a headless Congress seemed unable to gather its flock.  The Peoples Democratic Party (PDP) threw up a big surprise when, despite its very public stand against the Bill, its MPs chose to stay away, bailing out the government. Nationalist Congress Party (NCP)’s Sharad Pawar and Praful Patel were missing too. For Pawar, who is on the verge of losing the national party tag and is torn by dissension and fleeing members, political survival in the Maharashtra Assembly polls is more important than a piece of legislation. The next big surprise came from the Bahujan Samaj Party (BSP), whose members did not vote, an indication that Mayawati is back to prioritising her own gains over stated positions on the Bill. Some MPs of the Telangana Rashtra Samithi (TRS), Samajwadi Party, Telugu Desam Party (TDP) MPs and one member from the Trinamool Congress too, stayed away. The Opposition, before accusing the BJP of “dog whistle politics”,  should introspect why it couldn’t stand up and be counted or make a case for a law against all abandoned wives irrespective of religion?

Writer & Courtesy: The Pioneer

Politics be damned, the priority now should be to get justice in the Unnao rape and the strictest penalty for the offender

If there is one reason why the political whataboutery and tallying criminal statistics of various party regimes in Uttar Pradesh (UP) should stop right now, it is the Unnao rape case survivor, who is gasping for justice and life. It is alleged that the car crash that injured her and other family members critically was pre-meditated and orchestrated to silence her forever ever since her crusade has led to the imprisonment of the accused and rapist, BJP MLA Kuldeep Sengar. Too many coincidences despite the suspect being in jail — her father dying in custody, harassment and threats to her family to back off or face consequences, the imprisonment of an uncle over trumped-up charges, the death of an aunt who was a witness to the case, the lack of security cover in her entourage at the time of the accident — have only strengthened the conspiracy of power and the victimhood of silence. The counter-charges of her security detail colluding with the MLA’s henchmen and her family citing warnings by the State police to stay off Sengar have only entrenched the stereotype of UP still being the proverbial badlands. Yet the accused continues to get political endorsement by virtue of continuing to be a member of the ruling party, in this case the BJP, which is yet to act against him pending the closure of the case. Not that other parties in the past haven’t been complicit in protecting sexual offenders, prioritising political necessity over the rule of law. The point is that this acceptance has become so much a part of our political culture that it took the distraught rape survivor, a minor girl, a self-immolation bid in front of the Chief Minister’s residence to get the justice system moving. Ironically, this incident challenges even the Supreme Court’s concern over the increasing number of child rape cases in India. And comes within days of the top court ordering that special courts be set up in districts where over 100 sexual offence cases are pending. 

Just going over the facts of the Unnao case shows that despite the allocation of investigations to the Central Bureau of Investigation (CBI), there has anyway been a gross travesty of justice. Although sexual offences of such a grave nature have a timeline to work upon, the State prosecution has nothing to show even after two years have elapsed. This wilful delay and the impunity enjoyed by the accused has anyway compromised evidence, witnesses and the fairness of the justice delivery system. Over 1.5 lakh cases under the Protection of Children from Sexual Offences (POCSO) Act are pending in  670 designated courts, or 224 cases in each. In UP and Rajasthan, victims can hope for justice only in 2026. In Delhi and Bihar, a child has to wait till 2029, while in Maharashtra a victim has to wait till 2032! This proves that there is simply no national will to stem the abuse of our most precious human resource — children. And no matter how aggressively we push legislative changes and stricter punishments like death penalty for rape of minor children, all this is counter-productive till the justice delivery module is not changed in its entirety. Of course, now that the apex court has directed that new courts can be set up with Central funds to take care of appointment of new judges, prosecutors, support staff, counsellors and creation of child-friendly courtrooms, specifically for POCSO cases, there seems to be a sliver of hope. This means that exclusive courts, as per the quantum of pendency, can ensure fast track and time-bound trial in every district. A Supreme Court mandated intervention means the Centre, State governments and High Courts could become proactive. Other suggestions from activists include creating a dedicated police cadet corps for registration and investigation of cases of crimes against children and a national grid for tracking pendency and performance of courts. What is also needed for protecting the child and his/her family from political intimidation is the evolution of a victim and witness protection, including relocation and court-mandated protection to victims of child sexual abuse and their families. There also needs to be a sex offenders’ registry to deter repeat offenders of child sexual abuse. Most important is rehabilitative and reintegration assistance to the affected child/adolescent. The Unnao teen may not make it but surely become political fodder for all parties concerned to feed on. As a nation, therefore, we cannot certainly abandon her fight for justice.

Writer & Courtesy: The Pioneer