THE ISLAMIC STATE (IS) CHALLENGE.

The arrest of two suspected Islamic State associates on 26th February, 2017 (Sunday) from Gujarat once again raises the question whether the terrorist group is finding support in India. Coincidentally, the arrests happened the same day that Hafeezudin T.K., one of the 21 persons who went missing from Kerala last year and were believed to have joined the IS, was reported to have been killed in a drone strike in Afghanistan. If these allegations and reports are correct, it would show that the IS is gaining some influence at least among a handful of youth in India. In recent months, anti-terror officials have arrested young people from different parts of the country - in Kerala, Tamil Nadu, Telangana, West Bengal and Rajasthan. The IS thrives on support from foreign jihadists, largely the young. Ever since the organisation declared a 'Caliphate' in 2014, it has attracted tens of thousands of fighters from around the world. It used two tactics - urging sympathisers either to travel to Iraq or Syria, its strongholds, and join the war, or carry out terror attacks in their own countries after declaring allegiance to the 'Caliph', Abu Bakr al-Baghdadi. India has remained largely insulated from this trend. The number of Indians to have joined the ranks of the IS is very small. According to a December, 2015 report by the intelligence company Soufan Group, the number of Indians who have joined the IS was 23, compared to 760 from the U.K. and 150 from the U.S.

The IS's puritanical, one-size-fits-all brand of Islam hasn't found much resonance in India. Given the syncretic nature of Indian Islam, it is extremely difficult for groups such as the IS to become popular among Muslims, as it did in parts of Iraq and Syria. But lone-wolf attacks, inspired by the IS world view and tactics, could pose security risks. The IS is not recruiting people through local communities as in the case of other terror organisations or, as in Pakistan and Afghanistan, through madrasas. The IS's medium is the Internet. It reaches out through online propaganda. This is all the more significant at a time when the IS is under attack in its core territories and is desperate to expand its reach beyond West Asia. Of late it has carried out major terrorist attacks in India's neighbourhood - in Afghanistan, Bangladesh and Pakistan, including the deadly bombing at the Sehwan Sufi shrine in Sindh. This outreach to South Asia should worry India. To prevent the group from gaining a foothold on its territory, India needs high-level intelligence and counter-terror operations to continue. Equally important is better coordination between the state and Muslim religious leaders in countering radicalisation and having in place specific de-radicalisation programmes, as western governments do. It is important to not let these isolated arrests be blown out of proportion to target the Larger Muslim population, which right-wing elements often try to do. Bigotry cannot be checked with bigotry.

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NOTA AND THE INDIAN VOTER.

Three years, one Lok Sabha election and four rounds of Assembly elections have passed since the introduction of 'None of The Above' option in the Indian electoral system. The 2016 Assembly elections also saw some active canvassing for NOTA, which allows voters to express their dissent against all the contestants. In Kerala, a group of women activists hit the road urging people not to elect any candidate if no woman was present in the fray. In Tamil Nadu, a youth group campaigned for NOTA as a protest vote against corruption. 

The patterns: NOTA polling figures are still small. On an average, the maximum NOTA vote share has not crossed 2.02 percent of the total votes polled in any election cycle. The perceived cynicism of Indian voters against the political class thus seems exaggerated. However, it is worthwhile to look at the patterns of NOTA voting to find out how the voters have used this option of negative voting. NOTA was introduced in India following the 2013 Supreme Court directive in the People's Union for Civil Liberties v. Union of India judgment. Thus, India became the 14th country to institute negative voting. However, NOTA in India does not provide for a 'right to reject'. The candidate with the maximum votes wins the election irrespective of the number of NOTA votes polled. NOTA button saw its debut in the 2013 Assembly elections held in four States - Chhattisgarh, Mizoram, Rajasthan and Madhya Pradesh and the former Union Territory Delhi. In these States and Delhi, NOTA constituted 1.85 percent of the total votes polled. The average NOTA vote share dropped to 0.95 percent in the 2014 elections held in eight States - Haryana, Jharkhand, Andhra Pradesh, Sikkim, Odisha, Arunachal Pradesh, Jammu and Kashmir and Maharashtra. It increased to 2.02 percent in the 2015 Assembly elections held in Delhi and Bihar. While Delhi polled a mere 0.40 percent, Bihar saw 2.49 percent of NOTA votes, which remains the highest polled so far in any State in Assembly elections. In the 2016 Assembly elections held in assam, West Bengal, Kerala, Puducherry and Tamil Nadu, NOTA vote share dropped again to 1.6 percent. In the 2014 Lok Sabha polls, NOTA constituted 1.1 percent of the total votes. Across the elections, the number of NOTA votes polled was larger than the winning margin in 261 Assembly constituencies which went to the polls since 2013, and in 24 constituencies in the Lok Sabha elections. One can argue that in these constituencies the NOTA votes did make a difference to the election results assuming that in the absence of this option a majority of NOTA voters would have preferred one or the other candidate in the fray.

Some early pointers: A quick analysis of NOTA usage in all elections so far does suggest some interesting early pointers. First, reserved constituencies have seen a relatively larger number of NOTA votes, which points to the continued social prejudice against political reservation for SC/STs. Second, constituencies affected by left-wing extremism have also recorded highe NOTA performance and here probably it served as an instrument of protest against the State itself. The Assembly constituencies of Gadchiroli, Jhargram, Kalyan Rural, Jaganathpur, Chatra, Umarkote and Chhattarpur figured in the list of top NOTA polling constituencies in the Assembly elections of 2014, while in the Lok Sabha elections, Bastar, the Nilgiris and Nabarangpur occupy three top slots in terms of NOTA votes polled. Given the disaffection among the people in these areas against the Indian state, these numbers are expected. At the same time, it is important to note that these voters have used the democratic means of NOTA to express their resentment rather than boycotting the polls outright. Last, NOTA figures are comparatively higher in those constituencies which have seen a direct contest between the Congress and the Bharatiya Janata Party. One may read into this some indication of the people's disenchantment with two mainstream political parties and yearning for alternatives. Overall, Indian voters seem to be using NOTA not just to show their disapproval of the candidates in the fray but to express their protest against many things they perceive wrong in the political system.

The early trends of NOTA need to be explored further with more elaborate  statistical and ethnographic analysis. So far, a small number of Indian voters have come to see NOTA as an instrument of protest. This electoral option will become a meaningful means of negative voting only if it becomes a 'right to reject' rather than being a symbolic instrument to express resentment as it is now. A Public Interest Litigation has already been filed in Madras High Court seeking the full right to reject in place of NOTA.

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JALLIKATTU RETURNS WITH AN EXPIRY DATE.

The people of Tamil Nadu deserve praise over the way in which they protested against the ban on Jallikattu. It was not mass hysteria, as dubbed by a few. Going by the size and spectrum of participation, from Viswanathan Anand, the chess champion, to music maestro A R Rahman and Rajinikanth, it was truly a mass movement irrespective of caste, religion or political affiliations. The people finally succeeded in persuading the Centre to urge the President to give his assent to an ordinance - which takes years in some cases, but was achieved within days here. The ordinance reportedly amended several clauses of the Prevention of Cruelty to Animals Act, 1960 (hereafter PCA Act), a law passed by Parliament. "Prevention of cruelty to animals" being in the Concurrent List, the Tamil Nade legislature can pass a law amending the Central law - such amendments that require presidential assent will apply only to the limits of Tamil Nadu state. Therefore, the Governor can promulgate an ordinance on the same subject that will be valid for a limited period. The Tamil Nadu government would have taken care to ensure the ordinance is within the legally permissible limits, as it should not in any way overrule the law declared by the Supreme Court on Jallikattu. The ordinance reportedly carved out exceptions to provisions of the PCA Act interpreted by the Supreme Court earlier, making it clear Jallikattu done in a humane way would not amount to cruelty.

Jallikattu was practised in the area that forms the state of Tamil Nadu for centuries - not the whole of the erstwhile Madras Presidency, that included the present state of Andhra Pradesh, Malabar of Kerala and South Canara district in Karnataka; so much so there it has acquired the status of a religious practice. The PCA Act was enacted in 1960 to replace an 1890 law enacted by British legislators. However, the new law also remained dormant many years without affecting Jallikattu. The Tamil Nady assembly passed the Tamil Nadu Regulation of Jallikattu Act 2009, that set conditions under which Jallikattu could be held, possibly to pre-empt questioning by animal rights activists. The validity of this law was challenged before the Madras high Court, which on 09th March, 2007 rejected the writ petition, upholding the practice of Jallikattu, subject to the conditions laid down in the Tamil Nadu Act.

In July, 2011, the Centre published a notification under Section. 22 PCA Act, where bulls were notified as one among 'performing animals' along with bears, monkeys, tigers, panthers and lions. Bulls thus couldn't be exhibited or trained except as prescribed. Once an animal is deemed a performing animal, the statute comes into play and it makes it virtually impossible to hold Jallikattu, which was essentially a rural sport. The Centre's 2011 notification and the Madras High Court ruling came up for consideration in Supreme Court in Animal Welfare Board of India v. A. Nagaraja in 2014. A two-judge bench took up the 'issue of seminal importance (on) the rights of animals under our Constitution'.

It may be noted that Article. 145(3) mandates that the minimum number of judges on the bench to decide any acse involving a substantial question of law on the interpretation of the Constitution shall be five. Despite this, the two judge bench in Nagaraja's case took upon itself to decide the seminal question and also to interpret Article. 51-A dealing with 'fundamental duties'. It is worth recalling that Article. 51-A was added as a cosmetic item by the notorious Constitution (42nd Amendment) Act passed during the 1975-77 Emergency that made obnoxious distortions  to the Constitution, almost all of which were reversed by the 44th Amendment Act soon after the Emergency ended. Article. 51-A was a notable survivor. 

The Court pressed into service clauses of Article. 51-A that recommends "compassion for living creatures" and "humanism" in support of the view that our Constitution guarantees Right to Life with Dignity to all species of living beings. There is no precedent to support this proposition - precedents say Article. 51-A is not enforceable. Consequently, Jallikattu was banned. The Court also declared the 2009 Tamil Nadu Law allowing Jallikattu as repugnant to the PCA Act, and hence bad. A review petition against this decision was also rejected in November, 2016. On 07th January, 2016, the Centre passed an order under the PCA Act permitting Jallikattu subject to certain conditions, the validity of which was also challenged, and on 12th January, 2016, a two-judge bench following Nagaraja's case (2014) stayedthe operation of the government order. Jallikattu therefore couldn't be held. While a decision on the validity of the 2016 government order was still pending, the Centre withdrew the order on 24th January, 2016, thus aborting the issue.

The popular agitation in Tamil Nadu, which was peaceful, would have turned ugly if allowed to continue for long. The state government therefore decided on the ordinance route, obviously with the Centre's concurrence. It is often asked whether it is lawful to promulgate an ordinance on a subject that is pending before the Courts. The answer is 'yes'. The exercise of a legislative power, under which an ordinance is promulgated, can't be pre-empted over the 'sub judice' factor. Since the parameters of passing a law on something  on which the Court had pronounced have all been settled, one presumes enough care was taken in drafting a non-offensive  but effective ordinance. 

The example of banning Sati is often cited in the context of the Jallikattu ban. Sati was bannedin 1861 by royal edict, not by a Court interpreting a law. The order by the Crown (in British-ruled India) was widely welcomed as Sati was regarded as repulsive in many quarters. If at any time Jallikattu is seen as loathsome by society, the legislature will have to act. An Act has been passed by the Tamil Nadu Assembly to replace the ordinance - the needed presidential assent will follow. The validity of this is certain to be questioned, and that may be the occasion for a competent bench of five or more judges to decide the 'seminal issues' involved.
Situating the wider jallikattu conundrum: The raging controversy regarding jallikattu, a sport popular in rural Tamil Nadu but now gradually making inroads into urban spaces, is rooted in certain enormous conceptual confusions regarding two modern institutions, state and nation. States and nations have existed for a long time, but they came to be linked only in the year 1648 through the Treaty of Westphalia giving birth to the institution of the nation-state. The yoking together of the two institutions that pull in opposite directions gave birth to perennial conflicts. The nation-state wants to count and label citizens, for the fewer the number of socio-cultural categories the easier it is to govern them. That is, the state is a culture-destroying institution and a uniform legal system is an important device that it invokes in order to create a homogenous citizenship. In cotrast, the nation is incessantly in search of its cultrual roots; it is a culture-affirming institution. Thus viewed, conflicts between law and culture are a logical corollary in a polity in which cultured diversity is aplenty.
Even in Western Europe where the idea of the nation-state surfaced, the co-terminality between political (state) and cultural (national) boundaries were assumed but rarely accomplished. In the case of the Indian Republic, the co-terminality between state and nation is not assumed but the divergence between the two is explicitly acknowledged. The first sentence of the Indian Constitution reads" "India, that is Bharat, is a union of states".
But unwittingly or deliberately, a reversion has creapt in. The states referred to are linguistic states (although they were constituted after the promulgation of the Constitution) and are 'nations' in the European sense of the term. These nations of India with their specific cultures co-exist under one political roof - the sovereign state of India.
Sovereignty is the distinctive characteristic of the state (here, the Indian Republic) but the states referred to in the first sentence of the Constitution are linguistic entities, that is, 'nations'. Thus understood, Tamil Nadu is a 'nation' with its own distinct culture as other linguistic states. That is, the Indian Republic is a state and the provincial states of India are nations. But in our everyday conversations as well as scholarly writings we refer to India as a nation and the nations of India as states; confusion confounded. To avoid this confusion we must clearly distinguish between state-ways (legal system) and folk-ways (cultural systems).
Given India's socio-cultural complexity there is need for three legal systems: the State Legal System (SLS), Religious Legal Systems (RLS) and the Folk Legal Systems (FLS), each having its own specific spheres of concerns. The SLS is applicable to all citizens of the state with regard to criminal behaviour and welfare entitlements. In contrast, RLS is applicable to all believers spatially spread across the globe. Thus canonical rituals and beliefs are common to all fellow believers irrespective of their locations in different sovereign states. That is, a Uniform Civil Code is inapplicable to a multi-religious polity, although the state can and should intervene when and if any religious community indulges and practices violence within and across faith communities. Generally speaking, FLS is deeply embedded in local cultures and customs. In the case of India, all the linguistic groups have their specific cultural practices, be it the Kali pooja of Bengalis, the Ganesh pooja of Maharashtrians or the Pongal festival of Tamils. And jallikattu is part and parcel of Pongal.
The objections that are raised against Jallikattu relate to the violence and cruelty it inflicts on the bulls and men involved. Indeed, preventing violence is a legitimate  concern of the appropriate level of the state and in the present case it is the state of Tamil Nadu. This understanding goes well with the much-heralded concept of cooperative federalism.
On the other hand, if indeed violence generated in the course of jallikattu is the real concern of the Supreme Court, it should intervene to stop slaughtering of all living creatures for human consumption. But the concern of the court cannot stop even there because not only animals but plants too have life. And if humans are prevented from committing violence against and plants, human life itself will come to a standstill and ebentually disappear! Are we prepared for that?  

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CASTE AWAY.

The importance of Indian judiciary in bringing about important policy changes in various fields cannot be underestimated. And if the intervention is by the Apex Court, the Supreme Court of India, its impact is far more deep and wide. The past decade has witnessed several interventions by the Supreme Court on important matters of public importance ultimately resulting into legislations, most of which have been appreciated by the people at large. When there is a ruling by the Supreme Court on matters of reforms in Indian elections and politics, it is welcomed by much more enthusiasm compared to any other reform. In 2002, it directed all candidates to file affidavit detailing their criminal antecedents, educational qualifications and details of their assets.

In 2003, the Supreme Court ruled that an elected representative would be immediately disqualified on conviction and sentence of more than two years. Then came NOTA (none of the above, a ballot option that a voter can choose to apply instead of giving their vote to any of the contesting candidates), which again was widely celebrated. The recent ruling of the Supreme Court declaring use of religion and caste as 'corrupt practice' and call for disqualificationof the candidate has certainly created some euphoria among the common man, but I doubt this would have the desired impact in bringing about reforms in Indian elections or nature of campaign.

The recent judgment by the seven judge bench of the Supreme Court in a majority decision held that an appeal for votes during elections on the basis of religion, caste, race, community or language, even that of the electorate, will amount to a 'corrupt practice' and call for disqualification of the candidate. The judgment says: "Election is a secular exercise and, therefore, a process should be followed. The relationship between man and God is an individual choice and State should keep this in mind", the Supreme Court held that in a majority judgment of 4:3. The Court was interpreting the pronoun 'his' used in Section. 123(3) of the Representation of People's Act. The provision mandates that it would amount to a 'corrupt practice' if a candidate or his agent or any other person, with his consent, appeals for votes on religious or such grounds. The majority on the Bench - the Chief Justice and Justices Madan B. Lokur, S.A. Bobde and L. Nageswar Rao - interpreted that Parliament meant by 'his' a complete ban on any reference or appeal to religion, caste, race, community and language during elections.This meant the pronoun extended to the social, linguistic and religious identity of the voter also.

What this judgment does is only re-emphasise these rules/provisions, which is already there in Section. 123(3A) of the Representation of People's Act, which prohibits use of religion and caste for political mobilisation and considers its use as illegal. It says, "The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" has been declared as illegal under Section. 123(3A) of Representation of People's Act, which has never been taken seriously by candidates and political parties. 

While we may find instances when charges may have been filed against candidates using name of religion or caste for mobilising voters, hardly any candidate has been convicted for that resulting in his/her being debarred from contesting election. The only name that comes to my mind is Balasaheb Thackeray who was debarred from contesting election and voting rights for six years in 1999. The ban was lifted in 2005 and he voted for the first time after that in 2007 Bombay Municipal Elections. While the new ruling of the Supreme Court will be a matter of discussion for some time in near future, I doubt this would have any significant impact on the nature of campaign on the ground.

While we could celebrate these reforms that are seen as efforts towards cleaning Indian politics, some did make an impact, but most of these reforms are merely lip service. Candidates have been barred from contesting elections in different states on various grounds, mainly on issue of not filing returns about their expenses in election. However, we hardly have cases where candidates have been debarred from contesting election on other grounds. Disclosure has been celebrated and still being celebrated by common people but hardly any candidate has been debarred from contesting election due to false disclosure. There is hardly any check on the authenticity of the declaration. Similarly, the introduction of NOTA has been widely celebrated, but is there any after effect of that? What if large number of people voted for NOTA? Even if majority of voters opt for NOTA it may not affect the election result in that constituency.

In a multi-cultural society like India, with voters of varied religious belief, multiple caste identities, various languages and similar such identities with which people have strong affiliations, it is difficult to imagine how political parties and candidates would be able to reach out to their voters without any reference to the identity of religion, caste or language. This is much truer since in our multi-party democracy, various regional parties own their existence to having appeal amongst voters of aprticular caste or religion. Caste is a relaity in our social life and politics is merely a reflection of our society. How can we expect candidates not mentioning caste when they raise issue of discrimination and make their commitment to fight such injustice? What may be desired is to refrain from attacking other religion and caste but not a blanket ban on candidates not using caste or religious appeal.

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A CLOCKWORK JUSTICE.

[Based on an article written by Anil Dharkar, a senior journalist, published in Deccan Chronicle dated 24th August, 2015, edited by C.S. Chakravarthy].

Whenever people make comparisons between India and China, everyone says, "China may be more efficient and less corrupt, but India has a good judicial system". Of course it has. Just ask the Ansals, owners of Delhi's Uphaar Cinema, where a fire broke out 18 years ago killing 59 and injuring over a hundred moviegoers. You can ask the Ansals their view of our judiciary at their palatial homes because the Supreme Court  said that they had suffered enough: Sushil and Gopal Ansal spent five and four months in jail, respectively, in the 18 years it took the case to come to final judgment. Oh yes, and the court asked them to deposit Rs. 60 Crore with the Delhi government within three months to build a trauma centre. "Blood money", many of the victims' families called it. But we know, don't we, that the blood money concept is only practiced in some countries in West Asia, whereas our judicial system upholds the traditional ideal of law: a woman in long robes, with the sales of justice in her hand, her eyes blindfolded so that she cannot differentiate between the rich and the poor, the powerful  and the downtrodden? The Uphaar case is only the latest in a long line of cases, which shows that the blindfoldworn by our lady of justice is made of very, very fine muslin indeed.

Do you think Rs. 60 Crore is a lot of money? I suppose for the average you and the average me, it is. But the Ansals are not your avaerage Joes. To start with the Uphaar Cinema site, locked up until now by the courts, will almost certainly be freed (the Ansals, by the way, have been brazenly appealing for this to happen), and its market value is said to be at least Rs. 160 Crore. Then, as a national newspaper points out, there is the current Ansal Esencia project in Gurgaon, which has in all 1,200 residences. Sell 15 high-end villas there, and the Ansals will have their Rs. 60 Crore. Ansal companies also own considerable real estate elsewhere: nearly 9,000 acres across Uttar Pradesh, Haryana, rajasthan and Punjab, and a total of 25 ongoing projects in different states across the country. In all, the Ansal companies' revenue last year was a healthy Rs. 1,234 Crore.

No one grudges them their wealth, accumulated no doubt by diligence, hard work and foresight. But, you do wonder why they felt the need to make extra money out of Uphaar Cinema by installing additional seats in the theatre which blocked one of its exits - the principle reason why so many people died of asphyxiation when they couldn't escape. You also wonder why, rich and educated and enlightened as they are, they chose to ignore a similar fire that had broken out in the theatre eight years earlier. Fortunately that had happened in the morning, so the cinema hall was empty, a godsend for lessons to be learnt, which obviously weren't learnt.

Incidentally, the courts in their judgments came down pretty hard on the Ansals. Here's the sessions judge Mamta Sehgal in 2007: "The deviations with regard to the seating arrangement in the balcony which resulted in the death of many patrons and injuries to many, had been effected with greed in mind without taking note of the injury that may be caused", she had said. She also held them responsible for "various structural deviations effected by conniving with authorities and corrupting them to utilise every corner of the building for more profits, without concern for the safety of patrons". However, she ruled that the charge of culpable homicide not amounting to murder (Section. 304 of the Indian Penal Code) that could have entailed a life term; instead, Section. 304-A, causing death due to negligence, was applicable. The maximum sentence of two years under that Section was awarded, though Ms. Sehgal did say that this was grossly inadequate in this case.

Yet, see what happened next. On the Ansals' appeal, the Delhi High Court heard the case, agreed with all observations of the sessions court, yet decided that the "imposition of maximum sentence is not justified"! It added that the "ends of justice would be served if the sentence is modified to rigorous imprisonment for a period of one year and a fine of Rs. 5,000/-. When the case went to the Supreme Court on the appeal of the victims, Justice T S Thakur and Gyan Sudha Misra agreed that the Ansal brothers had 'contemptuous disregard' for the law, upheld the findings of the earlier judgments and confirmed the conviction. Justice Thakur siad the sentence should be one year in jail while Justice Misra said it should be two years, with the second year being substituted by a fine of Rs. 100 Crore. Since the judges differed on the quantum of punishment, a three-judge bench heard the case. It said the four to five months already served in jail were enough punishment, and reduced the fine to Rs. 60 Crore. One of the reasons for reduction of the jail sentence was that one brother was of 'an advanced age'. Since age obviously tugged at the judges' heartstrings, why didn't they remember that 23 of those who died in the Uphaar fire were minors, and had a full life ahead of them?

One more thing about this case. At the last hearing, the Supreme Court's three judges heard the senior defence lawyer Ram Jethmalani extensively, while only briefly listening to Central Bureau of Investigation counsel Aparajita Singh. When she requested that the hearing should continue the next morning so that CBI's senior lawyer Harish Salve could address the Court, the judges refused. The next day Mr. salve said to the judges, "I need just fifteen minutes to point out glaring facts in the case and attempt to persuade the Court to re-consider its decision". But the judges said that would be improper: they had already dictated their order!

And so it goes. Who can forget the way the Bombay High Court held an unprecedented late hearing so that Salman Khan could get bail and wouldn't have to spend a night in jail? Or the J. Jayalalitha case which had to be transferred from Tamil Nadu to Karnataka for a fair trial, in spite of which, when she came to power, witnesses - 70 of them - suddenly all turned hostile, and the case against her collapsed?

So you see the justice system in India does work. It works for some of the people, all the time.

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THE CRUELTY OF RAPE VIDEOS.

[Based on an article written by Sunita Krishnan, an activist and co-founder of Prajwala (an organisation that rescues and rehabilitates victims of sex-trafficking), published in Deccan Chronicle dated 17th February, 2017 (Friday), p. 12].

I will forever remember 06th February, 2015. A young man had sent me two videos via WhatsApp. The clips were nauseating. One showed a girls of about 14 being gang-raped by eight men and the other had a woman being raped by one person, while another was busy recording the crime. What scared me was the obvious relish with which the men were committing a heinous crime. More importantly, they were also showing off. My immediate response was to question the impunity with which crimes had been committed and even, "showcased". The anger in me led to the #ShameTheRapist Campaign within the next 24 hours. Although I had every intention of taking it to the police, I did not want to do it quietly. I wanted the rapists to realise that not everybody in the world supported such acts. In the days that followed, the campaign triggered nation-wide fury. People from all over started sending me such videos that were being circulated online. So, within 48 hours, I had nine more horrifying clips. Armed with these, I approached the Ministry of Home Affairs. But by the time the ministry geared up to respond, I was already restless. I then sent the nine videos to the Chief Justice of India, who took immediate note of them and took my attached letter as a suo motto petition in the Supreme Court. My first recommendation asked for a CBI probe into the videos. The clips seemed to have originated from the North or East of the country but I had received it from people in the South too. That meant the clips had been shared across borders - and required a central agency to probe their origins.

I also discovered there was a huge 'consumer base' for such videos in our country. The most common medium to circulate such clips was WhatsApp. Offline, these were available at several shops selling pornography. But what was even more shocking was the fact that certain websites had a special list for 'rape sex'. I am not puritanical but I have seen how consumption of pornography has generated  a demand for paid sex which, in many ways, has increased sex trafficking of young girls and children. I know this because I fight sex trafficking. The people who consume child porn especially, are the main buyers of children in the flesh trade - 45 percent of those in flesh trade are children. Also, I simply couldn't understand the human condition in this one particular context - how could someone draw happiness of satisfaction from watching a sexual assault being committed? And there's even a huge demand for such violent videos?

Was it because of a lack of deterrents? - It was appalling to note that service providers or intermediaries such as Facebook, WhatsApp, Google, Yahoo and others were fully aware of the presence of such videos on their platforms. And they were distant from any form of accountability. At the very maximum, they were resorting to simply blocking or deleting the content. There is a lack of preemptive measures and early-stage safeguards - no automatic response. That these are actual crimes being committed didn't seem to bother them a bit. I went back to the Supreme Court and revised my recommendations...requesting that all service providers be made accountable for such content and making ti mandatory for them to report to designated enforcement authorities the presence of such content. We also requested for an active Sex Offenders Register, which will be a repository of all convicted sex offenders in the country. The need for a central agency to investigate such videos was already a part of the common consensus in the court. It was also, in principle, agreed that a mechanism should be created for citizens to report such videos anonymously, without becoming a complainant.

The journey ha spanned two years. I found the Government of India completely with us at every step supporting each of the recommendations we made. So in real sense, there was no difference of opinion in the courtroom. But the scene has slightly changed after we have impleaded all the service-providers in the matter. Yahoo in its affidavit strongly objected to taking any accountability for such content. The others also had reservations about the right method to block such matter. But in any case, all of us...whether it is the judiciary, the government, the corporate giants or civil society...agree on one important matter. That commission of such heinous offences, circulating videos of sex crimes and consumption of such videos is unacceptable. The next few months will tell us how we, collectively, have responded to such a challenge. 

The first step has been taken - a central agency is being set up to investigate such videos. And I hope the next step will create the required deterrence...making sure that every individual, across the country, will not just think twice before committing such an offence but will never, ever use technology to force the victim into silence and humiliation. Because even if the victim doesn't report the crime, there will be an eye watching out for the helpless...and that sense of impunity will end.

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DO RESERVATIONS HELP?

The topic of reservations in education and government jobs is, arguably, the most contentious of India's myriad threads of public discourse. It has led to many agitations, violence, court rulings and constitutional amendments. At the same time, however, its basic premise has also seen rare political unanimity. Which is why the Constitution's 1950 provision to initially institute reservations for a decade has routinely been extended by Parliament. The argument in 1950 that sections of India's citizenry, who had been disenfranchised for millennia, needed a leg up was undoubtedly strong. Meanwhile, irrespective of reservations, in the intervening sixty-five years, democracy per se has made significant corrections. Though historical injustices can never be erased, and elements of prejudice against some groups can still be seen, so can many signs of empowerment, not the least of which is political clout.

What is less clear is whether, and to what extent, reservations have helped. For the constitutional requirement that the progress it contributed should be assessed, before deciding whether it should be renewed, has never been done. In fact, there is precious little that has been studied about the impact of reservations. Among the few credible assessments, The Economist has reported that the proportion of Dalits at the highest levels of the civil services had increased from just 1.6 percent in 1965 to 11.5 percent by 2011 - and even more at lower levels - compared to their 16 percent share of the overall population. But it cautioned 'an obsession with making' government service representative rather than capable 'makes it too hard to remove (the) dysfunctional or corrupt'.

The report also acknowledged a steady improvement in dalit literacy and higher education, and noted that the reservations policy 'probably does help', to distinguish how much was contributed by reservations, as opposed to the building of more schools, midday meals, etc. Similarly, a 2010 study on the impact of reserved electoral constitencies on poverty, by academics Aimee Chin and Nishith Prakash, found mixed results. They concluded that while Scheduled Tribes (STs) are concentrated around reserved constituencies and did indeed see a decline in poverty, there was no such link for Scheduled Castes (SCs).

Such nuances have been lost on us politicians, who have almost without exception supported kneejerk extensions of reservations. Even for supporters of the basic principle behind quotas - there are studies showing that certain castes and religions face institutionalised discrimination in hiring - to not want to assess or modify them in order to improve their impact, is odd. The Economist bluntly says the focus of Indian lawmakers has not been to assess whether reservation helps, but to extend it to 'new blocks of voters'. Policy guru Pratap Bhanu Mehta goes even further, writing that the current system of reservations is 'not about equal opportunity, it is about distributing the spoils of state power strictly according to caste, thus perpetuating it'. In other words, he concludes that it achieves the opposite of its stated aim.

Politicians' one-track attitude towards reservations has left only the judiciary to engage with the many relevant questions that have arisen. But though courts have stipulated certain restrictions in reservations, many of those have been quickly overturned by subsequent legislation. To give just one example, the 1992 Supreme Court judgment disallowing reservations in promotions, lest it erode merit, was overturned by Parliament's 77th constitutional amendment in 1995. One Supreme Court stipulation that still stands, however, is the 1962 judgment that limits reservations to 50 percent. The reasoning was that reservation is meant to be an exception to the general rule of equality, and an exception cannot be more than a rule. Nevertheless, several states continue to violate this limit. Similarly, the court itself does not always stand strictly on principle, for instance ruling that the 'creamy layer' of the OBC category be denied reservations, but not those of the SC/ST category.

It is in this context that the Patidars' movement, led by 22-year-old firebrand Hardik Patel, has grabbed national attention and already seen nine lives lost. This is only the latest in a long line of similar movements and personalities, including many formerly household names. All of them faced opprobrium and so does Patel. Despite the Patidars' demand for reservations being scoffed at by many commentators and social scientists as unwarranted, their angst is very real. Job creation has been slow for years, not just in high-growth Gujarat but all of India. And this is exposing the other side of our large population of the working-age young, the so-called "demographic dividend", which could just as easily become a demographic nightmare.

According to academic Christopher Jaffrelot, "The Patels may well be the victims of the neo-middle-class syndrome. Those who have not yet arrived, who are part of this aspiring class, and find it difficult to achieve their goals because jobs are scarce, education is expensive, buying a car is hard, to say nothing about a home". This agitation, however, has a twist that is unprecedented. So far, none of the earlier agitations had demanded scrapping all reservations if their group was not included. There is no widespread political support for ending reservations. But, perhaps for the first time, there are signs that some politicians may now be willing to discuss its limitations and engage with its intricacies.
[Based on article written by Baijayant 'Jay' Panda, a BJD Lok Sabha MP, published in 'The Times of India' dated 03rd September, 2015 (Thursday)].     
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PLAINT OF A GAY HUSBAND.

The United States Supreme Court has made marriage legal for gay and lesbian couples in all the fifty states. Shamina Singh is now married to her wife everywhere, as is Gautam Raghavan to his husband Andrew Maslowski. I am happily married to my husband Chuck Johnson. The Indian American community - Hindus, Sikhs, Muslims, Christians included - joined in celebrating the Supreme Court  victory. My husband and I are rasmalai. This victory was as momentous for the gay rights movement as it was for the Obama administration. "I love my President - shamelessly, completely and gushingly", wrote the author Ghalib Shiraz Dhalla on his Facebook page. White House was bathed in rainbow lights as thousands of same-sex couples and our friends celebrated.

A year after I came to the US in 1984, I came out publicly as a gay man, something I always knew growing up in India. This was in Reagan's America. President Reagan would not even mention the 'G' word. His lack of support for confronting the AIDS crisis further spurred the gay, lesbian, bisexual and transgendered movement to organise a well-funded and well-organised campaign against hatred. A series of legislative and legal victories have followed that have struck down one discriminatory law after another.

President Obama's personal support for same-sex marriage has resonated across the living rooms of America. He overcame many political, religious and personal barriers to demonstrate his support. When running for re-election, Obama offered support for same-sex marriage and noted his reflections on an issue that had been personally difficult for him. He had supported GLBT rights in general but not same-sex marriage. However, polls show that a majority of Americans now support same sex marriage and higher numbers support other rights for GLBT people.

The rights of sexual minorities have moved at lightning speed through democracies in the world in the last two decades. In May, 2015, a predominantly catholic Ireland voted to approve same-sex marriage. In doing so, Ireland joins other members of the European Union. Democracies in the developing world included Argentina, Brazil and South Africa protect the human rights of GLBT people.

India may be the biggest democracy in the world but its stance on GLBT rights makes it one of the smallest. Unlike the celebration in May 2015, the Indian-American GLBT community and its friends were in a state of shockay in December 2013 when the Supreme Court of India upheld Section. 377 of the Indian Penal Code that criminalises homosexuality as 'against the order of nature'. This law originated in the mores and imperatives of a colonising Britain and upright Victorian morality. The former coloniser now features some of the most progressive human rights for GLBT peoples. For the millions of GLBT Indians, colonialism continues.

India needs leaders and resources to fight discriminatory laws. A few progressive media, literary and entertainment figures have lent support. A building GLBT movement has begun to make its voice heard. GLBT rights have progressed beyond the metros. I celebrated the recent Chandigarh GLBT pride parade from afar with my friends in Washington, DC. Many GLBT Indian-Americans pour over the pages of Indian media to find positive news. We long for the day when Rashtrapati Bhavan will bathe in a rangoli of rainbows. 

Unfortunately, sexuality remains a difficult and taboo topic in most of India, and this goes beyond GLBT rights. This is understandable - given the holdover of Victorian sexual mores and religious opposition - but that does not make it right. The silence on sexuality needs to be broken. It has been broken. Sadly, these breaks have come when forms of pathological sexual violence in India make headline news all over the world.

The elaborate rationales a few Indian religious and political leaders find to justify sexual and gendered roles through Indian scriptures are historical nonsense, though not different from the rationales concocted in Evangelical America to subjugate gender and sexual rights in the name of God. We do not need to construct a mythical heritage when it does not exist. We need to celebrate the living heritage. This heritage is one of celebrating out cultures and our love across those cultures. Soon after hearing the good news from the US Supreme Court from my husband's text on phone, I went ot my facebook page and uploaded a picture from our wedding. It was one among the thousands of similar pictures from the GLBT community.

Our picture features us smiling and laughing at the Woman's National Democratic Club where we celebrated our wedding. Chuck's hand is on my shoulder and it shows off his mehndi from two nights earlier when we had 'Gentlemen's Sangeet' at our home with my friend Rashad playing the dholki and Shareen leading everyone with Punjabi wedding songs. My sister and Shareen also sang Waris Shah's Heer, Punjab's most famous love poem. My husband's sisters quoted the Bible in their readings.

Chuck grew up in Mississippi and I grew up in Himachal Pradesh. The twain meets everyday in our household. I have lots of misgivings against Kipling's colonising sentiments but smiled at his words when I ate the rasmalai with my Mississippi husband. Kipling wrote: "But there is neither East nor West, Border, nor Breed, nor Birth, When two strong men stand face to face, though they come from the ends of the earth!"

Love wins.

[Based on an article by J P Singh, Professor of Global Affairs and Cultural Studies at George Mason University, published in 'The Times of India' dated 30th June, 2015 (Tuesday)]. 

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RAPE INVASION OF RIGHT TO PRIVACY: MADRAS HIGH COURT.

A sexual assault or offence, which is a traumatic experience, is also an invasion of the 'Right of Privacy' of a woman. It undoubtedly affects her dignity and self-esteem. In the offence of 'rape', when a woman is ravished, a 'deathless shame' would haunt her during her lifespan, said the Madras High Court.

"The offence of 'rape' is violation of a victim's cherished Fundamental Rights and in reality, 'Right to Life' is mentioned in Article. 21 of the Constitution of India. It is by now well settled that non-examination of a doctor or non-production of a medical report would not be fatal in a given prosecution case, if the evidence of the prosecutrix/victim and other witnesses is quiet worthy of credence, and inspires subjective confidence of a court of law", said Justice M. Venugopal while upholding an order of a lower court, which convicted an accused on charges of rape.

The prosecution case was that the accused was in acquaintance with the 19-year-old victim for over two years and on 14th December, 2012, he invited her over phone to a bush situated at Arakonam taluk in Vellore district where he abducted her while also assuring her on a false promise that he would marry her.

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WHY DIVERSITY NEEDS SECULARISM?

The expansion and consolidation of the Hindu Right's political power has raised legitimate concerns about the future of India's secularism. While criticism of secularism could be found in the public debate during the anti-colonial struggle, the sustained assault on it became particularly apparent during the Ayodhya movement. During the late 1980s and 1990s, the public campaign led by the Bharatiya Janata Party (BJP) advocated that the practice of secularism has led to the appeasement of Muslims. The BJP further argued that it has been quite harmful to India's democratic polity because it has been institutionalising vote-bank politics, and that what is needed is in fact an attempt for a 'positive' secularism as opposed to 'negative' secularism. While these distinctions were widely used during those days, surprisingly it has vanished from the political lexicon of the Hindu Right in recent years.

Secularism, unity and diversity: The most significant moment of this departure in the politics of the Hindu Right was during the 2014 election campaign. For the first time in Indian history, Narendra Modi, as a prime ministerial candidate, unleashed the most sustained attack on the idea of secularism in meeting after meeting. At a meeting in Bulandshahr, Uttar Pradesh, on 26th March, 2014, he reminded people how the idea of secularism has kept Muslims poor. On this issue, he has remained rather consistent even after becoming Prime Minister, although he has vacillated on many other issues. At a party in Berlin on 14th April, 2015, hosted by the Indian Ambassador, he spoke of how Sanskrit has suffered owing to India's so-called 'secular fever'.

There are also occasions when Mr. Modi has made statements on diversity being India's strength without recognising that diversity as a political project can only be effective with secularism as a working foundational value. This is a tragic flaw in the Hindu Right's understanding of the notion of diversity. Inaugrating the debate on intolerance in Parliament on 26th November, 2015, Home Minister Rajnath Singh explained how this idea of secularism has been misused  and how the word is the most abused one. According to the Hindu Right, there are perhaps some benefits of secularism, but they are trivial and could be easily found in the ideology of Hindutva, apparently noble, kind, and all-embracing. It seems to suggest thereby that the problem is not with the idea of Hindutva, but with the misconceptions of secularists about this otherwise noble idea.

The Hindu Right is seemingly keen on reminding everyone that India's founding fathers including B R Ambedkar did not consider it necessary to introduce the word 'secular' in the Preamble of the Constitution. It was inserted as part of the forty-second amendment during Indira Gandhi's Emergency rule. In his speech, Mr. Singh specifically mentioned Ambedkar's reluctance to introduce the word. The fact is that Ambedkar made two interventions in the debate on Professor K T Shah's resolution on this issue, and chose to remain silent on the secularism question although he firmly opposed the entry of the word 'socialism' on the ground that future generations should have the freedom to choose their economic path. Ambedkar was not a convinced socialist at all. But analysis of his writings on minority rights, Muslims, Pakistan, etc. when seen in the context of his pronouncements like "I was born Hindu, but won't die as one" or "Hinduism is not a religion" echoes a particular brand of secularism, very distinct from the Nehruvian or the Gandhian one. His secularism is about human dignity, and his idea of secular political culture is to contribute to the emancipation of human beings from all kinds of man-made suffering inflicted in the name of religion. Had he been alive today, he would have been, no doubt, the most fierce and erudite critic of Hindutva politics.

An omission yet unexplained: These two words - secular and socialist - entered the Constitution when most leaders of the Opposition were under arrest for their resistance to the Emergency. Since these words were retained during the Forty-Fourth Amendment under the Janata Party regime, it is suggestive of a broad consensus among India's political leadership for their insertion in the Constitution. Why did our founding fathers not include them in the Constitution in the first place? Scholars have tried to explain this. In his presidential address to the Indian History Congress, Malda, in 2015, historian Sabyasachi Bhattacharya argued that it was Jawaharlal Nehru's and Ambedkar's larger belief in the values of equality and justice that encouraged them not to introduce these words. One wonders how one could speak of equality and justice in a multi-religious society without secularism.

Moreover, it would be almost impossible to argue that Indira Gandhi was the greater defender of Indian minorities or a bigger patriot compared to Nehru or Ambedkar. There is little knowledge about the circumstances in which she chose to introduce these words. Did she do it on her own or was she advised by somebody? In a recent memoir, President Pranab Mukherjee tells us that it was on the advice of Siddhartha Sankar Ray that she introduced the Emergency. Moreover, Indira Gandhi was not just one of the past Prime Ministers of India like, say, H D Deve Gowda; she was also Nehru's daughter. Was she privy to any particular discussion with Nehru about the reason why he was not keen on pressing for the insertion of these words? We do not have definite answers to these questions as yet.

Others like diplomat-turned-politician Pavan k. Verma argue that the threat to India's secular fabric from the Hindu Right was far greater during the 1970s, which is why Indira Gandhi considered it necessary to introduce these words. Even socialist leader Jayaprakash Narayan was concerned with the growing influence of the Rashtriya Swayamsevak Sangh on the Morarji Desai government, for which he wrote a specific letter expressing his concerns about its Hindutva project. As things stand now, there is no convincing answer as to why the word 'secular' was left out in the first place, and that gives the Hindu Right a convenient handle to twist the debate in its favour in their advocacy for its removal.

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SUPREME COURT TALKED TOUGH AGAINST SECURITY PERSONNEL ON FAKE ENCOUNTERS.

As videos aired on the alleged police encounter of eight men who broke out of the Bhopal Central Jail raise demands for a judicial probe, a series of Supreme Court judgments show that the law is heavily, even fatally, loaded against police officers found guilty of 'fake encounters'.

Rarest of rare cases: One of the judgments even recommends the death penalty to 'trigger-happy' police personnel and compare them to Nazi war criminals at Nuremberg trials who tried to brush off their superior officers. "We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake 'encounters, are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law", the Supreme Court held in Prakash Kadam v. Ramprasad Vishwanath Gupta on 13th May, 2011. "The 'encounter' philosophy is a criminal philosophy, and all policemen must know this", Justice Markandeya Katju, who wrote the judgment, observed. The case concerned policemen used as contract killers.

The 2011 judgment became a precedent for a Bench led by then Chief Justice of India R.M. Lodha in the PUCL case, which dealt with 99 encounters committed by the Mumbai police between 1995 and 1997. In the 2014 judgment, the Apex Court empathised with the police force, saying their job was tough: "We are not oblivious of the fact that police in India have to perform a difficult and delicate task, particularly, when many hardcore criminals, extremists, terrorists, drug peddlers, smugglers who have organised gangs..." But that did not mean the police overlook the rule of law, the Supreme Court cautioned.

Sixteeen guidelines: It listed 16 guidelines to be mandatorily complied with by the State in case of police encounter deaths. These included a scientific, well-documented and decisive investigation by an independent agency. The fairness of the probe was open to challenge before a sessions court.

Encounter videos: More importantly, if the Bhopal encounter videos are found to be true, they show that the officers involved violated the Supreme Court judgment that immediate medical aid should be administered to the suspects shot in an encounter. Further, the Supreme Court laid out the intelligence tip-off leading to the encounter should be recorded and a First Information Report was registered. The Supreme Court held that 'killings i police encounters require independent investigation' to restore the public's faith in the police force.

'The Law is the same': "It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both... This is the requirement of a democracy", the Supreme Court held in a July 2016 judgment on 1,528 cases of alleged fake encounters involving the Army and the police in the North-Eastern state Manipur.

A look at Supreme Court's verdicts in 'fake' encounters:

R S Sodhi v. State of Uttar Pradesh (1992): Supreme Court says whether the loss of lives was on account of a genuine or a fake encounter is a matter that has to be inquired into.

Prakash Kadam v. Ramprasad Vishwanath Gupta (2011): Supreme Court recommends death penalty for police officers found guilty of fake encounter deaths.

B G Verghese v. Union of India (2013): 21 police encounter killings between 2003-2006 in the State of Gujarat. The Supreme Court directs that a probe be initiated into the encounters till 'truth comes to light in each case.

PUCL v. Maharashtra (2014): Supreme Court frames guidelines in case of police encounter deaths, including mandatory investigation.

Om Prakash v. Jharkhand (2012): Supreme Court holds that policemen cannot be prosecuted unless there is evidence against them.

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FIFTEEN LAWS EVERYONE SHOULD KNOW TO PREVENT ANIMAL ABUSE IN INDIA.

Almost everyday, India wakes up to horrific stories of attacks on stray dogs. In Kerala's Ernakulam district, 24 strays, which includes puppies, have been reportedly killed by the local panchayat on Sunday. A couple of days back, the youth wing of the Kerala Congress killed eight stray dogs, tied four of them to a pole and paraded the carcasses in Kottayam town. This was an ugly protest against the stray menace ib Kerala. Last month, after considering the stray dog menace in Kerala, the Supreme Court observed that compassion for stray dogs cannot hold a society to ransom. 

"Compassion should be shown to wards stray dogs but...these animals cannot be allowed to become a menace to society. A balance needs to be created for dealing with such situation", a Bench of Justices Dipak Misra and U.U. Lalit observed.

Meanwhile People for Ethical Treatment of Animals (PETA) has urged the politicians to undergo psychiatric counselling and evaluation after they decided to kill the strays. To solve the Kerala stray dogs problem now, the district panchayat wants to build more Animal Birth Control (ABC) centres and is looking for professional help. As Kerala fights to solve the menace, it is important to know the rights of our four-legged friends. World Animal Day is celebrated on 04th October every year. Below are mentioned the fifteen rights of animals:

1. It is the fundamental duty of every citizen of India to have compassion for all living creatures.
2. To kill or maim any animal, including stray animals, is a punishable offence.
3. Abandoning any animal for any reason can land you in prison for up to three months.
4. No animal (including chickens) can be slaughtered in any place other than a slaughterhouse. Sick or pregnant animals shall not be slaughtered.
5. Stray dogs that have been operated for birth control cannot be captured or relocated by anybody including any authority.
6. Neglecting an animal by denying her sufficient food, water, shelter and exercise or by keeping him chained/confined for long hours is punishable by a fine or imprisonment of up to three months or both.
7. Monkeys are protected under The Wildlife (Protection) Act, 1972 and cannot be displayed or owned.   
8. Bears, monkeys, tigers, panthers, lions and bulls are prohibited from being trained and used for entertainment purposes, either in circuses or streets.
9. Animal sacrifice is illegal in every part of the country.
10. Organising of or participating in or inciting any animal fight is a cognisable offence.
11. Cosmetics tested on animals and the import of cosmetics tested on animals is banned.
12. Teasing, feeding or disturbing the animals in a zoo and littering the zoo premises is an offence punishable by a fine of Rs. 25,000/- or imprisonment of up to three years or both.
13. Capturing, trapping, poisoning or baiting of any wild animal or even attempting to do so is punishable by law, with a fine up to Rs. 25,000/- or imprisonment of up to seven years or both.
14. Disturbing or destroying eggs or nests of birds and reptiles or chopping a tree having nests of such birds and reptiles or even attempting to do so constitutes to hunting and attracts a punishment of a fine upto Rs. 25,000/-, or imprisonment of upto seven years or both.
15. Conveying or carrying animals whether in or upon any vehicle, in any manner or position which causes discomfort, pain or suffering is a punishable offence under two Central Acts.

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LET'S NOT TRIVIALISE RAPE.

The Madras High Court stunned many in June, 2015 when it ruled that a convicted rapist of a minor be set free in order that he and the survivor, now an adult and a mother, can come to an amicable settlement. It showed that Jawaharlal Nehru's famous observation, "We in India live simultaneously in all the ages and centuries that have preceded this middle of the twentieth century", still holds true in present day India. That the woman had no desire to even meet her rapist, let alone come to some arrangement with him, seemed not to have occurred to the judge, who suggested relying on arbitration under the Alternate Dispute Resolution mechanism. That itself should have been worrisome since ADR, conceived to bypass time consuming and expensive litigation, is meant for civil disputes not criminal cases.

Constitutional democracies treat crimes as not just against the individual or family or clan, but against society as a whole. In other words, unlike some traditional communities which allow 'compromises' in lieu of 'blood money' to the victim of a crime or his or her family, modern democracies are underpinned by the rule of law. Sure, some emphasise rehabilitation as much as or more than punishment, but nevertheless do not permit any kind of compromise between perpetrator and victim as a way out of prosecution under the law and its consequences.

What is even worse is that the judge went on to cite as justification the traditions of various religions in 'non-belligerent' dispute resolution. That is doubly worrisome, since High Court judges are supposed to make their rulings based on the Constitution which they have sworn to uphold, rather than on religious precedents. Many aspects of judicial reform are vastly overdue. These include the system for appointing judges, currently under Supreme Court review after Parliament's passage of the National Judicial Appointments Commission. Also urgently needed are large funding increases in order to dramatically raise the number of judges, along with the necessary infrastructure.

India has an extremely low ratio of judges to population compared to developed countries, a major bottleneck in the delivery of justice. And there is need for matching reforms in policing and other related areas. All of these require either time-consuming consensus building across the political spectrum, or very large increases in funding, or both. But what can happen even without such fundamental changes is streamlining of intra-judiciary guidelines and principles based on Supreme Court precedents. Fortunately the Supreme Court itself, as the last recourse, keeps righting the course of justice from flagrant detours. Just a week after the Madras High Court judgment, it overruled a similar Madhya Pradesh High Court decision in which the judge had shown leniency to a convicted rapist, citing that he had alomst finalised a compromise settlement with the parents of the victim, a seven year old! The Supreme Court noted, "We would to like to clearly state that in a case of rape or attempt to rape, the conception of compromise can really be thought of".

It is high time that the already overburdened Supreme Court not be additionally burdened with routinely correcting such obvious miscarriages of justice. In fact, neither should high courts intervene to reconsider convictions unless there are specific circumstances justifying it. In other words, the leeway given to High Court benches to intervene in these matters ought to be tightly circumscribed by the highest court. But let there not be an impression that such wastage of courts' time and resources on already settled Principle of Natural Justice weighs only against one gender. Cursory googling throws up any number of false rape cases, from the malicious and completely fabricated to the more common type where a jilted woman alleges rape only to make a recalcitrant lover honour his promise to marry her.

In fact, it is in dealing with just such alleged 'rapes' resulting from broken promises of marriage that many judges have fallen prey to their kinder instincts in facilitating reconciliations. And they are not alone, since there are at least as many reported instances of the police acting as matchmakers and marriage counsellors. Although some think there is nothing wrong in such well-meaning indulgence by cops and judges, the reality is that rape is a serious crime which simply must not be trivialised. Just like there must not be any leniency for convicted rapists based on 'compromise' with survivors, neither should there be any tolerance for fake allegations of rape, and especially not for perjury before a court.

Lately, some courts have started taking a stricter view, for instance the additional sessions judge in Delhi in 2014 who acquitted an alleged rapist and noted that the complainant and her husband were fit to be put on trial for perjury. Nevertheless, that is far from the norm. 

The basic concepts that it is not rape unless there has been coercion or lack of consent, that sex with mutual consent is not rape even if a promise of marriage is subsequently broken, that sex with a minor is statutory rape irrespective of consent, and that rape is not a crime that can be compromised are all well established principles that should not longer  require Supreme Court intervention to get lower courts to understand.

[Based on an article written by Baijayant 'Jay' Panda, a BJD Lok Sabha MP, published in "The Times of India" dated 08th July, 2015 (Wednesday), p. 16]

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UNIFORM CIVIL CODE.

In a significant decision, the Supreme Court allowed a single mother, who happened to be Christian, the right to apply for sole guardianship of her young son without needing the consent of his biological father. It spoke of the relative disadvantage of Christian unwed mothers, who are not presumed to be the natural guardians of their children by the Guardians and Wards Act that governs these matters. The Court also observed that the Uniform Civil Code envisioned in the Constitution's Directive Principles remains an unaddressed expectation. This is a welcome ruling, one that comes down on the side of personal freedom and equal rights of citizenship. Like a similar judgment in 2014 when the Supreme Court gave religious minorities the right to legally adopt children even if personal law contradicted it, this judgment expands freedom in the familial domain. It shows the way forward even as political debate on the Uniform Civil Code remains struck in old arguments between right-wing voices that want to use it as a weapon to efface minority personal laws now that the Hindu Code has had to fall in line, and minorities who see it as an attempt to ride roughshod over their right to protect their religious tenets and cultural distinctiveness. Either way, this situation hurts women from minority communities.

Given that much family law effectively hinges on the control and conduct of women, their rights to property, and matters of marriage, divorce, maintenance, etc., abiding wholly by personal law often means depriving them of constitutionally guaranteed equality before the law. Political parties that claim to be sensitive to minority rights also end up bolstering the patriarchs and elders of the community, rather than listening to what the women want and respecting the dues of equal citizenship. On the other hand, any attempt by the ruling BJP to push a Uniform Civil Code will be fiercely resisted, because in other contexts it stands for a barely disguised majoritarian triumphalism. Given political stalemate on the larger issue, courts are right to use every opportunity to affirm modern values. By holding up the rights of an unwed mother to be the only custodian of her child's well-being, the Supreme Court has made a clear point - claims of family and community do not weigh more than an individual's rights.
[Based on an article published in "The Times of India" dated 08th July, 2015 (Wednesday)]
High Court: Under Muslim Law, marriage can't be terminated unilaterally: Referring to the practice of triple talaq, the Allahabad High Court has observed that under the Muslim law, marriage is a contract which cannot be rescinded unilaterally. The High Court made this observation while dismissing a petition by Aaqil Jamil, whose wife has filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq. The order was uploaded on the High Court's website on 09th May, 2017, two days before the Supreme Court begins hearing a clutch of petitions challenging the validity of triple talaq.
Justice Surya Prakash Kesarwani observed that personal law or the Constitution does not entitle a husband to rescind the contract of marriage orally or by giving a notice or by ex parte decision. "Hence, such a practice is unsustainable and bad in the eyes of law", the Judge said.
Rights can't be infringed in the garb of personal law: The Court said all forms of discrimination on the grounds of gender violate fundamental freedoms and human rights. "The human rights of women and of girls are an inalienable, integral and indivisible part of universal human rights", the Court said. Hence talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article. 14 (Right to Equality) of the Constitution, it added.
The Court also made an important observation on the practice of 'nikah halala', an Islamic marriage ritual which involves a woman divorcee marrying someone else, consummating the marriage and then getting a divorce in order to make it permissible to remarry her previous husband. 
"No lady can be compelled to marry some other person, in case she wants to marry her husband again after talaq. This condition to marry another person before marriage with earlier husband is humiliating and against the dignity of a lady protected by Article. 21 of the Constitution of India", the Judge said. Kesarwani further said: "All citizens including Muslim women have fundamental rights guaranteed by the Constitution. Under the garb of personal law, rights of the citizens protected by the Constitution cannot be infringed", Jamil had filed the petition asking for the quashing of his wife's complaint maintaining that he had given triple talaq to her in 2015.
Thereafter, he obtained a fatwa from the city Mufti of Agra, in which the latter affirmed the talaqnama and pronounced that her former wife, after being divorced, has become impure (haraam) for the petitioner.
[Based on a news item written by Rajesh Kumar Pandey, published in The Times of India dated 10th May, 2017 (Wednesday)].  
Triple Talaq violation of basic rights: Allahabad High Court: No personal law is above Constitution and triple talaq is a violation of the fundamental rights given to citizens, the Allahabad High Court ruled on 09th May, 2017. The verdict comes amid the Centre's push for a ban on the contentious practice on grounds of gender equality and justice. The Court said the rights of any person, including Muslim women, cannot be violated in the name of personal law or on the basis of gender, adding that triple talaq cannot infringe upon a woman's fundamental rights given to her under the Constitution. Any fatwa that is against the law cannot be accepeted, the Court also said. 
"A Muslim husband cannot give divorce in such a manner which would put a question mark on the woman's equal rights", the Court said. A single-judge bench of Justice Surya Prakash Kesarwani said that the human rights of women and of girls were an 'inalienable, integral and indivisible' part of universal human rights.
The Court was hearing the petition of a Varanasi woman who had accused her husband of torturing her for dowry and then divorcing her. The husband had approached the High Court against the complaint. The Court dismissed his petition. The husband has contended that he has divorced his wife and also procured a fatwa in this regard by the Darul Ifta Jama Masjid in Agra.
Fatwa against rights not valid, rules High Court: No personal law is above Constitution and triple talaq is a violation of the fundamental rights given to citizens, the Allahabad High Court ruled on 09th May, 2017. The verdict comes amid the Centre's push for a ban on the contentious practice on grounds of gender equality and justice. The Court said personal law can only be applicable under the provisions of Constitution, adding that any fatwa, which is contrary to the justice system or someone's rights, was not valid. The Supreme Court is hearing a clutch of petitions for a ban on triple talaq. The All India Muslim Personal Law Board has opposed a blanket ban on the practice, accusing Centre of trying to kill the country's plurality. 
The NGO that oversees the application of Muslim Personal Law has said that it would end triple talaq within 18 months, but resisted any interference from the government.
[Based on a news item, written by Amita Verma, published in Deccan Chronicle dated 10th May, 2017 (Wednesday)]. 
A WAKE-UP CALL FOR THE MUSLIM CLERGY: It is indeed surprising that the operative part of the elaborate and complex ruling comprising of three different and diverse judicial opinions captured in 395 pages is just one line: "By a majority of 3:2 verdict the practice of talaq-e-biddat - triple talaq is set aside". Justice Kurien Joseph's opinion expressed in just 27 pages that clinched the issue. He concurred with Justices Rohinton Nariman and Uday Lalit that the practice of triple talaq does not form the core of the Sunni Muslim religion and helped it to acquire the status of a majority opinion. He also concurred with Chief Justice J.S. Khehar and Justice Nazeer that the personal laws of minorities are proected by the Constitution as fundamental rights, a clear statement against the enactment of a Uniform Civil Code, contained in Article. 44, which is a Directive Principle of State Policy.
It was obvious that arbitrary triple talaq had to go. No one had held it to be a desirable mode of dissolving a Muslim marriage, not even the AIMPLB. What was under contest was the most appropriate manner in which it could be done - through the Courts, the Legislature or through the Muslim clerics. On this critical issue, the verdict split. Justice Khehar held that though triple talaq is undesirable, since it is an integral part of the Sunni Hanafi faith - an unbroken tradition followed for 1,400 years - it was not possible for the courts to strike it down. But using the power under Article. 142 of the Constitution of India, the CJI gave a six-month window for Parliament to declare the law and issued an injunction restraining Muslim husbands from pronouncing triple talaq in the intervening period. A convoluted verdict, which creates more confusion than it solves. The sole Muslim Judge on the Bench Justice Nazeer, concurred with this view. But fortunately for us this has become the minority view and no longer applicable. 
The three other judges on the bench gave a clerar verdict that triple talaq is invalid. But here again opinions differed regarding the grounds on which it was done. The judgment delivered by Justice Rohinton Nariman (for himself and Justice Uday Lalit) held that since the word 'talaq' is mentioned in the Sharia Application Act, 1937, it fomrs part of a statute and becomes 'law in force'. Hence, it is amenable for being declared as unconstitutional. However, the Sharia Application Act does not mention the word 'triple talaq' or 'talaq-e-biddat'. The views expressed by Islamic legal scholars is that a mere recognition of Muslim personal law by the Sharia Act does not give it a statutory status.
Justice Kurien Joseph, too, differed with this view and held that triple could not be tested against the touchstone of fundamental rights. He preferred to stay within the realm of Islamic law and examined whether instant triple talaq forms an essential and core religious practice. Since Shamim Ara (2002) had already declared instant triple talaq invalid, and had laid down the procedure for pronouncing talaq, he had no hesitation in concluding that triple talaq is not an essential core of Islamic law in India and hence invalid. 
This position has been repeatedly advanced by me and hence today I stand vindicated. Since there was no media hype, the kind we have witnessed during the last two years since the Bharatiya Muslim Mahila Andholan (BMMA) flagged this issue and since the Narendra Modi government at the Centre, and its various chief ministers in states, as well as the ideologues of the RSS had not awakened to the plight of Muslim women as political capital, the historical ruling delivered by Justice Lahoti (who went on to become Chief Justice of India) went unnoticed. So, Muslim women and their supporters ignored it in their pursuit to get a decisive verdict from the Supreme Court. But beyond the hype, we have not advanced an inch from the earlier position which had held triple talaq invalid.
Again, it is Justice Kurien's concurrence of CJI's opinion on freedom of religion that renders it a majority opinion today. According to Prof. Faizan Mustafa, Justice Khehar's detailed judgment is a major milestone in the history of freedom of religion in India. For the first time in Indian judicial history, it is decalred that personal laws are an integral part of freedom of religion guaranteed under Articles. 25 and 26 which the courts are duty-bound to protect.
This hallowed status awarded to the Muslim personal law has warmed the hearts of the All Indian Muslim Personal Law Board (AIMPLB). The mandate of bringing reforms is today squarely in their court. The board had earlier issued and advisory that triple talaq is sinful and had declared the correct procedure for pronouncing talaq. Upon a directive from the CJI, the office bearers of the AIMPLB had filed an affidavit in court that a provision will be included  in the nikahnama (marriage contract) whereby the husband binds himself against pronouncing instant triple talaq. But they were not willing to walk the last mile and declare it invalid. The need for Muslim husbands to bind themselves against this practice through a model nikahnama continues to be relevant.
Unless the Board gives a clear signal that it has accepted the verdict of the Supreme Court regarding triple talaq, there is bound to be confusion within the community. This may provide an opportunity for Muslim-bashing by the Modi government, which has rejoiced over the verdict as though it is an anti-minority one, to usher in legislative reforms, a situation which the Board wishes to avoid at all costs. However, in the absence of a clear stand and prompt action from the Board, Muslim women's groups such as the All India Muslim Women's Personal Law Board and BMMA will be well within their rights to lobby with the government to enact a law to bring in clarity within the Muslim Personal Law. 
When this happens, the Board will find its back pushed against the wall. So now is the time to act.      
[Based on an article written by Flavia Agnes, a women' rights lawyer and an authority on family laws. The article was published in Deccan Chronicle, dated 25th August, 2017, Oped p. 11].

C.S. Chakravarthy

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