The Tribune, Chandigarh, India

Sting of corruption
Who will uncover the ill all around?

The scale of the sting operation that has led to the suspension of 36 policemen in Mumbai may be shocking. The fact that policemen were taking bribes, however, is not. It is a sad state that nearly every common citizen — even those who have never dealt with the police — believes all policemen are corrupt, even when that is not the case. And corruption is not a service-specific disease, rather a matter of opportunity. How else do we see illegal structures — entire colonies and complexes (Adarsh scam) — come up all around us? None of this happens covertly; it is all in the open, carried out over months and years, yet officials fail to take notice. It can safely be assumed that wherever there is a wrong being allowed over a period, someone is receiving a bribe.

This warrants examination of the law to see to what extent can people in positions of authority be held liable for irregularities in matters under their purview. That an illegal building is raised in an area under a particular official does not necessarily mean the person has received bribe. However, accountability for that has to be a requirement. Such are the anti-corruption laws that if the bribe giver has induced a person into accepting bribe, it becomes difficult to press charges against the receiver — the defence that was initially put up against the Mumbai police officials. The fact is that anyone intending to do wrong will try and induce the overseeing official into accepting bribe. That an official did not proactively seek bribe should thus not be acceptable as defence.

The Mumbai sting operation, just as many that have preceded it, also brings up the question why it takes individuals or mediapersons to go ahead with such steps to expose corruption. They do it at a risk to their life and social security. There exist entire organisations — state vigilance bureaus, the CBI, economic offences wings — manned by experts with legal authority to do just this. Unfortunately, a lot of the investigative resources are dedicated to serving political, individual or other cynical interests, leaving little scope for constitutional duties.

Save the girl child
Need for multi-pronged efforts

While female foeticide is widespread in India, more recently the alarming dip in the sex ratio in Jammu and Kashmir has made the authorities sit up and take notice. Now the Committee on Subordinate Legislation has recommended that to ensure that female foetuses are not aborted, every pregnant woman in the state should be issued electronic cards. This step, the department hopes, would enable the authorities to keep a tab on pregnancy, right from the stage of conception to delivery. Indeed, in a country where millions of girls have gone missing, any step that would help check the gender imbalance is welcome. While the endeavour seems well-meaning, if and when implemented, the authorities concerned will have to follow a measured approach and see to it that it doesn’t translate into an intrusive measure.

Ever since Jammu and Kashmir has witnessed a sharp decline in the number of women per thousand men, with some of its districts like Jammu, Kathua and Samba presenting a truly sorry picture, it has announced many steps to reverse the unwanted trend. Not too long ago it dedicated 2013 to daughters and launched a massive awareness campaign. It had even put active trackers on ultrasound machines to track sex determination tests which are at the heart of this social malaise. Besides, strengthening the law has been on the top of the state’s agenda too. Whether female foeticide should be made a non-bailable offence, as the state’s health minister has been thinking aloud, or not, clearly there is an urgent need to not only make laws sterner but also implemented with alacrity.

It’s indeed tragic that a state that till 2001 had a healthy sex ratio has fallen prey to the abominable practice. It must make all possible efforts to arrest the dwindling number of girls. Be it the decision to curb the sale of drugs for abortion or the most recent initiative of smart cards, the state is showing a positive inclination to meet the challenge. Good intentions must find a match in resolve and action.

Thought for the Day

Experience is the teacher of all things. — Julius Caesar

ARTICLE

Pakistan prepares for polls
PPP in dire straits
by T.V. Rajeswar

The democratically elected government of Pakistan led by PPP has completed five years in office and now prepares itself for the polls on May 11. This by itself marks a major milestone in the history of Pakistan. Stephen P Cohen, a veteran American political analyst, would, however, qualify this by saying that this stage marks a modest kilometre stone. The Government of Pakistan tried to undo some dangerous trends of the past, according to Stephen Cohen. The PPP evolved a policy of normalcy with India and control over groups that had in the past tended to derail the process of normalisation of relations between the two neighbours.

The PPP came to power after a landslide victory in 2008, after the assassination of Benazir Bhutto. In the forthcoming elections on May 11, apart from the PPP, the Pakistan Muslim League(N) led by former Prime Minister Nawaz Sharif and the Tehreek-e-Insaaf party headed by former cricket star Imran Khan are the main contenders.

The PPP-led government, which held office for five years, had brought about important constitutional amendments such as promotion of federalism which ensured the end of domination of Punjab province over the rest of Pakistan.

The PPP regime, however, failed to end the domination of the military over the government, much less bring the military machine, particularly the army, under the government's control. A huge percentage of the country's budget is allocated to the military.

With all these, no wonder, the army retains the upper hand on vital policies regarding Afghanistan and the nuclear programme. Pakistan is the only country where the civilian government has let the military run its own business. The military-based enterprises include real estate and other commercial activities. Christophe Jaffrelot, a well-known political analyst of King's India Institute, London, has commented on why the army should take the risk to dislodge the civilians from power when it can continue to rule and loot the country in so many ways without taking the risk of accountability and, therefore, unpopularity.

The judiciary in Pakistan is the most dominant wing of the state today. The Chief Justice of the Supreme Court, Iftikhar Chaudhry, successfully resisted Gen Musharraf who had tried to dislodge him after the Supreme Court made an issue of the disposal of public companies at a throwaway price. The Chief Justice had received the support of thousands of lawyers whose demonstrations in the streets had prepared the ground for the continued supremacy of the Supreme Court.

Justice Iftikhar Chaudhry even took on President Zardari also when Prime Minister Gilani was directed to write to the Swiss authorities and issue orders to start an investigation in respect of President Zardari's bank accounts in Switzerland.

Army senior Generals were summoned for a meeting by the army chief, Ashfaque Parvez Kayani, in the first week of March. They were concerned over the worsening law and order situation in Karachi, and the attacks on Shias in Quetta and elsewhere, which left about 250 people dead in the country. There was extensive violence in Karachi, with more than 150 houses of Christians being burnt down as well as two churches and several shops belonging to Christians getting destroyed. Gen. Kayani met President Zardari after the meeting and conveyed to him the anxiety of the army authorities over the rapidly deteriorating situation and urged Zardari to take urgent steps to deal with the situation.

Observers believe that Pakistan's well-known problems continue and that there is a race between growing incompetence and problems, and these challenges persist in Pakistan. The country is beset with serious issues like insurgency, sectarianism, struggling economy and the larger problem of Afghanistan.

Stephen Cohen believes that India needs a stable and forward-looking government in Pakistan, which also enjoys the confidence of the army.

Pakistan's former Ambassador to Washington, Hussain Haqqani, who is now said to be a hunted man in Pakistan itself, commented recently that Washington and Islamabad should give up the pretention of being allies and acknowledge that their interests simply do not converge enough to make them strong partners. Instead, he said, the US should leave Pakistan to its own devices so that it can discover for itself how weak it is without American aid and support, and thereby enable Pakistan to return to the mainstream, suitably chastened about its limitations. By coming to terms with such realities, Haqqani continues, Washington would be free to explore new ways of pressuring Pakistan and achieving its own goal in the region.

Meanwhile, in Pakistan, Zardari's son and President-designate of the Pakistan People's Party, Bilawal Zardari Bhutto, had a tiff with his father and left for Dubai in a huff. Bilawal reportedly commented in one of his interactions that even he would not vote for the PPP in the forthcoming elections, since it was not clear where the party was heading. A few days after Bilawal's exit, President Zardari himself left for Dubai to assuage the feelings of Bilawal and bring him back to Pakistan. Father and son returned to Pakistan on April 2. The PPP has now programmed to kickstart its election campaign from the place in Sindh where Zulfikar Ali Bhutto's ancestors lived.

Bilawal himself will not be able to contest the elections, or even vote since he completes 25 years, which is mandatory for voting age, only in September 2013. However, being the party chief, he will be very much part of the election campaign.

In this confused scenario, Gen. Pervez Musharraf returned to Pakistan from London on March 24 after an absence of more than four years. He announced that he had returned to Pakistan to contest the elections and "to save Pakistan". He lacks popularity and a political base. He also faces threats from the Pakistani Taliban and allied extremist groups. It may be recalled that he survived two well- planned assassination attempts. He will not now have any special security to protect him.

The forthcoming elections in Pakistan would hopefully bring about a stable government which can take forward the process of normalisation of its relations with India.

MIDDLE

Housing blues
by A. Sriram

Ah, here is at last my dream home!”, I thought as I stumbled upon the tax sops for housing announced in the general budget 2013-14 for individual tax payers.

Apart from my own dream, my anxiety was to end my wife's ceaseless whining that we resided in a rented house ever since our marriage, while everyone in her family had a house of his/her own. Asked to get cracking by the wife, I was soon at the office of my CA friend for advice.

Good! So you want to buy your dream home, asked my friend, testing my patience. First, I need to find out your eligibility. “Do you have any house of your own?” asked my friend. “And if the answer is yes, you may as well drop your proposal”, he said with a cruel touch of finality that miffed me no end

I remembered that I should not hide anything from my tax consultant. “Well, my grandma, aged 96 and with one foot on the grave, has willed me her village house. I will be inheriting it as and when she chose to put both her feet to the grave”, I said, trying my wry sense of humour.

“Ask your granny not to move the other foot till your home loan is sanctioned”, my friend said with a twinkle that suggested that he could match me word for word. A major condition under the scheme was that you should not own any house on the date of sanction of the loan.

After a look at my pay details, he said the maximum amount I could raise by way of home loan was Rs18 lakh. He suggested that I go for a property worth Rs30 lakh which was within the eligibility limits of Rs25 lakh and Rs40 lakh stipulated respectively for loan and value of property.

I was not prepared for that price and reminded him that realtors have offered plots on the city outskirts where a plot costs just Rs8 lakh, including stamp duty and registration fees. I can build a decent house with Rs22 lakh and that will settle the issue, I chuckled in self-deluding smugness.

“It is beyond city limits and you will have plenty of hassles to tackle over power, water, etc. And what will you do for your school-going children. How will they travel to the city every day”, asked my friend, putting me off at once. “My dear chap, in any case, the deduction is available only for ready-built residential houses and not for construction.”

Just then my mobile rang and it was my wife who wanted to share the happy news of the offer of sale of the house where we resided by the landlord at a concessional price of Rs11000 per sq ft.

“Oh! No! You are not lucky, my dear friend. I just viewed the government website and it says the guideline value for stamp duty is a whooping Rs15000 per sq ft at the city and it is all set to go up a couple of notches, come April”, said my friend.

My dream home came crashing but I managed to admire the budget for its capacity to give from one hand and take from the other.

OPED SOCIETY

Now that we have anti-rape law
Criminal attacks of sexual nature are acts of power and humiliation against the weak. By excluding marginalized community of transgenders and LGBT from the purview of Criminal Law (Amendment) Bill — 2013, the justice system has denied them the status of equal citizens
Arvind Narain

The movement against sexual violence which arose in the context of the Delhi rape incident has culminated in the Criminal Law ( Amendment) Bill 2013.One hoped that the inspired street based movement would result in an inclusive law which would address the questions plaguing India including impunity by the armed forces for rape, marital rape as well as rape of tribal and Dalit women. However with respect to the concerns of women in violent marital relationships as well as women subject to brutal rape by the armed forces, the Bill offers no panacea. The phenomenon of rape of Dalit women as well as tribal women is not commented upon by the Bill. Further one hoped that the law would be empathetic in its concern for all victims of sexual violence and put forth a broad charter of protection for all persons who are victims of sexual violence. Here too it fails.

Transgenders and gays too are persons and full citizens, hence, entitled to full protection against sexual crimes

The Bill has also failed in taking on board the suffering of the transgender community and instead continues to perpetuate the shameful exclusion of transgender persons from protection against sexual violence. If the Verma Committee Report was a high point in terms of its nuanced understanding of sexual violence, both the short lived ordinance as well as the 2013 amendments failed to do justice to the various communities and persons affected by sexual violence.

Transgenders outside the frame of law

The biggest gap in the Bill remains its conceptualization of the victim of sexual violence as 'woman'. By using the word 'woman' as compared to the more inclusive word 'person' the law in effect perpetuates the exclusion of transgender persons from the laws protection. It also fails to understand that the crime of rape is a crime of violence which is perpetrated on the bodies of women, transgender persons as well as men.

This historic blunder of refusing to grant protection to all persons will mean that as far as transgender persons are concerned the impunity granted to sexually assault them will continue. We will continue to hear the horrific stories of rape committed by police officers, army men as well as goondas as the imprimatur of impunity has been now encoded into the Criminal Law (Amendment) Bill 2013.

For those who doubt the salience of these concerns, the Peoples Union of Civil Liberties - Karnataka Fact Finding Report on 'Human Rights Violations Against Transgender Persons bears repeated and close reading. The findings of the PUCL -K is that the life of a transgender person in India is marred by brutal sexual violence inflicted by both policemen and goondas. As the PUCL-K notes, 'police constantly degrade hijras by asking them sexual questions, feeling up their breasts, stripping them, and in some cases raping them.'

In testimonials before the Verma Committee, a transgender person narrated the horrid tale of how she was subjected to brutal sexual violence and how there was neither empathy in society for her suffering nor was there any legal recourse. The 1860 definition of rape was resolute in its understanding that rape was only peno-vaginal intercourse with a woman without her consent. Feminists have argued that the reason both the 1860 law as well as subsequent judicial decisions have restricted the understanding of the acts that constitute rape to only peno-vaginal intercourse is because rape in the understanding of the law is a crime against honour, virginity and chastity and not intrinsically a crime of violence. It is this outdated and regressive notion of rape as a crime against the 'honour and chastity of women that one continues to perpetuate by failing to recognise that all persons can be subjected to sexual violence.

Section 377 of IPC

In the struggle against sexual violence, one of the important benchmarks has been the decision of the Delhi High Court in Naz Foundation v. NCR Delhi, decriminalizing consenting sex between adults. The Delhi High Court observed that there was 'extensive material in the form of affidavits, authoritative reports by well known agencies and judgement that testify to a widespread use of Section 377 IPC to brutalise MSM and gay community.' The reading down of Section 377 was a defanging of the power of Section 377 to continue to brutalize the LGBT community. The logical next step was for parliament to initiate a law on sexual assault which would protect LGBT persons from the most brutal and egregious forms of sexual violence.

The Verma Committee Report took forward the vision of the Delhi High Court by extending the protection from sexual assault to all persons regardless of gender. In the words of the Verma Committee, 'all the sexual identities, including sexual minorities, including transgender communities are entitled to be totally protected.' This extension of protection was based on an empathetic understanding that LGBT persons are endowed with the same inalienable rights as heterosexual persons and are entitled to full protection under the Indian Constitution.

This understanding of equality of all persons was operationalised through the simple legislative device of using the word 'person' instead of the word 'woman' to denote the victim of rape. By using the word 'person' the Justice Verma Committee extended the protection of the criminal law to all victims of rape, be they men, women or transgender persons.

The LGBT community

However when it came to the Bill, for inexplicable reasons, the word 'person' was dropped and the word 'woman' was substituted. With this shift in wording, the progressive movement in protecting LGBT persons from sexual violence begun with the Naz judgment and taken forward by the Verma Committee comes to an abrupt end. Transgenders will now have to embark on a long and hard struggle to be recognized as persons fit to be protected from sexual assault.

Parliament in its infinite wisdom asserts that LGBT persons are not full citizens and therefore not entitled to full protection under the criminal law. Parliament also refused to repeal Section 377 which is the fount of violence against the LGBT community as part of a comprehensive reform of the criminal law. Its evident that neither of these pressing concerns exercised the minds or indeed the hearts of Indian parliamentarians. They remained deaf to the concerns of the LGBT community and in particular refused to even acknowledge the history of violence which the transgender community in particular has suffered.

Transgenders- not persons

A perusal of the debates in Indian parliament on the rape law reform only indicates that the sentiments expressed by some parliamentarians were deeply injurious to the dignity of women. Among the welter of statements prejudicial to the real concerns of protecting women from sexual violence there was really no possibility of the voice of the transgender community being heard. Indeed, in the hierarchy of oppressions which are being combated, the concerns of brutal rape of transgenders was fated to remain unarticulated save for the voice of one remarkable parliamentarian, Anurudham Sampath from the CPI(M).

On the floor of parliament, Anurudham Samapath, bravely argued for the inclusion of transgenders under the criminal law through the use of the word person to describe the victim of aggravated rape. In his insightful understanding, transgenders too are subjected to rape in jails, precincts and custodial situations and hence denying them the laws protection would be unjust. However the amendments moved by Samapath were defeated.

One needs to pay a tribute to Samapath for his humane and progressive vision of gender just society and hope that in future, this sole voice on behalf of transgenders gets amplified and parliament is able to do justice to an excluded and marginalized community by recognizing them as full and equal citizens. An integral part of this recognition would be the repeal of Section 377 of the IPC as well as an amendment of the IPC to ensure that the protection of the law against rape is available to all persons regardless of gender.

The writer is a lawyer, associated with the Alternative Law Forum, Bangalore