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The Lokayukta test
Demarcate the border |
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Spare schools
A half-baked measure
Flying with ‘netas’
The concept of honour in honour crimes
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The Lokayukta test
Just
at the time when Gujarat Chief Minister Narendra Modi was supporting Anna Hazare's cause for a strong Lokpal at the Centre in 2011, he was fighting tooth and nail the appointment of a Lokayukta in his state nominated by the High Court Chief Justice. Retired High Court Judge RA Mehta had been appointed by Governor Kamla Beniwal against the government's wish. The Supreme Court subsequently upheld the appointment, but by then Justice Mehta had decided against taking charge, saying the bickering had “denigrated the office of Lokayukta and it had lost all the grace and dignity.” So that he does not have to face such embarrassment again, Modi has now pushed through a Bill to give the government a virtual free hand in the selection and appointment of the Lokayukta. The very idea of having the institute — besides various other investigative agencies and the judiciary — is that it may have a higher moral authority and be free of governmental interference, and therefore be able to move against the highest offices in matters of corruption. But if a Lokayukta is entirely indebted to the Chief Minister/state government for his appointment, it is hard to expect him to keep an eye on the same establishment. Even as a weak Lokayukta can achieve little, it can still be used by the government to bury a case, as has been seen in the recent cash-for-CLU sting operation inquiry in Haryana. Modi is the prime-ministerial candidate of the BJP, which makes him highly watched. Every statement and action of his — even in Gujarat — will be analysed to see what to expect of him as a national leader. He already has a communal stain on him that he will find hard to wash off ever. But thus far he is seen as a person with personal honesty and integrity. Letting the Lokayukta be a strong and meaningful office in his state would have only burnished that reputation. He has lost an opportunity to tell the world his government in Gujarat fears no scrutiny.
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Demarcate the border
India
faces various issues because of a contentious and sometimes improper demarcation of the border, but now it has a chance to sort it out in one area at least. The Land Boundary Bill for exchange of territories with Bangladesh could not be passed in the last session of Parliament. However, Prime Minister Manmohan Singh has indicated that there is still time to get it through, and thus implied that it could be considered in the coming session of Parliament. The Bill that provides for exchange of territories between India and Bangladesh is the culmination of a long effort to rationalise the land border between the two nations. It is an important legislation that has diplomatic implications. It will also impact the day-to-day lives of people living in the area. The government has enough time to reach out to the parties that are opposing the Bill, including the BJP, Asom Gana Parishad and Trinamool Congress and sort out their issues. When Prime Minister Sheikh Hasina and Prime Minister Manmohan Singh met in New York while attending the UN General Assembly, they discussed the issue and apparently she received an assurance that the Bill would be expedited. The Bill would come as a shot in the arm of Prime Minister Sheikh Hasina, whose ruling Awami League party is aggressively tackling the fountainheads of terrorism in the region. The war crimes tribunal set up by the government in 2010 has been announcing verdicts against those accused of committing crimes against humanity during Bangladesh’s 1971 war of liberation. The Jamaat-e-Islami party that comprises members who actively assisted Pakistan during war of liberation has found itself in the dock as some of its senior leaders like Abdul Kader Mullah have been awarded the death sentence by the tribunal. Even as Bangladesh has been torn by protests and counter-protests that greet the announcement of conviction of persons accused of war crimes, Bangladeshis look for a glimpse of a future that would focus more on development and less on narrow sectarian goals.
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Spare schools
In
Haryana, where sports education and management is on the high priority list, it is unfortunate that 1,983 PT (physical training) instructors have been found to be without the required qualifications. The Punjab and Haryana High Court on Monday quashed their appointments, made in 2008 without a written test and on the basis of inflated marks awarded in viva voce to ineligible candidates. The corrosive effects of corruption, particularly in the field of education, are reflected in the social backwardness of Haryana. This disclosure, of so many PT instructors being selected on the basis of undue favour rather than competence, may also explain why scores of PT instructors have been alleged of being involved in cases of sexual harassment by girl students. Getting inefficient educators is any society’s worst nightmare. And to have them riding the shoulders of the corrupt and powerful is a complete disaster. While the searchlights are often beamed on the bureaucracy, the police and the political class, the education system often escapes notice. Now, since finally the light is focused on this sector, it should scrutinise the politicians and bureaucrats in charge of education, administrators, institutions and the faculty to save the state from its continuing social decay. Especially, sports education should be scrutinised threadbare. Unfortunately, Haryana is not new to breeding scams in its education sector for petty political gains. The teachers’ recruitment scam that involved former Haryana Chief Minister Om Prakash Chautala, his son Ajay Chautala and 53 others is still fresh in public memory. They have been convicted by a special CBI court for the illegal selection of over 3,000 junior basic trained (JBT) teachers. The 1,983 PT instructors, whose appointment has been quashed, will leave behind the imprints of a system that corrodes the confidence of the young in a fair and just world. And who will be answerable to all those girls who were made to leave school because of such uncouth teachers?
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Do not take life too seriously. You will never get out of it alive. —Elbert Hubbard
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A half-baked measure
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the government and the Opposition in Parliament have shown remarkable comradeship in accusing the judiciary of all ills in society. The occasion was to find a substitute for the present collegium system of appointment of Judges of the High Courts and the Supreme Court. There is a broad agreement in the public and legal fraternity that the collegium system of appointments needs to be improved upon. But then critics must also answer the query raised by the present Chief Justice of India wherein he has pointed out that a fair amount of consultation with the government takes place and the judiciary takes into account any negative facts brought out against the proposed appointee. May I scotch the suggestion invidiously spread by politicians that appointments are based only on caste or personal considerations of the collegium members and merit plays no part. May I scotch this slander by pointing out that there is universal acclaim for the present judiciary’s impartiality and determination in exposing Coalgate, telecom and other scams. The Supreme Court's recent decision to debar convicted legislators from continuing as legislators is a big blow to the evil of politicisation of criminals. Let me emphasise that the appointments of all these judges were made through the collegium system, while the judges who played a disgraceful role in colluding in the supersession case in 1973, and again during the Emergency in 1975 were all appointed before the collegium system. Because of these vagaries, are we justified in the wholesale condemnation of
pre-collegium appointees? Certainly not. Since 1950 we have had stalwart judges like Krishna
Iyer, Justice Mukerjee, Justice Mahajan, Justice Suba Rao and Justice
Sikri. No I am not opposing the desirability of change from the present closed collegium system. But this matter needs to be discussed in a calm leisurely manner, and not by the outgoing discredited legislators and in an atmosphere of suspicion, and half-baked information. Now that the Bill has gone to a standing committee, it is to be expected it will be widely circulated throughout the country so that the legal fraternity, law schools, journals and public men could have time to discuss it at leisure. Frankly, the strategy of the Law Minister to get passed the Constitution Amendment 120th Bill and send it to the states for ratification without the details of the Judicial Appointment Commission being included in it would have been a constitutional monstrosity. Not to include the details in the amendment would be such excessive delegation as to fall foul of the law. It also has sinister implications for future. The proposed Constitution amendment only provides for a Judicial Appointment Commission for Appointment of Judges being mentioned in Article 124A, and 217 of the Constitution but without full details like the composition and the procedure for appointments being included. They are, of course, mentioned in the Bill, but that cannot prevent mischief being done by a future government. As an example, the Bill provides that the commission will be presided over by the Chief Justice of India. But if after approval of the Constitution amendment, Parliament were to amend the Act to say the judicial commission would be headed by the Law Minister, there would be no hurdle because the Constitution amendment only provides for a judicial commission but says nothing about details. In fact, but for the arrogance of the legislators it should have been clear to them that the whole of the Judicial Commission Bill with all its provisions has to be part of the Constitution Amendment Bill, just as at present Article 222, specifically mentions that the Governor and the Chief Justice of a state will be consulted when selecting a judge for the High Court. I feel that the present Parliament lacks moral justification to move such an important Constitution amendment. Elections are due latest by next May, 2014. It is reliably understood that the Election Commission may propose to have elections in four or five phases. If so, the first polling may start by February or March, 2014. It is normal to expect that half the present members of the Lok Sabha will not be re-elected. Is it morally fair and politically honest for the outgoing members to seek to pre-empt the decision which both legally and morally would be the privilege of the new Parliament? Also the Bill has been sent to the Standing Committee. Since the full Bill has to form part of the Constitution amendment, therefore till the Commission Bill is finalised the question of sending the Constitution Amendment Bill to the states for ratification cannot arise. In the Bill for the commission there are serious flaws. At present only the views of the Governor are to be obtained when a High Court Judge is to be appointed. But now slyly the Chief Minister also finds a place in the commission. I feel it is too political and allows partisan appointments — the inclusion of Chief Minister must be removed. The personnel for the selection of Judges include a vague self-serving category of “two persons of eminence”. Pray what is the measure of eminence for selecting judges? Supposing two legislators from Parliament or state legislators were to be included in this ‘category of eminence’ (even not having had the advantage of beyond middle class schooling), none of them would consider excusing themselves because their claim would be that they were so popular with millions of voters and how could they be not considered eminent? Perverse logic, but in the construction of the law, how could you rule it out? Of course, the simplest thing would be to substitute it by “eminent jurists”. This will include a large source, namely “retired judges”, “law Professors”, “eminent senior lawyers (who are no longer in regular practice)”. Their presence will automatically reduce arbitrariness to quite an extent. The exclusion of the Leader of Opposition in the Lok Sabha from the Judicial Appointment Commission is a serious flaw. In such neutral policy matters both the wings of Parliament must be included. In my view the present Parliament could still redeem itself somewhat of all the scams/scandals, if before its term expires, it passes the Women Reservation Bill. No objection on the ground of imminent dissolution of Parliament will apply because one House of Parliament has already passed it, and also the first announcement the Prime Minister made after the 2009 general election was a promise to immediately pass this legislation — the same commitment had been made by previous
governments.n The writer is a former Chief Justice of the Delhi High Court
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Flying with ‘netas’
Before
taking premature retirement from the Army in 1994, I had obtained a Commercial Helicopter Pilot’s Licence. After leaving the Army, it did not take me long to realise that my impressive military bearing and many military qualifications would be of little use in the corporate world. So, I went back to doing in the civil world what I did in the Army. I joined a non-scheduled aviation company as an executive pilot to fly helicopters. That is what I did for the next 17 years till I retired. Much of my flying was done with the political bigwigs of various parties. I have flown past and future prime ministers, a future President of India, the top honchos of the Congress, BJP, SP, BSP, BJD, JD(U), TMC, Akali Dal, INLD and a host of members of Parliament. So, one got the opportunity to see the campaigning style of these ladies and gentlemen. Most of these folks were pretty mundane in their behaviour. There was only one man who left a lasting impression on me. Not with his intellect, sincerity or honesty but by the sheer magnetism of his ability to put a spell on the voters. He was a leading political leader from Bihar who ruled the roost for a long spell of time. In the 90s there were only a few helicopters available for hire. This gentleman used to hire our helicopter. To make sure that no one else got it he used to get the helicopter in Patna well before the campaigning started. So, that is how my long relationship started with him. Once the campaigning started it was nonstop. We had our problems in the initial days when he tried to dominate me. But when I stood my ground, he was quick to realise that I was not a Bihar government employee. We became good friends thereafter. I always went the extra mile for him and he was always very nice to me. A typical day started at about 10 o’clock and ended at sunset. We always came back to Patna after doing 12 to 14 meetings. He was a one-man election machine. One day we went on to do 22 landings. Most amusing was his language. He would address the DG Police as ‘Darogaji’ and the Chief Secretary as ‘Badey Babu’. While flying, we frequently could not find our destination due to wrong co-ordination. So, he would tell me: Sanghaji urankhatole ko yahan gira do, hum pata lagatey hain. He meant that I should land the helicopter so that we could get directions from the locals. One day a pretty British lady journalist from the Economist magazine came on board. So, much against his wishes, he had to converse with her in English. It was very amusing to listen. While coming in for a landing at a village, he told her “Look at the cow mother with her cow boy”. The lady kept a poker face all through. This gentleman had no idea of good governance but he could win elections all on his own. Having seen so many netas I can say that he was the guru of them all. Now, though out of power and in jail, he has a never-say-die spirit about him. He still has a great sense of humour. Will he make a comeback? A million dollar
question!
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The concept of honour in honour crimes Crimes
committed to uphold honour are fairly widely spread not only across India, but also in the entire Asian sub-continent. The Asian immigrant communities from India, Pakistan, Bangladesh and East Africa, located in the west (especially in the USA, UK and Canada), cutting across faith, age, caste, class and racial group, show similar crimes committed in the name of 'honour'. India, which had publicly denied the existence of such crimes in the international fora, has had to recently accept the hard reality of the existence of honour crimes and even move towards taking some tentative steps towards tackling it through legislation. These crimes are however erroneously referred to as "Honour Crimes". Such a usage rationalises and legitimises the crime by creating a notion that the crime is committed to 'save' one's 'honour'- a highly elusive and indefinable notion — and the society is bound by tradition to protect this. Here, I employ the word 'honour' awaiting a consensus to evolve on the use of an alternative word.
Law vs customary practice One of the most visible manifestations of the operation of the concept of 'honour' in India is in relation to the marriage of women i.e. the control of female sexuality and bestowal of this sexuality in marriage. As marriage provides the structural link-up between kinship and caste, a closer surveillance is accorded to the marital alliances. Kinship linkages provided by marriage, and relations established through marriage, give a caste group its strength, recognition and leverage in wider society and polity. Any breach in these caste linkages brings down the honour and status of not only the immediate family, but also the clan and finally the entire caste group. Those who infringe the specified 'code of honour' relating to caste and kinship in marriage are dealt with extreme violence — leading to the so called honour killings. Violence notably underlines the existing ideology of honour. Cases relating to honour and honour killings are not infrequently runaway marriages and elopements that infringe cultural norms and customary practices. Briefly stated, the customary rules regulating marriages in most parts of India, especially northern India, are based upon caste endogamy, on the one hand, and village or territorial exogamy on the other; neither are legally recognised categories for marriage purposes. The introduction of modern concept of adulthood and the sanctity given to individual rights give legal recognition to the individual settlement of marriage between two consenting heterosexual adults (girl 18 and boy 21). Under the Hindu Marriage Act 1955, except for certain prohibited degrees of relationship, the legal restrictions on marriage are almost non-existent. This implies that under the law, inter-caste and intra-caste or intra-clan marriages are permitted among 'Hindus'. In other words, under the law, there is freedom to marry who you like but not under the customary practices. Any breach of the customary practices leads to direct violence perpetrated by the family members on the couple generally and on the girl specially. Perceived as common occurrences these cases, for a variety of reasons, have escalated over the years. Decisively regarded as matters of 'honour' — family or private, they remain highly hushed up and confidential affairs, till they spill over into the public domain, like we are witnessing in Haryana today.
Regulator of honour What is this 'ideology of honour' that sanctifies such violence? An analysis of the ideology highlights it as a gendered notion producing inequality and hierarchy. Both men and women embody notions of honour, but differently. The woman is the repository and the man is the regulator of this honour. Therefore, the greatest danger to the ideology of honour comes from the woman. Honour so posited in a woman is importantly located in her body. A woman dishonours her family by her shameful bodily conduct and behaviour. This stretches from observing modesty and deference to her sexuality, which means that she has no control over her own self. All decisions regarding her body must be made by the male members of her family — the upholders of her honour. The familial ties are extended through ties of blood to the clan and then the caste/community. The blood tie makes them co-sharers of this honour. They must all join to safeguard and preserve it. Therefore, if the family members fail to uphold this honour, the community steps in. The imagery of blood kinship or brotherhood ensures it-enabling a collective enforcement.
Hindu Succession Act A major change that strengthened the so called concept of honour has been the enactment of the Hindu Succession Act of 1956 (amended in 2005). One of the most egalitarian acts in independent India, it enabled for the first time daughters, sisters, widows and mothers (same as the male members) to inherit land with full proprietary rights to its disposal. This aroused and continues to arouse tremendous anxieties in rural society. In the event of its proper implementation, the patrilineal and patriarchal hold stands to weaken and even be demolished in time. In a patrilineal society the only ideal and 'honourable' pattern of inheritance is acknowledged to be by males and for males, this means basically that daughters and sisters who are potential introducers of fresh blood and new descent lines through their husbands are to be controlled and kept from exercising their inheritance rights. Very simplistically put, marrying outside the caste or with in the village is dangerous as the introduction of a rank outsider into the family, who can and may claim the property on behalf of his wife needs to be effectively stopped. In other words, any deviation or dishonourable conduct on the part of a daughter/sister regarding marriage or making a choice marriage, or elopement, justifies in their eyes the extreme step of even killing her. Consequently, killing in order to protect ones honour, or 'honour killing' that may well mean a legal death sentence, is construed as the highest moral act of courage. As repeatedly seen in several cases across Haryana, the killers hail themselves and are hailed by others as moral guardians of the community. Such violence has complete sanction and legitimacy. The state agencies consciously or unconsciously collude with the family and community in the upholding of patriarchal honour and norms. After all the state functionaries subscribe to the same norms and believe in the same over-arching ideology.
Cultural resistance As the Act of succession upsetting the inheritance rights, customarily enjoyed by the male members, evoked great tension in the rural society, the landowners of Haryana-Punjab were unanimous about the urgency of abolishing it. This was declared to be an attempt to uphold the 'honour' of their 'timeless traditions and customs', for preserving their 'dehati culture', which they maintained was in grave danger from the 'westernised urbanites'. Clearly, cultural ideas tend to benefit social groups that construct or promote them. On the one hand, they tried to abolish or amend it through the legislative procedures and on the other hand, they accelerated their attempts through the caste panchayats to control its fall-out effects. Consequently, in the Haryana assembly repeated efforts were made to amend it in 1967, 1979, and 1989 (Punjab in 1977). All these moves have failed but not the spirit behind it. Since the social, legal and political changes cannot be further resisted, cultural practices and notions of 'honour' have gained paramountcy. Consequently, the resultant violent opposition to breach of marriage norms, mobilised on the codes of honour, overrides any education or modernising process that the rural families may have undergone. Indeed, the resultant violence is almost always based upon the grounds of honour, tradition and culture vs. modernism. The operation of concepts of honour and shame operate to restore the male, familial and community domination considered to have been compromised and endangered by the post-colonial legal enablement. Similarly, the recent attempts of the Khap Panchayats to amend the Hindu Marriage Act have to be understood in the background of the repeated failure to amend the Hindu Succession Act, and the fast emerging cases of daughters in Haryana asking for their share in property or its sale. Clearly, the need to amend and retain the male hold has assumed great urgency as also the need to tighten the noose of control over females, unmarried or married. The trigger to the recent happenings was provided by the lower court judgment in the Manoj-Babli case (an intra-caste case on the breach of gotra which means patrilineal clan and village exogamy) of June 2010, which inflicted the most severe punishment on the culprits, unlike all other times when the murderers have got scot-free. The more immediate September 2013, killings of Dharmendra and Nidhi in one of the villages of Rohtak, and a similar fate that awaits the murderers of this self proclaimed grisly 'honour crime' has further underlined the need for such a legal accommodation. Consequently, the demands of the Khap Panchayats to legalise their customary prohibitions on marriage by an amendment of the Hindu Marriage Act-a demand that hardly had any existence since the passing of this act in 1955-remains highly motivated, activated by the recent spurt in such defiant cases.
The dissent In conclusion, I would like to say that dissent against 'honour' or what constitutes honour, and against 'honour killings' does exist and also shows signs of growing. This dissent, especially among the youth, however, remains publicly unvoiced, but still has potential which can be tapped. The rejection of the concept of 'honour' by the increasing number of runaway couples, similarly underlines an increase. The dissent can also be gleaned from the understanding of this concept offered by women themselves. When questioned, many women from the older generation poignantly asserted: 'we have no honour. Only men have honour.' However, as the behaviour of these women is open to scrutiny and judgement, they are compelled to adhere to the community's expectations regarding its honour, as also the punishment, in case of a breach. The hierarchy and power relations existing within the family effectively smothers such dissent and successfully affects a united front for infliction of violence. A focus on 'honour' advances patriarchal interest, and violence leads to reproduction of patriarchal power. There is clearly enormous power in the institutionalised patriarchy to extract consent from women. Yet, the dissent indicates that customary practices are certainly shared but they are also contested by individuals. In the contest lies our hope of change. Let us not forget that customs have to be voluntarily observed; they have no sanctity if enforced forcibly. Author of 'Contentious Marriages, Eloping Couples: Gender, Caste, and Patriarchy in Northern India' and 'The Veiled Women: Shifting Gender Equations In Rural Haryana', Prem Chowdhry, former Fellow of the Nehru Memorial Museum and Library, is currently an independent scholar.
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Crimes
