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Bill to contain riots Consumptive farming |
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Thesis of a strong and decisive leader
Treatment — then and now
Criminalised again, by the law
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Bill to contain riots THE original communal violence Bill was opposed mainly on two counts. The BJP criticised it for being against the majority community, while the chief ministers of Tamil Nadu, Odisha and West Bengal objected to its anti-federal provisions. The Congress is keen to get the Bill passed, even if diluted significantly, with an eye on elections. In the watered down version the Bill has become less effective than what was proposed by Sonia Gandhi-led National Advisory Council. Initially, the Bill put the onus of riots on the majority community. Now it is community neutral. The earlier Bill allowed the Centre to send its forces to the riot-hit areas. Now its role has been limited to coordination and the responsibility for controlling communal violence stays with the states. Communal riots, it has been seen, do not happen; these are engineered. The government becomes a silent spectator or a facilitator, depending on the political goals of the ruling party. It is usually the minority community which is "taught a lesson". The riots of 1984 targeting Sikhs and those against Muslims in Gujarat and more recently in Muzaffarnagar illustrate this. Law and order is a state subject. What if the state government either instigates riots or looks the other way as mobs go on the rampage? The Centre has the power to dismiss a state government on account of the failure of constitutional machinery. What if the same party rules in the state and at the Centre? The original Bill did try to address some of these concerns. In the reworked Bill all is still not lost. It makes bureaucrats accountable for any acts of omission and commission while dealing with communal riots. A district magistrate can be held responsible for the outbreak of and failure to contain communal fire. He has the power to call in the Army if the situation so warrants. He can refuse to obey unlawful orders of his superiors and politicians at the helm. The civil servants can handle any situation if they do their duty and do not join hands with the trouble-makers.
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Consumptive farming FED by five rivers, the greater Punjab region has historically never been used to water conservation in agriculture. The extensive canal system developed by the British helped carry the tradition to modern agriculture, which was encouraged further by the tubewell technology in the late 20th century. It is thus no surprise that none of the 86 structures sanctioned for the state by the Central government as Demonstrative Artificial Recharge Projects have completed. Punjab's approach in agriculture has been of maximising yields, while disregarding input costs. This attitude towards farming has to change fundamentally. Deterioration in soil quality is being managed by fertilisers, but a resource such as water once exhausted will be hard to replenish or substituted. There have been several subsidies sponsored by the Centre over the years aimed at water conservation, but most have been used only to draw the money and little else. Sprinkler and drip irrigation are among those. Certain crop varieties, including those of rice, that consume less water were launched but failed to take off. Water-saving techniques such as direct sowing of paddy are not being adequately promoted. Diversification from paddy has yet to achieve any meaningful results, with no decrease in area under it. Basmati as a substitute is of little help as it is also a rice variety in the end. The aim now has to be not just reducing the rate of groundwater level depletion but immediately stopping the drop altogether. The state is at the threshold of water going down to levels from where pumping out will become prohibitively expensive. Tough decisions such restrictions on crop choice and limits on consumption of water and electricity have to be taken, even as these may be politically difficult. Farmer education is the way to counter that. The argument is simple: draw a resource from earth more than the amount returned to it, and you will be out of it. That is happening. We either foresee the consequences or experience them soon.
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Thought for the Day
All my life, I always wanted to be somebody. Now I see that I should have been more specific.
—Jane Wagner
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Sir Michael O’dwyer’s reply to the Hindu address THE reply given by His Honour the Lieutenant-Governor to the address presented by the Hindu Sabha will convince the Hindus of the Province that they have a sympathetic, high minded and impartial ruler to guide the administration of the Province. The Lieutenant-Governor is well aware of the guiding principles of Hinduism and its wholesome and elevating influence on the people. He appreciates the spirit of toleration, of kindly benevolence and loyalty to constituted authority inculcated by Hindu Dharma. He fully sympathised with the objects of the Hindu Sabha and appreciated their willingness to co-operate with Government. He commended the Punjab Hindus on their “manliness, enterprise and practical ability.” But the one weak feature of the Punjab was, as he pointed out, “the heterogeneous character of the population.” This divides them into communal groups with so-called separate interests. The Punjab University appointments board THE remarkable success of the Cambridge University Appointments Board has led the authorities of the Punjab University to follow suit. It is felt that the present system by which graduates wait on high officials and by which there is no regular machinery for finding them suitable employment is unsatisfactory and that the University should accept some responsibility in behalf of its alumni and facilitate the employment of graduates in Government service and the various professions and occupations for which they may be fitted. We publish the prospectus in another column but it may be explained here that the Board assumes no obligation to recommend any graduate on its registers for any particular appointment, unless it is satisfied that he is a qualified and suitable candidate.
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Thesis of a strong and decisive leader IS the parliamentary system failing in South Asia? What is happening in India, Pakistan and Bangladesh is ominous. Indian Parliament has had another sterile session. I do not understand why members wanted its extension when there was no business conducted for several days. It is a familiar pattern now. One party or the other, however small, disturbs one of the two Houses. Once the undisrupted House comes to know that the other is not functioning, it follows suit on some pretext or the other. The state legislatures are no better.
What members do not realise is the extent of cynicism which is building up against the politicians. The very word, politics, has come to be derided. This is a dangerous trend for the democratic polity we have. Desperate elements jump into the arena to propagate other options. This happened in Pakistan when Gen Mohammad Ayub Khan, the army chief, came to power. The then President, Iskander Mirza, himself asked him to administer for "some time" so that the unruly forces were curbed. Ayub stretched the limit of "some time" and did not allow the civil government to return. True, democracy has returned to Pakistan and Prime Minister Nawaz Sharif has come through the ballot box. But he has to be cautious because the army chief is always overlooking his shoulders. In fact, my reading is that once the army comes to rule in a Third World country, it may go back to the barracks but its "presence" remains. Bangladesh, engulfed in violence, can have the intervention of the army easily. But it is itself reluctant. It failed last time in 2009 to put together a setup without the two Begums, Shiekh Hasina and Khalida Zia. The then army chief, Gen Moin U Ahmed, as he admitted later, that the misrule of the Begums was a staple food of the people in Bangladesh and that they wallow in the mess created by hartals and bandhs. Now the situation has deteriorated because the Jammat-e-Islami has methodically built up its strength and has a visible presence in every segment, including the media. I do not think that these examples will deter members of Parliament or the state legislatures from disturbing the proceedings in their respective Houses in India. They want attention. A rumpus by a member gets more prime space both in the electronic and print media than a mature and responsible speech. The media is to be blamed for this. In a way, this also explains the phenomenon of Narendra Modi, the prime ministerial candidate of the BJP. He is a demagogue who arouses aspirations of people and indulges in divisive politics. This has helped the BJP increase its tally in the state elections in Madhya Pradesh and wrest Rajasthan from the hands of the ruling Congress. However, his thesis of a strong and decisive leader has given new ideas to people. Disenchanted as the people are with the way the parliamentary system is working, they are toying with the idea of presidential system. India has experienced authoritarianism when Prime Minister Indira Gandhi imposed the Emergency. One hundred thousand people were detained without trial and Mrs Gandhi ousted morality from politics. We have not been able to revive the institutions even after 35 years of the imposition of the emergency. Both the bureaucracy and the police continue to be the instruments of tyranny in the hands of the rulers at the Centre and in the states. What consequently happens is the synergy they bring about in the programme and functioning of the two major parties, the Congress and the BJP. They are two sides of the same coin. I heard it at a gathering Arun Jaitley, a BJP leader, and Digvijaya Singh, a Congress leader, attended. Both expressed more or less the same views and conceded that their policies on economics and foreign affairs coincided. Since the two main parties are on the same page, Parliament has become a status quo body. The adjournments or walkouts are not on the basis of issues but for trivial reasons. An example is the Bill on the division of Telangana as both parties support it. The bifurcation of Andhra Pradesh, I believe, will be a disaster and create insolvable problems, particularly on the sharing of water and the capital. The situation is aggravated when the Centre says that it will be the custodian of the rivers. In other words, the ruling party at the Centre will dictate. Still the Congress and the BJP have gone ahead, splitting the state because of political considerations they have. What surprises me is the BJP's opposition to the communal violence Bill. It has become necessary since the police force has come to have a pro-Hindu tilt. Most Hindu-Muslim riots begin between the two communities. But they get converted into a fight between Muslims and the police. This formulation is confirmed by the Justice Srikrishna Commission, appointed for inquiring into the Mumbai riots during December 1992-January 1993 and the March 12, 1993 bomb blasts. "It is true that there might not have been incidents of private firing as put forward by the police, but on several occasions there were attacks by Muslim mobs on the police, clashes between violent mobs of Muslims and Hindus..." I think the partisan attitude of the security forces has surfaced because of states' interference. This situation can be met through a federal police force. It can be used by the Centre at places where the minorities are targeted with the connivance of the state government. The federal police can also be used to protect the property owned by the Centre. Some years ago when Kerala government was at the back of the protesters, the places belonging to New Delhi were set on fire. America, like India, has a federal polity and has constituted a federal police force. It has gone many a time to the states where the segregation on the basis of colour had taken a toll on the black. The Mississippi riots are a staring example of Washington's intervention. Communal riots are increasing in India. The country may not practise racial discrimination but still suffers from indifference towards the minority. The importance of legislatures and Parliament is primarily for the rule of law. And it has to be safeguarded and enforced at all costs. This determination seems to be lacking.
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Treatment — then and now AS a resident in a US hospital my son has access to electronic medical records of his patients. Put simply, it means, at the click of a button, he can review all medical problems, treatments, surgeries, allergies, doctors consulted and results of all diagnostic tests taken over a period of time, in many cases, starting from birth. This makes the job easier for physicians and treatment safe and effective for patients. Here in the US school nurses spare no effort in making medical interventions safe for children. They call the parents repeatedly to get relevant information and seek consent before administering any kind of medicine. When my grandfather visited local schools as a part-time doctor, it used to be fun time for the kids as they would see it as an opportunity to take time off and get some "sweet pills" as bonus. A kind of syrup dispensed by him for bowel movement used to be particularly appealing to my taste buds. One day I felt the urge to get a free serving of this tasty syrup. "But what do you need the syrup for? Do you want to have bowel movement or stop bowel movement?" asked my grandfather. This question sent warning signals in my mind as I knew one of the syrup for stomach used to be very bitter in taste. Not very sure, I took a chance and said I want to have a bowel movement meaning thereby I had constipation. My grandfather put some crystals in the mortar, crushed with pastel, dissolved in a glass of water and gave me to drink. To my sheer bad luck, this was the same syrup that I dreaded the most. It's not hard to imagine my plight over the next two days as I had to make many trips to the toilet. The respite came finally in the form of a bottle of my favorite syrup on the third day. On my way to school sometimes I used to stop by his clinic to get some extra pocket money. But that day grandfather was busy attending to a patient who came from a village and had a dirty dressing on his finger. "What brought you here today?" my grandfather asked. "I cut my finger while working on a chaff-cutter". As he started taking the dressing off, there came the tip of his forefinger, hanging precariously with a thin strand of muscle. Along with it fell some cement-sand mixture on the floor. "But why is this cement mixture here?" he asked surprisingly. "Well I had this accident last evening and thought I would use some cement mortar to fix my finger in the meantime". The moment I saw this, I ran to my school without getting my pocket money and till today I have no idea how my grandfather treated this injury. Was the possibility of sepsis or stitching the finger his main
concern
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Criminalised again, by the law THE
Supreme Court verdict on Section 377 is a blunder of historic proportions. In setting aside verdict of the Delhi High Court judgment in the Naz case of 2009, not only has the Supreme Court gone against the grain of it’s own jurisprudence on Fundamental Rights, but also in one stroke made millions of adults in this country criminals for what they do in the privacy of their own homes with consent. At the centre of the debate is the infamous Section 377 of the Indian Penal Code (IPC). Enacted in 1860 by the British, it penalises “unnatural sex” and provides that, “whoever voluntarily has carnal against the order of nature” shall be punished with imprisonment of up to 10 years or life and fine. The Explanation states that penetration is sufficient to constitute the offence. The British enacted this pernicious law reflecting their Victorian code of sexual morality. In part this also stemmed from the fact that the British simply could not tolerate the diversity of sexualities, both in our scriptures and practice. For them sex was only meant for procreation. That is, penile vaginal sex was the only one considered within the order of nature. All other sexual practices, involving the penetration by the penis were criminalised. That is how the Supreme Court and the High Courts around the country have interpreted the law in the last 150 years.
Of course the law has never really been enforced against the heterosexual couples. The reality is that it was used to terrorise gay and transgender people. At the ground level they were left vulnerable to sexual assault, harassment, blackmail and extortion by the police, family members, neighbours and associates. Criminalisation of their lives perpetuated prejudice, which, in turn diminished their sense of self and self worth and resulted in alienation from, and discrimination in all sectors of society.
Rights restored for a while This is where the judgment of the Delhi High Court of 2009 stepped in. It held that adult consensual sex between two individuals in private would not be covered by Section 377 IPC. Like every one else in this country, therefore, LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersex) communities were entitled to fundamental rights of equality, liberty privacy, dignity and health, especially mental health. The State cannot intrude in the private sphere of two individuals who with consent engage in sexual intercourse, it established. The Delhi High Court judgment made a huge difference to the lives of the LCGBTI communities in a positive manner, by helping them breathe free. Instead of being closeted they started living normal lives. In India and all over the world, the Delhi High Court judgment was heralded as a path breaker. Then the appeals filed by the original parties and a few new parties were allowed by the Supreme Court and the order and the judgment of the Delhi High Court were set aside. The Supreme Court judgment, delivered by Justice G. S. Singhvi, is wrong because not only has it emasculated the Fundamental Rights but the judgment is not backed by sound reason or logic. Worse, it does not consider the major arguments, which were advanced to uphold the Delhi High court judgment. The main constitutional challenge to Section 377 was based on the interpretation by the Supreme Court itself that Article 21 of the Constitution of India protects the right to privacy. The right to privacy includes intimate sexual relations between two consenting adults in private. Shockingly, the Supreme Court does not consider this argument at all. This is a serious error in itself.
No evidence of discrimination The other main argument that the LGBTI communities are discriminated against in the implementation of Section 377 also receives an almost casual approach. Any challenge on the grounds of discrimination (under Article 14) requires the consideration of two aspects; one, that any division of group into two classes (here heterosexual and LGBTI) is based on rational grounds and two, that the distinction has a relationship to the object of the law. Surprisingly, while the first limb is considered, and the Court holds that there is a rational distinction between carnal intercourse within the order of nature and that against the order or nature. However, the second aspect of the Article 14 argument is simply ignored. The Supreme Court states that no materials are brought on record to show that there is discrimination against the LGBTI communities. The hollowness of this finding is evident from the fact that the material was heavily relied upon by the Delhi High Court, and the quotation of the Delhi High Court in this respect appears in the Supreme Court judgment, but is completely overlooked. However, the fact that the Court is conscious of the material is evident from the reference to misuse of the law. Our argument was that it is used only against the LGBTI communities.
Dismissal of a minority The argument that in Article 15, the expression “sex”, which is a prohibited ground of discrimination, includes sexual orientation or “gender”, which found favour with the High Court is also completely ignored. Nay, the Court has disdain for the LGBTI community, when it calls them the “so called LGBTI communities”, despite the fact that the whole world has been using the term LGBTI for decades. More surprising is the fact that the Supreme Court tells the LCBTI communities that they are not entitled to fundamental rights because they are a miniscule minority. It is surprising that such thinking should find favour with the apex court of the country! If any thing characterises India, it is the proliferation of minorities, including different groups of Hindus, Muslims, Christians, not to talk of the Parsis. Can we tell them they are not entitled to fundamental rights because they are a very small minority? The Constitution would have to be rewritten in that case. However the main reason that the Supreme Court has set aside the judgment of the Delhi High Court in Naz case is that a) constitutional validity of any law is presumed; b) superior courts should exercise restraint when striking down a law. The argument about the presumption of constitutional validity is also totally incorrect. In this case the High Court had held that the law is partially unconstitutional. The Government of India, which is required to defend the constitutional validity of the law, agreed with the Delhi High Court and did not file an appeal. In the circumstances the question of presumption does not arise at all. On the issue of judicial restraint, the finding, coming from the Supreme Court of India, to say the least, is strange, considering that it has been playing the role of the ‘most activist court’ in the world. The Supreme Court is the only court in the world that has assumed powers by interpretation to strike down constitutional amendments. Not only that, the same court has repeatedly intervened on policy issues (the 2G case) and on relatively trivial issues (the Lalbatti case). The more serious issue is that while the Supreme Court has always interpreted Fundamental Rights issue in an expansive manner, in this case it has not only been narrow, but one may say parochial. This judgment tells all the people in India that you have no right to privacy in your bedrooms. The state can intrude by law in the private sphere, in the bedrooms of people and scrutinise what sort of sexual acts can be performed—by this judgment — only penile-vaginal. All other sexual acts are criminalised for which one can be meted out punishment for up to 10 years or life and a fine. It tells the LGBTI community that they are second-class citizens and are not entitled to Fundamental Rights.
A unique judgment The Supreme Court judgment on Section 377 has no parallel in the history of the constitutional law. Perhaps the nearest one is ADM Jabalpur (infamously known as the Emergency case). In that case the Supreme Court said that in an Emergency, when Fundamental Rights are suspended, the Supreme Court will not come to the aid of a person whose life may be arbitrarily deprived of his/her fundamental rights. However in that case the Supreme Court only declared the law. It did not have any impact on real life of the people. Pertinently in that case, the judges who had decided the case, ultimately accepted their mistake. In the present case, the immediate impact of the law is that the private lives of millions of people are criminalised by the judgment. That is why the present judgment will go down in history as a blunder of historic proportions, greater than that of the Emergency. Fortunately, in the present system, there is a way for correcting the mistakes. These are the review petition and curative petition. Hopefully the Supreme Court will exercise the jurisdiction of review and curative process.
Prejudiced According to UNESCO, “It is often in the primary school playground that boys deemed by others to be too effeminate or young girls seen as tomboys endure teasing… linked to their appearance and behaviour, perceived as failing to fit in with the heteronormative gender identity.” The 2008 Human Rights Watch report states that "reports continue in India of forced detention of gays and lesbians in psychiatric hospitals, and involuntary aversion therapy and other forms of abuse aimed at 'converting' people to heterosexuality." Though Section 377 does not criminalise lesbians, in several states of India, lesbians have committed suicide due to harassment. There have been reports of lesbian suicides in the state of
Kerala.
The writer is a Senior Advocate practising in the Supreme Court of India, and the Director of the Lawyers Collective. He and his team were the lawyers for the Petitioner,
Naz Foundation India.
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Having seen all this, I cannot help but make comparison with the system my grandfather, one of the three qualified physicians in a small town near Chandigarh, used to follow while practising in the sixties. Any medical record at his clinic comprised a register that lasted over the years and had scanty information regarding name, age, address, gender and major symptoms that the patient came in with. He relied on his memory and past experience and would spend more time making acquaintances with patients than on documenting medical facts. 