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Burial or action? A shameful act |
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Enthusiasm for democracy in decline?
Following rule of law
Gay rights lessons from Down Under
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Burial or action? The
judicial commission report on the Adarsh housing scam has put the Congress leadership to test. After the recent defeat in the assembly elections the party has adopted an anti-corruption stance and lost no time in taking credit for the hurried passage of the Lokpal Bill. Speaking in the Lok Sabha recently, an enthusiastic Congress vice-president Rahul Gandhi said more Bills needed to be passed to eradicate corruption. In this context the Congress-led Maharashtra government’s rejection of the Adarsh inquiry report is ill-advised and ill-timed since the general election is round the corner. Congress leaders' anti-corruption talk would appear hollow if the state government goes soft on those indicted in the infamous Adarsh fraud. The BJP has already caught the Congress on the wrong foot. The Maharashtra government's position — contrary to the prevailing public mood — is understandable. The two-member commission, headed by Justice J.A. Patil, has indicted four former chief ministers, including Sushilkumar Shinde (now Home Minister at the Centre) and Ashok Chavan, who is being rehabilitated ahead of the elections. Also in trouble are two former ministers for urban development and 12 top bureaucrats. Among those found ineligible for a flat in the Adarsh housing society is Devyani Khobragade, who furnished false information to obtain a flat. The scam had attracted nationwide attention because of the suspected involvement of the high and mighty. The report has dubbed the Adarsh saga “a shameless tale of blatant violations”. It is true the state government is not bound to accept the report of a judicial inquiry but it is expected to give valid reasons for the rejection of its findings. Chief Minister Prithviraj Chavan gave no such reasons. All he said was that the Cabinet decision was “unanimous”. The government decision can be challenged in court. The state high court too can tell the government to act on the report. In any case, the case may continue to hurt the Congress politically. Unless the party's national leadership intervenes and takes on the tainted leaders, its every utterance on corruption would remain suspect. |
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A shameful act What
does one do when one has to file a complaint against the police, with the police? Not in a small town of UP or Bihar but in a city like Chandigarh? The 17- year-old gang-rape victim from Khudda Lahora, near Chandigarh, could not muster courage to open her mouth against the protectors of law her family had called for help in a case of domestic violence that involved her alcoholic father. One of the constables who responded to the call, is alleged to have raped her in the days following the complaint. Shockingly, the victim alleged, his colleagues took turns raping her for two and a half months at gun point at different locations, that included inside PCR vans parked at deserted locations. The chilling account of the crime has come to light not long after a former SSP of Chandigarh, Naunihal Singh, had launched a popular drive against sexual harassment of girls. The alleged culprits, all constables, had stalked the girl from her school to other locations. The crimes were committed under the garb of duty, which raises serious questions about the monitoring of the beat patrol by the senior officers. That the victim's brother had to take the help of the area Councillor to file a case against the alleged rapists speaks volumes about the lack of trust in our police. Since the girl is a minor and the culprits are the guardians of the law, they will be dealt with under the new laws. By letting such crimes develop under its guard, the Chandigarh police has lost its face. While the police has shown much alacrity in sacking all the five accused and requested trial by a fast-track court, the resort to mob justice is unwarranted. The laws are now strong enough to deliver justice, if only the fence does not start eating up the crop.
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Thought for the Day
Television is a medium because anything well done is rare. — Fred Allen
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Indians in Canada
HIS Excellency the Viceroy has graciously received the deputation of Indians residing in Canada and heard their representations in a sympathetic and reassuring spirit. We publish the address and the reply elsewhere and note that His Excellency the Viceroy is equally anxious to secure justice to Indians who have settled down in Canada to those in South Africa. The deputation pointed out that the Minister of the Interior had promised them a satisfactory settlement of the question of "continuous journey," while he readily agreed to admit the wives and children of the Indians. But as in the case of the South Africa Indians, this assurance has not been fulfilled in spite of repeated subsequent reminders and appeals. The Indians in Canada are mostly Sikhs and they have been remarkably patient and enduring, during all these years, trying to obtain redress to their grievances by every constitutional manner possible. They have met with stern and discouraging rebuffs often and even the British Minister would not receive their deputation and hear their formal representations. The developments of the Punjab
IT will be seen from the Lieutenant Governor's reply to the Muslim address that His Honour has made a pointed reference to the development of the Province by the great extension of irrigation and by the rigorous spread of the co-operative movement. Irrigation His Honour hopes to stimulate even further than has been done and we look forward with interest to a statement of the schemes now engaging the attention of the Government. It was the intention of Sir Louis Dane to start hydro-electric works in places where water power is available. He made special mention of this his desire on the occasion of opening the Lower Bari Doab Canal. Hydroelectric schemes if encouraged will do a great deal to stimulate industrial activity in the Province and will also give employment to a large number of persons.
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Enthusiasm for democracy in decline?
In
countries as far apart as Thailand and Ukraine, the Churchillian definition of democracy as the least bad form of governance that exists is being challenged frontally. Are we then beginning to see the world's new disenchantment with the parliamentary and presidential systems of democratic dispensation? Apart from the very great differences that exist between the two countries, opponents of the prevailing leaderships are saying in essence that they should go because they do not like the rulers. In Thailand's case, the pitch is made even more blatantly: Scrap democracy, at least for a time, in favour of an unelected council because we cannot win an election democratically. Ukraine is a country divided down the middle between a pro-West European wing and an eastern Russian-speaking section more attached to Russia economically and emotionally. The weeks-long demonstrations on Kiev’s central square were triggered by President Viktor Yanukovych’s refusal to sign a special trade agreement with the European Union. He recognised the implications of such a deal for his relations with Russia and was apparently playing the two sides to get the best terms. The Ukrainian opposition is now demanding fresh elections and the unseating of the President. These twin crises, separate as they are, are encumbered by a host of unique problems. In Thailand's case, the closing era of the Thai king, a revered figure and unifier of the country, is accentuating the concern of the traditional ruling class of the urban elite and Palace supporters that after losing a succession of elections, they can never win a democratic contest. The reason is simple. Thaksin Shinawatra had changed the social scene by empowering the have-nots in the traditionally backward northern and north-eastern regions through special prices for their agricultural produce, particularly rice, and they have become a formidable force for him. Thaksin is on self-imposed exile because he has been given a prison term for what he views as a political verdict. But despite coups against Thaksin and other devises to suppress him, his backed party in a new avatar has bounced back and has been in power under his younger sister Yingluck. She, in turn, overreached herself by seeking to propose an amnesty law which could have paved the return of her brother. The offending legislation was withdrawn, but it gave the opportunity to her opponents to mount a new campaign seeking the government’s overthrow. In the event, she has called new elections. In Ukraine’s case, at least one half of the country, in particular the young, has been seduced by the bright lights of the West to seek closer integration with the European Union. While President Yanukovych had agreed to a text, he declined to sign it in the end because the losses he would suffer from Russian displeasure would not be made good by the European Union and the International Monetary Fund would impose strict conditions. His power base is in the Russian-speaking East. Russia's President Vladimir Putin has achieved something of a coup by giving his Ukrainian counterpart a loan of $15 billion and a hefty discount on gas price. Moscow was obviously concerned that the West was set to detach Ukraine from its traditional heartland, a part of the Soviet Union not so long ago, in order to turn the geostrategic balance against Russian interests. How far President Yanukovych can ward off the Opposition remains to be seen. He was once dethroned because of the crooked elections he won, and the initiators of the so-called Orange Revolution, which brought the Opposition to power, as so often with revolutionaries, frittered away their goodwill and Mr Yanukovych won the next time around fair and square. Returning to the theme of the seeming decline in the enthusiasm for democracy, these two countries that have given such vociferous opposition to democratic norms are new democracies, one emerging out of a long spell of Communist rule and the other no stranger to coups, with the Army largely tolerating a civilian dispensation. Interestingly, the pitch of the Opposition is to persuade the Army to stage another coup. In the larger world, the picture is different although disturbing. The Arab Spring planted the seeds of democracy in a number of countries, starting with Tunisia, which was an early, and only, success story until it too seemed to succumb to divisions having now barely managed to rescue itself through a caretaker dispensation. Egypt, the largest and most important Arab nation, has gone back largely to where it started from — from one type of dictatorship to a thinly veiled Army dispensation. In Yemen, the ruler was sidestepped to give a veneer of a new order. Libya has been a disaster after the Western military intervention as it seems nervously to try to form a nation despite the warring militias and the great East-West division. Syria has been undergoing a civil war for more than two years, with bloodletting the order of the day and outside forces and countries seeking to influence the outcome. The question people are asking is whether the exaggerated promise the Arab Spring once held was a mere illusion. Revolutions never run in straight lines and it was surely unrealistic to expect that after decades of Army and strong man rule, the peoples would enjoy the blessings of democracy. There are two other great impediments: the Shia-Sunni schism that has been exacerbated and the world role of the jihadists who have drawn their own backers. The American role has been less prominent, if not supine, because with the disastrous wars it has fought in Iraq and Afghanistan, the Barack Obama administration has become wary, reflecting the war-weariness of the American people. The Arab peoples have fought only the first stage of their war for democracy, but if the armies or other traditional power centres believe that they are high and dry, they would be mistaken. The whiff of democracy the Arabs have tasted will make itself apparent in small and big ways over time. It is inconceivable that the Arab world will go back for long to regimes of dictatorship and intolerance. Returning to the theme of the two countries I started with, there is turmoil ahead but the two peoples will not reconcile themselves to be living under strong men or women who are a law unto themselves.
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Following rule of law
In
the last few of days the media focus has been on the Indian diplomat arrested in New York. The people most upset are politicians, IAS-IFS lobbies and senior officials in the government. In US schools and universities if you lie to a dean/teacher or if you've plagiarised - the first time around you get officially censured and the second time you get thrown out. You get only two chances. Honesty and integrity are emphasised enough in educational institutions so that they would hopefully turn out more honest adults, who would then apply that honesty into their work ethic and culture in all walks of life. So what astounds me about this case of the Indian diplomat’s arrest is that not one single person in any position of authority is worried about the fact that she allegedly lied on official documents submitted to US Immigration. Should a diplomat who officially wears the Indian tag on her forehead be lying? And why is this not a grave offence! I ask as a young Indian student who is studying in the US: Why is it not important when those in responsible positions in our country think it’s perfectly alright to lie? She is being projected as a victim and now portrayed brave and heroic. At the very least she should be recalled and censured. Our VIPs are used to a different set of rules than the aam aadmi. However, law enforcement works the same for everyone in the US. Also, why is everyone only concerned about the rights of the Indian woman diplomat and not the human rights of the Indian woman housekeeper? In New York if you want house help, it costs roughly $10-15 an hour. The minimum wage in the US is to ensure that everyone living in that country gets a fair chance of a life of dignity. Our own laws on domestic labour exist mostly on paper and as we well know it is not uncommon to see “servants” getting mistreated - the word “servant” itself is demeaning and suggests ownership. As far as retaliating like a spoilt child and taking away privileges given to the US diplomats, my view is: Those privileges should have never been given in the first place. Why were the barricades put up in front of the US embassy? I've never seen a public road barricaded in front of any embassy in Washington DC or for that matter the White House itself. I don't think a terrorist plot has ever got thwarted because of barricades. While we are now in the business of stripping the US diplomatic community of privileges — why don't we take some away from our leaders and pampered “public servants” who go around with the red beacons and hooters, sometimes mowing people down in their urgency to solve India’s problems? The logic being followed by the establishment is that foreign diplomats break many rules in India and we look the other way as a courtesy to them, therefore they must look the other way when we break their laws as reciprocal courtesy. This logic is flawed. It’s not about race, it’s about following the rule of law. As far as retaliating like a spoilt child and taking away privileges given to the US diplomats, my view is: Those privileges should have never been given in the first place. Why were the barricades put up in front of the US embassy? I've never seen a public road barricaded in front of any embassy in Washington DC or for that matter the White House itself. I don't think a terrorist plot has ever got thwarted because of barricades. While we are now in the business of stripping the US diplomatic community of privileges — why don't we take some away from our leaders and pampered “public servants” who go around with the red beacons and hooters, sometimes mowing people down in their urgency to solve India’s problems? The logic being followed by the establishment is that foreign diplomats break many rules in India and we look the other way as a courtesy to them, therefore they must look the other way when we break their laws as reciprocal courtesy. This logic is entirely flawed. Please note it’s not about race, it’s about following the rule of law.
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Gay rights lessons from Down Under
India
continues to be an enigma. It is rushing to embrace the 21st century, claiming its rightful place as a populous democracy in what promises to be an "Asian Century." However, India often bewilders its own citizens as to whether its outdated government institutions and its community attitudes are really "fit for purpose" - the most recent being Supreme Court ruling that denies equal legal status and protection to the private consensual expressions of homosexual love and sexuality. While many countries around the globe have repealed harsh laws repressing sexual freedom, India seems steadfast in upholding such relics of its colonial past — homosexual love as a crime punishable by life imprisonment? Surely our police have better things to do than police our bedrooms. India was one of the earliest adopters of penal codification in the British Empire. Drafted in 1860, the Indian Penal Code (IPC) was enacted into a law two years later. Both in terms of offence categorisation and content, the IPC was then a modern 'cutting edge' expression of a criminal law: it embraced new ideas such as defining rape not in terms of force or resistance, but rather as sexual intercourse without consent. In terms of mental state of the accused, it adopted the progressive position that to be guilty the accused must know that the victim does not consent. But the core offence was supplemented by a range of offences against public morality - termed assaults with intent to outrage modesty, which included carnal intercourse against the order of nature, incest and sexual conduct involving children. The most severe punishment was reserved for sodomy - Section 377 (unnatural offences) of the IPC - which prescribed life sentence for "carnal intercourse against the order of nature with any man, woman or animal."
Change of mind In the wake of the recent Supreme Court judgement, quite understandably, a large section of India's civil society expressed deep regret, calling the verdict "disappointing", "outrageous", "inhuman" and "insensitive". The Supreme Court ruling quickly polarised the Indian political community too. The right-wing Bhartiya Janta Party president Rajnath Singh declared that "homosexuality is an unnatural act and cannot be supported." The Congress party on the other hand, led by its supremo Sonia Gandhi and future prime ministerial candidate Rahul Gandhi, strongly opposed the verdict. So should we despondent about the future of India's LGBT community? Not at all! There are two reasons for optimism. First, the Supreme Court decision does not stand in the way of legal reform in the field of homosexual offences. The Court held that, "notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General."
Other remedies Second, if political action is not forthcoming, the current state of the law can be challenged at the international level under the International Covenant on Civil and Political Rights, as a violation of both the rights to privacy and equality, of which India is a signatory. Indeed, we should take heart that both these legal avenues have been successfully pursued in other countries, including Australia. The Australian experience certainly offers hope for gay rights in India. Australia, like many jurisdictions which inherited the English common law, the criminal law repressed and stigmatised homosexuality. Like India, the codes drafted in the late 19th century harshly penalised the so called "unnatural acts" or "acts against the order of nature." But, the law governing sexual offences in Australia over the last two decades has not stood still with the repeal of most of repressive and discriminatory aspects of those laws dealing with homosexual behaviour. Today every jurisdiction in Australia has repealed or amended its laws prohibiting homosexual acts between consenting adult males in private. A significant driver of reform in the 1990s was the HIV/AIDS pandemic, and concern that criminalisation of homosexual conduct would impede public health interventions, such as the free provision of condoms in 'at risk' communities. Indeed, the Legal Working Party of the Intergovernmental Committee of the Department of Community Services and Health in Australia recommended in its 1992 report that homosexual offences should be repealed for this reason. By contrast, in 2008 India's then Solicitor General expressed the view, which was shared by the Home Ministry, that homosexuality will further spread HIV/AIDS and harm people.
Tasmania example But reform was not welcomed at the time in some jurisdictions. The island State of Tasmania, the last to decriminalise homosexuality, was steadfastly resistant. This spurred Nick Toonen, a member of the Tasmanian Gay and Lesbian Rights Group, to institute a legal challenge before the United Nations (UN) Human Rights Committee to determine whether the Tasmanian criminal law violated his right to privacy and equality under the International Covenant on Civil and Political Rights (ICCPR). Toonen argued that prohibiting certain sexual acts only between males drew distinctions based on sex and/or sexual orientation, and thus constituted discrimination contrary to Article 26 of the ICCPR. In April 1994, the UN Human Rights Committee found that the existence of the offences in Tasmania constituted an arbitrary interference with Toonen's right to privacy. With no immediate legislative or legal remedy forthcoming in Tasmania, the Federal Government intervened and passed the Human Rights (Sexual Conduct) Act in December 1994, which provided with a shield against Commonwealth, State and Territory laws which arbitrarily interfere with individuals' sexual privacy. Although Australia lacks a general Bill of Rights at the federal level, it does now boast one legally entrenched human right — the right to sexual privacy! Finally, in 1997, after nine years of Toonen's struggle which took him to the UN, Amnesty International, the Federal Government and High Court, the Tasmanian Upper House finally voted to repeal the offending discriminatory amendments. The lessons for gay rights have thoroughly been learned from the State of Tasmania, which is no longer the laggard for gay rights, but leads the vanguard. In 2012, the Tasmanian Premier announced to pass laws to legalise same-sex couples to marry. Same-sex marriage was legalised in Canberra-Australian Capital Territory (ACT) when the Legislative Assembly passed the Marriage Equality Bill in October 2012, facilitating first ever same-sex marriage on 12 December. But five days later the High Court (Australia's equivalent to the Supreme Court) ruled ACT's same-sex marriage laws unconstitutional and inconsistent with the Federal Marriage Act.
A battle lost, not the war That said, the High Court, in similar terms to the Indian Supreme Court, did recognise that Federal Parliament "has the power under the Australian Constitution to legislate with respect to same-sex marriage, and that under the Constitution and federal law as it now stand, whether the same-sex marriage should be provided for by law is a matter for the Federal Parliament." As commentators pointed out, one battle for gay rights was lost on that day, but the war is not over! As in Australia, the Indian LGBT community may take heart from the fact that while the Supreme Court seems to have re-criminalised homosexuality, in the same breath, it also referred the matter to the "competent legislature" to pass the necessary legislation, which has prompted the UPA to consider a judicial review of the judgment. The other lesson that the Australian experience offers is that when domestic avenues of redress are exhausted there is still room for international paths to justice. India signed and ratified the UN International Covenant on Civil and Political Rights on 10th April 1979. The Covenant was adopted by the UN General Assembly in 1966. Article 2 (i) of Part II provides that, "Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". It also offers a right to privacy and equality, which Nick Toonen was able to successfully invoke in his challenge before the UN Human Rights Committee. Nick Toonen's successful appeal before the Human Rights Committee obliged the Federal Parliament to pass the Human Rights Bill in 1994, which in turn led to reform in Tasmania. Likewise, for India's LGBT community, there are reasons to remain optimistic. The struggle will be arduous and long, but there is hope both at the domestic as well as international levels.
HIV and Section 377 “MSM is unnatural and not good for India. It is a disease which has come to India from other countries where men have sex with men,” said Ghulam Nabi Azad at a national convention on HIV and AIDS, in July, 2011. Criminalisation of gay sex hampers HIV responses across the world. Gay men are 13 times more likely than the rest of the population to be living with HIV. World Health Organization estimates that at least 3 per cent and as high as 16 per cent of men have had sex at least once with a man. A 2007 study analysing two large population surveys found that "the majority of gay men had similar numbers of unprotected sexual partners annually as straight men and women." Professor Simon Bronitt is Director, and Dr. Ashutosh Misra, Associate Investigator at ARC Centre of Excellence in Policing and Security, Griffith University, Australia
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The recent December 11 Supreme Court verdict upheld India's sodomy law which 4 years earlier had been held to be constitutionally invalid by the Delhi High Court in a July 2009 judgment which effectively decriminalised and legalised gay sex. That 2009 landmark decision, the culmination of 12 years gay rights activism — ruled that Section 377 violated Article 14 of the Indian Constitution which recognised that every citizen is equal before law and entitled to equal opportunity of life.