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Divided on govt role
Empowering women |
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Flashing red beacons
Cartoons in textbooks
Reasonable anger
Age of Consent Catastrophe
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Divided on govt role
Sharp
differences have cropped up over the recommendation of a parliamentary standing committee that the government should acquire land only for “public purpose” and not for projects undertaken for profit by industry. The committee says industrialists should hold direct talks with land-owners and work out mutually acceptable terms and prices in keeping with the prevailing law. Land disputes have sparked protests in West Bengal, Uttar Pradesh, Haryana and Punjab over governments taking over chunks of land cheap in the name of public purpose and handing them over to industries or builders for commercial use. Courts have cancelled some of the deals. Two ministers of the UPA government – Jairam Ramesh and Anand Sharma — were quick to point out that the committee’s report, tabled in Parliament on Thursday, was not binding and that the land Bill, addressing concerns of the committee as well as industry, would be introduced in the monsoon session. States have their own views on the sensitive issue and some have put effective safeguards in place. Haryana’s land law providing liberal compensation to farmers has been widely praised. Evolving a political consensus will, however, remain a challenge. Business chambers have opposed the standing committee’s report, excluding industry from the purview of “public purpose”, something, they say, has been recognised by the UPA’s draft land acquisition Bill. As Jairam Ramesh has pointed out, public purpose can be met by private companies as well. Government finances are tight and infrastructure requires massive investment. The private sector can help accelerate the process of development. The government has a role in land acquisitions for projects undertaken as part of private-public partnerships. Private companies now build airports, power plants and highways. The process of urbanisation and industrialisation will further slow down if land disputes hold up projects. Special Economic Zones have been held up by litigation. MPs should discuss threadbare the land Bill, which will be a model for states, and ensure that farmers are not deprived of land — often their only source of livelihood — without reasonable compensation.
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Empowering women
Divorce
is a reality that the society has to live with. Hence, the need to put a just mechanism of law in place for both partners and their children, once a marriage becomes ‘irretrievable.’ In this regard the amendments in the Marriage ( Amendment) Bill that seeks to amend the Hindu marriage Act 1955 and the Social Marriage Act 1954, put forth under pressure from women activists were cleared by the Union Cabinet on Thursday last. Under these amendments, women will get half the share in husband’s residential property, irrespective of whether it was acquired before or during the marriage, in case of a divorce. The wife’s share in other assets — movable and immovable property — has been left to the discretion of the judge. This is for the first time that a woman’s share in marital property has been made part of the marriage legislation. So far, alimony and compensation were decided by the courts. The official recommendation of property division at the time of divorce also acknowledges marriage as primarily an economic partnership. Also, breakdown theory in marriage was used on a case to case basis by higher courts, now trial courts will be given similar powers, making the process of divorce easier, once it is found to be ‘irretrievable.’ While these amendments will stir a hornet’s nest, sociologists will have a hard time redefining marriage. Women who will largely benefit from these amendments will be from the middle class, women from poor classes as such do not have any property to claim. Men’s organisations are clamouring for a rethink, citing large-scale misuse of Section 498-A. Though, most unhappy couples would like to wriggle out of prolonged legal battle proving their marriage to be ‘irretrievable,’ division of property may prevent many men from doing so. Also, the duration of marriage which will ensure a woman’s right over her husband’s property and whether Hindu women alone are the beneficiaries is not clarified.
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Flashing red beacons
George Orwell
said, “All animals are equal, but some animals are more equal than others,” in his allegorical novella, Animal Farm. Now, we all know that all men are equal but those who represent ordinary men are surely more equal than others. If additional district magistrates can have them, members of legislative assembly can have them, surely the much more senior members of Parliament have the “right to the right of free movement” that a red beacon ensures. It thus hardly comes as a surprise that the honourable MPs, the representatives of the people of India, are fighting for the right to have flashing beacons on their cars. The only thing that is confounding in this latest news to emerge from the portals of an institution that has more been occupied with making news than drafting laws, is the fact that it did not happen earlier. While an honourable member clarified that the beacon “is not about status symbol,” ordinary people could well be pardoned if they believe otherwise. Indeed, red beacons have long been associated with power in our nation. As we all know, the red beacon is like a charmed medallion that allows cars to whiz through traffic, a loud siren adding audio to the visual display of authority as and when necessary, sometimes, even when not necessary. There are many instances of people who demit office, but hang on to their beacons! Even as the latest demand for red beacons for those who represent the people of India is being considered, due thought should also be given to those who have already served their tenure. Perhaps, multi-coloured beacons to represent various hues of political opinion that have come together for this matter of national importance may be in order. Never mind the rupee falling to historic lows, law and order problems in many parts of the nation, and many vital Bills awaiting their turn to become laws.
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Failure is success if we learn from it. — Malcolm Forbes
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Cartoons in textbooks The controversy over the use of cartoons in textbooks and the full-throated condemnation they evoked from parliamentarians, with a lone exception, raises disturbing questions. First, are we losing the ability to laugh at ourselves? Second, are we going against India’s proud and hoary tradition of political cartooning? Third, and a narrower question, are we against brilliant innovations for students? But the most important question of all, have we become so particularist in our narrow identities that the political space for freedom of expression is shrinking by the day? It was Jawaharlal Nehru who set the stage for inculcating the traditions of parliamentary democracy in newly independent India. But he had a battery of fellow politicians and visionaries to help him, among them Babasaheb Ambedkar, the main architect of our constitution. Successive generations of politicians have entered the field since then. They are inevitably more home-spun, more mindful of caste equations and the uses they can make of dividing, rather than uniting, societies by stressing their narrow identities. The Bahujan Samaj Party is by no means unique in this respect, and no one can deny that the Dalits, whose greatest champion was Mahatma Gandhi, have suffered grievously over centuries by the misfortune of their birth in a particular community. Indeed, it was a triumph of Indian democracy that the Dalits can boast of a leader, Ms Mayawati, who could rule the country’s most populous state. In an earlier time, it was the empowerment of the Yadavs, the rulers of today’s Uttar Pradesh. Pomposity is a quality often associated with our politicians and babus, stemming from our hierarchical society, and pomposity and humour seldom go together. It was perhaps the cosmopolitan outlook of our Independence generation of politicians that influenced them in cultivating the ability to laugh at themselves, and they were rewarded with stellar cartoonists of the ilk of the great Shankar. Indeed, it often seemed in those days – I am old enough to have experienced it – that Shankar and Panditji, as he was universally known, were made for each other. The flavour of our politicians and parliamentary proceedings has changed since then. In the old days, the Congress party held its nose and gave weightage to caste and class in selecting their nominees for elections. Now the Congress and other parties begin with a candidate’s caste affiliations. And some, like the Dalits and Yadavs, have built their entire parties on a caste basis. In Karntaka, the Bharatiya Janata Party’s prevailing crisis is predicated on the hold B. S. Yadyurappa has over the Lingayat community and his ability to destabilise the only government the BJP has in southern India. The Hindu-Muslim divide was responsible for the partition of India and it is understandable that issues touching on the Muslim community have a certain salience in independent India. Anything touching the Muslim community, therefore, attracts immediate notice and anything found faintly sensitive is excised. How many books have been banned in India at the altar of causing offence to Muslims? Salman Rushdie’s “The Satanic Verses” had to go and even his presence at the Jaipur Literary Festival had to be aborted. The Hindu Right has taken a leaf of this book to have books supposedly insulting their icons banned. Yet the textbooks case is particularly tragic because it takes sensitivities – or rather the political use that is made of them – to an absurd level. But there is a contributory factor in creating this absurdity: a weak government. The manner in which the minister concerned, Mr Kapil Sibbal, capitulated in Parliament in the face of the almost universal outcry over the textbook cartoons was a sad spectacle. There was no defence as far as the government was concerned: any effort to salvage the bright idea of using cartoons to enliven the study of political science for teenage students, no holding operation such as forming a committee of academics to review the textbooks, no second thoughts except to withdraw all offending books forthwith. Where do we go from here? The silver lining on the horizon is the widespread sense of shock and condemnation that has come from large sections of the thinking population. Two respected academics and researchers associated with the textbooks resigned immediately from their responsibilities, a labour of love. And the print and electronic media have been saturated with comments amounting to a sense of shock and outrage. Even more than the banning of particular books, the spiking of cartoons in textbooks has aroused a sense of shame. One hopes that this almost universal feeling among large sections of the intelligentsia, for want of a better word, will evolve into a movement against narrow-mindedness and the agitation of any maverick politician to ban a book or cartoon. Tragically, we have become adept at banning and, in one case, exiling our thinkers and artists. M.F. Husain died in exile after Qatar gave him citizenship because he feared for his life in his home, India. Do we want the same penalty to be imposed on our cartoonists? Rather, we should revel in the great cartoonists we have produced, starting with Shankar whose cartoon was the cause of such parliamentary anger. Do we want to decry this rich legacy of men like Abu and Shankar and Laxman? The last the government has chosen to honour, but how long will it take to dishonour him on the strength of a cartoon not to the liking of a particular party to make political hay? It is ironical that the young MPs in the House, cutting across party lines one would have expected to take up the cudgels for freedom of expression, did not utter a single word to support the case for cartoons and one of this category who spoke sided with the elders. If these are the future leaders of the country, they are more interested in building their careers than in fighting righteous battles. Obviously, they did not want to spoil their copybook in climbing the political ladder, to a deputy ministership perhaps to begin with. How can we reverse the dangerous trend we are witnessing? The march of Indian politics towards stressing class, religious and ethnic identities cannot be reversed, given that ideology has gone out of fashion around the world. But we can certainly mitigate the consequences of these developments by cultivating a new movement towards greater freedom of expression by raising our voices each time a further assault is made on that most precious attribute, freedom to say what we want
to.
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Reasonable anger This
has been the season for sequels. We’ve had Don 2, Murder 2 and now Jannat 2. So I can, perhaps, be forgiven the vanity of presuming that my humble little middle deserves a sequel too. When I wrote that middle it was with the sole purpose of achieving a catharsis as far as my anger was concerned. It served its purpose admirably. I did not expect anything further from it. And quite rightly so. I have no influence politically, no money power, have never achieved anything close to celebrity status, and no longer occupy a position that commands any authority. Even the middle would go the way of all middles: half the readers of The Tribune would not read it at all, the other half would forget it the next day — unless, of course, they had written it themselves. You can imagine my amazement when the next day I got a phone call from Dr Arun Sharma to say that the Chief Minister wanted to speak to me. They were in a chopper and the Chief Minister was in conversation with someone else, so could I hold the line? The Chief Minister came on shortly. He said he had read my middle the night before and was sorry for all my difficulties. He was on his way to Delhi but he would send word to the officials concerned and the utmost would be done to solve my problems. I was so overawed that I did not even have the grace to tell him how much his call meant to me. The phone was taken over by Dr Sharma and he asked me, in some detail, the nature of my problems. I got the distinct feeling that he was making notes. A few hours later there as a phone call from Anurag Thakur’s office to confirm I will sit down now and write that letter I had set out to write to him. But, of course, the contents will be completely different. I will tell him that I do not expect the magic of Alladin’s lamp; I know that in the real world things take time. I will tell him that the red of the red tape in Himachal is as red as it is everywhere else, and I know there are formalities to be fulfilled before anything can be started. But with the interest that Dr Sharma showed in taking down the details of my case, I know there will be a follow up and things will be taken care of sooner than later. I will tell him that in spite of all the difficulties that I have encountered I am grateful to be living in a place where the most powerful man in the state listens to the feeble voice of a solitary old man and gets onto the line in response to that voice to offer reassurance and hope, two commodities which are currently in extremely short supply. I am not sure any other Chief Minister would do
this.
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Age of Consent Catastrophe The
much talked about ‘age of consent’ refers to the age at which a person’s consent to have sex is recognised as valid in the eyes of the law. Engaging in sexual activity with persons below this age is a criminal offence irrespective of the consent of such person. However, determining the age of consent has always been a complex exercise. A historical perspective In India, it was during the British rule that the debates on child marriage resulted in the Age of Consent Act, 1891. This Act raised the said age for girls from 10 years to 12. Subsequently, the 1983 amendments in the rape law, as contained in the Indian Penal Code (IPC), made it 16 years for all girls (barring a few states where it remained at 14). As attitudes towards sexuality and childhood changed during the latter part of the 19th century and the beginning of the 20th century, the age of consent too changed. Globally, the average age of consent today is 16 years (with variations) and there are several factors which are taken into consideration while determining the same. Why at 18?
The most common argument extended to back the age of sexual consent as 18 years is that “body does not mature to have sex at a young age”. For the HIV/AIDS lobby, the mantra has been that governments can, to some extent, reduce the risk of HIV infection among young by raising the age of consent for sex, and also marriage. The child rights sector has lobbied for higher age of consent in order to ensure protection of all children from abuse and exploitation. Following its commitment to protection of child rights, Government of India’s concentration in the process of drafting the “Protection of Children against Sexual Offences Bill” has been on the changes required in the existing law to deal with child sexual abuse in all its forms and in various settings. In the course of preparation of the said bill, the National Commission for Protection of Child Rights (NCPCR), the apex body too had put together a draft. With respect to the age of consent, the Ministry of Women and Child Development (WCD) in its original draft relied on the Indian Penal Code to keep it at 16 years. Being gender neutral, the bill kept the same age of consent for girls and boys. But in the case of children aged 16-18 years it laid down conditions that would determine whether the sexual act was consensual. These conditions applied to offences clubbed as “sexual assault” (defined in the Bill as penetrative acts or acts involving insertion of objects other than penis in a child’s vagina, urethra or anus). The provisions relating to “sexual harassment” (defined in the Bill as gesturing with sexual intent, forcing a child to exhibit its body or threatening to use any form of media to depict a child in a sexual act) did not contain anything with respect to the age of consent. The NCPCR draft had also kept the age of consent at 16 for penetrative sexual offences against children by adults but decriminalised consensual non-penetrative sexual activity between children of certain ages. For example, consensual non-penetrative sexual act between children over 12 years of age or whose age difference is within two years of each other was not to be an offence. The NCPCR Bill created much confusion as the civil society had no access to the draft and on the other hand media reporting suggested that the age of consent for certain sexual activity was being lowered to 12. Legislation and sexuality The Bill in its present form has incorporated changes recommended by the Parliamentary Committee including raising the age of consent to 18. Despite strong advocacy for keeping it at 16 and decriminalising consensual sex between 16-18 year olds, the Parliamentary Committee suggested a higher age on the grounds that once a child is defined as a person below the age of 18 years, the element of consent should be treated as irrelevant up to this age. Another question is, can a criminal legislation deter young people from engaging in sexual activity? The answer is a clear ‘NO’ as is evident from the present crime statistics. Between 2005 and 2010 there has been a 256.25 percent increase in kidnapping and abduction of girls aged 15-18 years for the purpose of marriage. The 2010 Crime in India Report of the National Crime Records Bureau states that “Marriage” was the main cause of kidnapping and abduction of females accounting for 46.9 percent (18,354 out of 39,148) of the total females kidnapped and abducted in 2010. At the same time, there is a 43.98 percent increase between 2005 and 2009 in cases of kidnapping and abduction of women and girls. More than 1,000 young people in India have been done to death every year owing to “honour killings” linked to marriage. It is widely acknowledged that majority of the children reported missing leave their homes on their own will for a variety of reasons ranging from elopement to fear of parents. The magnitude is in fact greater than what meets the eye. Since morally we continue to wish and impose the “legal age of marriage” to be the “age of sexual consent”, we keep our children away from receiving critical information and education on sexuality and responsible sexual behaviour. Can we really afford to ignore that sexual exploration and activity start in a child’s life much before entering into a marital relationship? In fact, more and more young people are eloping and getting married not because they are physically and mentally prepared for the marriage and the commitment it entails, but because the institution of marriage allows them to have “legitimised sex”. Interestingly, while the Prohibition of Child Marriage Act prohibits marriage below the age of 18 years for girls and 21 years for boys, it does not make a child marriage invalid or null and void unless either of the parties seeks an annulment. But today, while raising the age of sexual consent to 18 the legislators have clearly allowed sexual relationship between an underage wife and husband to be booked for a criminal act of sexual abuse. An otherwise legally married man can thus be spending his hay days in detention if this Law was to get through the Parliament of India. Even if the child marriage law is amended in future to automatically nullify a child marriage, young people will continue to enter into pre-marital sexual relationships. How will we then protect them? Young will be young A 2010 Policy brief prepared by the Indian Institute of Population Studies on the basis of a study of youth in India shows that amongst those who reported pre-marital romantic partnership, 88 percent men and 74 percent women held hands with their romantic partner, more than two-thirds (68-71 percent) men and almost half (46-19 percent) women had hugged or kissed their romantic partner, and more than two-fifths men (42 percent) and one-quarter women (26 percent) had engaged in sex with their romantic partner. In most liberalised democracies what has come to be the “formula” for deciding on the age of consent is to first consider the “basic age of consent” set out in a country (which may be based on notions of childhood, age of marriage and social norms), then add to it the rules governing sexual activity with an under-age person in certain special circumstances such as in a relationship of trust or authority, the age under which children must be protected against adult manoeuvres and exploitation and finally subtract the exceptions such as sexual activity between two minors in the same age group or within the age difference of two to three years, sexual activity due to a misunderstanding with respect to the age of the person etc. Clearly, India has kept itself away from this “formula” while drafting the said Bill and hence many young people in consenting relationships would have to face the brunt of it and so would the state exchequer for keeping them in detention and conducting judicial proceedings. In the end game, a law conceived to do good to children would end up doing them avoidable harm.
Teen Sex Story in the Developed World Canada The USA The UK (The writer is Founder and Co-Director HAQ: Centre for Child Rights, New Delhi)
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Laws on the subject have been dominated by patriarchal values that have insisted on the “purity” of women and have always sought control over women’s sexuality. Since sexual activity before or outside marriage has always been a taboo for women, it is the “age of marriage” that, by and large, decided the minimum age for sexual consent in most countries. Even today, almost all Islamic countries have kept the age of consent as the age of marriage. 