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Stalemate on quota Bill
Rageful Indian |
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Duty to serve
‘Noble cause corruption’
The art of retiring
A model ‘Nikahnama’ in the offing
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Stalemate on quota Bill
The
government might have pulled itself out of the FDI imbroglio with help from Mayawati’s Bahujan Samaj Party and Mulayam Singh Yadav’s Samajwadi Party, but it has landed itself in another unenviable situation. After Trinamool Congress of Mamata Banerjee walked out of the coalition government in September on the issue of opening India’s retail sector to foreign superstores, the UPA survival depended on outside support from the two Uttar Pradesh-based parties and each dictated its price. While the SP-run government in UP has been asking for more Central allocations to fund its populist schemes, including a loan waiver for farmers, Mayawati’s sole agenda is the passing of a Bill to provide for reservations in promotions for Dalit employees. As UP Chief Minister, Mayawati had introduced a quota in promotions for the Dalit employees. The decision was set aside as “unconstitutional by the Allahabad High Court. Later, the Supreme Court upheld the high court ruling, saying reservations in promotions could be allowed if the available data and evidence justified this. The UP government had no data or proof in support of its decision. After being voted out of power, Mayawati has aligned with the UPA to get the Constitution amended to provide for reservations in promotions so that the Supreme Court’s objections are taken care of. She urgently wants the Bill passed so that she can make it an election issue in 2014. The constituency her rival, Mulayam Singh, represents is opposed to such reservations and his party has threatened to keep disrupting Parliament to thwart the passing of this amendment. Since the elections are drawing near and the Dalits are a large constituency countrywide, political opposition to the Bill, if any, is subdued. The BJP is watching from the sidelines. The UPA is caught in a bind. It cannot dump the SP and become wholly dependent on an unreliable ally. UPA political managers are working overtime to defuse the crisis. Ideally, Parliament should debate the quota issue and either pass or reject the Bill. Disruptions serve no purpose.
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Rageful Indian
It
has happened too many times. People going about their duties find themselves in a spot where they face a raging person, often drunk on spirits or a misplaced sense of power, or a mixture of both. It could be a traffic policeman, a disk jockey or a parking attendant or guard. Someone at some point decides that the person concerned had the temerity to impede him in some manner, or did not pay adequate attention to his request — it could be anything that provides a trigger. The consequences can be very damaging, and can even result in deaths, as we have seen in recent incidents in places as diverse as Amritsar, Muktsar and Kaithal. It is unfortunate that as a nation we have not been able to develop to a level where it would be taken for granted that the lawbreakers would face the consequences of their actions. On the contrary, there is a general impression that power ensures impunity. The culture of impunity spreads from political to economic life, and even in day-to-day activities our own versions of ‘princelings’ abuse privilege and power with scant regard to the sensibilities of the ordinary people. And then the time comes to face the consequences, a car turns into a truck in the perception of the eyewitnesses. The region suffers somewhat more than the other parts of the nation because of a misplaced sense of machismo, coupled with ancient but resilient feudalistic biases which seem to condone such behaviour among a certain class of people. This has to be combated both socially as well as politically and through a campaign that highlights such violent activity. As a society, we must condemn such behaviour, and learn to disagree without being disagreeable, and certainly not violently so. The aftermath of any such incident scars not only those who are involved directly, but also society at large.
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Duty to serve
It
was a bold initiative of the last SAD-BJP government in 2011, towards the end of its tenure, to bring about the Right to Services Act in Punjab, among the first states in the country to do so. The law was also presented as a major achievement during the Assembly elections. The alliance got the chance to put the Act in action only after winning the elections earlier this year, and that is something in which it is failing. There are 67 services listed under the Act which have to be provided to applicants within the period stipulated for each. This often does not happen, and complaints are not always acted upon as provided for in the Act. It merits reflection as to why in the first place the Act was required — because apparently government officials were not doing what they were duty bound to. If the will is lacking still — whether on the employees’ part or the government’s — the Act will achieve little. A law is only as good as its implementation. As things stand today, people responsible for the implementation of the Act do not seem to take it seriously. Appellant authorities under the Act are liberal in their attitude towards officials not delivering services in time. They perhaps take into account the extreme staff shortage being faced in many offices. That is a valid consideration. A worker cannot be held accountable for not doing something he cannot humanly do. This is where the sincerity of the government towards implementing the Act comes into question. Nearly all state government offices are short of hands, the result of a go-slow policy on clerical recruitments since long in view of the state’s poor financial condition. ‘Suvidha Kendras’ have been opened to provide several services, where work is done on a contractual basis. However, these are too few to meet the demand. In today’s world of public-private partnership, the responsibilities of governments are going down. They cannot shirk the ones that remain. Unless the Punjab Government puts in place the infrastructure required to implement the Act, it would remain a false promise.
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It is always wise to look ahead, but difficult to look further than you can see. — Winston Churchill
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‘Noble cause corruption’
Noble
cause corruption” entered the literature with Edwin Delattre’s book, “Character and Cops: Ethics in Policing”, first published in 1989. It has now become a standard phrase in which in order to achieve apparently noble objectives the police exceeds its authority and powers. The concept has a classical origin — the philosopher-king in Plato’s “Republic” justifies the use of noble lies with a view to advancing the good of the city. In the case of the police, corruption has been traditionally defined as misuse or abuse of authority by an officer for personal gain or accepting money or gift for a service that the police is duty-bound to provide. Many police officers strongly feel that corrupt action or behaviour for a purpose that will be beneficial for society or the community is morally justified and should not be equated with corruption for sordid personal gain. Such cases of misconduct involve not necessarily the rotten apples in the organisation but sometimes the best officers — the golden apples. One very common form of “noble cause corruption” is testimonial corruption for securing the conviction of someone believed to be guilty of criminal activities. “Noble cause corruption”, says a police scholar, “is an elegant term for securing conviction on evidence that has been improved by the police; it is an euphemism for perjury.” When the police engages in this kind of behaviour, it adopts a philosophy that supports the notion that it is morally right to do whatever it takes to imprison those who prey on society. Besides padding of evidence, the police often adopts non-legal methods like custodial violence, fake encounters to deal with terrorists and dreaded criminals and seeks to justify such blatantly illegal acts as necessary for the good ends they serve. Otherwise, they argue that criminals, thanks to the malfunctioning of the criminal justice system, will go unpunished. Moreover, on many occasions “noble cause corruption” is welcomed by the citizens besieged by rampant criminality and terrorism. Thus, disfunctionality of the criminal justice system leads the police to bypass the system and engage in acts of “noble cause corruption”. There are also more mundane forms of this kind of corruption in the police. Due to an acute shortage of manpower, transport and communication facilities and unavailability of contingencies, the police often asks persons affected by the crime to provide transport or fund the investigation. All these are justified as serving the noble end of delivery of justice. The notion of “noble cause corruption” gets vivid expression in the film “Dirty Harry” and its chief protagonist, Inspector Harry Callaghan, who, in order to save the life of a young woman, inflicted pain and torture on a kidnapper who was refusing to reveal her whereabouts. The image of Inspector Harry inflicting pain on a psychopath is emotionally compelling. However, in most of the cases policemen fabricate evidence or use excessive force not for saving the life of the victim nor do they prove to be the only methods of getting the offenders convicted. Such high-handed methods not only affect the right of the suspect but also corrode the moral fibre of the policemen who get used to such methods. It is also a fact that acts of corruption, including acts of “noble cause corruption”, are typically, though not invariably, habitual actions and not one-off acts performed in accordance with moral principles. Very often the motivating factor is the disposition on the part of the police officer to perform such acts. In the war against terrorism, torture is often justified and viewed as “noble cause corruption”. While President Bush had condemned torture for combating terrorism, legal officers of the US Department of Justice issued notorious “torture memos” that sought to restrict the definition of torture to serious physical injury and held certain forms of ill-treatment as “stress and distress” techniques that can be justified on grounds of paramount security of the state. But torture and ill-treatment do not become permissible by euphemistically calling them something else. Further, in practice, attempts to use torture sparingly had led to widespread abuse. Innocent persons have suffered. There is a danger of “slippery slope”, the difficulty of knowing where to draw the line. It is seen that “noble cause corruption” is often generated by systemic arrogance. Police officers come to think mistakenly what is good or bad for society and they have the right to punish those whom they perceive as constituting threats to law and order and safety. But arrogance has no place in policing, and an organisational culture of arrogance will produce officers with a penchant for “noble cause corruption” and generate a climate conducive for tolerance of such corrupt practices. Very often supervisory cowardice encourages officers adopting violent means for so-called noble ends. Unless senior officers take a resolute stand against this form of misconduct of the subordinates, illegal practices and patterns will continue. Justification of “noble cause corruption” implies faith in the concept that end justifies the means, but the point to be borne in mind is that very often in police work ends are not important enough to justify the means. Detection and conviction of criminals is important but not by violation of constitutional rights which the police as the law enforcement agency is expected to uphold in liberal democratic societies. Impermissible means very often tend to undermine the end. Officers who adopt this philosophy lose their moral compose. The greatest danger inherent in “noble cause corruption” is that wrong means may ultimately cause greater damage to the fabric of society than the ills they are meant to cure. Again, the proportionality of the means has also to be kept in view. Disproportionate use of force to counter terrorist violence often becomes counter-productive. To break the law in the name of law enforcement is objectionable because it is going to be arbitrary as a process and random in its effect. In a democratic polity, order maintained by criminality is the ultimate disorder because it establishes a link between social order and atrocities. Even if the use of force is justified to realise a certain end, there is the need to adopt the least restrictive tactics. Writers like Delattre have been of the view that in difficult and ticklish cases where there is a conflict between ends and means, the decision should rest with senior officers or persons with greater authority in the police department. Persons who are paid more and vested with greater authority must assume greater responsibility. But this kind of referral may not be possible in fast-moving police work and operations. It is a paradox of police work that discretion increases down the line. Police officers and men in the field by the nature of their work tend to take instant and complex decisions in unpredictable circumstances. The police organisation allows enormous discretion down the line in practice while at the same time maintaining a top-down command system. It is seen that a police officer preferring so-called “noble cause corruption” often simply acts from habit and has not taken time to consider whether or not the means justify the ends in the case. Acts of “noble cause corruption” are thus sanctioned by a degree of moral negligence. In police training there should be constant emphasis on adherence to basic norms and principles. Police leaders and supervisors have to be trained to discourage noble cause mentality in the field. The police cannot, no matter how tempting, legitimise throwing out rules and the Constitution because they are doing something for the greater good of society or the country. This type of action is an abuse of power and undermines the fabric of a democratic society. The police has to develop sensitivity for those who are policed — both suspects and victims. Discretion to be exercised by policemen in the performance of their duties is not a licence but a judgment to be arrived at after careful deliberations.
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The art of retiring
The
debate over the time of retirement for little master Sachin Tendulkar has caught the attention of Indian sports lovers. The country remains confused and at odds over the right time for Sachin to say goodbye to the gentlemen’s game. It seems to be shocking for cricket fans, who had extolled Sachin as a god, to accept that the playing eleven men in blue can be without the maestro. The discussion over the right time of retirement is not novel to us. This poor judgement of timing has been passed on to us by our ancestors. It has enveloped many politicians, actors, sports persons and persons from other fields until they have been axed unceremoniously. Why are Indians so afraid of retiring? Our not saying goodbye when it is the most appropriate time stems from the cultural and historical framework of India. The popular grant of immortality or longevity by God to our sages who continued to be on the scene for an uncalculated period has affected our subconscious. Sage Vishwamitra went on to be the part of the events from the Ramayana to the Mahabharata before gods themselves offered him the celestial bench. It is the understanding of the “old is gold” which prompts the unrelenting old politicians to run a country of young people and keeping on hold the right moment to pass on the baton. They forget how poet Ghalib had warned future generations to leave the scene before becoming “be-abroo”. It is probably the attachment of power or the passion towards the game which sometimes blinds the individual from taking the right decision. Perhaps, ours is the only country where top sports bodies are being run by men some of whom are 80-plus. Today it has become a national shame for India as it is out of the Olympics. We have to re-invent the slogan, “Jab tak suraj chand rahega, falana tera naam rahega”. Many times we have seen some of these 80-plus politicians exhibiting symptoms of clinical senility. Incidents of one of our Prime Ministers addressing the Opposition leader as honourable PM and the Foreign Minister reading a wrong speech tell the whole story. Returning to cricket, many of our illustrious players like Sourav Ganguly, Mohd. Azharuddin and Ajay Jadeja had to leave the game after getting involved in many controversies. G. Vishwanath played his last match after dragging himself for a considerable period just to complete a few records. No one in this country wants Sachin to meet a similar fate. He is a player and person of different stuff, and hoardings like “Sachin will retire only when God retires” are emotive outbursts of his fans which will do no good to him. The decision is best left to the little master, but it is well acknowledged that he has already played his innings and now it is the time for him to serve the Indian cricket in a different way. Passing on the baton at the right moment, when one is at the peak of one’s career, is an art which probably Indians have to learn.
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A model ‘Nikahnama’ in the offing In
popular imagination Muslim women's unequal position in marriage is symbolized by cases such as Shah Bano or Imrana. It is understood, this is the result of the religion-based Muslim personal law and the rigid control over women by the community in general and ulema in particular. Not many are aware that the same religion-based marriage law also offers tools for changing Muslim women's position in marriage. In the last ten years, an ordinary document that every Muslim couple signs at the time of marriage — nikahnama or marriage contract — has assumed such a role. It has been innovatively used to initiate discussions and push for changes in the community's perception about the Muslim women's position in marriage. In these efforts, a large number of "religious" and "non-religious" Muslim groups got into a conversation and set off a consensus-building process on the issue of a Muslim woman's "entitlements".
Unhappy with the removal of Muslim women from the ambit of S 125 Crpc that guarantees all divorced women a minimum maintenance and the promulgation of a separate provision for divorced Muslim women called Muslim Women's Maintenance Act 1986, many women's groups had begun to argue for a Uniform Civil Code from 1990 onwards. Such a Code, it was hoped, would bring marital equality to women of all religions. When some right wing political parties hijacked this demand to castigate the Muslim men, such a hope was irretrievably lost. It became difficult for women's groups to sustain this demand In the post-Babri Masjid demolition period, when the atmosphere was not favourable for the Muslim community, such a law, would have found it impossible to garner support from the Muslims, especially if it were made by the BJP dominated Parliament. As anyone familiar with law knows, a consensus is important for law-making process so that it is accepted and followed. Muslim women were caught in this unenviable position — of having to address their own situation; under-age marriages, non-payment of mehr, arbitrary talaq, cruelty in marriage, maintenance after talaq, multiple marriages of men, resistance to women's employment etc. While taking care that the Muslim men are not vilified further. In 1995, a group of Muslim women in Mumbai, led by Uzma Naheed, chose the most important but most taken for granted document in Muslim marriage and decided to propose changes in it — a new model nikahanama. Nikahnama being a valid legal document, such changes would have far-reaching consequences. What is a nikahnama? It is a simple document that contains guidelines instructing the couple about the spirit in which they should conduct themselves in marriage, details of gifts exchanged and personal details as well as obligations of the couple, under the Shariat. Uzma Naheed et al expanded the guidelines and introduced a little-known Islamic practice of - additional conditions in the Shariat obligations. Their model nikahnama stipulated that the husband should not inflict physical harm nor wrongfully confine the wife nor indulge in any other inhuman behavior; leave the wife in her natal home for extended period of time, use abusive language in instances of marital tiff, should not accept dowry and should not utter triple talaq or talaq in isolation. In case of differences the couple should try to resolve them through arbitrators. The new conditions were - that the husband would need the permission of wife to contract a second marriage; that in case of talaq or second marriage, mehr (the gift that husband gives to the wife at the time of marriage, connoting her worth to him) be doubled; that the mehr would not be 'forgiven' by the wife; that the wife's due share in husband's property be ensured as well as her right to reside in matrimonial home in case of divorce. This was submitted to the All India Muslim Personal Law Board ( AIMPLB)which was a body of ulema of different firqa - Sunni, Shia, Barelwi, Deobandi etc. If it could get the approval of the Board, then, Muslims of all persuasions can emulate it. The AIMPLB in turn, sent it for discussion to several madrassas in the country seeking their opinions on the validity of the nikahnama. 54 ulema - students and teachers (of Imarat-e-Sharia of Bihar, Islamic Fiqha Academy, Delhi, Imarat Sharia Phulwari, Dar ul Ulloom, Hyderabad, Dar ul Ullom Sabeel-us-Salaam, Hyderabad) included - submitted their opinions which were then compiled in the form of a book - Ishtirat Fin Nikah that was published by Islamic Fiqh Academy, New Delhi. Many of the ulema expressed their unhappiness about the state of Muslim marriage - the wrong practices of triple talaq, of Muslim women giving up mehr, and their general state of disempowerment in the current times. Minor changes, major consequences Is a conditional nikahnama the right way to correct all these ills? This was the question that they deliberated upon. Traditions of interpretation drawn from all schools of fiqha - Hanafi, Hanbali, Shafai and Maliki were used to discuss its validity. Standing out from among the varied opinions were those of senior and reformist ulema such as Moulana Saifulla Rahmani and Moulana Mujahidul Islam Qasmi. They argued that the existing Hanafi tradition, most followed in the subcontinent, should be supplemented by the other traditions such as Maliki or Hanbali when there is a need. Approving the idea of a conditional nikahnama, they suggested some minor changes in 1997. Unfortunately, the Board, mired in its sectarian quarrels, delayed the release of the approved document till 2005. Its approved nikahnama deleted the mandatory clauses regarding triple talaq; replaced them with a simple caution against it and retained clauses regarding mehr in kind, prohibition on dowry and against violence. But it introduced something new: a conservative code of conduct for women such as they should not step out without the permission of the husband etc. Disagreeing with the Board on the tone, tenor and the content of the nikahnama, two new Boards, the Muslim Women's Personal Law Board and Shia Personal Law Board were formed and framed two new nikahnama, which were released in 2006 and 2008 respectively. The Shia Board's nikahnama was introduced after its approval from Ayatollah Sistaini of Iran. Claiming to stress the well-being of women, it incorporated the provision of khula (women initiated divorce), strictures against preventing the wife's progress in education and employment, and provision of alimony to the divorced wife too, the last on the ground of "humanitarianism." Some reforms, finally! The Women's Board's nikahnama (in Hindi and Urdu) takes the pedagogic intent of the nikahnama quite seriously and includes an elaborated code of conduct for the couple: that the Qazi should be well-versed in Shariat, explain the nikahnama to them, that marriage should not be forced, that the marriage of under-age men and women should be avoided as they lack the knowledge about rights and obligations in marriage, that the pardoning of mehr should be done willingly by women and not by deception or wrong interpretation of Quran. It also lays out in detail a modern husband's proper conduct, including ways in which he could help with housework. It stipulates proper procedures of giving and avoiding talaq and khula. All the Boards, while releasing the nikahnama, asserted that it was agreed upon by the members, that it would safeguard the interests of Muslim women, and that it was not obligatory but voluntary on the community. The differences in the positions come through in the code of conduct and conditions sections. Except the Muslim Personal Law Board's nikahnama, the rest clearly stipulate against the triple talaq and spell out the desirable way of talaq. Nearly all of them encourage Muslim men and women to resolve their disputes through arbitrators and Darul Qaza. A dialogue between religious and secular At this juncture, we can pause and ask if any of these is implemented and if so, to what extent. An individual woman's ability to get her own conditions into the nikahnama or get what is written, existing research indicates, depends on the social milieu, community ethos and especially on the history of any reform movement in that area. Organizations such as Bharatiya Muslim Mahila Andolan (a secular, autonomous and rights based Muslim women's movement established in 2007) that have come up to defend Muslim women's rights in the last decade have used their own gender-just nikahnama in hundreds of marriages that they conduct. Young Bohra Muslim men in Gujarat have adopted the nikahnama approved by the Muslim Personal Law Board in their marriages. Occupying a socio-legal terrain, which distinguishes it from the earlier state-directed initiatives of reforming Muslim Personal Law, it has also prevented the consolidation of conservative Muslim opinion against the state, resumed the (contested) conversation among "religious" and "secular" domains on marriage practices, and even enabled a continuation of a discussion on "secular" feminists' concerns such as dowry and destitution of married women due to desertion. Islamic and secular idioms got inextricably mixed up, whereby dowry got re-framed as un-Islamic (rather than illegal) and mehr as the "right" of Muslim women! The real significance of the nikahnama debate, as such, lies elsewhere: in the space that Muslim women have carved for themselves through this initiative and its role in resuming the traffic between "religious" and "secular" spaces on issues of gender after Shah Bano. By initiating the nikahnama debate on the grounds of sharia, Muslim women have been able to enter the male-dominant terrain of the "religious community" and disrupt the stereotype of Muslim women as victims of community patriarchy. In pushing the "Islamic" tradition for reform and succeeding to an extent, they have disrupted the prevailing secular narrative of the unchanging and regressive Islamic tradition. Nikahnama has the possibility for extensive reach not only to popularise correct practices and strictures against bad practices but also to draw the community (elders in the form of arbitrators, the darul qaza) into such an exercise.
A Suneetha is a Senior Fellow at Anveshi Research Centre for Women's Studies, Hyderabad
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