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Justice Ganguly quits, finally
Wired for nepotism |
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Free power supply to farm sector
To Jatti Umra and back
The imbalance in India’s sex laws
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Justice Ganguly quits, finally THE decision of Justice A K Ganguly to step down under mounting pressure as the Chairperson of the West Bengal Human Rights Commission (WBHRC) spells two things. One, sexual misconduct by persons in positions of authority is going to have serious repercussions under the new amended laws. Two, individuals, howsoever learned, respected or powerful in their personal capacity, will have to submit to the supremacy of the institution. On November 29 a law intern had accused Justice Ganguly of sexual misconduct in a Delhi hotel, where he had called her to assist him with a legal case. A three-judge panel set up by the Supreme Court reported that allegations against Justice Ganguly by the intern prima facie disclose an act of "unwelcome behaviour." Justice Ganguly, however, denied the charges and continued to refuse to step down from the office of the WBHRC. He relented only after legal experts told him to do. The Union Cabinet, meanwhile, had started the process of making a presidential reference to the apex court for his removal. The legal fraternity was divided on the issue; a very prominent section (mostly men) felt, by acting on a mere blog written by the intern, who abstained from naming the judge, the apex court has tarnished the integrity and good reputation of the retired judge. While others like Additional Solicitor- General, Indira Jaisingh spearheaded the move for his removal. Law interns, law clerks and women lawyers, encouraged by the Supreme Court's move, came out of the closet to report on the tales of undignified behaviour received from their superiors on social network sites. A section of the lawyers demanded a ban on female interns, fearing allegations of sexual misconduct. That sexist behaviour has been prevalent in legal institutions for long is evident from the stories that began to surface after this case and the fear of reprisal expressed by senior lawyers. That the amended laws have enough teeth to bring about a shift in the behaviour of the powerful is evident from Justice Ganguly's resignation despite the stand he continues to maintain that the apex court has been "unfair" to him.
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Wired for nepotism THE Punjab and Haryana High Court order setting aside the selection of around 3,000 teachers made 13 years ago may have come as a bolt from the blue for those affected. But they had benefited from an illegality. Om Prakash
Chautala, who presided over the fraudulent selections, is currently serving a 10-year sentence for it. The court has given reasonable opportunity to those being sacked to appear for any selection that may happen in near future, even suggesting the government could relax the age limit for them. The case is a prime example of how far reaching the consequences of one instance of illegality can be. The impact on education and the bad blood such
'favouritism' causes cannot be measured in tangible terms. At the time these selections took place the system of teacher recruitment was entirely handled by a loose set of bureaucrats who were part of the government and under direct control of the ruling party. To favour people out of political loyalty, family or parochial considerations was then the norm. To be fair to
Chautala, he may have been genuinely shocked at the conviction, as selections of all kinds till then had been routinely compromised. It is accepted knowledge in Haryana that the majority of people in positions of influence, whether political or bureaucratic, can trace their roots to a few families. The JBT teachers' fiasco could have been reasonably expected to be a watershed in the prevailing culture. It did not. A board was constituted specifically for the selection of teachers by the present government. But a person who had invited endless controversies during his tenure as Chairman of the Haryana Staff Selection Commission was appointed as head of the new board. Not surprisingly, thousands of selections under him were set aside by the high court, which also passed tough strictures against him, leading to his resignation recently. The selectors may be responsible for appointing teachers without merit, but it is the government that is responsible for the appointment of board members without integrity.
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While we are postponing, life speeds by. — Lucius Annaeus Seneca
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Sir Arthur Reid
AT the farewell dinner at the Punjab Club held in honour of the retiring Chief Judge, His Honour the Lieutenant Governor presided over a large and distinguished assembly. In proposing the health of their guest, His Honour paid a notable tribute to Sir Arthur Reid. His Honour said Sir Arthur “was now leaving India, or would so in a few months, having reached the highest honour in his profession and having won for himself the esteem and good will and affection of innumerable friends.” During the 18 years he had sat on the Bench of the Punjab Chief Court — a period never surpassed by any of his predecessors, Sir Arthur had, His Honour went on, “made a reputation as an able and commonsense lawyer, a distinguished Judge, and a Chief Judge who had worthily upheld the high traditions of his lofty office. His work in the Punjab was writ large in the pages of the Punjab Record and the annals of the Chief Court. Raja Kushal Pal Singh’s resolution
AT a meeting of the Imperial Legislative Council on the 16th instant the Hon. Raja Kushal Pal Singh will move the following Resolution: “That this Council recommends to His Excellency the Governor-General in Council that in all future settlements any increase of assets to the construction (otherwise than at the expense of the State) of wells, tanks or other artificial sources of irrigation be permanently exempted from assessment to revenue.” The fairness of the demand for exemption is apparent from the extracts from official correspondence on the subject which the Government of India laid on the table at the Tuesday's sitting of the Council, and which we have noticed at some length in our leading article to-day. The Government of India have conceded that improvements should be exempt from taxation and that the need in Indian agriculture is the adequacy of the cultivator's share of profit from his toil.
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Free power supply to farm sector
THERE is no doubt that no farm sector in any country can survive profitably without government subsidies. Developed countries provide huge subsidies to their farmers. American farm sector subsidies are the maximum and Europe comes second. At one time Japan in order to encourage domestic production paid its farmers for corn three times the price prevailing in the international market and to the piggeries issued corn at one-third of the international price and then purchased pig meat at three times the international prices. Thus, the farmers who produced corn and raised pigs alongside were at advantage of 27 times compared to the international market prices of pig meat. It is an extreme example, yet almost all countries, where agriculture is the main profession, support their farmers through subsidies of one kind or the other. This distorts the competitiveness in the international market to the disadvantage of the commodities produced by the developing countries. Input subsidies and market support subsidies such as subsidised power, water, fertilisers, pesticides etc, create more serious problems; hence these are labeled as Red-Box subsidies by the WTO. On the other hand development subsidies such as land reclamation, land leveling, underground water channels or pipes, sprinklers, drip irrigation etc, that enhance the capacity of the farmers and improves the farm economy do not distort price structure in the international market. Such subsidies are leveled as Green-Box subsidies. Some other subsidies fall in the grey area and are labeled as Purple-Box subsidies. The input subsidies do not allow the developing countries level play ground for trade in the international market. Within even developing countries the different levels of these subsidies also throw some of the country out of the market. For instance compared to Pakistan, Indian farm sector gets much higher subsidies. In fact Pakistan does not provide subsidies like free power to the farm sector; hence there are difficulties in developing agricultural trade on a competitive basis between the two countries. The Punjab (Pakistan) and Punjab (India) have almost similar agro-climatic conditions and by and large produce the same agricultural commodities. Indian Punjab being at advantage because of subsidies, the agricultural commodities trade remains muted between the two countries. One advantage of development subsidies is that the benefit to the farmers keep accruing over a long period in the future, while input subsidy get utilized in one go in one season and there is no lasting impact of such subsidies. Once such subsidies are stopped, the producer falls back on profitability immediately. It does not happen in case of development subsidies. Therefore, for lasting effects, the farm sector should be provided with development subsidies such as for land development, water conservation, operational efficiency through machinery and appropriate implements, net houses, purchase of dairy animals, subsidiary enterprises etc. Input subsidies should be provided rarely and as a last resort and should be temporary and focused for intended (small and marginal) farmers only. Presently the Power/water subsidy that is provided to the farmers in Punjab is the worst of the subsidies that can be provided to the farmers producing wheat and rice, which is procured at minimum support prices by the central government. Unfortunately, from the time the farm sector was provided with free power it has not been realized by any government of Punjab that, in the first place, this benefit does not land into the pockets of the farmers for about twenty million tons of food grain that are purchased by the central government from Punjab. Instead, this subsidy benefits the consumers of the deficit states. The Commission for Agricultural Cost and Prices (CACP) for the purpose of determining Minimum Support Prices (MSP), while working out the cost of production of agricultural commodities, considers only the costs that are directly incurred by the farmers. The Commission does not consider any social costs incurred by government by way of subsidies or cross subsidies suffered by rest of the sectors. Thus, lower than the actual cost so calculated by the CACP keeps the MSP correspondingly low. Thus farmer is not benefited at all. However, Low MSP leads to low Issue Price for the consumers of these grains. As a result the benefit ultimately flows to the consumers of the deficit states of the country for more than twenty million tons of food grains produced by the Punjab farmers. The free power supply leads to overuse and even misuse of water. Punjab while providing power/water subsidy to the farm sector should not forget that canal irrigation does not meet more than one-fourth of the water requirement of wheat and rice in Punjab. Seventy five percent of the water is pumped from underground aquifer, which is upsetting the water balance of the state. It is well known fact that most of the central Punjab blocks are in black category and water table is receding continuously, which is not a sustainable proposition. Imagine, Punjab packs up more than 16 thousand billion gallons of mined water every year into grains that are exported out of the state. If it gives the sate some satisfaction in producing surplus grains, it should also give multiple times unhappiness that such a huge volume of mined water is being thrown out of the state at the cost of fast deteriorating water balance of the state. There is, therefore, a dire need to change the paradigm of the farm sector subsidies, specially in respect of power/water subsidy. The state should provide development subsidies that improve the capacity and efficiency of the farms and farmers to produce economically. The subsidies must land into the pockets of the farmers, not benefit the consumers in the name of the farmers. One way to do that is that whatever amount of subsidy on power/water, the government wants to give to the farmers should be paid direct in cash to the farmers (owners) on per acre basis and they should be required to pay full cost of the electricity/water they use. Advantage will be (i) the farmers will try to use electricity more judiciously and save on it; (ii) he will try to grow crops that require lesser water which will promote diversification in the state; (iii) farmers will get higher prices based on higher cost calculated by the CACP, because the farmers will themselves pay for the power used by them and the social cost incurred by the state will be indirectly accounted for; (iv) it will have positive impact of the sub-soil water balance of the state; (v) land rents will come down for the tenant farmers, because the electricity used will have to be paid for. Presently any subsidy to the farm sector or incentive in the form of higher prices gets translated to higher rents. Yet the question remains whether the political thinking will ever veer around to shed the misconception of sops based vote bank syndrome and start out of the box thinking in the interest of the farmers and economy of the state!!
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To Jatti Umra and back
MORE than a decade ago Mian Nawaz Sharif, the Prime Minister of Pakistan, was invited by Guru Nanak Dev University, Amritsar, to be the chief guest for its annual convocation. The news of the impending visit set my imagination afire. How will he cross over to Amritsar? Will he take the air route for such a short trip? How long will he stay in India for a single-event itinerary? What I earnestly hoped for was that the Prime Minister should cross over in his official cavalcade, attend the convocation, make a short visit to his ancestral village, Jatti Umra, about 35 km from Amritsar, and return to Lahore the same evening — just like any other day at the office. Such a visit could eventually, I imagined, pave the way for daily visits, in self-driven or state public vehicles by citizens of both the countries. Unfortunately, for some unknown reasons (maybe protocol or security), the visit never materialised. Now Shahbaz Sharif has come calling as the special envoy of Nawaz Sharif and the chief guest for the Kabaddi World Cup. He also visited Jatti Umra and paid obeisance to his ancestors. He struck an emotional chord with the villagers and said that he still considered himself a 'putar' (son) of the village. Punjab Chief Minister Parkash Singh Badal talked reminiscently of his student days in Lahore. The Punjab government plans to hold the next Kabaddi World Cup in Pakistan. Shahbaz Sharif has volunteered to hold it jointly. This is a great opportunity for everyone to travel across the border. The final could be held in Lahore — the hub of Punjabiyat in pre-partition Punjab. To see Lahore has always been the dream of every Punjabi. As the popular Punjabi adage goes, Jehne Lahore dekhiya nahin, oh jamiya hi nahin (He who has not seen Lahore was never born). On returning to Pakistan, Shahbaz Sharif has taken the initiative even further. He has now proposed that both countries hold a joint car rally to highlight our common heritage at Lahore in February, 2014. An Indian trade fair is also on the cards at the same time. The initiative of the Sharif brothers promises to bring in a new dawn of Indo-Pakistan relations. The World Cup could be a turning point, Kabaddi being the 'ma-khed' (mother sport) of both Punjabs. May the Kabaddi bonhomie last long and bring back the era of pre-partition peaceful co-existence. Meanwhile, I dream of the day when visiting Lahore would be as easy as going to Jalandhar.
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The imbalance in India’s sex laws
IN the unresolved diplomatic spat over the conduct, arrest and treatment of an Indian consular officer in New York, India has been angered that allegations by her Manhattan maid are treated as facts. Yet its own rape laws come dangerously close to sanctifying this conflation of charges as proof. In turn, some Indians have suggested subjecting gay US officials to India’s penal code that criminalises same-sex relations. Is this any less “barbaric” for millions of Indian citizens than the unconscionable treatment of one Indian official by New York’s finest? The Universal Declaration of Human Rights begins with the affirmation that “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Rape is an assault on the dignity of a woman and unwelcome sexual advances rest on the presumption of a degradation of her dignity. Equally, criminalisation of same-sex intimacy is a denial of the inherent dignity and inalienable rights of some members of the human family based on sexual preferences. Rape is a horrific problem in India. Much of it is hidden as victims are subjected to structural coercion in a traditional patriarchal society and rape carries a strong social stigma. As the stigma weakens in urban settings, more victims are prepared to report it and seek justice.
Laws can be abused For justice to be done, contested facts must be investigated and established, conflicting evidence and testimony sifted and evaluated, and guilt or innocence pronounced accordingly. Neither all men nor all women are criminals by virtue of gender; most relations of authority do pit women in an unequal power relationship with senior colleagues; but in some cases it is possible for wrongful or maliciously false charges to be levelled as well, for whatever reason (including coercion by male relatives wanting to settle scores with property disputants, social rivals or political opponents). Any law that can be abused, will be, under certain circumstances. Prem Shankar Jha points to some telling features of the law meant to accommodate public anger on rape. The burden of proof has been reversed such that it invites miscarriage of justice. This, because of four interlinked steps in the chain of evidence, each of which makes sense in isolation but whose combined effect can be pernicious. The definition of rape includes any penetration by any object to any extent; there is no time limit within which the charge must be laid by the victim; this inevitably means that physical evidence to confirm an act of forcible penetration is not mandatory; and in the event that the accuser and the defendant swear on oath to coercion versus consent respectively, the judge is legally obligated to believe the woman. That is, judges must base their “verdict upon the premise that, in matters pertaining to sex, women cannot lie under oath!”
Towards reverse sexism Dr Ratna Kapur argues that the new Criminal Law (Amendment) Act of 2013 “has taken us dangerously in the direction of a sexual security regime rather than toward more rights”– a pathology clearly evident in the Supreme Court’s verdict on December 11, 2013, upholding the criminalisation of conduct that should be left to personal preferences. Section 377 of the Indian Penal Code was enacted by the British in 1860 to impose Victorian public morality on Indian society. The Delhi High Court delivered a famous verdict in 2009 on a case brought before it by the Naz Foundation in 2001 to repeal Section 377. It held Section 377 to be incompatible with the fundamental principles of equality, dignity and non-discrimination of India’s constitution. The Supreme Court reinstated it on appeal, arguing that repeal was a matter for the legislature. In a curious ruling, Justices G.S. Singhvi and S.J. Mukhopadhyaya held that “those who engage in carnal intercourse against the order of nature” cannot claim equal protection under the constitution. The use of language such as “so-called rights” of lesbians, gays, bisexuals and transgender people who constitute “a miniscule fraction of the country’s population” and practise sexual relations “against the order of nature” suggests that the ruling is based on prejudiced private morality more than constitutional and legal scholarship and reasoning.
Constitutional vs social morality The UN High Commissioner for Human Rights, Navi Pillay, a South African of Indian descent, responded to the Supreme Court decision within a day to deplore it as a violation of international human rights. The 1966 International Covenant on Civil and Political Rights, to which India is party, enshrines rights to privacy and non-discrimination; criminalising private, consensual same-sex sexual conduct violates this, she said. The international covenant is unlikely to resonate widely among Indian citizens. The more relevant benchmark is its own constitution. Fundamental rights are enumerated in the Constitution precisely because the legislature cannot be trusted to deal with the problem in a principled, just and equal way. The Supreme Court of India has a considerable international reputation for defending and expanding the protection of human rights enshrined in the constitution against encroachments by the executive and arbitrary violations by the police. At heart, the judicial verdict comes down to resolving the competing imperatives of constitutional morality and socio-political morality. The former cannot be collapsed into the public morality of the majority, for down that route lies the tyranny of the majority. Liberal democracy instead is the art of the right balance between majority preferences and minority rights. This is particularly pertinent in a country as diverse as India where every citizen is likely to constitute a minority of one sort or another. Conversely, if prevailing social practices are to be sanctified by the judiciary, they would end up reinstituting dowry and untouchability.
Liberal democracy In other words a counter-majoritarian role is part of the job description of India’s judges under the constitution. An important feature of India’s constitution is the chapter on the fundamental rights of citizens. The guiding principle behind inscribing certain rights as fundamental was to withdraw them from the political arena, remove them from political controversy, and put them safely beyond the reach of political majorities. Else the entire constitutional philosophy underpinning the balance between core political values and moral majority values is undermined. Laws reflect the social beliefs and values of the majority of people, or of the ruling elite, at the time of enactment. As values and practices change, some laws become obsolete and are no longer enforced. A good example is the miscegenation laws in the US which criminalised sexual relations between different races. Generally there is a lag between non-enforcement and repeal. A failure to prosecute is no immunity from police persecution and public vilification. It is not the social purpose of criminal law to target and vilify activities and practices of groups that the majority dislikes. The consensus of modern medical and psychiatric opinion holds that homosexuality is not a disease or a disorder but one among different expressions of human sexuality. Leaving Section 377 on the statute books because it is politically too difficult to repeal it reduces all homosexuals to the status of “unapprehended felons.” This turns their lives into one of misery, fear and apprehension. It opens the door to discrimination in employment and housing; social and police harassment; blackmail in a context where police extortion is a national pastime; and private violence rooted in publicly legitimised bigotry.
Rights of the gay minority As a shield against being criminalised in law and stigmatised in society, the affected people may agree to enter into heterosexual marriages, with adverse consequences for the emotional health and wellbeing of partners and children. Another unintended and perverse but predictable consequence is the reluctance to seek medical help for suspected sexually transmitted diseases, including HIV/AIDS, with detrimental flow-on implications for public health. And they are more vulnerable to recruitment by foreign intelligence services. The Supreme Court ruling was hailed by conservative religious leaders but condemned by most media commentators for targeting members of a minority for who they are. While the ruling Congress party appeared open to considering an urgent repeal of Section 377, the opposition Bharatiya Janata Party seemed divided on the issue. Thus the decision pushed the issue and fate of same-sex relationships firmly at the vortex of religious, social, political and judicial beliefs and cross-currents. It is particularly surprising that the BJP, as the self-proclaimed custodian of Indian cultural nationalism, would privilege the social morality of Victorian England above both pre-colonial indigenous social practices (as depicted in any number of temple imagery) and the constitutional morality of independent India. Part of the superior appeal of Hindu society also is the long unbroken tradition of pluralism and tolerance. The antique law should be swiftly repealed on review by the full bench of the Supreme Court or, failing that, by Parliament with all-party support. The writer is professor in the Crawford School of Public Policy, the Australian National University.
Dichotomy
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