The Colour of Justice

Paul Daniel Dinakaran has resigned as Chief Justice of the Sikkim High Court. 

Two years of feet dragging and then the green light shines, but he’s not waiting to be ousted. Given that he’s not as lucky as the former big chief, who is parrying allegations of misuse of his office with regard to the disproportionate wealth acquired by his brother and sons-in law, after he retired from office, Dinakaran figured he may as well go gently instead of being taken out – kicking and screaming. 

With one year of his term left and with Kalmadi having already taken the dementia route, even that line of defense is closed. Just in case it ever crossed his mind.

But then to fire one last salvo as he departs, the Hon’ble Judge claims bias –

“I have a sneaking suspicion that my misfortune was because of my circumstances of my birth in the socially oppressed and underprivileged section of society. Integrity of members of these communities who attain high office is always baselessly questioned through innuendo, sneering and spreading false rumours while the privileged are treated by the vested interests as embodiment of all virtues.”

This after charges of land grabbing, accumulation of unaccounted assets, and passing judicial orders for extraneous considerations, were laid at his door.

Still, bearing in mind the glorious principle of the law that the presumption of innocence is to prevail, unless otherwise proved, we would have given him the benefit of doubt… in line with the stand taken by the Rajya Sabha constituted committee probing the allegations and even by the Supreme Court when it entertained his petition against one of the members of the committee – senior advocate P.P. Rao.

In his writ petition [(civil) No. 217 of 2011], Justice Dinakaran claimed that respondent no. 3 (Adv Rao) had pre-judged his guilt and was therefore prejudiced against him. The Apex Court in its ruling stated that despite the fact that the petitioner (Justice Dinakaran) was aware of the inclusion of respondent no. 3 on the committee in January 2010, since the respondent had himself asked to be relieved from the committee following newspaper reports that he had given legal opinion to the petitioner in December 2009 – an allegation refuted by the respondent in his letter to the committee, the petitioner had not raised any objections to his inclusion at that time and chose to do so only in March 2011 after receiving notice from the committee of the charges against him, along with the list of documents and witnesses. 

The Court therefore held that the belated raising of objection to the inclusion of respondent no. 3 seemed to be a calculated move on the petitioner’s part, given that the respondent had done nothing which a person of reasonable prudence would construe as him being “ill-disposed” towards the petitioner. However the Court in keeping with the principles of fairness, advised the Chairman of the Rajya Sabha, Vice President Hamid Ansari to nominate another eminent jurist to replace Adv Rao on the committee, at the same time turning down Dinakaran’s plea to declare the constitution of the committee a nullity. 

Refusing to quash the allegations against Dinakaran, the court declared – “We hold that belated raising of objection against inclusion of respondent No.3 in the Committee under Section 3(2) appears to be a calculated move on the petitioner’s part. He is an intelligent person and knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the Presiding Officer of the Committee is required to forward the report to the Chairman within a period of three months from the date the charges framed under Section 3(3) of the Act were served upon him. Therefore, he wants to adopt every possible tactic to delay the submission of report which may in all probability compel the Committee to make a request to the Chairman to extend the time in terms of proviso to Rule 9(2) (c). This Court or, for that reason, no Court can render assistance to the petitioner in a petition filed with the sole object of delaying finalisation of the inquiry.”

This ruling of the Supreme Court effectively released the brakes on the impeachment proceedings and Justice Dinakaran finding that he had run out of options finally decided to bow out. But not before alleging bias yet again, this time on the grounds of his birth – “in a socially oppressed and underprivileged section of society”.

Considering that Justice Dinakaran is and has been a privileged member of the higher judiciary these allegations seem out of place, and reek of desperation, especially when you consider the nature of the allegations at his door.

Slut Walking… Against Sexual Violence

Good on you Bhopal!

So a small, fairly conservative city like Bhopal has played host to India’s first ‘Slut Walk’. Called the ‘Besharmi[1] Morcha’, the city took on its chauvinistic male population head-on, even if most of the people taking them on were other men. Men who’ve been raised well, with sensitivity and maturity, men who’ve earned the right to be called men. The women meanwhile stayed indoors, except for the few who dared to venture out, braving the sidelong glances of their neighbours. The rest remained sequestered, under the stern eye of parents and relatives – after all, the world outside contains too many demons. It’s safer to stay home, and as long as it remains unspoken, incest isn’t something we’re ready to deal with… not yet anyway, even though we read about it in the papers, in what is now slowly being recognized as a common occurrence in closeted societies like ours. It isn’t an imported phenomenon, even if we’re tempted to term it so, it’s always been there. We’ve just looked the other way.

I’m beginning to wonder meanwhile, if all police officers are insensitive or just plain moronic, as a rule, or if it’s just a few who make it to that hallowed Hall of Shame. Didn’t we recently have the Delhi Police Chief B. K. Gupta sticking his over-sized foot in it when he said that Delhi is a safe city, but women shouldn’t venture out late at night, unless accompanied by a male friend, relative or even their driver… that’s presuming the driver is male and trusted? Unfortunately he isn’t the first to make such irresponsible and thoughtless statements, which serve to perpetuate the existing situation, instead of articulating responsible solutions to curb instances of sexual and other forms of violence against women. Sheila Dikshit, the Chief Minister of Delhi beat him to it when she spouted such swill earlier, and then took credit for cleaning up Delhi’s streets and making them safe for women, by telling them to stay indoors. The solution that these individuals have come up with to tackle offences seems to be aimed at ‘victimizing the victim’ and not at punishing the offender, the reason why offences against women continue unchecked.

It also reminds me of an encounter I had with a motorcycle riding creep in Delhi, in a fairly crowded parking lot near ‘Flavours’ in Defence Colony, in broad daylight a couple of years ago. That I’m Mumbai born and raised and don’t stand for nonsense from anyone, saw me take him on, even as he brought his face centimetres from mine, giving it back to him, enough to have the people standing by applaud, even though they chose not to step in and intervene. I did not back down and the man left after uttering a few choice abuses I chose to ignore, and I left immediately after, just in case he returned with a gang of his pals and a gun. While it’s okay, and in fact necessary to stand up against abuse, and to confront people who perpetrate such abuse… it would be foolish to wait to be shot dead.

The Delhi Police Commissioner therefore needs a couple of lessons in sensitivity, or perhaps he suffers from the same malaise that some members of the lower judiciary tend to suffer from when they suggest that rapists marry their victims in lieu of a reduced sentence, or in exchange for bail.

Lesson No. 1 – People do not molest, sexually abuse or rape others because they love them. Molestation, sexual abuse and rape are acts of violent domination, perpetrated by people who pick on others on whom they can exert such control. So the victim is traumatized by the event and what do we do – condemn them to a lifetime of violence and abuse, because instead of trying to remove the stigma surrounding such events, we feed into it, playing matchmaker instead of law-enforcer for people we think no one would or should marry. 

And the phenomenon is not just restricted to India.

Micheal Sanguinetti, a Canadian police officer, who I presume just returned from vacationing in Saudi Arabia and Iran, where he was on loan to the ‘moral police’, came back to his own home-town, duly enlightened and said that - “Women should avoid dressing like sluts in order not to be victimized”. Is that so Mr. Sanguinetti? Is that what you’ll say to the eighty year old grandma who got raped by some sick moron, with self-esteem issues? That it was her new dentures that did it, because she smiled at the man, thinking that he reminded her of her grandson whom she hadn’t seen in a while… or to the four year old girl who was raped by her own father who had abandoned the family when she was born because he wanted a son, then met his family after four years, and raped her…?  

What will you say to them?

Or to Aruna Shanbaug, the spirited nurse who still lies in a semi comatose and vegetative state in a hospital bed in Mumbai, almost thirty-eight years after being sexually assaulted, sodomised and choked with a dog chain, by a sweeper at the hospital where she worked because she had castigated him, pulled him up for stealing food meant for stray dogs adopted by the hospital staff? Charged with the offence of robbery and attempted murder, the offender Sohanlal Walmiki, was convicted and served two concurrent sentences for robbery and assault… just seven years, before he was released, since the Dean of K.E.M. Hospital where Aruna worked, hoped that she would recover and did not want to bring into focus the true nature of the sexual offence perpetrated against her. An act, considered one of shame for the victim, and therefore to be concealed, even at the cost of allowing her attacker and rapist to roam free after serving just seven years in prison, to reclaim his life, while she still lies condemned. That is the price of shame.

It is time to wake up if we haven’t already, to the truth, that no one asks to be raped, molested or assaulted. Not by circumstance or the fact of their gender… or even due to the clothes they wear.

Michael Sanguinetti’s insensitivity towards women has however catalyzed into the world’s first ‘Slut Walk’ in Toronto, a movement which has gone viral, prompting women all over the globe to stick it to all those who blamed them for offences perpetrated against them, by marching against such unjust and offensive attitudes. A brilliant idea, and long overdue… but to be quite frank I baulked when I heard the term ‘Slut’. I’m conservative. So while I agree with the motive and intentions behind the movement and I’m all for girl power, I can’t seem to get my head around the term ‘Slut Walk’ and this whole thing about owning words.

Why own a word that’s derogatory, I wonder, especially in a day and age when we’ve so distorted the dictionary trying to be politically correct? Even though we all tend to use terms that may skirt the borders of political correctness, and have personally been name called, mostly by some of our best friends, with what we believe to be a degree of affection, I do have a problem owning the term ‘slut’. I guess to each his or her own.

We happen to live in a world that’s predominantly male dominated, and we’ve let them get away with it. Our mothers pander to their sons, and it’s not just an Indian phenomenon, though it is more noticeable in Asian cultures than anywhere else. Even our advertisements tend to depict the woman primarily in the home, in the kitchen more specifically, with an international brand like Kellogg’s depicting the wife as less crabby and more willing to search for her husband blue socks, once she’s had a bowlful of their cereal…

I’m switching brands. 

In India, women are guaranteed equality, freedom, opportunity and protection by the Constitution – but the several provisions of the law that are seemingly created to uphold these constitutional rights and directives are often inadequate, unfairly worded and toothless, leaving women as perennial victims to domestic violence, including marital rape, and violence, discrimination and harassment both at the workplace and in the communities in which they live.

To compound these issues we have archaic laws to protect and safeguard women from eve-teasing, molestation, assault and rape, with the maximum punishment of life imprisonment in cases of rape under Sec 376 being used only in extreme circumstances, most often reduced on appeal. Further, the definition of ‘Rape’ under Sec 375, traditionally, only refers to rape in terms of penile penetration… with the Explanation to the section stating that “Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape”. In addition, the ‘age of consent’ in the section is contradictory and varies from 15 to 16 years of age. A point that is relevant considering the marriageable age for girls stands at 18 years in India.

The punishment for ‘Assault or criminal force to woman with intent to outrage her modesty’ – under Sec 354, IPC – also seems farcical, with the maximum punishment for this offence being two years imprisonment, or a fine or both imprisonment and fine. While Sec 509, IPC – ‘Word, gesture or act intended to insult the modesty of a woman’ – under which the loose term ‘eve teasing’ falls, carries a maximum punishment of a term of simple imprisonment which may extend to one year, or a fine instead of imprisonment, or both (imprisonment and fine).

Meanwhile the proposed Criminal Laws (Amendment) Bill, 2010 – which aims to increase the scope of the definition of “rape” under Sec 375, by the usage of the term ‘sexual assault’, and raises the age of consent to 18 years of age, is still to be enacted, which isn’t surprising considering the amendment is a half-baked attempt to change the laws with regard to sexual offences against women. One of the glaring anomalies is the unwillingness to include “marital rape” under the definition of rape, a depiction of how Indian society continues to treat women, as chattels… possessions of their husbands who own them, body and soul.

The amendment meanwhile also seeks to extend and increase the punishment for the offences of “Rape”… now termed as “sexual assault” under Sec 376 – to a maximum of seven years to life, with a fine and in case the offender is a police officer, public servant, a person in the management or staff of a jail, remand home or any other place of custody established under the law, or part of the management and staff of a hospital, or a relative of a person, in a position of trust or authority or is in a position of economic, social or political dominance – the punishment is to range from ten years to life imprisonment with a fine.

The punishments under Sections 376-A, B, C and D – have also been enhanced in the Bill in like manner, with the Bill also purporting to widen the scope of Sec 509 to make the offence punishable with maximum imprisonment (i.e. Simple imprisonment) extending to seven years and with a fine, of not less than one thousand rupees.  However, nowhere does the Amendment Bill seek to curtail instances of the use of criminal force or assault on women envisaged by Sec 354, which is in dire need of both revision and enhancement, since more often than not, offenders charged under this section tend to get away, with nothing more than a slap on the wrist, if at all an offence is registered in the first place.  As offences under this section (Sec 354) are not only bailable, but are also compoundable (i.e. they can be mutually settled by compromise between the offender and the victim, with in this case the permission of the Court) - this takes on a serious tone which needs to be addressed, more so in a traditional society like ours where most people are unlikely to lodge complaints for fear of being socially ostracised. The lack of sufficient punishment under this section, therefore, in cases where individuals do come forward to lodge complaints, not only serves as an impediment to the complainant but also fails to deter offenders, giving them the green signal as it were to perpetrate violence with impunity. That our legislative provisions are aimed at a curative rather than a preventative approach is apparent on a cursory examination of the laws regarding sexual offences, which in turn seems to indirectly abet the commission of more serious offences.  

Meanwhile, Sec 294, IPC – ‘Obscene acts and songs’, which punishes anyone who ‘annoys’ another by performing obscene acts in a public place or sings, recites or utters any obscene song, ballad or words, in or near a public place – with imprisonment which may extend to three months or with a fine or with both also seems inadequate and in dire need of amendment… as being a precursor to more serious forms of sexual harassment if left unchecked and unpunished.

Our laws therefore only seem to penalize after the deed.

Section 354 was prominently brought to the forefront by Justice R.S. Bachawat, who as part of the three judge bench, also comprising Chief Justice of India, A.K. Sarkar and Justice J.R. Mudholkar in:

State of Punjab v. Major Singh [AIR 1967 SC 63: 1967 Cri. L.J. 1 (S.C.): 1966 SCR (2) 286]

Held that -         

“The Code does not define “modesty”. What then is a woman's modesty? I think that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under s. 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section.”

The case being one of the rape of a seven and half month old infant, what is important in this instance, is the fact that for the first time, an infant girl-child was categorized as a ‘woman’, bringing her within the purview of the term – ‘outraging the modesty of a woman’ as contained under Sec 354, IPC.

Justice Bachawat went on to say –

“A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. In this case, the victim is a baby seven and half months old. She has not yet developed a sense of shame and has no awareness of sex. Nevertheless, from her very birth she possesses the modesty which is the attribute of her sex.”

In my opinion, though this case highlighted an important issue, that of the modesty of a woman, I do feel that in this particular instance, the court erred in not converting the offence to one of rape under Section 376, and the accused was convicted under the lesser charge of “Outraging the modesty of a woman” – sentenced to a term of rigorous imprisonment for a period of two years and a fine of rupees one thousand.

This definition came under the lens again in 2007, when the two judge bench of Justices Arijit Pasayat and S.H. Kapadia (now CJI) in:

Ramkripal s/o Shyamlal Charmakar vs State of Madhya Pradesh [2007 (4) SCR 125]

Reiterated that -

“The essence of woman’s modesty is her sex.” before going on to say that, “The act of pulling a woman, removing her sari, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence...”

Translated, this means that the offence of ‘outraging the modesty of a woman’, as contained in Section 354, will apply to crimes against women that stop short of penetration, in which case, the offence shall be one of Rape under Sec 376 IPC, under which the appellant in this case –Ramkripal, was rightly held guilty.

The government meanwhile continues to drag its feet on several key laws that need to be implemented, notable among them – ‘The Protection of Women Against Sexual Harassment at Work Place Bill, 2010’, which has its origins in the famous Vishaka judgement [Vishaka and ors. vs State of Rajasthan and ors., AIR 1997 SC 3011], wherein the Supreme Court laid down guidelines for the prevention of sexual harassment of women at the workplace, to be followed by all employers and institutions, until suitable legislation was put in place to address the issue. It has been fourteen years since that judgement.

The second very pertinent legislation that is pending before Parliament is – ‘The Protection of Children from Sexual Offences Bill, 2011’, a Bill which again and rather unfortunately seems to be punitive rather than preventive in nature. But considering the fact that we have no legislation aimed at protecting children from such offences, something does seem better than nothing.

So all things considered, what does ‘Slut Walk’ propose to do, in a society that’s as blinkered as ours, apart from garnering a few sniggers from the general public and an intellectual debate or two from the intelligentsia amongst us? And if I’m a man, will it change the way I look at women, or will I just look on as they march past me – whether shrouded from head to toe or dressed provocatively, whether an infant, a young woman, or a grandmother – and will it make a difference to the way I perceive them? Will I look on with admiration at their courage or will I dismiss it as a parody, and depending on how much beer I’ve had or if I’m on a testosterone high – will I pick out the ones I like, going off into little flights of fancy… imagining what I would do, if only I could…?   

Are we in India, and around the world ready for any debate or discussion or even a movement which chooses to de-objectify women, whether we call it a ‘Slut Walk’ or a ‘Besharmi Morcha’, or any such name, and are we a mature enough people, an evolved enough society, to realize that crimes occur because a perpetrator chooses to commit them, regardless of the victim?

In my opinion therefore, unless we have mechanisms in place and lessons in sensitivity imparted, to both our law- makers and law-enforcers, coupled with stringent and more effective legislation – aimed not just at penalizing offenders but at effectively preventing the occurrences of such offences, these crimes will continue, whether we ‘Slut Walk’ or not.

---

[1] The Hindi word ‘Besharmi’can be loosely translated as ‘shameless’

 

Pseudo-secularism and the Communal Violence Bill

We live in terrible times, sixty four years after independence when the nation was divided along religious lines we are still at war within. Communalism has meanwhile morphed from what was traditionally the Hindu-Muslim divide, into what is now the radical Hindu versus every other religious minority divide. I use the term radical Hindu, because that’s what this growing and very potent segment of blinkered right wing Hindu politics has led us to, a state of potential anarchy. 

I came across a web-page the other day where a certain individual proclaimed to the world that apart from the Babri Masjid, Vatican City too was constructed on the remains of a Hindu temple. It was such a far-fetched notion, I laughed, my feelings of irritation and dismay at his diatribe against the Muslim and Christian communities replaced by mirth. One cannot but feel sorry for such people who live in a world that’s unreal. But then they also cannot be dismissed, and I’m sure he’s not the only one harbouring such ridiculous thoughts, there are many others like him, and who like him, spread their delusional and hateful thoughts and ideas like tentacles, encircling other ill-informed and delusional persons. Who then swept up in a frenzy, fuelled by unemployment, dissatisfaction and poverty, perpetrate injustices on others, fanned by politicians who use them to forward their agenda and then leave them to their own and rather dangerous devices. Much like fanatical Islamic extremists who perpetrate acts of frenzied violence in the name of jihad, which has now morphed into a bad word instead of its more wholesome meaning of self-purification and of fighting the “Holy war” within, the war against desire, lust… it is an internal spiritual journey and its true meaning is now lost, amidst the hate and violence it spawns. And how can we forget those extremists amongst the Christians in other parts of the world who perpetrate acts of violence, hatred and bigotry in the name of that greatest messenger of peace. Extremism exists everywhere. 

The current Congress led UPA government meanwhile feigns ignorance, choosing to apply the laws and rules currently in place to curb acts of communal violence on a selective basis, motivated more by vote-bank politics than by a genuine attempt to stamp out all that is dysfunctional in society. The Kandhamal incident in Orissa is evidence enough of the fact that Christians do not constitute a viable vote-bank, except perhaps in Goa, Kerala and some North- Eastern States; everywhere else they may as well be damned. The Communal Violence Bill, 2011, is therefore another half-baked attempt by the government to look at this issue that has gained the status of a national crime. And the BJP/RSS rant that Sonia is Christian and is therefore pushing forward the Communal Violence Bill is akin to referring to Mussolini as god-fearing. Being born in India doesn’t make all Indians Hindu… just as being born in Italy does not make all Italians Catholic or even Christian in their beliefs. As for references to Sonia being a “Vatican spy”, she wasn’t and isn’t Catholic, even if somewhere down the line her family did profess the Christian faith, there is a huge difference there. But why debate on Sonia’s religion when there are a several points on which one can fault the Congress party or even the UPA led government, or for that matter the BJP, or any other political party or politician or anyone for that matter. Surely as a citizen of India, I have the right to stand for high political office, just as I have the right to vote. It should not matter if I am Hindu, Muslim, Christian, Parsi or Jew. I have an unquestionable right. 

Prior to the framing of the Communal Violence Bill, instances of communal violence were dealt with under the provisions of the Indian Penal Code (IPC), all of which find themselves reflected again with the same/similar quantum of punishment as laid down under the IPC, for instance –

S. 153A – Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony

S. 153B - Imputations, assertions prejudicial to national integration

S. 295 - Injuring or defiling place of worship with the intent to insult the religion of any class

S. 295A - Deliberate and malicious acts intending to outrage religious feelings of any class by insulting its religion or religious beliefs

S. 296 - Disturbing religious assembly

S. 297 - Trespassing on burial places, etc

S. 298 - Uttering words, etc. with deliberate intent to wound religious feelings of any person

And then there are the more general provisions which may be extended to acts that supplement/compliment acts of communal violence, namely –

S. 141 to S. 147 – which fall under ‘Offences against Public Tranquility’, and include ‘Unlawful assembly’, ‘Rioting', ‘Assaulting or obstructing public servant when suppressing riot, etc.’, among others

In addition, IPC Sections 302 –Murder, 307 – Attempt to Murder, 375 – Rape, 376 – Punishment for Rape and Ss. 322 - Voluntarily causing grievous hurt, 324 - Voluntarily causing hurt by dangerous weapons or means and S. 436 - Mischief by fire or explosive substance with intent to destroy house, etc. also find mention in the Communal Violence Bill, as they do in the IPC.

In addition to the IPC, some of the other laws that deal with communal violence in some form or the other include - The Arms Act, 1959, the Explosives Act, 1884, Prevention of Damage to Public Property Act, 1984, Places of Worship (Special Provisions) Act, 1991 and the Religious Institutions (Prevention of Misuse) Act, 1988, among others.

So now we have the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 which was first introduced in Parliament in 2005, before it swung back and forth amidst opposition from various sources, and now the BJP through Arun Jaitley has gone on record terming the Bill anti-Hindu and draconian, while Muslim and Christian leaders too have expressed their reservations on the Bill. Meanwhile civil society represented through a conglomeration of various organisations, notably – the Movement for Peace and Justice, the Bombay Catholic Sabha, EKTA (Committee for Communal Amity), Citizens Initiative for Peace, Association for Protection of Civil Rights, BUILD and the Human Rights Law Network have held several rounds of consultations on the Draft Bill, proposing amendments to the same, which were considered before the June 22, 2011 amendments were made public.

Initially termed as the ‘Communal and Sectarian Violence Bill, 2010” by the National Advisory Committee, some of the key points or ‘guiding principles’ of that version of the Bill included provisions to –

• Broaden the title and applicability of the law to include ‘communal and sectarian violence’
• Propose an independent National Authority to ensure effective compliance with the law, without disturbing the federal structure
• Ensure accountability and criminal liability of public officials for acts of omission and commission, in order to prevent or control communal and sectarian violence, extending timely and adequate rescue, relief and rehabilitation provisions
• Define communal and sectarian violence to cover both isolated incidents as well as mass crimes, against people based on religious, caste, linguistic, regional and other identities.
• Define and include new offences including sexual assault, enforced disappearances, torture, long-lasting social and economic boycott and genocide, among others
• Remove the prior sanction requirement for ‘Hate Speech’ as reflected in Ss. 153A and 153B of the IPC
• Impose a statutory obligation on the government to lay down national standards for victims of communal and sectarian violence - including rescue, relief, compensation, rehabilitation, resettlement, restitution, reparation and as well as recognizing the rights of internally displaced persons
• Make amendments to the CrPC and the Indian Evidence Act in order to meet the ‘extraordinary circumstance’ of communal and sectarian violence to protect victims’ rights
• Ensure that specific provisions for victim-witness rights are made under this law

But as always loopholes abound as do glaring errors of omission, and apart from some of the more obvious ones, for instance, that a ‘Statement of Objects and Reasons’ is missing in the Draft Bill – We wonder if the purpose of the Act, whatever that is, will be achieved in real terms, once it comes into effect.

Meanwhile Section 5 of the Draft Bill states that, “Offences under section 7 to 12 (both inclusive) shall be offences of communal and targeted violence”.

These Sections as explained below elucidate the provisions as laid out under the Draft Bill -

Section 7 – Sexual assault – the provisions of the section cover and bring with the ambit of the term ‘sexual assault’ the following acts perpetrated against a person belonging to a group by virtue of that person’s membership of that group, to include – if the person is a woman – Rape, gang rape, mass rape (i.e. the rape of several women belonging to that group). And if perpetrated against any person, without their consent or against their will, to include - The introduction by a man of his penis or any other body part or an object into the vagina, mouth or anus, of that person, causing harm or hurt to reproductive organs or genital organs of that person, exposing of one’s sexual organs in front of any person, sexual contact of any sort, including the performance of sexual acts for any length of time, removing the persons clothes, partially or fully, or compelling that person to undress himself or herself, partially or fully, in public view or otherwise, or parading that person in undressed state in public view or otherwise, or any other act or conduct that subjects that person to sexual indignity.

The term ‘consent’ is deemed under Explanation 2 of the section to mean – The unequivocal voluntary agreement where the person has by words, gestures, or any form of non-verbal communication, communicated willingness to participate in the act referred to in this section, where “unequivocal voluntary agreement” means willingness given for specific and be limited to the express act consented to under this Section. Explanation 3 goes on to clarify that consent in this section shall be deemed to be free of duress, threat, terror, fear, coercion, undue influence, misrepresentation or mistake of fact.

What was that again…?

“Unequivocal voluntary agreement” and “willingness to participate” – in what… Being sexually assaulted? How ridiculous is that!

[The June 22, 2011 Amendment thankfully sought to redefine the term ‘consent’ with the suggestion that the requirement of the victim having to prove that she/he did not consent to the sexual assault is to be dispensed with, as it is deemed to have been committed under circumstances which can be termed coercive. The amendment also proposed to make other changes to the Section by incorporating into the provision situations where a person belonging to a group is forced to commit sexual assault on a person of the same group by a non-group member, and in addition also proposed the introduction of specific procedures and evidentiary standards for sexual assault perpetrated in the context of communal and targeted violence.]

Section 8 – Hate propaganda – basically rehashes Sec 153A, of the IPC which promotes enmity between different groups by words, written or spoken or by signs etc, on grounds of religion, race, place of birth, residence, language, caste or community, or commits acts prejudicial to the maintenance of harmony on the same grounds as mentioned before etc… and applies it to the provisions of this Act to include – “whoever publishes, communicates or disseminates by words, either spoken or written, or by signs or by visible representation or otherwise acts inciting hatred causing clear and present danger of violence against a group or persons belonging to that group, in general or specifically, or disseminates or broadcasts any information, or publishes or displays any advertisement or notice, that could reasonably be construed to demonstrate an intention to promote or incite hatred or expose or is likely to expose the group or persons belonging to that group to such hatred, is said to be guilty of hate propaganda.”

[The June 22, 2011 Amendment proposed that the section be amended to remove the word ‘present’ from ‘clear and present danger’ as acts of violence may take place well after the initiation of hate propaganda. The amendment also proposed the addition of a proviso to exclude from the definition of ‘hate propaganda’ acts done which seek to promote values of equality and defend the principles enshrined in and fundamental rights guaranteed by the Constitution.]

Section 9 – Organized Communal and Targeted Violence – covers those acts of violence or threats of violence, or acts of intimidation, coercion committed by an individual, either singly or jointly with others, or as part of an association or on behalf of an association or acting under the influence of an association in a widespread or systematic nature, and which is knowingly directed against a group or part of a group, purely on account of their membership of that group. In situations where there is continuing widespread or systematic unlawful activity, the section purports to hold responsible for such activity any public servant who has been delegated with the duty to prevent communal and targeted violence, for his failure to prevent the same.

Section 10 – Aiding financially, materially or in kind for commission of offence under this Act – the section covers anyone who knowingly expends or supplies money or any material or aids in kind to further or support any acts deemed to be an offence under the Act. And such person will be said to be guilty of financially aiding in the commission of that offence.

Section 11 – Offence under the Indian Penal Code, 1860 – covers offences under the IPC as provided in – Schedule II, Parts A or B of the Act, when such offences are committed against any person belonging to a group by virtue of his or her membership to that group. In such instances the offences shall be deemed to be offences of communal and targeted violence and shall be dealt with accordingly.

Section 12 – Torture – This section, aimed at public servants or persons under the control or direction of or with the acquiescence of a public servant – holds them guilty of the offence of inflicting torture if they intentionally inflict pain or suffering, whether mental or physical, on a person belonging to a group by virtue of his or her membership of a group. The offence also includes the causing of grievous hurt or danger to life, limb or health or even sexual assault, for the purposes of obtaining from that person, or from a third person, information, or a confession or for the purposes of punishing that person for an act he or she or a third person committed or is suspected of having committed. The provision also extends to cover acts of intimidation or coercion of such persons or third persons, within the ambit of ‘torture’.

The proviso to the section however excludes pain, hurt or danger which may be caused or inflicted in accordance with law... leaving the provision open to abuse and misuse. After all in most instances of sectarian violence, often one finds the upholders of the law guilty of perpetrating the worst offences or at least being complicit in them.

[As per the June 22, 2011 Amendment the proviso to the above section is to be redrafted and the provisions of the section brought in consonance with the Rajya Sabha’s Select Committee recommendations on the Prevention of Torture Bill]

The amendments as mentioned above in brackets  […] were based on feedback received after placing the Draft Bill in the public domain on May 25, 2011, which were then endorsed by the National Advisory Council (NAC) on June 22, 2011, for legal vetting and drafting by Additional Solicitor General (ASG) Indira Jaising.

Given that the Bill has been dissected and re-dissected by all concerned from the majority and minority communities, with both expressing reservations, some of which are reflected in the amendments proposed to the Bill – it now moves to the next step, and one can well expect heated debates and other exchanges when it finally comes before Parliament.

What therefore is the purpose of this Act? What does it purport to do, in addition to what is already being covered under the IPC?

Nothing, really… Apart from the fact that if adopted by Parliament, the provisions of the Act will permit the center to intervene in cases of communal or targeted violence by invoking Article 355 of the Constitution, which considers it the duty of the union government to declare any case of communal violence as an “internal disturbance” and take appropriate action. 

According to Article 355:

“It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.”

So will the provisions of this Bill, when passed, amount to giving the centre arbitrary powers over any state where there is a government of a non-ally in power, in case of any incidence of what may be termed as ‘internal disturbance” wrought by instances viewed as “communal violence”?

Section 99, of the Bill – which deals with ‘Reparation and Restitution’ purports to include, the resettlement of persons or families affected by acts of organised communal and targeted violence in homes, dwellings and into places of livelihood, either in the existing locations or in new locations so as to restore them to the same situation as they were in prior to the acts of violence. This provision seems to be rather utopian, given that years after the anti-Christian violence in Orissa, many are still displaced and without homes. Even in the national capital, many victims of the anti-Sikh riots following Indira Gandhi’s assassination still await compensation, almost twenty-seven years after the event, and with many of them unable to trace the remains or find evidence as to the death of their loved ones, it remains a hopeless task.

The Act also proposes the establishment of a ‘Communal and Targeted Violence Relief and Rehabilitation Fund’, under Section 122 – but just as in the above case the efficacy of such a fund will have to be seen in motion, rather than on paper.

Another point of note can be found in the chapter on ‘Penalties’ (Chapter VIII of the Draft Bill) which largely reflects those as laid down under the IPC, and have not been enhanced, merely expanded on in keeping with the definitions of ‘Offences’ under the Bill as contained in Sections 7 – 12, prompting me to wonder, why not simply amend the IPC to broaden the scope of the offences as detailed under the Communal Violence Bill, with their respective penalties, enhancing them instead of maintaining the status quo, if at all it is to act as a deterrent?

Which brings me to some of the definitions under the Bill, of which, Section 3(c) of the Draft Bill defines; “communal and targeted violence” to mean and include “any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation”.

However what is striking is that the Act fails to define what is meant by the term ‘secular’ and the amendment of June 23^rd has chosen to simply lop off that part of the statement to have the section now read as:

Section 3(c) - “communal and targeted violence” to mean and include - "any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group."

So is India a Hindu nation, and is this secular face we display to the world just a farce? After all the word secular didn’t even exist in the original Constitution as it was when it came into effect on 26^th January 1950, having been passed by the Constituent Assembly on 26^th November 1948. It was an after-thought, added in retrospect twenty-six years later, by the forty-second amendment to the Constitution on 28^th August 1976. Why didn’t our founding fathers think it prudent to include it in the original draft and why did it take forty two amendments for our law-makers to realize that we are a secular nation, or did they take it for granted that we were, in a time when communal hatred was at its peak and when the nation had been torn apart, not so much by the British as by the politics of that time. Right-wingers among the majority community may vilify Gandhi as being the architect of Pakistan as much as Jinnah was, but I stand in defence of that individual who stood alone, against the joint forces of hatred and realised that it would be better to separate what was merely conjoined, two parts with the same heart but with different bodies, than to have the carnage go on. Perhaps it was a short-sighted vision, perhaps he was utopian, and perhaps all his years of fighting the system had left him diminished enough to think that the violence would end.

And then we look at Pakistan and see that they adopted their constitution only in 1956, a short lived document that lasted just 2 years before it was abrogated in 1958 with the promulgation of martial law. It would take two constitutions and a several political heads of State, and a cleaving off of their easterly limb, before Pakistan adopted the Constitution of 1973 which is still in force (with amendments) today, but they did at the very inception give themselves a religious identity, which we did not, choosing not to call ourselves a Hindu nation or at the very least adopt the term secular which has now come to stand for all that is not well within our religio-political makeup.

Section 3 (e) of the Bill defines the term “group” - to mean “a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India”, and by this definition excludes the majority community, thereby alienating them.  

Section 3 (j) meanwhile defines “victim” to mean, “any person belonging to a group as defined under this Act, who has suffered physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate”.

In essence therefore, while the act purports to term anyone who by virtue of the fact that they belong to a religious or linguistic minority, the “victim” of any act of communal violence, it fails to extend the same benefit to members of the religious or linguistic majority, in effect, Hindi speaking, Hindus who may also be targets of communal violence.

Why give the act a religious or linguistic angle I wonder, instead of treating communal violence as just that, violence based on differences of thought, ideology, religion, language, birth, place of residence, or other similar grounds, regardless of majority or minority. And by this Bill we purport to perpetrate just that, entrenching a divide that already runs deep, fanning further the politics of hate and division, and creating grounds for even more senseless acts of violence. And what will happen when the Congress led UPA loses the next general election, or the election after that, will the Bill if enacted be repealed?

So I am compelled to ask, if after all this is just the politics of appeasement once again.

If so the Act should be renamed as the Prevention of Communal and Targeted Violence against Religious & Linguistic Minorities Act, 2011 – then and only then can it be termed fair, else it would be a waste of paper, time and the efforts of thousands of individuals who have worked on an ill-thought out document.

           

On the Anniversary of 377

It’s that Mumbai Mirror again, today’s edition, July 2, 2011, but then I shouldn’t gripe about wrong information going out to the world, after all don’t reporters just report. At least that’s what they’re supposed to do. Not put words into the mouths of those who speak through their paper. In this case I’m referring to a certain Ma Faiza, no relation to Ma Baker, quoted on page 40, though the photograph the article carried would say otherwise. I almost want to put my hands up in the air and hand over all my money.

And then I read the article titled ‘Lets drink to queer’, and now I quote:

“Just because the law has changed it doesn’t mean people’s mindset has changed.”

Okay that wasn’t me speaking; my English isn’t quite so bad. I’m just quoting Ma Baker…sorry Faiza, as she refers to Section 377 of the Indian Penal Code. But then I stop dead in my tracks and ask myself if I’ve been malingering, idling away my time at work and missed something while I was at it. After all I am supposed to be a lawyer. But I haven’t, malingered that is. I just took two weeks off to go meditating. I’ve been working quite diligently otherwise, a copy of the Criminal Manual (Major Acts) sits right in front of me, and it’s a fairly recent edition. I flip it open to the relevant page and it stares at me… Section 377 Unnatural Offences. It looks the same as when I studied it.

I shut the book.

I met a boy on the train to Igatpuri, my co-passenger. The Indian Railways needs to be sued. They sell tickets on-line and you book a month in advance so that you get your preference of seat, and you opt for the window and you get it. And then the day cometh and you board the train at 6.00am, sleepy and without your breakfast, and guess what, someone reupholstered the seats and changed the numbering, so now it’s written in some blue marker or chalk on the walls (read: sides of bogie above your seat) and yes while the relevant change has reached the ticketing counter guys who issue regular tickets, no one bothered to update the online ticketing system. So while my e-ticket says 36W, W for window apparently, seat number 35 is also W on the regular ticket that my co-passenger brandishes. So I smile my cheeriest smile and ask him if I can keep sitting at the window, after all my tickets a W too, but no ordinary woman can stand up to a queen. He stomps his foot, pouts, then looks me squarely in the eye and in an accent that’s distinctly Maharashtrian-German tinged with a bit of south London says that he booked a window seat too and wants to look out of the window. After all I’m reading a book. Couldn’t argue with that, so I smile and moved over and fix my eyes onto page 10 of Kabul Disco, squinting in the poor light of the compartment at the small print, and silently curse my aging eyes that refuse to co-operate with the optometrist enough to get me a number.

“So what’s that you’re reading” he asks me five minutes later, after mumbling something to someone over the phone and fishing out two magazines, one with Baba Ramdev on the cover and the other with Ekta Kapoor.

“Not looking out of the window are you?” I retort… and he shrugs.

“It’s pouring outside, can’t see much” he responds, launching into a monologue on Ramdev and Anna Hazare and fasting and corruption… and how everyone is so dishonest in India, and how we have a bloody Italian ruling us. It’s not done he says, the British should never have left.

He’s just going to hold on to both his Indian and British passports for a little while longer.

Ehhh?

Well, why should I care? I mean if you can have ten passports and get away with it, good for you. 

He tells me he works with the High Commission. "German" he says… Hey! You just said you have a British passport. Oh, never mind…

And then he wants to know what I do.

“Ride in trains talking to pesky queens” I’m tempted to retort, but then I stop myself. I’m headed to meditate… right speech, right thought…

Right!

“I’m a lawyer”.

“Aah” he says, “So what do you think of Section…”

“377?” I ask and he nods.

“Yeah” he says, “I’m glad it’s gone… such an archaic law.”

“Gone where?” I ask, and then he tells me about the Delhi High Court judgement, sounding rather jubilant. “We won” he said finally, “but then a policeman was harassing me and my friend at Powai last evening, and he isn’t even gay, that’s illegal now, isn’t it?” He sounds so hopeful, but I have to tell him that while demanding a bribe is illegal, so is ‘carnal intercourse against the order of nature’, as Section 377 stands worded. Nothing has really changed, and except for the fact that the July 2, 2009 Delhi High Court judgement read down the section, effectively decriminalizing it, it still stands in the statute books, till it is repealed or amended to take consenting adults out of its purview. He looked shocked.

“Do you mean to tell me that I can still be arrested and charged under section 377 he asked” and I replied in the affirmative. The law still stands, it hasn’t changed.

Section 377, Unnatural offences, still reads as:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

So while it is true that Justices A.P.Shah and S. Muralidhar in their landmark judgement did state that, “We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”, the law still remains a part of the Indian Penal Code, and is still a cognizable, non-bailable, non-compoundable offence, punishable with imprisonment of 10 years to life and with a fine, though there are very few or almost no convictions recorded in the case of consenting adults in the recent known past. For the sake of the record though, it means that sodomy is still an unnatural offence, and the police can arrest you if they catch you in the act and slap on Section 377, which they often do especially in small towns and sometimes in big cities as well, primarily to extort money or even sexual favours.

“So where does the judgement come in” he asks, and I wonder why no one bothers to educate and inform the public.

“If your case comes up for hearing your advocate can cite the Delhi High Court judgement as precedent in the hope that it will be upheld, and it most likely will if you are in Delhi, but not necessarily so if you are in say, Mumbai” I tell him.

However Section 377 is not just an anti-homosexual provision, and the section does not merely target homosexual men who indulge in anal intercourse but brings within its ambit everything that goes beyond and outside the scope of male to female peno-vaginal intercourse. This means that oral sex too, regardless of whether it is heterosexual or homosexual is basically criminal. 

So despite the Delhi High Court judgement the section still stands until amended or repealed. And it cannot be repealed, unless Section 375, Rape and Section 376, Punishment for Rape, are both amended to bring within their ambit, sodomy against the will of the victim, or without his/her consent, and include all the provisions of those two sections to cover acts that are presently covered by Section 377, excluding acts of consensual intercourse between adults. In my opinion Section 377 should therefore stand, duly amended to exclude the latter.

The matter now lies in appeal before the Supreme Court. But for all those candle-bearers of civil society, namely Baba Ramdev and the religious heads of various denominations dead against legalizing homosexuality there’s common ground at last, a platform on which they can band enmasse against a common enemy to uphold what they perceive as natural and moral. The government too, busy trying to save itself the anti-corruption blushes, has chosen to ignore the issue, hoping that it will die down or perhaps raise its head after they’ve lost the next general election. And my poor train companion will have to wait a little while longer and shell out some more money to every passing cop who tries to harass him with the threat of arrest under this archaic law.

But then he can always call up the High Commission... British or German, and catch the first plane out.