97th Constitutional Amendment

The Constitution (Ninety Seventh Amendment) Act, 2011 has come into force from 12th January, 2012. The official Gazette notification can be found here: http://indiacode.nic.in/coiweb/amend/amend97.pdf

The amendment act makes certain changes in Article 19 (1) (c) and under Part IV of the Constitution Article 43B has been added. The amendment focuses on the rights of co-operative societies in India.

SLAVOJ ZIZEK "OCCUPY WALL STREET"...

SLAVOJ ZIZEK’S OCCUPY WALL STREET SPEECH

They are saying we are all losers, but the true losers are down there on Wall Street. They were bailed out by billions of our money. We are called socialists, but here there is always socialism for the rich. They say we don’t respect private property, but in the 2008 financial crash-down more hard-earned private property was destroyed than if all of us here were to be destroying it night and day for weeks. They tell you we are dreamers. The true dreamers are those who think things can go on indefinitely the way they are. We are not dreamers. We are the awakening from a dream that is turning into a nightmare. We are not destroying anything. We are only witnessing how the system is destroying itself. We all know the classic scene from cartoons. The cat reaches a precipice but it goes on walking, ignoring the fact that there is nothing beneath this ground. Only when it looks down and notices it, it falls down. This is what we are doing here. We are telling the guys there on Wall Street, "Hey, look down!"

In mid-April 2011, the Chinese government prohibited on TV, films, and novels all stories that contain alternate reality or time travel. This is a good sign for China. These people still dream about alternatives, so you have to prohibit this dreaming. Here, we don’t need a prohibition because the ruling system has even oppressed our capacity to dream. Look at the movies that we see all the time. It’s easy to imagine the end of the world. An asteroid destroying all life and so on. But you cannot imagine the end of capitalism.

So what are we doing here? Let me tell you a wonderful, old joke from Communist times. A guy was sent from East Germany to work in Siberia. He knew his mail would be read by censors, so he told his friends: “Let’s establish a code. If a letter you get from me is written in blue ink, it is true what I say. If it is written in red ink, it is false.” After a month, his friends get the first letter. Everything is in blue. It says, this letter: “Everything is wonderful here. Stores are full of good food. Movie theatres show good films from the west. Apartments are large and luxurious. The only thing you cannot buy is red ink.” This is how we live. We have all the freedoms we want. But what we are missing is red ink: the language to articulate our non-freedom. The way we are taught to speak about freedom— war on terror and so on—falsifies freedom. And this is what you are doing here. You are giving all of us red ink.

There is a danger. Don’t fall in love with yourselves. We have a nice time here. But remember, carnivals come cheap. What matters is the day after, when we will have to return to normal lives. Will there be any changes then? I don’t want you to remember these days, you know, like “Oh. we were young and it was beautiful.”
Remember that our basic message is “We are allowed to think about alternatives.” If the taboo is broken, we do not live in the best possible world. But there is a long road ahead. There are truly difficult questions that confront us. We know what we do not want. But what do we want? What social organization can replace capitalism? What type of new leaders do we want? Remember. The problem is not corruption or greed. The problem is the system. It forces you to be corrupt. Beware not only of the enemies, but also of false friends who are already working to dilute this process. In the same way you get coffee without caffeine, beer without alcohol, ice cream without fat, they will try to make this into a harmless, moral protest. A decaffienated protest. But the reason we are here is that we have had enough of a world where, to recycle Coke cans, to give a couple of dollars for charity, or to buy a Starbucks cappuccino where 1% goes to third world starving children is enough to make us feel good. After outsourcing work and torture, after marriage agencies are now outsourcing our love life, we can see that for a long time, we allow our political engagement also to be outsourced. We want it back.

We are not Communists if Communism means a system which collapsed in 1990. Remember that today those Communists are the most efficient, ruthless Capitalists. In China today, we have Capitalism which is even more dynamic than your American Capitalism, but doesn’t need democracy. Which means when you criticize Capitalism, don’t allow yourself to be blackmailed that you are against democracy. The marriage between democracy and Capitalism is over. The change is possible.

What do we perceive today as possible? Just follow the media. On the one hand, in technology and sexuality, everything seems to be possible. You can travel to the moon, you can become immortal by biogenetics, you can have sex with animals or whatever, but look at the field of society and economy. There, almost everything is considered impossible. You want to raise taxes by little bit for the rich. They tell you it’s impossible. We lose competitivity. You want more money for health care, they tell you, "Impossible, this means totalitarian state." There’s something wrong in the world, where you are promised to be immortal but cannot spend a little bit more for healthcare. Maybe we need to set our priorities straight here. We don’t want higher standard of living. We want a better standard of living. The only sense in which we are Communists is that we care for the commons. The commons of nature. The commons of privatized by intellectual property. The commons of biogenetics. For this, and only for this, we should fight.

Communism failed absolutely, but the problems of the commons are here. They are telling you we are not American here. But the conservatives fundamentalists who claim they really are American have to be reminded of something: What is Christianity? It’s the holy spirit. What is the holy spirit? It’s an egalitarian community of believers who are linked by love for each other, and who only have their own freedom and responsibility to do it. In this sense, the holy spirit is here now. And down there on Wall Street, there are pagans who are worshipping blasphemous idols. So all we need is patience. The only thing I’m afraid of is that we will someday just go home and then we will meet once a year, drinking beer, and nostaligically remembering “What a nice time we had here.” Promise yourselves that this will not be the case. We know that people often desire something but do not really want it. Don’t be afraid to really want what you desire. Thank you very much.

The Dirty Picture: Review

THE DIRTY PICTURE—UNVEILING THE DIRT WITHIN

Bhawna Gulati

The Dirty Picture—one of the most talked about movie in the year 2011 is receiving mixed responses apart from one unanimous verdict—Bravo Vidya. The movie depicts the life saga of a woman from a small village in Andhra Pradesh turning into the most sought after body in the south Indian film industry in the 1980s. However, contrary to the mass misconception the movie offers much more beyond the struggle of a ‘coming from nowhere’ south Indian porn star, cleavage showing by Silk (Vidya Balan) and her sad love life. The movie unveils not just the life trajectory of a famous south Indian star, Silk, in the 1980’s but also the hypocrisy of the society we live in. The character of Silk is analogous to the darkest character attributes that surround human beings. Their existence is known but could not be acknowledged.

Silk epitomizes that side of each one of us, which we know to exist but are too embarrassed to recognize or own it up. They are well appreciated as part of our own selves in lightless surroundings but in the bright lights any sort of acquaintance with them frights us of public opprobrium. The movie satirically depicts how each participant in the plot—the director, the actor, the journalist and the audiences—fulfill their desires, monetary and non-monetary, by encashing Silk’s sexuality yet they are capable of segregating the world into good and bad, pure and dirty. The movie also finely uncovers the prevailing gender discrimination at those times. The journalist in the movie, named ‘Naila’ (Anju Mahendru), though appreciate Silk’s so-called revolutionary attitude to fix the double standards of the society at the award evening, continues to remain the biggest critique throughout. Her advice to Silk ‘to remain as she is without thinking twice about what she is doing because her attitude will shape the revolutionary trend in society’ reaffirms the double standards because in spite of being a powerful agent of the society she was unable to publically propagate Silk’s bravado. Also the appreciation accorded to the ‘struggling’ director Ibrahim in the end, for making a movie of the same genre for which Silk was famous, depicts how the base level of subjective morality changes. When a man does the same thing as the woman was doing the ‘The Dirty Picture’ becomes ‘commercially viable film’. And to the author’s understanding, it was still Silk’s victory because ultimately what she said (“films run because of entertainment”) was proven right by Ibrahim adopting the similar strategy (minus Silk though) for his film.

Yet another example of gender bias—when the famous male film star ‘Surya’ felt offensive and said “pack up”, it was female actress’s (Silk) fault to respond to his humiliating remark of comparing a female actor in the movie to the plastic used for wrapping a cigarette packet. But when ‘Silk’ was ill treated by a director and said “pack up”, she was morally threatened of the expected downfall for saying no to work.

Though initially Silk was used for minting money by all stakeholders, her own unashamed gimmick of using her body as a short cut to success was not acceptable to the self-appointed moral protectors of the society. When her bold seductiveness became inevitable for anyone to ignore, it became the subject of criticism for being responsible for polluting the minds of male generation. By that logic, the criticism often accorded to smokers and drinkers should be considered ill-founded. If Silk is bad to show the world what they want to see then by the same logic, the cigarette and liquor manufacturers should be blamed for inducing innocent people into bad addictive life patterns. But ethics and morals are supposed to be the subjective cushions often used for human comfort. The movie shows how gradually Silk’s sexuality started haunting the very basis of the perceived ethics of the society. Her success posed doubts on the moral quotient of humanity because her success implied our appreciation of her skin show. Such stigmatic fear of facing the reality of the pretentious world forced humanity to put an end to further encounter with hard truths—putting an end to Silk. And she died. But the question remains whether it was just a suicide or a murder to cover up the naked realities which were uncovering with the shedding of her clothes. And she died all covered from head to toe in a red saree and a bindi. Though it was not indicated in the movie, but it seems that probably it was her innate desire to be seen as a woman, at least once, and not just as a body.

Of TEACHER' S DAY in India

Teacher's Day is celebrated in India on 5th September every year. It is celebrated in the memory of Dr. Sarvepalli Radhakrishnan as he was born on 5th September in 1888. He was an eminent teacher and academic philosopher. Since he was elevated from a teacher to become the President of India, therefore, in order to mark his achievement his birth date is celebrated as Teacher's Day in India.

Though I as a teacher remain extremely heartened to receive good wishes on the Teacher's Day however it is difficult to appreciate the underlying logic of it. Why should we celebrate as Teacher's Day the birth date of someone who became the President of India from being a teacher. One would wish to celebrate Teacher's Day when a President would step down from his presidency and start to teach. How can someone who has left the teaching so as to hold the presidency be an ideal for teaching profession. Is it celebration and elevation of teachers or presidents!

It seems that we are so dissatisfied with teaching as a profession that the only great moment for teachers can be when they become presidents! Alas, We hope for a day and a nation which will celebrate teachers day when someone from the highest post would resign in order to become a teacher...That would truly be a moment to celebrate for all the teachers. I bid adieu and leave you with these immortal words of Sufi poet Omar Khayyam:

Ah love! could you and I with Him conspire
To grasp this sorry scheme of things entire,
Would not we shatter it to bits - and then
Re-mould it nearer to the heart's desire!

OMAR KHAYYAM, Rubiyat

Anna Hazare Movement: Some Reflections

The Anna Hazare campaign against corruption in favor of the Lokpal Bill finally came to an end with the Parliament debating the Bill and seemingly accepting to consider some of the major demands made by 'Team-Anna'. In the post-protest scenario it becomes important to reflect upon this event and learn the lessons for the future.

The Indian left has branded the movement as typically "middle class" as it's definitional limits remains confined to corruption only as governmental one. What about the corruption of Global Capital/ Corporate sector, NGOs and Media itself asks Arundhati Roy in her critique of the movement. Partha Chatterjee in his article AGAINST CORRUPTION = AGAINST POLITICS argues on similar lines as he believes that the movement of Anna is a movement of Neo-Liberal Capitalist class which has emerged post 1991 and therefore the issue of corruption in public sector (which no more remains to be the most coveted sector for middle class Indians in the neo liberal era of corporatization). The less reflective thinkers have simply branded the movement as proto-fascist or even compared it to Kar seva type RSS oriented movement.

Marxists have defined the movement as one which leads us away from REAL issues of class struggle and thus is a part and parcel of ruse of bourgeoisie politics. The dalit activists are also all too unhappy with the 'vande matram' and 'Bharat Mata ki Jai' slogans and indeed they are, sadly, having a demonstration at Jantar Mantar tomorrow, 5th September 2011 against the Anna campaign!

So much so. But let us begin with asking certain basic questions. What is the role of Middle Class in India? Are we naive enough to fool ourselves into believing that Middle Class will help to strengthen the struggle of the working classes? No middle class in the world has ever done that...Middle class can only represent the anger felt due to a system which is tilted towards ruling classes. Of course, middle class remains imbued in an aspiration to be like the ruling classes. The point is that middle classes of India are having a struggle in its own manner so why not be a part of it and then critically give some direction on the lines of our heart's desire rather than boycotting it.

When the left says that the movement is taking us away from the real issues the it is pertinent to ask if there is any movement in India which is closer to addressing the REAL issues? Which is that movement? Then why can't Arundhati had joined the movement (as her erstwhile comrade Medha Patkar did) and appealed to include the issues of Global Capital? The left intellectuals are behaving in an ultra elitist fashion. As someone described them as eating cashew nuts and sipping tea when masses are on roads. This cashew-nut-intellectualism does not even recognize the fact that Anna-movement, though limited in scope, signals towards to hidden potential in people against the establishment which is required to be given a proper direction.

Women with children participated in this movement which predominantly remained without any destruction of public property, riot or other forms of obscenity. It is sad to even compare something like this to Kar Seva of Babri Demolition! What if the left intellectual class had joined the campaign and infused their critiques so as to use the mass support to further their agenda. This is an opportunity missed by the Left again. History is testimony to the fact that even BJP and Left parties fought the battle together in 1975 Emergency against the establishment. And left swept Bengal in 1977 when in 1971 there was Congress government in Bengal.

May be it is true that all those who joined the Anna campaign were not well-versed with the technical legal provisions of Lok Pal Bill. However, should that make us callously ignore the reality that so many people participated in the campaign against establishment with HONESTY? Because this to me is the key to understand the Anna movement. Intelligentsia should not not be blinded towards this fact unless it has become incorrigibly dis-topic. Anna movement represents a non-violent move of the middle classes against the establishment and every serious minded person who can dream for a change should not oppose it. The question is not that we support Anna or not the question is should we recognize the spirit of 'We, the people...' and find ways to transform it for a more meaningful struggle against establishment.

Those who are against the masses involved in this process seems to be echoing the old sarcastic phrase of Bertolt Brecht that if people can't be trusted to vote properly "let us change the People!" If that is what is the standpoint of the post-modern intelligentsia I leave it to the reader to decide as to what would be the revolutionary future of India!

Sans Law and Culture...

Sans Law and Culture…Apologies…

Sometimes (in fact most times) I wonder the futility of staying back
As much as I wonder the futility of running away
For it’s like an unending unstoppable fall from a cliff
Into an abysmal pit
Staying back or running away might change the track
But not the power of gravity.
So I let myself fall.

But sometimes (these are really sometimes) when I feel the turbulence in my stomach
That falling produces (same like the downward journey of the giant wheel)
And the vomity feeling that ensues
I feel like staying back
Or running away.
Staying back where
Running away where
Is there a place without the power of gravity
Without tall cliffs and dark pits
Where I take charge and say yes to no and no to yes
Where eyes speak like smiles when mouths choose to stay mum.

I like the blue oceans that I have never seen
And the naughty tides that I have never met
The way I like eyes without secrets of falling-feeling
And the smiles without choked words
And the footsteps that sometimes (these are some sometimes) scare me
And sometimes (in fact at all times) soothe me to a sleep without nightmares.
This world calls me
But I don’t know its way
Staying back? Running away? Or keep falling?

ABOUT THOSE E MAILS CARRYING ‘GOOD LUCK’ OR THREAT OF ‘DIVINE DISGRACE’

Almost every one, who has an email id, must have received mails promising good luck on same being forwarded to number of other people or threat of divine disgrace if not forwarded. Some times they also promise better luck depending on the number of people to whom such mails are forwarded. Following is the extracts of relevant portion of one such mail:

Send this (mail) to at least 5 people and your life will improve.
1-4 people: Your life will improve slightly.
5-9 people: Your life will improve to your liking.
9-14 people: You will have at least 5 surprises in the next 3 weeks
15 and above: Your life will improve drastically and everything you ever dreamed of will begin to take shape.

It must leave your hands in 6 MINUTES. Otherwise you will get a very unpleasant surprise. This is true, even if you are not superstitious, agnostic, or otherwise faith impaired.

Some times the threat will be more severe like the one (extract from another mail) below:

If you do not send this mail to anybody, your life will be a living hell.
You have 5 days to send this letter to at least 1 person.
You can send this to as many people, as you want to.
I am warning you.

Such promise of good luck or threat of divine disgrace comes along with some concocted stories, at times, stating that God appeared in the dream of some one and instructed him to spread it to all…and the chain should not be broken etc., etc.,

What is more disturbing is that people who are well educated and better qualified than the ordinary lot forward such emails. Some times I receive such emails from friends who have graduate or post-graduate degrees in law. What they are not understanding is that forwarding such mails would amount to an offence under section 508 of IPC. It reads as follows:

Section 508. Act caused by inducing person to believe that he will be rendered an object of the Divine displeasure. - Whoever voluntarily causes or attempts to cause any person to do anything which that person is not legally bound to do, or to omit to do anything which he is legally entitled to do, by inducing or attempting to induce that person to believe that he or any person in whom he is interested will become or will be rendered by some act of the offender an object of Divine displeasure if he does not do the thing which it is the object of the offender to cause him to do, or if he does the thing which it is the object of the offender to cause him to omit, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.


Some high courts have interpreted the provision very narrowly by emphasising more on the words “by some act of the offender”. According to the said interpretation, no act would amount to an offence under this provision unless there is an attempt to induce the person to believe that “he or any person in whom he is interested… will be rendered by some act of the offender an object of Divine displeasure” (emphasis supplied). According to this interpretation, mere act of forwarding such mails would not amount to an offence. But to construe so, is to render the words “will become or” meaningless. Thus, if construed in proper perspective, such act of forwarding emails carrying threat of divine disgrace would amount to an offence under this provision.

Forwarding such emails may be an innocuous or innocent act but what is to be noted is that “ignorance of law is not excusable”. An offence is an offence whether done with or without the knowledge of law. Even an illiterate cannot plead ignorance of law. How about ignorance of law by law graduates and post-graduates!

Whether one considers act of forwarding such mails as an offence or not, such acts certainly falls below the constitutionally expected standard of behaviour. Constitution imposes a duty on every citizen, inter alia, “to develop the scientific temper, humanism and the spirit of enquiry and reform” [Article 51-A (h)]. Spreading superstition by threatening the receiver of email that he/she will be subjected to divine disgrace unless the same mail is forwarded to others is contrary to the constitutional expectation that one shall develop the scientific temper, spirit of enquiry and reform.

Religious belief and faith in god is one thing, spreading superstition is yet another. The former has been accorded the status of fundamental right in the Constitution of India, whereas the latter is contrary to the fundamental duties imposed on the citizens. One should not mislead the innocents who are God fearing also.

Thus, before forwarding such emails, there is a need to pause and think.

Baldev Singh v. State of Punjab (2011): Blurring the category of 'Special and Adequate Reasons'

The two-judge bench of the Supreme Court in Baldev Singh v. State of Punjab (The judgment can be found here) delivered the judgment which can have serious long term consequences for the criminal justice system in India. The core issue before the court, as already discussed on the blog, was whether it is appropriate to mitigate or lessen the sentence of three appellants who have been convicted for gang rape by the lower and high court. The appellant’s contention, in their affidavits, was that the ‘parties have entered into a compromise’ and now there is ‘no misunderstanding between them’.

The Supreme Court observed that the “incident is an old one” and the “parties have themselves entered into a compromise”. The learned court found this to be a reason ‘special and adequate’ enough to uphold the conviction but reduce the punishment of the appellants to the period already undergone i.e. 3.5 years. However, the court enhanced the fine under the section and directed that each of the appellant will pay a sum of Rs. 50, 000 to the victim within a period of three months.

The law of rape under the Indian Penal Code, 1860 (IPC) provides for a mandatory minimum punishment of seven years on conviction in any case of rape. Further, after the 1983 amendments to the Code, which happened in the wake of tragic Mathura rape case, there is another category of aggravated forms of rape that has been added under clause (2) of section 376 wherein the mandatory minimum punishment has been enhanced to be 10 years and fine and the punishment may go up to life imprisonment depending upon the circumstances of the case in issue. The offence of ‘gang rape’ forms the part of such aggravated form of rape under clause (g) of section 376 of IPC. Therefore, the present case falls in the category of rape wherein a maximum punishment for life can be given but a minimum sentence of ten years along with fine is mandated by the section itself.

It may further be stressed that the entire category of ‘special and adequate reasons’ is provided to the court to give lesser punishment than prescribed but the same must be done by giving 'Special and adequate reaons'(proviso to section 376). This category has been carved out so as to ensure that there may be an occasion where the court might in the interest of justice desire to give less punishment. But to ensure that this should not become a way out to destroy the very idea of mandatory minimum punishment, the legislature imposed a requirement that such cases must be exceptional ones and that's why the requirement of 'Special' as well as 'Adequate' reasons to be given for any relaxation in punishment. The scheme might be obfuscated if this category of 'special and adequate reasons' is not understood as an exceptional one. Due care and caution needs to be exercised to distinguish the cases where the proviso of ‘special and adequate reasons’ can be evoked and where it ought not to be invoked. This care must be taken by the judges as if the category of ‘special and adequate reasons’ is blurred then there will remain no meaning to the finer distinctions between the categories dexterously crafted under the IPC.

Keeping the above law in mind one finds it difficult, if not entirely fails, to comprehend the reasons that the court has given for invoking the proviso and reducing the punishment of the convicted offenders to already undergone three and a half years, instead of the minimum that is prescribed for and awarded by the high court for the offence of gang rape.

The offence of rape is a non-compoundable offence under the Criminal Procedure Code, 1973 (CrPC.). This means that the law specifically disallows the parties to enter into any kind of compromise. This follows the fundamental principle of criminal jurisprudence that crime is an act which is against the society or the state. CrPC permits certain offences to be compounded if the parties decide the same. However, the offence of rape is clearly and unambiguously a non-compoundable offence.

So here we go: The Supreme Court of India in Baldev Singh is invoking the proviso and finding it 'adequate' to lessen the sentence even when the law in CrPC explicitly and in clear terms prohibits the same. Second, mere 'compromise between the parties' is taken as a 'special reason'. The judgment does not even mentions or investigates that why, and under what compelling circumstances, such compromise was effectuated? The court merely relies on the affidavit in the judgment. Will this decision not provide, for the well-off accused of rape, to somehow ensure that the victim enters into a compromise and then they may reduce the quantum of punishment for the most horrendous act committed against the integrity and autonomy of woman's body? In the days when courts write 5000 pages judgments to provide reasons for issues such as 'Whether Ram Lalla was born in Ayodhya?" all that the court finds fit to mitigate the punishment is that 'parties have compromised' without any further inquiry and merely in three pages!

Baldev Singh v. State is setting a dangerous trend that even reasons which are patently in contravention with the law of the land can be both 'adequate and special'. So the category can be used effectively to diminish punishment for rape even when the reasons are themselves illegal! Further, it relegates criminal law to a mere private dispute settlement mechanism as far as punishment is concerned. This blurs the whole category of 'special and adequate reasons'. Time and again arguments for providing death penalty to rapists are raised. No less than a revolt is necessitated against a decision where the reasons of 'compromise between parties' in a non-compoundable offence are considered sufficient to reduce the punishment to less than half of the statutorily provided mandatory minimum punishment.

Taking judicial note of ‘compromise in gang rape cases’: Can it be a mitigating factor?

The offence of rape is one of the most heinous offences that affects not only human body but also reproductive health, mental health and social well-being of the victim. In a society like ours where there are strong customs and taboos regarding sex and sexuality, the psychological trauma that the victim of rape has to undergo is inexplicable. Rape is a serious offence in every civilized country. So is the case in India. It is punished very severely. It is important to note that there is a demand to punish the offence of rape with death. An offence of rape is not compoundable in our legal system. In such a scenario, if the victim of rape and rapists reach a compromise, whether the courts can take judicial note of such a compromise in the course of administration of justice is an important question that arose in the wake of the recent Supreme Court judgment delivered on February 22, 2011 in Baldev Singh v. State of Punjab [Criminal Appeal No. 749 of 2007].
Section 376 (1) of the Indian Penal Code provides that an offender of rape shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable for fine. However, the statutory minimum of seven-year of imprisonment may be reduced further by the court under the proviso to clause (1) if there are “adequate and special reasons” in the case. However, an offence of ‘gang rape’ has been considered very grave and accordingly it has been subjected to more severe punishment under clause (2) of section 376. An offence of gang rape is “punishable with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.” Further exception has been made in the proviso to clause (2), which states: “Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years”.
There exists sentencing discretion under section 376. Judicial discretion has to be exercised on sound reasoning. Where there exists sentencing discretion, necessarily all the aggravating and mitigating factors have to be fully taken into consideration in passing an order on sentencing. Even in exercising the judicial discretion under proviso to clause (2) of section 376, it is imperative that the courts should take into account all the aggravating and mitigating factors and only when the mitigating factors are found “adequate and special”, punishment can be reduced to less than statutory minimum of 10 years.
In Baldev Singh v. State of Punjab (supra), the apex court reduced the punishments imposed on the convicts of gang rape taking into account three factors: (i) that the parties have entered into compromise and they wanted to put an end to the dispute; (ii) that the incident is very old. It had taken place 14 years back, and (iii) the appellants (i.e., rapists) and prosecutrix are married (not to each other). Can these factors be considered as “adequate and special reasons” to reduce the punishment below statutory minimum?
In our country where judicial delay is not uncommon, the fact that the incident took place 14 years back may not be considered so special. Further the reason that the prosecutrix (and even the offenders in this case) has married to some one else and has two children seems to be extraneous and cannot be considered a special reason either. It partly echo’s the earlier decision of the Supreme Court in Ram Kumar v. State of Haryana [(2006) 4 SCC 347]. The third and the most important factor is compromise between victim and rapists. Can the court take judicial note of such a compromise notwithstanding the fact that the offence of rape is not compoundable?
This is an issue that requires much thought and deeper reflections. Perhaps, laying down hard and fast rule in this regard would not leave any scope for flexibility even to an extent it is desirable in exceptional cases. However, having regard to the facts and circumstances of the instant case, where the prosecutrix had been gang raped and beaten up by the rapists, it seems inappropriate to take judicial note of compromise reached by them after several years. It is important to note that compromise was reached not between the parties (as the court said) but between a complainant and convicts. It was reached not at the stage when the case was at the stage of trial; not even when the appeal was pending before the high court but when the further appeal was pending before the Supreme Court - nearly 14 years after the incident. It is not clear as to under what circumstances victim has consented for compromise after such a long time. Without having regard to these factors, the Supreme Court commuted the sentence to the period already undergone by the convicts (i.e., 3 ½ years). Thus, none of the reasons stated in the judgment seem to be “adequate and special” so as to warrant punishment less than statutory minimum. Such an approach adopted by the court in sentencing doesn’t serve the objectives of criminal justice system. However, this decision once again stresses the need for formulating ‘sentencing policy’, which can guide the exercise of sentencing discretion.

Racist Ideology of Indian Supreme Court: More on Graham Staines Case

Ideology is still something that we live with even in the so called post-modern and what the free-market believers seriously want us to believe as post-ideological times! Ideology remains imbued into our minds as well as in the minds of those who run our political institutions. We are driven by and remain rooted more into ‘Ideology’ in the old Marxist sense as ‘false-consciousness’. What do I mean? Let me clarify the basics: What is Ideology? Let me explain by this old classic joke:

A man believes himself to be a grain of corn seed. He is taken to the mental asylum where doctors do their best to finally convince him that he is not a chicken but a man. However, when he is cured and convinced that he is not a grain but a man and allowed to leave the hospital he immediately comes back trembling, scared. “There is a chicken outside the door and I am afraid that the chicken will eat me”, he exclaims. The doctor obviously says his dialogue: “You know very well that you are not a grain but a man”. “Of course I know that”, replies the patient “but does the chicken knows it?”

This is precisely what ideology is all about. It is easy to convince YOU that your symptoms are just effects of your repressed traumas and so on. But, the problem is to convince the unconscious, which is as it were, the chicken, in you! So that’s the real problem with the talk of Tolerance and Multiculturalism. Though we all understand and say that tolerance of the Other is good and we are multicultural etc. but it is difficult to convince our unconscious habits. So racism goes on without our knowing it or, may I say, in spite of our superficial and outwardly denial of it.

The Para 43 paradox of the Graham Staines case that I have mentioned in the comment but worth re-illustrating is as follows: The apex court despite convicting Dara Singh for murder has this to say: “THOUGH Graham Staines and his two minor sons were burnt to death while they were sleeping...the intention was to teach a lesson to Graham Staines for his religious activities, namely, converting poor tribals to Christianity.” This becomes the rationale for not describing the inhuman and brutal act of Dara Singh as ‘rarerest of rare’ and thus for not giving him death penalty. Now the surprise awaits us: Two days later the court expunges or removes these remarks but retain the original decision on even more flimsy and stupid grounds! But how do we understand this expunging? How do we psychoanalyse it? Is it not the hidden ‘chicken’ or racist ideology against Christians in the minds of judges? I say definitely it is. This is how ideology functions, in our sub-conscious in spite of our denial of the same.

This hidden racist ideology of the Supreme Court makes the minorities (the Other) realise the facade and sham of liberal language of pluralism, tolerance and multiculturalism. That is why all talk of pluralism by the State becomes just like the trained man who is superficially convinced of not being a grain but still harbors the conviction of being one when he sees the chicken! The chicken still lurks deeper in the psyche of the Judges and in this case the chicken is ‘racism’. This is the true problem with Uniform Civil Code (UCC) debate. Whenever evoked by the Supreme Court is couched in the language of secularism and equality and so on, but under the skin lie the chicken of ‘racism’. That is why the minorities always, and rightly, oppose it. Please refer to the following ‘chicken comments’ of the Supreme Court in invocation of UCC in Sarla Mudgal Case (The second case after Shah Bano that evoked the UCC discussion). Almost in racist tone the court invokes the desire for UCC:

Since Hindu along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a Common Civil Code for the whole of India... Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation, the Indian Nation and no community could claim to remain a separate entity on the basis of religion. In this view of the matter no community can oppose the introduction of Common Civil Code for all citizens in the territory of India.’ (AIR 1995 SC 1351 at 1355)

The obvious reference to partition and to the ‘choice to remain in India’ is targeted at the Muslim minority (Parsees and Christians did not have any choice in the matter). This reference to ‘those who preferred to remain in India after the partition’ has long functioned as a warning to Indian Muslims from the Hindu right wing parties. So in the garb of universality and understanding of equality comes out the ‘chicken’, that is, the racist ideology which is the ‘chicken’. How seriously can the minorities take the multicultural and equality discourse of the court?

And was this also not the case in Ismail Faruqui (Babri Masjid Demolition case) when the court said that ‘Muslims can offer prayers (namaj) even in open’ and thereby denying them opportunity to offer prayers at Ayodhya site while allowing their Hindu counterparts. We are rooted in Ideology in post-modern times where it mushrooms as the fear of ‘chicken’ propped up in the joke. I am not saying that we need to completely give up the discourse of liberal pluralism and tolerance. But we need to understand this ideological underpinnings which governs human conduct and may I say the conduct of the Judges as well. Its time to agree first that in the post-cold war era also ideology guides the political institutions just as it did in the earlier or Lost) times. There is no escape from ideology and thus we better understand it. Converting problem of racism into liberal notions of lack of tolerance etc. is to confuse the very struggle against the monster even before beginning it. This is the most basic insight we need in order to begin to understand these lapses by the court in India and abroad.

Rethinking Aamir Khan's 3 Idiots

As a welcome note to the new author, Bhawna Gulati, on the blog I wish to share an old review of Aamir Khan's 3 Idiots which I wrote long back.


THE WISDOM OF IDIOTS: Film Review

Where is the life we have lost in living?
Where is the wisdom we have lost in knowledge?
Where is the knowledge we have lost in information?... T.S. Eliot

These famous lines of T.S. Eliot form the thematic concern of both the contemporary political milieu, wherein there are moves of making class X board exams optional, as well as the popular culture as depicted in the recent Amir Khan starrer 3 Idiots reflecting death of Humanism in the competition driven production of knowledge in Indian Universities. Undoubtedly, the object of these benign endeavors is appreciable as it seeks to eliminate the mimetic spirit and lack of individuality from the present educational system. However, both the attempts still await the accomplishments they seek to attain. The move of taking away board exams has already given rise to concerns that the school authorities with the power-access are making the gradation or internal assessment system equally, if not more, stressful and competitive as the system of board examinations. Rajkumar Hirani’s 3 Idiots, which has got a great opening, follows a similar trend. The movie which depicts the iconoclastic protagonist having a queer and rebellious way to conceptualize education forms the gang of idiots along with his other two college inmates as they do not follow the traditional path which preaches cut-throat competition and the rat-race rationality. However, in their idiocy they illuminate extraordinary wisdom which the others (so called 'wise people') have lost in gathering knowledge through information. The movie follows the classic literary wisdom that in a society which has gone mad only an idiot or madman of the society reflects sanity! In their heretic insanity they illustrate an extraordinary sanity absent clearly in the “intelligent” Others.

However, the movie, in my view, ultimately fell within the same trap it seeks to relentlessly question and expose. Eventually, the three idiots in the film obtain success in their respective fields. The problem is that in order to prove their worth to themselves and to the world at large they have to “succeed” in the traditional sense only. The final moments of the movie almost reinstate all the structures it seemingly explodes and questions. The climax saves the protagonist from being mocked at by the old rival, who followed the orthodox path, only as he is more “successful” than his rival. The more important part is that here "success" is also understood as in the terms of the competitive rat-race following rival. Thus, the ultimate victory remains the“success” of the protagonist and that too in the eyes of what French psychoanalyst Jacques Lacan would call the Big Other [the unknown other to whom we want to prove ourselves]. So Aamir Khan to be successful has to earn more money than his rival. That is where the movie incorporates the same logic which it vehemently opposes throughout. This way of falling in the trap is not an isolated case in Aamir Khan's otherwise radical films. The previous Amair Khan blockbuster Taare Zameen Par also endorses the logic of ‘structural adjustment’ in the same way by proclaiming that the differently abled child has to accomplish the number one position in order to be appreciated by the society at large. The protagonist can never be shown as a Vincent Van Gough who, could not get appreciation in his lifetime, defied the logic of worldly success as he remained content in his failure too. His posthumous appreciation proved, in true sense, that competence and talent reign much above “success”. In other words, the hero could have been a 'hero' and successful in spite of being a small school teacher but more human in his outlook for life than his rival who, as shown in the movie, is so devoid of humanity that a photograph where others see his wife (a human being) he can only focus on the big bungalow behind her! Would this not have been a truly radical and new way, though idealistic (but the movie is idealistic too), to re-define success for our hyper-globalizing society?

However, the final structural adjustment in no way undermines the major theme of radical change in educational system permeated throughout the movie and the fantastic manner in which the film is made. This trend to seek change in the existing structures of educational system, both at the political level as well as in the domain of popular culture, is reflective of the deep desire in the social psyche for an alchemical transformation of the educational system and base it on more human values, human love and human friendship. What is still desired is to find out a proper ending for such benign aspiration both in the movie as well as in life. We still remain arrested by corporate values, corporate friendship and may I say corporate love. So to borrow the Shakespearean wisdom we may say that ‘All is Well’ with the movie but it not necessarily Ends Well!

Candlelight that never glittered for Hemraj

Of the most recent murder cases that were sensationalized by media (both print and electronic media), the case popularly known as Aarushi murder case was one. Owing to the special efforts made by some of the 24 hours news repeating channels, the detailed facts of the case (as interpreted by the media) are in the public knowledge. It is now known to almost everyone that a 14-year-old school going girl was killed inside her room in the residential house by some (no) one. But it is not known to many that it was in fact a double murder case and one Mr. Hemraj – the unfortunate servant (domestic help) of the family to which Aarushi belonged to was also brutally murdered at the same time.

Many candlelight marches were held, with wide media coverage, seeking justice for Aarushi. No one remembered Hemraj. It was only recently (i.e., on January 5, 2011) that a group of students under the banner of NGO Noida Nirman took out a procession seeking justice for Hemraj displaying placard that read ‘Apna Khoon doosron ka paani, Hemraj ki yahee Kahani’ and ‘… Aarushi aur Jessica ki pukar hai, Baki sab bekar hai’. Even this expression of anguish by the students did not receive as much media coverage as that of the candlelight marches seeking justice for Aarushi or for Jassica. Little did the media understand that it was the protest mainly against itself?

Media has brought to light Aarushi’s parents and other relatives. Their faces are very familiar to every one now. Their voices have been heard and conveyed to all. But no one knows Hemraj’s family members, his near and dear ones. No one cared to meet them. No one knows their pain and suffering. Was the life of Hemraj so insignificant that his death does not matter?

“Natural lottery and arbitrariness of birth denies every one to have equal start in life.” An unjust society/system, on the other hand, continues to deny equal treatment throughout the life to those who are discriminated against by the arbitrariness of birth. It is unfortunate to note that the media, which enjoys constitutional protection in India, does not share the vision of the founding fathers of our Constitution i.e., to procure equality of status and of opportunity for all. Instead of promoting this constitutional value, it is contributing for perpetuation of inequality in the society. It denies access to the have-nots. The victimization of have-nots is considered as less important and such news are rarely carried. It is often been talked about but never taken seriously.

Even public response also largely depends on the importance media gives to particular news. If the candlelights have not glittered seeking justice for Hemraj, media is largely responsible for it. It does not, however, mean that there is no fault on the part of the candlelight activists. Perhaps one need to understand that the candlelight march is a method devised and mainly adopted by the elite in the society to protest against what is not acceptable to them and that explains why candlelight never glittered for Hemraj!

There is need to tell all that he too deserves justice!

Binayak Sen denied Bail by High Court...Justice in Tears!

This is the most painful moment for Human Rights future in India to receive the news of denial of bail to Binayak Sen by the high court yesterday. Denail of bail is a euphemism for denial of personal liberty to someone like Binayak Sen, who was committed to the cause of empowerment to the disenfranchised Indian citizenry. Someone whose commitment has been backed and appreciated by more than 40 Nobel Laureates across the globe! Legal vocabularies certainly possess the mask to hide the face of violence perpetrated by law itself. Alas, such vocabulary is scarcely available to the insurgent sections of Indian humanity. We all must attempt to expose and condemn this atrocious legal brutality in every possible manner. Thus, I fully share the urge to invoke the constitutional consciousness against such an archaic, arcane and anachronistic colonial law of sedition in the Indian Penal Code, 1860 which could make us relive Mohandas Gandhi’s plight in the post-independent India. Mohandas Gandhi remarked “Section 124-A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizens.” (Selection from Gandhi’s closing statement on March 23, 1922).

I feel that it is the right moment that we need to re-evoke the vanishing Gandhian consciousness against the text and interpretation put to section 124-A of IPC. Having said that, I must confess that I find it difficult, if not completely fail, to agree with the hyper-globalizing media activities to oppose the denial of bail by way pressing a button on our mobile phones! This sort of 'sms-justice' (almost obscenely eulogized in the rcent Bollywood flick No One Killed Jessica) can hardly lead us anywhere in the pursuit of justice . What great purpose save a venting of frustration can be served by ‘issuing 'sms'-es’? I fail to see myself more than a human rights hysteric guided by the 24 x 7 media consciousness (to evoke the very apposite invocations of Upendra Baxi) in being part of collective 'sms' writings. And issued to whom – Media? And what serious purpose do we sincerely feel it will serve save some appeasement of anger that engulfs us?

But if I see any hope in, or any role of, intellectuals (especially legal academia) in this moment of Historic time then I see it in developing an acumen of asking right questions rather than plunging into action. The counter-productivity of too-much-action can be best illustrated by this oft-quoted instance: When a number of people were protesting against the Bush Administration for invasion of Iraq and they came on roads and shouted slogans, what did Bush said? He said that “This is great...That is why we are invading Iraq so that their people can also protest against the rulers there as well”! This is not to say demean the activistic potential but just to emphasise on the subtle way establishment can co-opt the language of protest as the justification to do what is protested!

I implore everyone need to think and find ways to address the issue. I feel that our seriousness demands that we should not end up wasting our effort nor let die down the anger by indulging in trivialities. I honestly feel the role of intellectuals today is to make a serious distinction between human rights hystericism and human rights activism.

I was seriously intrigued by Prof. Upendra Baxi’s comment in Faculty Development Workshop in Jindal Global Law School on January 4, 2011, when he said that he refrains to sign any Statement against the conviction of Binayak Sen by trial court as he fails to get an affirmative answer, from those who issue them, to the simple question – Have they read the judgment in full? This made me certainly learn one social responsibility as a budding law teacher of How not to Judge the Judges! We need to forge ways to transform this moment of despair into a moment of hope or potentiality to challenge the ill-logic of law itself in the text of the judgment. The task remains how to convert this potentiality into actuality. An arduous task indeed. Whether we can do that and if so in what manner? That's the question we need to find answers to...

Supreme Court changing Para! Graham Staines Case

The Supreme Court bench comprising of T. Sathashivam and B.S. Chauhan ordered the deletion of a para in the Graham Staines Case. Previously, the apex court while not finding the case to fall under the category of 'rarest of rare' observed that " the intention [of the accused] was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity." This para now stands deleted from the decision due to much criticism elicited by it from the civil society as well as Christian organizations. Before we embark upon to discuss the newly inserted para the original one needs elaboration.

The judgment nowhere tenders evidence as to what Graham Staines was doing in the tribal areas of Orissa that can be styled as illegal. Further, the court never ventures to ask whether the said conversion of the 'poor tribals' a forceful or voluntary one? Or should we understand that even voluntary conversion should be sufficient to elicit the taint of the Supreme Court? In that case, how are we to understand the semantics of the expression 'propagate' under Article 25 of the Indian Constitution? Are we to understand that one may be tainted for exercising his/her Constitutionally protected right to 'propagate religion'? The sweeping comment of the court, which becomes the basis for not awarding the maximum penalty under the Indian Penal Code,, 1860 does not bother to answer these preliminary questions. Are we then constrained to say that the expression 'fools' should be justifiably replaced with the 'Indian Supreme Court bench' in the proverb: Fools rush in where angels fear to tread.

Here it may be noted that there was a lively debate in the Constituent Assembly as to the inclusion of the expression 'propagate' under what is now Article 25 of the Indian Constitution. After initial reluctance the expression was finally included within Article 25 and the inclusion was welcomed by the Christian members of the Assembly such as Jerome D'Souza. He remarked that the inclusion of the expression 'propagate' is "so reassuring and encouraging to the minorities, that we have no reason at all to quarrel or to ask for stronger assurances'. [See. Ronojoy Sen, Articles of Faith 108-127 (2010)]. In spite of such a clear mandate of the founding fathers as well as mothers of the paramount parchment the apex court in one of it old and ill-reasoned decisions held that 'propagate' does not include the right to 'convert'! (Rev. Stanislaus v. State of M.P. AIR 1977 SC 908). The court in Stanislaus case also failed to make a distinction between forceful and completely voluntary form of conversion. It is unfortunate that the perverse decision still stands as the law of the land. Perhaps, it needs to be overruled soon.

Be that as it may but, coming back to the Graham Staines case, one wonders how to read the new dexterity of the court in replacing the controversial para from its judgment. Is it an apologia tendered by the court for their incapacity to understand their own reasoning in the original pronouncement? Or, more optimistic reading is possible seeing the court as responsive to the social/ civil society criticism? Howsoever one may choose to read it the fact remains that it raises further questions which do not have an easy answer. For instance, is the judgment of the court comparable to a newspaper article or report wherein corrections can be made in the later edition! Is there any power or procedure which exists for such change of previous mistakes, in this weird fashion, on later self-realization? Further, how far the new logic of the court that the fact that Dara Singh has been incarcerated for 12 years already is a reason sufficient enough not to give him death penalty? Perhaps, the judgment should have been revised following a due procedure. If no such due procedure for revision exist then is not this executive power/ privilege arbitrary and foul Article 14? [At least in Administrative functions the apex court is 'State' within Article 12 and thereby amenable to Part III mandates].

Such questions need serious reflection. Justice A.K. Ganguly, when questioned about this ill-logic of the bench of the court by my Constitutional Law students described this as a un-desired surgery done by his brethren! (Seminar on Constitutional Litigation, 9th February 2011 at Jindal Global Law School). There hardly seems to be any justification for not categorizing the case as 'rarest of rare' when the dance of death was perpetrated in killing two young lives and that too unceremoniously in the name of God (Jai Bajrang Bali!). Do we still we need to debate the status of accused as terrorist? By all counts it seems hard to understand the new dimensions of the court's perverse logic, if any, in the case of Graham Staines. Its disheartening to see that such acrobatics can happen in a case which deserves severest condemnation to make the minorities feel that they too can witness the living reality, if any, of the rhetorical expression 'Rule of Law'.