The Brethren
- Rajeev Dhavan
There is a myth about the brotherhood of judges. In India, the higher brotherhood consists of High Court and Supreme Court judges. Although the Supreme Court is supreme, it is self confessedly not infallible. Justice Reddy’s account of Keshvananda’s case is hilariously disturbing. The ‘right’ and the ‘left’ judges opened up in acerbic dispute. It words could wound, they did. Way back in the 1960’s, a Gujarat judge judicially declared that he was duty bound to follow the Constitution not the Supreme Court. The High Court judges are bound to follow the law laid down by the Supreme Court (Article 141). But the brethren do not have to like each other. The pretence to do so increases when High Court judges have to be on best behaviour if they want to be Chief Justices of High Courts or on the Supreme Court. The relationship may be feudal; and caste based and affiliation considerations do not elude judicial appointments. Chief Justices are first amongst equals.
Public disagreement began when Justice D.V. Shylendra Kumar declared that the Chief Justice of India (CJI) could not speak for all the judges. Frankly, he was right. The judges were not individually consulted. There is no law that asst cannot be declared. The CJI probably does not even know the names of all the High Court judges. True, as former CJI Verma put it, the CJI must lead, but he must lead by example. Perhaps, initially this is a case where the CJI should not have gone to the press at all especially as the issue was before Parliament and the Supreme Court itself was in litigation in respect of the Right to Information application before the Courts. But the CJI is a public person and he is constantly asked questions by the press. So he answers their queries. Thus, without being controversial, he gets involved in controversy.
But, for the Chief Justice of India (CJI) to say of a brother judge that he was “publicity crazy” on the 23 August 2009 seems embarrassing not just for the judge but also for the brethren. The CJI’s view that the declaration of assets should not be made public was defensive – seeking to avoid embarrassment for the brethren. But, it so happened that the brethren were more embarrassed by the ‘half secret’ strategy of declaration without publication. Some judges felt they had nothing to hide. In fact, this was the view of many Supreme Court judges - made clear in the conclave meeting of the Supreme brethren on 26 August 2009. The question in the public minds on merits was: which was more embarrassing - the half secret policy or the full disclosure policy. The judiciary has a lot of power which it exercises with both courage and craft as well as to ambitiously enlarge the judicial power. This has already made the Indian judiciary the most powerful in the world. But, in a democratic set up in an open society, confidence for the judges and the judiciary has to be won. It does not fall like constitutional manna from heaven. The more ambitious an institution and the more broad based its popular appeal, all the more essential that the confidence of the people be ignited and continued.
A small needle of suspicion in the minds of the people about hidden assets and the last bastion of the rule of law would collapse. It cannot be over looked that there are already allegation of corruption against the judiciary. Enter the famous 1 in 5 (20%) of judges are corrupt; former CJI Bharucha’s deprecatory, but flamboyant, estimate. From the Bombay crisis of the early 1990’s to the Delhi crisis of the early 2000’s and the recent lingering crises in Allahabad and Chandigarh, many controversies have surfaced. But what is worse, is not the controversies that attracted publicity, but the rumours; and, they are many. The worst way to quell these rumours is to have a half secret policy whereby the judges reveal assets to the CJI, who will keep it under lock and key.
The public are as curious about their judges as they are about parliamentarians. It is the Supreme Court in the Common Cause and Association of Democratic Reforms cases which set the norm for public disclosure. Why should judges not be part of this open policy? In fact, judges who collectively decided lakhs of cases every year have greater reason to declare that their income has not gone up during their tenure. Many judges were successful at the bar. Some were not. Market place selection does not always choose ability best. Judges sacrifice a lot to become judges. Earlier High Court judges were often appointed in their 30s, now they are usually appointed in their forties – some in their fifties. The sacrifice is immense – combined the life of cloistered virtue they have to lead. But, the brethren, like Caeser’s wife, have to be above suspicion. In these troubled times, it is essential.
In my view, Justices D.V. Shylendra Kumar, K. Kannan, Chandru and B.H. Marlapalle led the way in stating their intention to declare their assets. We can cavil that they are “publicity seekers”. But, in this case, they have been rebels. They have, in fact, cut the guardian knot of this long lingering controversy which has engaged the RTI authorities, the Delhi High Court and the Supreme Court.
It is to the credit of the CJI that even though he adopted a variant ‘half secret’ view or ‘hidden-from-the-public’ approach that he was amenable to listening to his colleagues and change his mind to adopt the ‘full disclosure’ approach. The Supreme Court’s conclave discussion of 26 August 2009 also shows the openness and balance that we expect from the judiciary. This is, in fact, the governing principle of judicial decision making: firmness in decision making but always with an open mind.
The Supreme Court has also made it clear that judges will not entertain queries from the disclosure made on the website. This stresses that the disclosure is for the public interest and not to enable litigants, lawyers and the media to harass judges.
The Supreme Court and the rest of the higher judiciary have still a long way to go in the matter of judicial appointments and oversight over judicial indiscipline (including corruption). Our present methods to deal with these issues are weak. We need a National Judicial Commission.
Thursday, August 27, 2009
Monday, August 24, 2009
Publish and Be Damned
Publish and be Damned
Rajeev Dhavan
India guarantees free speech, but takes it away at will. Free speech is expensive. Censorship free. If the government does not get you, the goons will. If the goons are unleashed, their party bosses will act as pontiffs. The spiral of social and state censorship in India is increasing.
Jaswant Singh is an amiable man – not normally controversial. But he is a caught in the worst controversy of his life – humiliated by his political friends and unceremoniously expelled from the BJP without the dignity of courtesy or due process. His book Jinnah: India- Partition-Independence (Rupas, 2009) presses the case for Nehru, Sardar Patel, Gandhi and Mountbatten as the guilty men of Partition – to partially absolve Jinnah. Here, I am not really concerned with the merits of the controversy espoused by politicians like Lohia, lawyers like Seervai, historians like Ayesha Jalal, British apologists like Campbell-Johnson. History’s laws of causality are not so remote from commonsense or law. It seems incongruous to totally absolve Jinnah of his blackmail and insist that only the blackmailed goofed. Yet the latter cannot be given absolution. This argument will continue. No one can stop or silence it.
In our times the forces of censorship have been apocalyptically unleashed themselves like the dogs of war. India suffers two kind extreme censorship: social and state. The advent of social censorship is as frightening as it is spectacular. Hindutva’s protest against Deepa Mehta’s Fire and the Water. The filming of the latter stopped in Benares. Hussain’s paintings targeted for destruction. Art galleries destroyed in Gujarat. The library of the Bhandarkar Institute in Poona ransacked. An academic work on Shivaji banned in Mahrashtra which even the Supreme Court dealt with circumspectly. Even actors like Amitabh Bachchan are immediately and respectfully apologetic lest their films meet tension on the circuit. The now immortalized Michael Jackson paid respects to the Shiva Sena supreme to safeguard his concert. The BJP has impliedly supported this thuggery since its political existence depends on maintaining this vitriol. What was silent emerges in Arun Jaitley attack on Jaswant Singh’s book that his political party cannot “allow any member, more so a frontline leader to write and express views against the party’s core ideology”.
It is idle to contend that it is the RSS that is holding the BJP back. It is the BJP that flaunts its hindutva based censorship and uses it to political advantage. Disciplining Jaswant Singh is one thing, banning his book quite another.
With this we move to state censorship. To ban and burn books seems medieval. Under Indian law banned published material suffers forfeiture under Section 95 of the Criminal Procedure Code (Cr.P.C.) - to lie in government godowns with rats, mice; and eventually to be pulped or burnt. Books and material can be banned in three principle ways : (i) ban import and export under customs laws by the Union Government, (ii) ban by state governments, (iii) ban under local laws. Salman Rushdie’s Satanic Verses was banned in 1988 under customs law. So, too, in 1951 a photograph of Nehru wearing imperial robes! The book and film Nine hours to Rama. Earlier during the British period Katherine’s Mayo’s Mother India, Mrs. Gandhi banned Michael Brecher’s biography of Nehru in 1975. This is a deadly power.
But the real ban and forfeiture power vests with the states under the Cr.P.C. against publications on sedition, national integration, obscenity, promoting religious and other enmity between groups, or deliberately and maliciously outraging religious feelings. There is a rich history of bans including parts of Dayanand Saraswati’s Satyaratha Prakash, books on Islam and Christianity, the Communist Manifesto, Lenin’s Imperialism and so on. After independence, various states exercised this power principally to deal with communal situations, obscenity or political bans. In the later category was a ban on Congress Ka Khuni Itihas upheld by the Rajasthan High Court in 1951 and Sheikh Abdullah’s speeches in Nawa-i-Kashmir protected from ban by the Patna High Court in 1963 on a technicality. The courts were reasonably vigilant. In 1971, a ban on Agnee Pareeksha based on the Jain Ramayana was quashed by the Madhya Pradesh High Court, as also the Periyar Ramyana by Justice Krishna Iyer’s path breaking judgment in the Supreme Court in 1977. The ban on the play Me Nathuram Godse Boltoy was quashed by the Bombay High Court in 1971. Sahmat’s poster on the several versions of the Ramayana was quashed in the year 2000 by the Delhi High Court. Conversely the Supreme Court upheld the ban on Lady Chatterji’s Lover in 1965 which continues today.
The power of ban is irresponsibly exercised. In 1995, Maharashtra banned Salman Rushdie’s The Moor’s Last Sigh because Bal Thackeray felt that a character had similarities to him. The Supreme Court over turned this ban. In 2003, West Bengal banned Taslima Nasreen’s Dwikhandito.
In 2004, Maharashtra banned Laine’s Shivaji which was objected to by the High Court and the matter is before the Supreme Court. In 2009, the UP banned Jaishree Mishra’s Rani. Curiously apart from State censorship, court ordered litigation bans on grounds of defamation were imposed. Such as the Delhi High Court on Kuldip Nayar’s India House on lawyers objections, Khushwant Singh’s book on Maneka Gandhi’s objection which were later lifted. A Madhya Pradesh Police officer managed a MP High Court in 2009 on Dominique Lapierre’s It was Five Minutes Past Midnight. McDonald’s Polyester Prince on Dhirubhai Ambani is also enmeshed in litigation bans.
The state’s ban power, devised by the British in 1899 has become an irresponsible shoot- from-the-hip power as we can see in the UP ban of 2008, the West Bengal ban of 2003 and the Maharashtra bans of 1955 and 2004 – as deserved earlier.
Modi and the Sangh Parivar have violently supported an abuse of social and state censorship, statutory bans require (a) an exact delineation of the offending material, (b) clear reasons for the ban and (c) in the specific categories of sedition, communalism, obscenity and the like. Bans should come after due process, but most states rely upon a “ban-first-and-judicial-process” later clause.
Modi’s ban seems outrageous. It is clearly for party political reasons. The excuse of inspiring enmity between groups to breach public order is a hoax. Gujarat has become a state where the ruling party manufactures disorder and then, appropriates draconian powers for communal use. If the ban is to safeguard Sardar Patel’s reputation and win the vast ‘Patel’ vote, this smells of political malafide. Modi would like to be seen as the ruthless chhota sardar who acts decisively. But abusing such use of the state power is a roguish exercise.
What do we do with this power? After 110 years, these provisions empowering the state to exercise vicious powers for party political purposes need to be reviewed. Pre-censorship powers should not exist at all. Even if a ban is absolved, it takes years through the judicial process. Arguments and thoughts should be answered as arguments and thoughts. Censorship is never the answer. Take away free speech, Indian democracy would be fatally bruised. Elected dictators like Modi are ill equipped to exercise this brahma astra which should suffer new direct statutory safeguards against political abuse. Alternatively they should be abolished altogether.
Rajeev Dhavan
India guarantees free speech, but takes it away at will. Free speech is expensive. Censorship free. If the government does not get you, the goons will. If the goons are unleashed, their party bosses will act as pontiffs. The spiral of social and state censorship in India is increasing.
Jaswant Singh is an amiable man – not normally controversial. But he is a caught in the worst controversy of his life – humiliated by his political friends and unceremoniously expelled from the BJP without the dignity of courtesy or due process. His book Jinnah: India- Partition-Independence (Rupas, 2009) presses the case for Nehru, Sardar Patel, Gandhi and Mountbatten as the guilty men of Partition – to partially absolve Jinnah. Here, I am not really concerned with the merits of the controversy espoused by politicians like Lohia, lawyers like Seervai, historians like Ayesha Jalal, British apologists like Campbell-Johnson. History’s laws of causality are not so remote from commonsense or law. It seems incongruous to totally absolve Jinnah of his blackmail and insist that only the blackmailed goofed. Yet the latter cannot be given absolution. This argument will continue. No one can stop or silence it.
In our times the forces of censorship have been apocalyptically unleashed themselves like the dogs of war. India suffers two kind extreme censorship: social and state. The advent of social censorship is as frightening as it is spectacular. Hindutva’s protest against Deepa Mehta’s Fire and the Water. The filming of the latter stopped in Benares. Hussain’s paintings targeted for destruction. Art galleries destroyed in Gujarat. The library of the Bhandarkar Institute in Poona ransacked. An academic work on Shivaji banned in Mahrashtra which even the Supreme Court dealt with circumspectly. Even actors like Amitabh Bachchan are immediately and respectfully apologetic lest their films meet tension on the circuit. The now immortalized Michael Jackson paid respects to the Shiva Sena supreme to safeguard his concert. The BJP has impliedly supported this thuggery since its political existence depends on maintaining this vitriol. What was silent emerges in Arun Jaitley attack on Jaswant Singh’s book that his political party cannot “allow any member, more so a frontline leader to write and express views against the party’s core ideology”.
It is idle to contend that it is the RSS that is holding the BJP back. It is the BJP that flaunts its hindutva based censorship and uses it to political advantage. Disciplining Jaswant Singh is one thing, banning his book quite another.
With this we move to state censorship. To ban and burn books seems medieval. Under Indian law banned published material suffers forfeiture under Section 95 of the Criminal Procedure Code (Cr.P.C.) - to lie in government godowns with rats, mice; and eventually to be pulped or burnt. Books and material can be banned in three principle ways : (i) ban import and export under customs laws by the Union Government, (ii) ban by state governments, (iii) ban under local laws. Salman Rushdie’s Satanic Verses was banned in 1988 under customs law. So, too, in 1951 a photograph of Nehru wearing imperial robes! The book and film Nine hours to Rama. Earlier during the British period Katherine’s Mayo’s Mother India, Mrs. Gandhi banned Michael Brecher’s biography of Nehru in 1975. This is a deadly power.
But the real ban and forfeiture power vests with the states under the Cr.P.C. against publications on sedition, national integration, obscenity, promoting religious and other enmity between groups, or deliberately and maliciously outraging religious feelings. There is a rich history of bans including parts of Dayanand Saraswati’s Satyaratha Prakash, books on Islam and Christianity, the Communist Manifesto, Lenin’s Imperialism and so on. After independence, various states exercised this power principally to deal with communal situations, obscenity or political bans. In the later category was a ban on Congress Ka Khuni Itihas upheld by the Rajasthan High Court in 1951 and Sheikh Abdullah’s speeches in Nawa-i-Kashmir protected from ban by the Patna High Court in 1963 on a technicality. The courts were reasonably vigilant. In 1971, a ban on Agnee Pareeksha based on the Jain Ramayana was quashed by the Madhya Pradesh High Court, as also the Periyar Ramyana by Justice Krishna Iyer’s path breaking judgment in the Supreme Court in 1977. The ban on the play Me Nathuram Godse Boltoy was quashed by the Bombay High Court in 1971. Sahmat’s poster on the several versions of the Ramayana was quashed in the year 2000 by the Delhi High Court. Conversely the Supreme Court upheld the ban on Lady Chatterji’s Lover in 1965 which continues today.
The power of ban is irresponsibly exercised. In 1995, Maharashtra banned Salman Rushdie’s The Moor’s Last Sigh because Bal Thackeray felt that a character had similarities to him. The Supreme Court over turned this ban. In 2003, West Bengal banned Taslima Nasreen’s Dwikhandito.
In 2004, Maharashtra banned Laine’s Shivaji which was objected to by the High Court and the matter is before the Supreme Court. In 2009, the UP banned Jaishree Mishra’s Rani. Curiously apart from State censorship, court ordered litigation bans on grounds of defamation were imposed. Such as the Delhi High Court on Kuldip Nayar’s India House on lawyers objections, Khushwant Singh’s book on Maneka Gandhi’s objection which were later lifted. A Madhya Pradesh Police officer managed a MP High Court in 2009 on Dominique Lapierre’s It was Five Minutes Past Midnight. McDonald’s Polyester Prince on Dhirubhai Ambani is also enmeshed in litigation bans.
The state’s ban power, devised by the British in 1899 has become an irresponsible shoot- from-the-hip power as we can see in the UP ban of 2008, the West Bengal ban of 2003 and the Maharashtra bans of 1955 and 2004 – as deserved earlier.
Modi and the Sangh Parivar have violently supported an abuse of social and state censorship, statutory bans require (a) an exact delineation of the offending material, (b) clear reasons for the ban and (c) in the specific categories of sedition, communalism, obscenity and the like. Bans should come after due process, but most states rely upon a “ban-first-and-judicial-process” later clause.
Modi’s ban seems outrageous. It is clearly for party political reasons. The excuse of inspiring enmity between groups to breach public order is a hoax. Gujarat has become a state where the ruling party manufactures disorder and then, appropriates draconian powers for communal use. If the ban is to safeguard Sardar Patel’s reputation and win the vast ‘Patel’ vote, this smells of political malafide. Modi would like to be seen as the ruthless chhota sardar who acts decisively. But abusing such use of the state power is a roguish exercise.
What do we do with this power? After 110 years, these provisions empowering the state to exercise vicious powers for party political purposes need to be reviewed. Pre-censorship powers should not exist at all. Even if a ban is absolved, it takes years through the judicial process. Arguments and thoughts should be answered as arguments and thoughts. Censorship is never the answer. Take away free speech, Indian democracy would be fatally bruised. Elected dictators like Modi are ill equipped to exercise this brahma astra which should suffer new direct statutory safeguards against political abuse. Alternatively they should be abolished altogether.
Monday, August 10, 2009
Hidden Assets in the Ivoy Tower
HIDDEN ASSETS IN THE IVORY TOWER
- RAJEEV DHAVAN
Judges enjoy the opaqueness of their ivory tower. They are hugely powerful, having added to their armoury of power through the public interest law (PIL) movement, which has long since ceased to grow from the people. The power hunger continues. We can no longer presume that judges are above temptation. Chief Justice Bharucha’s deprecatory, but flamboyant, estimate - that 20% (1 in 5) of judges are corrupt - has not been dislodged from the public imagination. At all levels, judges can be rude, hasty and arbitrary – or even corrupt. This is not just the view of losing litigant or the frustrated lawyer. Fali Nariman’s frank advice: we have to take judges as we find them. But, judges cannot hide behind ivory curtains and demand confidentiality and judicial immunity from everything, including disclosing information which every public servant must disclose. The reason is obvious: immunity leads to impunity.
Over the last one year, public confidence in the judiciary is falling. The UP crisis of 2007-2009, alleging that a Supreme Court judge, High Court judges and District Court judges had received benefits from siphoned off employee funds, shook the nation. The Punjab crisis of 2008-2009 astounded the public. On 13 August 2008, a Rs. 15 lakh bribe intended for Justice Nirmal Yadav found its way to an innocent Nirmaljit Kaur – ignoring, as we must, saucy stories about the misadventure. A huge land deal was involved. In 2009, the CBI intimated the need for prosecuting Yadav. Nothing happened. In 2002, the State Chief Justice’s (Saharya) report deprecated the conduct of Justice Mehtab Singh Gill. In April 2006, the Vigilance Department taped two conversations between the judge and private persons. Earlier three Punjab and Haryana judges were taken off work. Justice Amarbir Singh Gill was asked to proceed on leave before retirement. Justice M.L. Singhal was absolved. The third was Justice Mehtab Gill. After this, nothing happened.
There were proceedings against Justice Shamit Mukherjee of the Delhi High Court, who resigned in 2003. In Madras, in 2009, Justice Reghupati disclosed he had been approached by a Minister. Recently, the Supreme Court denied Justice Kannadasan a post-retirement job because he was under suspicion, and not confirmed as a permanent judge of the High Court of Madras. This is the tip of the iceberg. Internal mechanisms of transfer of judges to other High Courts, non-allocation of work, or early retirement have not worked. Sometimes the wrong people are transferred, such as Justice Roy to Sikkim.
What will work? First: we cannot pretend we do not have a corruption problem in the judiciary. Second: secret informal solutions to deal with corruption and wrong behaviour by the Chief Justice of India (CJI) and other Chief Justices may continue; but they offer no real solution – in practice or theory. Third: what embarrasses judges is their financial lives being placed in the public domain – through the media. Fourth: a practical solution has to be found which will confront the real problem than misplaced notions of judicial self-embarrassment.
At present, some of the judges have a halfway house answer to these embarrassing facts – being more concerned about personal self-protection than public confidence in their work. On 7 May 1997, a Chief Justices’ conference declared that all judges should declare their assets to the CJI. Some did. Most did not. Successive CJIs have never examined the declaration given. The defaulters went scot free. So, the entire experiment of voluntary declarations failed. Judges did not keep their promise – in some cases not at all; in others without annual restatements of assets.
By 2009, the entire enthusiasm for transparency failed. On 6 January 2009, when the RTI Commission decided that the declarations of judges be revealed by the CJI, the Supreme Court rushed to the High Court to get an injunction order from Justice Ravinder Bhatt which he granted on 20 January 2009. So voluntary disclosure and RTI have both failed – all the more so because Attorney General arguing for the court hid behind the fact that the solemn promise of the judges of 7 May 1997 did not have the force of law!
Now, we have the Judges (Declaration of Assets and Liabilities) Bill 2009, which no one is happy with. Attorney General Vahanvati thinks “corruption in the judiciary is over-blown by the media”. On 1 July 2009 the CJI opposed the declaration of assets being made public-seeking some kind of procedural immunity. This was reiterated in an interview of 4 July. The Bill itself denied the declarations the disinfectant of candour, transparency and exposure to the public domain. On 20 July 2007 Law Minister Moily seemed to accept this pressure to accede to the CJI’s view.. On 21 July 2007, a suggestion was attributed to the cabinet that the declaration to the CJI be reposed in the President (which means the Cabinet). This was like taking milk to the cat. On 3 August 2009, a stormy debate followed in the Rajya Sabha. Arun Jaitley objected to clause 6 of the Bill on non-disclosure to the public and immunity from enquiry or query. He lambasted the government for leaking the Bill to the judiciary before introducing it before Parliament, which the government denied. MPs on all sides (eg. Brinda Karat, Jayanthi Natrajan, D. Raja and others) demanded a rethink. The irrepressible Ram Jethmalani called the Bill “a conspiracy in corruption”. Faced with a possible defeat in the votes, Law Minister Moily deferred the introduction of the bill.
We have to discuss this on principle. Principle I: Every public servant – judicial, executive, legislative or otherwise should declare assets, including receiving any presents from anybody, as a matter of public duty. Principle II: To support a system of such declarations, the voluntary duty should be supported by a statutory duty. Principle III: All declaration of assets of the public servant should be published and accessible through RTI, subject to exclusions which in the case of judges relates to the judicial decision making process. Principle IV: Since such declarations are similar to income and related tax returns, the declaration should also be sent to the tax department. Principle V: There can never be immunity from prosecution, but investigations and prosecutions should be subject to the sanction of the Chief Justice of India for High Court and Supreme Court judges; and the Chief Justice of the High Court for the lower judiciary. Investigations can be made by a special agency. Principle VI: Mechanisms must exist for informal investigations ordered by the CJI and other Chief Justices of High Courts. But the existence of such mechanisms cannot provide impunity or immunity from prosecution. Principle VII: A Judicial Commission is necessary with powers and mechanisms for appointments, investigation, reprimand, punishment and removal which will eventually be done through the impeachment process.
It is the judiciary that has taught us the value of freedom of information for governance. For judges to exclude themselves from RTI or object to bringing these declarations of assets in the public, is a volte face in the wrong direction.
- RAJEEV DHAVAN
Judges enjoy the opaqueness of their ivory tower. They are hugely powerful, having added to their armoury of power through the public interest law (PIL) movement, which has long since ceased to grow from the people. The power hunger continues. We can no longer presume that judges are above temptation. Chief Justice Bharucha’s deprecatory, but flamboyant, estimate - that 20% (1 in 5) of judges are corrupt - has not been dislodged from the public imagination. At all levels, judges can be rude, hasty and arbitrary – or even corrupt. This is not just the view of losing litigant or the frustrated lawyer. Fali Nariman’s frank advice: we have to take judges as we find them. But, judges cannot hide behind ivory curtains and demand confidentiality and judicial immunity from everything, including disclosing information which every public servant must disclose. The reason is obvious: immunity leads to impunity.
Over the last one year, public confidence in the judiciary is falling. The UP crisis of 2007-2009, alleging that a Supreme Court judge, High Court judges and District Court judges had received benefits from siphoned off employee funds, shook the nation. The Punjab crisis of 2008-2009 astounded the public. On 13 August 2008, a Rs. 15 lakh bribe intended for Justice Nirmal Yadav found its way to an innocent Nirmaljit Kaur – ignoring, as we must, saucy stories about the misadventure. A huge land deal was involved. In 2009, the CBI intimated the need for prosecuting Yadav. Nothing happened. In 2002, the State Chief Justice’s (Saharya) report deprecated the conduct of Justice Mehtab Singh Gill. In April 2006, the Vigilance Department taped two conversations between the judge and private persons. Earlier three Punjab and Haryana judges were taken off work. Justice Amarbir Singh Gill was asked to proceed on leave before retirement. Justice M.L. Singhal was absolved. The third was Justice Mehtab Gill. After this, nothing happened.
There were proceedings against Justice Shamit Mukherjee of the Delhi High Court, who resigned in 2003. In Madras, in 2009, Justice Reghupati disclosed he had been approached by a Minister. Recently, the Supreme Court denied Justice Kannadasan a post-retirement job because he was under suspicion, and not confirmed as a permanent judge of the High Court of Madras. This is the tip of the iceberg. Internal mechanisms of transfer of judges to other High Courts, non-allocation of work, or early retirement have not worked. Sometimes the wrong people are transferred, such as Justice Roy to Sikkim.
What will work? First: we cannot pretend we do not have a corruption problem in the judiciary. Second: secret informal solutions to deal with corruption and wrong behaviour by the Chief Justice of India (CJI) and other Chief Justices may continue; but they offer no real solution – in practice or theory. Third: what embarrasses judges is their financial lives being placed in the public domain – through the media. Fourth: a practical solution has to be found which will confront the real problem than misplaced notions of judicial self-embarrassment.
At present, some of the judges have a halfway house answer to these embarrassing facts – being more concerned about personal self-protection than public confidence in their work. On 7 May 1997, a Chief Justices’ conference declared that all judges should declare their assets to the CJI. Some did. Most did not. Successive CJIs have never examined the declaration given. The defaulters went scot free. So, the entire experiment of voluntary declarations failed. Judges did not keep their promise – in some cases not at all; in others without annual restatements of assets.
By 2009, the entire enthusiasm for transparency failed. On 6 January 2009, when the RTI Commission decided that the declarations of judges be revealed by the CJI, the Supreme Court rushed to the High Court to get an injunction order from Justice Ravinder Bhatt which he granted on 20 January 2009. So voluntary disclosure and RTI have both failed – all the more so because Attorney General arguing for the court hid behind the fact that the solemn promise of the judges of 7 May 1997 did not have the force of law!
Now, we have the Judges (Declaration of Assets and Liabilities) Bill 2009, which no one is happy with. Attorney General Vahanvati thinks “corruption in the judiciary is over-blown by the media”. On 1 July 2009 the CJI opposed the declaration of assets being made public-seeking some kind of procedural immunity. This was reiterated in an interview of 4 July. The Bill itself denied the declarations the disinfectant of candour, transparency and exposure to the public domain. On 20 July 2007 Law Minister Moily seemed to accept this pressure to accede to the CJI’s view.. On 21 July 2007, a suggestion was attributed to the cabinet that the declaration to the CJI be reposed in the President (which means the Cabinet). This was like taking milk to the cat. On 3 August 2009, a stormy debate followed in the Rajya Sabha. Arun Jaitley objected to clause 6 of the Bill on non-disclosure to the public and immunity from enquiry or query. He lambasted the government for leaking the Bill to the judiciary before introducing it before Parliament, which the government denied. MPs on all sides (eg. Brinda Karat, Jayanthi Natrajan, D. Raja and others) demanded a rethink. The irrepressible Ram Jethmalani called the Bill “a conspiracy in corruption”. Faced with a possible defeat in the votes, Law Minister Moily deferred the introduction of the bill.
We have to discuss this on principle. Principle I: Every public servant – judicial, executive, legislative or otherwise should declare assets, including receiving any presents from anybody, as a matter of public duty. Principle II: To support a system of such declarations, the voluntary duty should be supported by a statutory duty. Principle III: All declaration of assets of the public servant should be published and accessible through RTI, subject to exclusions which in the case of judges relates to the judicial decision making process. Principle IV: Since such declarations are similar to income and related tax returns, the declaration should also be sent to the tax department. Principle V: There can never be immunity from prosecution, but investigations and prosecutions should be subject to the sanction of the Chief Justice of India for High Court and Supreme Court judges; and the Chief Justice of the High Court for the lower judiciary. Investigations can be made by a special agency. Principle VI: Mechanisms must exist for informal investigations ordered by the CJI and other Chief Justices of High Courts. But the existence of such mechanisms cannot provide impunity or immunity from prosecution. Principle VII: A Judicial Commission is necessary with powers and mechanisms for appointments, investigation, reprimand, punishment and removal which will eventually be done through the impeachment process.
It is the judiciary that has taught us the value of freedom of information for governance. For judges to exclude themselves from RTI or object to bringing these declarations of assets in the public, is a volte face in the wrong direction.
Tuesday, July 28, 2009
Time to Act
PILSARC Editorial
How do we protect our heritage? On what basis? Through whom? India has a rich heritage which goes beyond the tourist money earning monuments in Delhi, Jaipur, Fatehpur Sikri, Bodh Gaya, Rajasthan, Khajuraho and various temples. The 'active' sites are protected by their use and endowments. The tourist sites have been privileged, but the neglected sites suffer from dilapidation and decay.
The Ancient Monuments and Archaeological Sites and Remains Act 1958 (originally enacted in 1904 by the British government in India) and the Antiquities and Art Treasures Act 1972 do not provide an adequate framework and are jumbled in their empowerment and aims. Separate legislation like for Hampi, Champaner and Majuli experiment with originality, functionability and conservation. Meanwhile, private parties have extended into the fray – some sophisticated and some with the mind set of business contractors.
In the absence of comprehensive and rigorous laws regulating heritage conservation in India, the Supreme Court has been more advanced than the executive or legislature in providing protection to heritage in India. The Supreme Court has established that heritage is part of Article 21 of the Constitution, and in numerous cases involving conflicts between heritage conservation and industrial development, the Court has ruled in favour of heritage conservation. But the Court cannot really deal with the how-to-do features of heritage conservation.
Heritage extends beyond monuments and sites to landscapes, customs, paintings, traditional knowledge, living areas, and other facets of intangible heritage such as songs. The National Commission for Heritage Sites Bill 2009 has defined the term “heritage site” under section 2 (c) of the Bill. This definition is essentially similar to the 1972 World Heritage Convention definition and limits its scope to heritage of ‘outstanding universal value.’ Therefore heritage of national and local importance is outside the purview of this Bill.
PILSARC is involved in an ongoing project on heritage conservation and law in collaboration with the School of Planning and Architecture. It is hoped that this project will lead to a draft national law which incorporates broader understandings of heritage conservation. For more details on the project, please contact the PILSARC office.
How do we protect our heritage? On what basis? Through whom? India has a rich heritage which goes beyond the tourist money earning monuments in Delhi, Jaipur, Fatehpur Sikri, Bodh Gaya, Rajasthan, Khajuraho and various temples. The 'active' sites are protected by their use and endowments. The tourist sites have been privileged, but the neglected sites suffer from dilapidation and decay.
The Ancient Monuments and Archaeological Sites and Remains Act 1958 (originally enacted in 1904 by the British government in India) and the Antiquities and Art Treasures Act 1972 do not provide an adequate framework and are jumbled in their empowerment and aims. Separate legislation like for Hampi, Champaner and Majuli experiment with originality, functionability and conservation. Meanwhile, private parties have extended into the fray – some sophisticated and some with the mind set of business contractors.
In the absence of comprehensive and rigorous laws regulating heritage conservation in India, the Supreme Court has been more advanced than the executive or legislature in providing protection to heritage in India. The Supreme Court has established that heritage is part of Article 21 of the Constitution, and in numerous cases involving conflicts between heritage conservation and industrial development, the Court has ruled in favour of heritage conservation. But the Court cannot really deal with the how-to-do features of heritage conservation.
Heritage extends beyond monuments and sites to landscapes, customs, paintings, traditional knowledge, living areas, and other facets of intangible heritage such as songs. The National Commission for Heritage Sites Bill 2009 has defined the term “heritage site” under section 2 (c) of the Bill. This definition is essentially similar to the 1972 World Heritage Convention definition and limits its scope to heritage of ‘outstanding universal value.’ Therefore heritage of national and local importance is outside the purview of this Bill.
PILSARC is involved in an ongoing project on heritage conservation and law in collaboration with the School of Planning and Architecture. It is hoped that this project will lead to a draft national law which incorporates broader understandings of heritage conservation. For more details on the project, please contact the PILSARC office.
Thursday, July 23, 2009
Mother's Right to Choose
Mother's Right to Choose
Rajeev Dhavan
Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.
What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.
The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.
The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.
This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?
If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.
All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.
For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.
Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.
Rajeev Dhavan
Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.
What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.
The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.
The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.
This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?
If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.
All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.
For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.
Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.
Tuesday, July 21, 2009
Stop the Madness
PILSARC Editorial
“I read that Rs.5 lakh was spent on a helicopter and Rs5 lakh was spent on petrol. It went to Meerut, Ghaziabad and Mathura. Why did it go? To give Rs25,000 to a girl raped in Meerut. In another rape case of a deaf and mute woman, her husband was given Rs25,000. In a third, the father of a girl who was raped and killed was given Rs75,000...I say (the victims should) throw such money at Maya and tell her that if she (Maya) is raped they are ready to pay her Rs1 crore...”, these were the U.P. Congress Chief, Rita Bahuguna Joshi's comments expressing anguish at the plight of Dalit women raped in Uttar Pradesh and trying to draw chief minister Mayawati's attention to crime against women. In spite of her intentions, the form in which these statements came out were certainly derogatory, triggering of an extreme reaction from the BSP cadre, followed by legal action.
A portion of her house was set on fire allegedly by the BSP activists and she was detained by the police for the remarks made. An FIR was lodged in the Majhola police station under the Schedule Caste, Scheduled Tribe (Prevention of Atrocities) Act, 1989; section 153A (promoting enmity between two groups on ground of religion or caste) and 509 (word or gesture aimed at outraging the modesty of a woman) of the IPC and section 7 of the Criminal Law Amendment Act. On 16th July, she was arrested and remanded to 14 days’ judicial custody and released on interim-bail on 18th July.
Ms. Joshi’s defence to the remarks made, is that she wanted to highlight the plight of the Dalit women. Ms. Joshi’s statements were certainly not in good taste, bordering on inflammatory. As Mr. Yogendra Yadav puts it: “In UP, politicians do not know how to be politically offensive without being personally vulgar”. In spite of being derogatory, Ms. Joshi’s remarks have some grain of truth in them – according to a data 50% of the complaints registered with the National Commission for Women (NCW) are from UP.
The UP Government was paying compensation in cases where Dalits were victims of rape or murder (ironically, the Mayawati administration was only following the compensation norms fixed by the Narasimha Rao government in 1995 in the form of rules framed under SC/STs Prevention of Atrocities Act 1980). The rules prescribe that in the case of rape, the Dalit victim is entitled to compensation of Rs 50,000 with the proviso that 50% of that sum should be paid immediately after her medical examination and the balance at the conclusion of the trial. On 17th July, Mayawati said in a press conference that her party did not approve of the monetary compensation for rape and murder victims given under the SC, ST Act as it hurt the pride of Dalits, and she would repeal the SC/STs Act.
Two years ago, Mayawati had sparked controversy by attacking Mulayam Yadav, then chief minister, for his own plan to compensate Muslim rape victims, calling on Muslims to pay hefty compensation to Yadav's daughter if she were raped. Today, Ms. Joshi has switched roles with Mayawati. In this political din, the real issue of Dalit women being raped has been forgotten. On average, a woman is raped every hour in the country – only one in 70 cases get reported.
PILSARC condemns the violent reaction by the BSP cadre by burning Ms. Joshi’s house. Such a response will only add to the problem. We believe that Ms. Joshi’s statements as well as BSP reaction were extreme and unwarranted. The people involved in torching Ms. Joshi’s house, should be booked and punished as a deterrent against such acts in the future. Congress should take responsibility for Ms. Joshi’s derogatory remarks and seriously think whether she deserves to continue as the UP Congress Chief. A well functioning democracy calls for dialogue and debate, not rabid statements and arson.
“I read that Rs.5 lakh was spent on a helicopter and Rs5 lakh was spent on petrol. It went to Meerut, Ghaziabad and Mathura. Why did it go? To give Rs25,000 to a girl raped in Meerut. In another rape case of a deaf and mute woman, her husband was given Rs25,000. In a third, the father of a girl who was raped and killed was given Rs75,000...I say (the victims should) throw such money at Maya and tell her that if she (Maya) is raped they are ready to pay her Rs1 crore...”, these were the U.P. Congress Chief, Rita Bahuguna Joshi's comments expressing anguish at the plight of Dalit women raped in Uttar Pradesh and trying to draw chief minister Mayawati's attention to crime against women. In spite of her intentions, the form in which these statements came out were certainly derogatory, triggering of an extreme reaction from the BSP cadre, followed by legal action.
A portion of her house was set on fire allegedly by the BSP activists and she was detained by the police for the remarks made. An FIR was lodged in the Majhola police station under the Schedule Caste, Scheduled Tribe (Prevention of Atrocities) Act, 1989; section 153A (promoting enmity between two groups on ground of religion or caste) and 509 (word or gesture aimed at outraging the modesty of a woman) of the IPC and section 7 of the Criminal Law Amendment Act. On 16th July, she was arrested and remanded to 14 days’ judicial custody and released on interim-bail on 18th July.
Ms. Joshi’s defence to the remarks made, is that she wanted to highlight the plight of the Dalit women. Ms. Joshi’s statements were certainly not in good taste, bordering on inflammatory. As Mr. Yogendra Yadav puts it: “In UP, politicians do not know how to be politically offensive without being personally vulgar”. In spite of being derogatory, Ms. Joshi’s remarks have some grain of truth in them – according to a data 50% of the complaints registered with the National Commission for Women (NCW) are from UP.
The UP Government was paying compensation in cases where Dalits were victims of rape or murder (ironically, the Mayawati administration was only following the compensation norms fixed by the Narasimha Rao government in 1995 in the form of rules framed under SC/STs Prevention of Atrocities Act 1980). The rules prescribe that in the case of rape, the Dalit victim is entitled to compensation of Rs 50,000 with the proviso that 50% of that sum should be paid immediately after her medical examination and the balance at the conclusion of the trial. On 17th July, Mayawati said in a press conference that her party did not approve of the monetary compensation for rape and murder victims given under the SC, ST Act as it hurt the pride of Dalits, and she would repeal the SC/STs Act.
Two years ago, Mayawati had sparked controversy by attacking Mulayam Yadav, then chief minister, for his own plan to compensate Muslim rape victims, calling on Muslims to pay hefty compensation to Yadav's daughter if she were raped. Today, Ms. Joshi has switched roles with Mayawati. In this political din, the real issue of Dalit women being raped has been forgotten. On average, a woman is raped every hour in the country – only one in 70 cases get reported.
PILSARC condemns the violent reaction by the BSP cadre by burning Ms. Joshi’s house. Such a response will only add to the problem. We believe that Ms. Joshi’s statements as well as BSP reaction were extreme and unwarranted. The people involved in torching Ms. Joshi’s house, should be booked and punished as a deterrent against such acts in the future. Congress should take responsibility for Ms. Joshi’s derogatory remarks and seriously think whether she deserves to continue as the UP Congress Chief. A well functioning democracy calls for dialogue and debate, not rabid statements and arson.
Without Prejudice
WITHOUT PREJUDICE
Regulation of Surrogacy in India
Gayatri Sharma
The Indian Council for Medical Research [ICMR] approached PILSARC with a draft of a proposed legislation to regulate assisted reproductive technology in India. PILSARC undertook to review the ICMR draft and suggest changes and on 15 June 2006, PILSARC handed over to the ICMR its revised proposals for an ART legislation titled “the Assisted Reproductive Technology (Regulation) Bill, 2006.” The ICMR circulated the revised draft amongst relevant experts for comments and suggestions. The revised draft is available online.
The desire for children and the social pressure on women to conceive is undoubtedly high. In Spain, Maria del Carmen Bousada de Lara became the oldest woman to give birth at the age of 66 in 2006. Her death two years later brought to light that she had lied about her age to the fertility clinic in order to avail of fertility treatment. In India, Rajo Devi Lohan, gave birth to her first child at the age of 70 with the aid of in vitro fertilization (IVF) treatment in November 2008. Rajo Devi's husband had married her younger sister in an attempt to have children, but when that failed and social ostracism grew, a neighbour informed the family of IVF. A 72 year old woman in the U.K has reportedly spent 30,000 Pounds on IVF in the attempt to conceive. IVF is a complicated and invasive procedure, yet thousands of women seek to undergo the treatment or alternatively search for surrogate mothers.
It is in this context that the Assisted Reproductive Technology (Regulation) Bill and Rules 2008, drafted by the ICMR in consultation with PILSARC needs to be examined. PILSARC did not attempt to draft rules or regulations for the implementation of the legislation as such an exercise would have required more time and expert interaction. The current ART Bill 2008 is a much modified version of the PILSARC draft. It is widely assumed that the Bill legalizes commercial surrogacy; however, in fact both the PILSARC draft and the ART Bill 2008 are silent on the issue of commercial surrogacy. Section 2 (t) of the ART Bill 2008 defines surrogacy agreement as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother.
There are several important differences between the PILSARC version of the Bill and the current ART Bill:
* A definition of 'couple' has been added in the ART Bill 2008, which "means the persons living together and having sexual relationship that is legal in the country/countries of which they are citizens or they are living in." This definition did not exist in the PILSARC version. Section 32 (1) of the Bill states that "Subject to the provisions of this Act and the rules and regulations made thereunder, ART shall be available to persons including single persons, married couples and unmarried couples." Same sex couples have not been included in this clause and it is implied that same sex couples living in or citizens of countries that criminalize homosexuality cannot avail of ART facilities in India. This includes most Indian gay couples. Section 377 of the Indian Penal Code was recently read down by the Delhi High Court; however, homosexuality remains illegal in other States of India and it is unclear how the legislature will react to this judgment. A verdict by the Supreme Court is awaited on the constitutional validity of section 377.
* Section 20 (10) of the ART Bill 2008 states that "No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be safe to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted." The PILSARC version did not stipulate this restriction.
* Section 38 (11) of the PILSARC draft - "If the person or persons who have availed of ART do not accept the custody of the child, the surrogate mother shall be entitled to claim all expenses, including maintenance, in relation to and on behalf of such child from them" - has been deleted. However, section 34 of the ART Bill 2008 states that all expenses of the surrogate mother related to the pregnancy achieved in furtherance of ART shall be borne by the couple or individual seeking surrogacy until the child is ready to be delivered, as per medical advice, to the biological parent or parents. Section 38 (11) of the PILSARC draft is far clearer and prevents a repetition of the Baby Manji case, where a Japanese couple divorced and no longer wanted the child carried by an Indian surrogate mother.
* Section 34 (16) of the ART Bill 2008 states that "In the event that the woman intending to be a surrogate mother is married, the consent of her spouse shall be required before she may act as such surrogate." This requirement did not exist in the PILSARC version.
* Extensive Rules have been added to the ART Bill 2008. These need to be reworked on as the sample application forms/consent forms at times contradict the Bill. For instance, Forms D, E, and F require the signature of a 'couple' or a husband and wife for availing of surrogacy, even though the Bill permits single individuals from availing of surrogacy.
* There are other differences in the two Bills; including additions of definitions, changes in the composition of the National Board and an increase in its powers to conduct research on human embryos, expansion on the duties of an ART clinic, regulation of research on embryos, and rights and duties of patients, donors, surrogates and children that have been made in the ART Bill 2008.[1]
The ART Bill 2008 is conservative. While the idea of regulating surrogacy is pragmatic and potentially beneficial to both the surrogate mother and the couple or individual who wish to avail of a surrogate, the ART Bill 2008 imposes restrictions that reinforce heterosexual and patriarchal assumptions.
The ART Bill needs to either delete its definition of 'couple' or expand it significantly to include all those involved in an intimate relationship and impliedly capable of looking after a child. It will then be clear that the Bill does not discriminate between couples in availing of ART facilities. Section 20 (10) of the ART Bill is confusing. A woman may be biologically capable of giving birth but unwilling to do so for any number of reasons. Sarah Jessica Parker has been rumoured to avail of a surrogate mother as she did not want pregnancy to interfere with her acting career. By refusing such women the right to avail of surrogacy, the Bill is playing a discriminatory moral game, which has not been justified by the ICMR as no statement of objects is provided in the Bill. Section 34 (16) of the Bill is based on an assumption the wife cannot make decisions pertaining to her own body without the consent of her husband, and that her husband actually cares about this decision. It neglects the reality that many married couples are separated and that women seek economic independence irrespective of their husband's views.
The ART Bill 2008 has generated criticism from women's organisations and legal groups such as Sama and Lawyers Collective. Greater consultations are necessary with lawyers, feminists, child activists, and medical practitioners before such a Bill can be enacted.
[1] For a full list of the differences between the two Bills, please contact the PILSARC office.
Regulation of Surrogacy in India
Gayatri Sharma
The Indian Council for Medical Research [ICMR] approached PILSARC with a draft of a proposed legislation to regulate assisted reproductive technology in India. PILSARC undertook to review the ICMR draft and suggest changes and on 15 June 2006, PILSARC handed over to the ICMR its revised proposals for an ART legislation titled “the Assisted Reproductive Technology (Regulation) Bill, 2006.” The ICMR circulated the revised draft amongst relevant experts for comments and suggestions. The revised draft is available online.
The desire for children and the social pressure on women to conceive is undoubtedly high. In Spain, Maria del Carmen Bousada de Lara became the oldest woman to give birth at the age of 66 in 2006. Her death two years later brought to light that she had lied about her age to the fertility clinic in order to avail of fertility treatment. In India, Rajo Devi Lohan, gave birth to her first child at the age of 70 with the aid of in vitro fertilization (IVF) treatment in November 2008. Rajo Devi's husband had married her younger sister in an attempt to have children, but when that failed and social ostracism grew, a neighbour informed the family of IVF. A 72 year old woman in the U.K has reportedly spent 30,000 Pounds on IVF in the attempt to conceive. IVF is a complicated and invasive procedure, yet thousands of women seek to undergo the treatment or alternatively search for surrogate mothers.
It is in this context that the Assisted Reproductive Technology (Regulation) Bill and Rules 2008, drafted by the ICMR in consultation with PILSARC needs to be examined. PILSARC did not attempt to draft rules or regulations for the implementation of the legislation as such an exercise would have required more time and expert interaction. The current ART Bill 2008 is a much modified version of the PILSARC draft. It is widely assumed that the Bill legalizes commercial surrogacy; however, in fact both the PILSARC draft and the ART Bill 2008 are silent on the issue of commercial surrogacy. Section 2 (t) of the ART Bill 2008 defines surrogacy agreement as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother.
There are several important differences between the PILSARC version of the Bill and the current ART Bill:
* A definition of 'couple' has been added in the ART Bill 2008, which "means the persons living together and having sexual relationship that is legal in the country/countries of which they are citizens or they are living in." This definition did not exist in the PILSARC version. Section 32 (1) of the Bill states that "Subject to the provisions of this Act and the rules and regulations made thereunder, ART shall be available to persons including single persons, married couples and unmarried couples." Same sex couples have not been included in this clause and it is implied that same sex couples living in or citizens of countries that criminalize homosexuality cannot avail of ART facilities in India. This includes most Indian gay couples. Section 377 of the Indian Penal Code was recently read down by the Delhi High Court; however, homosexuality remains illegal in other States of India and it is unclear how the legislature will react to this judgment. A verdict by the Supreme Court is awaited on the constitutional validity of section 377.
* Section 20 (10) of the ART Bill 2008 states that "No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be safe to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted." The PILSARC version did not stipulate this restriction.
* Section 38 (11) of the PILSARC draft - "If the person or persons who have availed of ART do not accept the custody of the child, the surrogate mother shall be entitled to claim all expenses, including maintenance, in relation to and on behalf of such child from them" - has been deleted. However, section 34 of the ART Bill 2008 states that all expenses of the surrogate mother related to the pregnancy achieved in furtherance of ART shall be borne by the couple or individual seeking surrogacy until the child is ready to be delivered, as per medical advice, to the biological parent or parents. Section 38 (11) of the PILSARC draft is far clearer and prevents a repetition of the Baby Manji case, where a Japanese couple divorced and no longer wanted the child carried by an Indian surrogate mother.
* Section 34 (16) of the ART Bill 2008 states that "In the event that the woman intending to be a surrogate mother is married, the consent of her spouse shall be required before she may act as such surrogate." This requirement did not exist in the PILSARC version.
* Extensive Rules have been added to the ART Bill 2008. These need to be reworked on as the sample application forms/consent forms at times contradict the Bill. For instance, Forms D, E, and F require the signature of a 'couple' or a husband and wife for availing of surrogacy, even though the Bill permits single individuals from availing of surrogacy.
* There are other differences in the two Bills; including additions of definitions, changes in the composition of the National Board and an increase in its powers to conduct research on human embryos, expansion on the duties of an ART clinic, regulation of research on embryos, and rights and duties of patients, donors, surrogates and children that have been made in the ART Bill 2008.[1]
The ART Bill 2008 is conservative. While the idea of regulating surrogacy is pragmatic and potentially beneficial to both the surrogate mother and the couple or individual who wish to avail of a surrogate, the ART Bill 2008 imposes restrictions that reinforce heterosexual and patriarchal assumptions.
The ART Bill needs to either delete its definition of 'couple' or expand it significantly to include all those involved in an intimate relationship and impliedly capable of looking after a child. It will then be clear that the Bill does not discriminate between couples in availing of ART facilities. Section 20 (10) of the ART Bill is confusing. A woman may be biologically capable of giving birth but unwilling to do so for any number of reasons. Sarah Jessica Parker has been rumoured to avail of a surrogate mother as she did not want pregnancy to interfere with her acting career. By refusing such women the right to avail of surrogacy, the Bill is playing a discriminatory moral game, which has not been justified by the ICMR as no statement of objects is provided in the Bill. Section 34 (16) of the Bill is based on an assumption the wife cannot make decisions pertaining to her own body without the consent of her husband, and that her husband actually cares about this decision. It neglects the reality that many married couples are separated and that women seek economic independence irrespective of their husband's views.
The ART Bill 2008 has generated criticism from women's organisations and legal groups such as Sama and Lawyers Collective. Greater consultations are necessary with lawyers, feminists, child activists, and medical practitioners before such a Bill can be enacted.
[1] For a full list of the differences between the two Bills, please contact the PILSARC office.
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