I blame Nehru, Ambedkar, Patel & Gandhi

I forced myself to watch the video that is now viral; you must watch it too. A man films himself beating another man to death in broad daylight, with what looks like an axe, then he sets the man on fire and declares, “This will be the fate of all ‘love jihadis’”. He counsels Hindu women not to fall for “love jihadis” and also says, “Bharat Mata ki Jai” and “Jai Hind”.

I blame Nehru. Not just Nehru, but also Gandhi, Patel, Ambedkar and Maulana Azad, among many others. I am not joking. I am now convinced that these people held India and Indians back from becoming what they could have become much earlier, what Indians were always slowly but surely destined to become. We are now on our way to fulfilling our destiny, but if not for these gentlemen, we would not have had to wait so long.
Gandhi believed India belongs to everyone equally, and there is no one superior religion or way of life. He literally died for this belief. Nehru and, believe it or not ,Patel loved Gandhi, and often turned to him for counsel. After Gandhi’s death, Patel said “We did not follow him when he was alive; let us at least follow his steps now that he is dead.” Within two months of Gandhi’s death, Patel had a heart attack, which he attributed to the “grief bottled up” due to Gandhi’s death. Nehru spent his entire life insisting on pluralism and secularism. Ambedkar spent his fighting not only caste, but insisting that every human being was equal. He gave us a Constitution which embodies this principal. It is therefore clear that the foundation stones of our nation held us back from becoming what we will now become — a Hindu Pakistan.

Imagine, instead, that a grouping of a majoritarian mentality, say the RSS, had instead been in charge of India from Day One. Religion would have been at the centre of our lives in every way. Their name is Pakistan; ours would have been ‘Punyasthaan’. There, children are radicalised early? Here, there would have been as many shakhas as there are milk shops. Our children would have grown up learning about Golwalkar and Godse, and training with swords, trishuls and, god-willing, guns too. Every child would have known the Gita by heart, and children would have said “Jai Shri Ram” instead of “good morning”.

Punyasthaan would have no place for anyone other than Hindus and thus there would be no social strife whatsoever. No wait, but Muslims are murdering each other over religion in Pakistan, aren’t they? No, let me think more about this one. Rana Pratap would not have had to wait for over 400 years to be declared the victor of the battle of Haldighati. There would have been a Yogi Adityanath in every state. Every citizen would have enjoyed their basic right – to violence. Every morning in school assemblies, children would have pledged never to let another Babur invade this country again. Even in 2017, we would have been able to comfortably live in the 15th century.

But all is not lost. I think many Indians no longer feel shackled. It is now time that one per cent of the country stops pretending that we are a civilised, modern, progressive nation. No, we no longer need to rein in our bloodlust; there are plenty of reasons justifying murder freely available — travelling with cows, owning cows, eating beef, inter-faith marriage, and more. In a state election, one party is trying to scare voters by spreading the rumour that a Muslim might become chief minister if citizens voted for a certain party. The national spokesperson of the party in power in the state is accusing Rahul Gandhi of being a bhakt of Babur, a 16th century king, and a relative of Allaudin Khilji, whose reign stretched across the 13th and 14th centuries. The message is clear, and it isn’t about either Babur or Khilji, but to wink-nudge claim that Rahul Gandhi is a Muslim. We live in a time when calling someone a murderer boosts and calling someone a Muslim diminishes their chances of electoral success. Free of our shackles, India is now more willing to accept murderers than it is to embrace anyone who is non-Hindu.

In another state election, an Indian politician declares that there will be celebrations in Pakistan if a certain party, comprising Indians, wins. Which party was in power when Bangladesh was born? Which party was in power during most military conflicts faced by India? Which party has been in power for most of our history, and yet we have managed to somehow not be mortgaged to Pakistan? But no one is pretending that the sentence had anything to do with Pakistan.

Unless you live in denial or are complicit, it is clear that a project is on to reduce Muslims to second-class citizenship, to ensure that it is a matter of shame to be in India and not be Hindu. When this happens, we will realise our true destiny and become who we were always meant to be – a nation of bloodthirsty religious fundamentalists. We will have finally overcome the efforts of our founding fathers to hold us back.

In India after Gandhi, Ramachandra Guha notes political scientist Robert Dahl predicting in 1947 that it was highly improbable that India would be able to sustain democratic institutions for long. He quotes British journalist Don Taylor writing in 1969 that it was incredible that a nation could emerge despite multiple religions, races and languages. It is often asked – what have governments done in the last 70 years? I have at least a part of the answer: They have held us back. But no more. We will prevail.

An edited version of this Article was first published in Mumbai Mirror

On abolishing Caste

Every once in a while, when there is too much talk of Caste based oppression, many well meaning Anti-Caste crusaders rise from the ashes, and come up with a novel idea-Caste must be abolished. Social Reformers mushroom and start urging those belonging to oppressed groups to stop using the Caste Card. Someone once said that the path to hell is paved with the grandest intentions and that seems to be the case here as well. I think these revolutionaries believe that abolishing caste involves:

1) Putting an end to the greatest injustice humanity has ever suffered- reservations.

2) A law which will have only one provision which will unambiguously and severely penalise any act of protest or complaining about any caste related discrimination.

This, is the heaven they want to live in and it is towards this goal that they believe abolishing Caste is necessary. With great respect, I don’t think that these great minds have thought this one through. They do not seem to have consulted the necessary stakeholders either.

I think what they really want to say and are probably falling shy of saying is-

There is no such thing as caste.

Or,

Please, stop whining about Caste.

It is a strategy that has succeeded well so far- caste oppression is barely taught in schools, the myth that caste discrimination remains restricted to a few villages is almost universal in appeal. I therefore see no reason for their inhibitions (other than the fact that they mean well) and urge them to consider some of the consequences that abolishing Caste bring upon our well-meaning society:

1) It would end the hegemony over manual scavenging jobs that those at the bottom of Caste hierarchy enjoy. A meritorious social order would have to be established where those belonging to upper Castes would leave jobs exclusively imposed on them for far too long. A report in the EPW said Over 90% of directors in the top 1000 companies in India are either Vaishyas or Brahmins. I shudder to think of their work life balance. No less than Prime Minister Narendra Modi has described Manual Scavenging as a spiritual experience ordained by the gods. Is it fair for other castes to be deprived of this divine spiritual experience?

2) Just like the Pre-Natal Diagnostic Techniques Act which outlaws gender determination of the fetus, a law such as the Pre-Marriage Caste Diagnostic Techniques act will have to be passed. Without that flood of classified matrimonial ads looking for a caste based match, our newspapers will feel barren. There will be no way to filter inter-caste marriage and dining. Anyone will be free to marry anyone regardless of caste. I can not imagine a greater horror. What is next, will we be next asked to abolish gender and sexuality? Men marrying men? Imagine the horror.

3) Like I said, it is unlikely that the necessary stakeholders have been consulted. Are upper castes prepared for the freedom available to them when they will be unshackled from the mundane tasks of managing temples and religious trusts? They have been doing this for so long, will it not be wiser to consult them, perhaps arrange for psychological re-orientation campaigns or a freedom movement which can be titled- From temples to toilets?

4) Abolishing caste would obviously mean less safety and a social shock for our middle class. Will they no longer be able to keep separate utensils for their domestic workers? Will these domestic workers now sit on the sofa instead of the floor?

5) Will dalit children now sit in the same classroom as other casteless children? Will they now be allowed to touch the food and utensils of casteless children? Will people have to stop poisoning  wells to prevent them from being used by Dalits?

6) Will we have to change the way we speak and stop using words like Bhangi, Chooda and Chamaar?  Where will this assault end?

7) Another grave matter will require an awareness campaign to inform about the perks, living conditions and remuneration for the major job avenue that will open for Upper Castes. This report says that in some cases money paid for manual scavenging was a meritorious Rs. Ten/month which was not paid for months. It also states that sometimes employers were generous and threw rotis from a distance as compensation. It talks about the living conditions of manual scavengers- perpetual sickness. Do all upper-class people have sufficient health insurance?

8) The same report also talks about how children of those who believe they have a caste are made to clean toilets and more in schools. Are children of upper caste people trained for these tasks? Will coaching centers and tutors have to rejig their curriculum?

The one great thing that these modern thinkers have already done is help us identify the most Casteist man in India’s history- B.R. Ambedkar. He went on and on about Caste didn’t he?

I must concede that it is entirely possible that I am underestimating the sheer willpower and brilliance of these new-age egalitarian thinkers, anchors, one-flop film directors. Maybe they can overcome all hurdles. In which case they must seize the challenge by it’s horns and show us all how a casteless society is designed. Nothing would prove their mettle more than one month spent by these people living the life of manual scavengers. I am sure the anchors who decide to do this will get the highest TRP for their channels-maybe a reality show can be designed around their brave mission. Are they upto the task?

The nation wants to know.

Triple Talaq is a terrible thing. It does not need to be criminalised.

If I asked a large group of men whether most matrimonial laws were being abused against men, I suspect the answer would be a resounding “yes”. If I asked the same group if marital rape should be criminalised, the answer would be a near-unanimous “no”. Last year, I had argued that marital rape should be criminalised, and received tonnes of angry feedback saying: It would be a terrible idea to bring the State inside the bedroom. Did I want to destroy the institution of family? Women could seek divorce if they are being raped. There will be a flood of innocent men being thrown into prison if marital rape is criminalised…. And so on.

I suspect the people making the above arguments will get their knickers in a twist when they hear about the Bill that the Narendra Modi government introduced in the Lok Sabha on Thursday, which the lower house passed – ostensibly out of concern for women whose husbands abandon them. The Bill intends to criminalise the practice of triple talaq. One would think there was no need for this because the Supreme Court of India has already held that triple talaq is void. The government, however, is arguing that since the practice continues despite the apex court judgment, making it a crime is necessary.

A day after arguments were concluded in the triple talaq case this year, I had written a piece criticising all political parties for pandering to regressive religious sentiments; criticising the media for creating a discourse demonising Muslims; criticising the court itself for not outlawing polygamy and nikah halala (and for not declaring that all personal laws must be consistent with fundamental rights); criticising the BJP for its motives behind its stand on triple talaq; and finally, arguing that no matter what, the Supreme Court must hold that triple talaq was unconstitutional. I feel the need to re-state that I had written this because we live in a time where everything is black and white. So any argument pointing out that there is something wrong with a law dealing with triple talaq is likely to be construed as supporting the practice of triple talaq itself. And lastly, being seen to be speaking in ‘favour of’ Muslims has become a crime bigger than all others.

The Bill criminalises “Talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”. This is absurd, because after the judgment of the Supreme Court, there isn’t any form of talaq which has this effect. Even the bill in question declares that the declaration of triple talaq will be “void” i.e. have no effect. The act has been made cognisable and non-bailable, and inviting a fine and imprisonment which may extend up to three years. A cognisable offence is one in which a cop does not need a warrant to make an arrest. Any information from any source and/or her own beliefs are enough for her to make the arrest. And non-bailable means that only the appropriate court will be able to grant bail to the accused.

So the government intends to pass a law where Muslim men can be thrown behind bars for pronouncing words which have no effect or, let’s say, for abandoning their wives. Even if a disgruntled neighbor, a bigot or a mischief-monger tells the police that a man has pronounced triple talaq, this would be sufficient to throw him into prison. Does this seem reasonable to you?

Is the government doing this out of concern for women? I may have believed that if it was as keen on criminalising marital rape, or decriminalising Section 377, or removing from the law books the remedy of “restitution of conjugal rights”. Then why is the government doing this?

The reasons are clear to those who want to see. Criminalising triple talaq serves several purposes. It is a leap forward towards the goal of reducing a section of Indians to second-class citizenship. It takes the campaign to demonise Muslims one step forward (the most recent incident being Ahmed Patel = Muslim = Pakistan = shock, horror!). It diminishes their freedom since they will now live not only in fear of being lynched but also in fear of being thrown behind bars for no fault. It gives the State extraordinary coercive power over Muslims and amplifies the overall environment of fear this government has set as the most important item on its agenda. It is also a politically low-hanging fruit because the BJP knows that no political party can dare criticise the Bill too much, lest it is seen as ‘favouring Muslims’.

The BJP has everyone believing that the moment they go out of power, India will become an Islamic state. The fact that this did not happen in the last 70 years is something everyone conveniently chooses to ignore. Is instant triple talaq a horrible thing? Sure. Should it be criminalised? No, that would be a remedy extremely disproportionate to the wrong. If this move of the government is going to have your support, go ahead. But let us not pretend it has anything to do with the well-being of women. Let’s not delude ourselves. Let’s not be fooled.

An edited version of this article was first published in Mumbai Mirror

On the 2G (No Scam) Judgment

A special CBI court has acquitted all accused in the 2G spectrum allocation scam. There is plenty in the judgment that revolts against the simplistic diagnosis that once again the powerful have gotten away because ‘enough evidence’ couldn’t be found. Before reading further, please note that: i) The case was instituted in 2011, during the UPA-II government. ii) The final arguments began in 2015, during the Modi government, and ended in 2017. iii) The public prosecutor is appointed by the government of the day. The judgment runs over 1,500 pages, but it is critical to reproduce and/or paraphrase some parts.

First, the court observed, “In the beginning, the prosecution started with the case with great enthusiasm and ardour… however, by the end, the quality of prosecution totally deteriorated, and it became directionless and diffident….” Second, on the role of the special public prosecutor, even in the final stages of the case, the court noted that the prosecutor was not even willing to sign applications and submissions. The court noted that the evidence on record supporting the allegations was NIL. Third (and this is an excerpt which deserves complete reproduction): “I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from 10 am to 5 pm, awaiting for someone with some legally admissible evidence in his possession, but all in vain. Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.” And fourth, and perhaps the most damning observation by the court: “Some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” Which people is the court referring to? Is it talking about Vinod Rai (appointed by the Modi government as chairman of the Bank Boards Bureau), under whose tenure as comptroller and auditor general reports were leaked to the media?

The judgment is scathing. It is not one which expresses anguish over any attempt to protect wrongdoers, but one that admonishes the prosecution for pursuing a seemingly cooked-up case, and not even following that up diligently. The whole matter raises more questions than it answers. Why didn’t the prosecution under this government follow up the case professionally? There are two possible reasons. First, that there never was any case, the CBI under the previous government filed one only because of media and public pressure, and the subsequent government couldn’t prove it. And second, that all political parties are hand in glove. If the first is true, was the real scam pulled on us by the BJP and a sensationalist media? If the second is true, then does the perception that the BJP is a paragon of honesty and virtue stand scrutiny?

The CBI has said it will file an appeal. It has, however, not said anything about any appeal against the discharge of Amit Shah in the Sohrabuddin case. Prime Minister Narendra Modi recently cried (again) and reminded everyone that the BJP is now in power in one more state than even Indira Gandhi was (ignore for the moment that there were less states in the latter’s time). The BJP heads a powerful government. Has it reformed the CBI? Has it introduced police reforms in any state? Has the BJP appointed a Lokpal? Has Anna Hazare started another campaign because of no Lokpal? No, no, no and no. Then how does the BJP have us fooled about what arighteous government it runs? And ever since its inception, why has a certain TV channel found it more convenient to talk about the three decade-old Bofors scam, but not the 2G scam? And why and how did most TV news channel go from attacking the government of the day to attacking the Opposition of the day?

I don’t have answers to all these questions. I do have a theory, though. Our nation is young, and has come a long way since its independence, but so much more needs to be done. A group of people addressed the aam janta and said, look, all your grievances exist because of corruption by those currently in power. If this corruption ends, you will be prosperous. You will have Rs 15 lakh in your accounts. Our focus was directed towards this monster of corruption. Anna Hazare took to the streets. Bring the honest guys in power, we were told. Governments all over the world have become smarter and understand that if you can manage perception, performance doesn’t matter. A Lokpal doesn’t have to be appointed; Ashok Khemka can still be hounded — just change the focus of the public.

My hunch is, now we are being told that we could have reached for the stars, if only it wasn’t for a certain community in the country. We are being told that lack of patriotism is the problem. Keep the patriotic guys in power, we are being told. What was that phrase again? Fool me once, shame on you. Fool me twice….

An edited version of this post was first published in Mumbai Mirror

On banning condom ads

After you finish reading this, hide this page from your child. Ask her to read something safer instead, like the comments uttered in the last election rally. With that disclaimer out of the way, read on….

2003: A Union Cabinet minister for Information & Broadcasting orders the state broadcaster to shift focus away from ‘condom-centric’ AIDS prevention ad campaigns. The country? India.

2014: Harsh Vardhan, the then health minister of India, echoes this line of thought. In an interview to The New York Times, he says, “The thrust of the AIDS campaign should not only be on the use of condoms. This sends the wrong message that you can have any kind of illicit sexual relationship, but as long as you’re using a condom, it’s fine.”

2011: Pharmacies are ordered to remove “immoral, sexual and crude” condom advertisements. In Iran.

2015: On World Population Day, Nathan Shah, a BJP MLA from Madhya Pradesh, labels family planning as being against “Indian culture”.

2016: Turkish President Erdogan says no Muslim can accept family planning and contraception. The same year in India, at a congregation of sadhus backed by the RSS, a ‘seer’ says Hindus must have 10 children, and god will take care of them. And in Pakistan, condom advertising is completely banned. Later, after protests by some sections, the ban is amended and restricted to a certain timeframe.

2017: India, which I argued last week is fast becoming Pakistan 2.0, has followed suit and banned condom ads between 6 am and 10 pm, apparently because the ads are “indecent”. This in a country where 44,000 women die each year from pregnancy-related complications; and the country that ranks third in the list of nations with the highest number of people living with HIV.

Per a report on Scroll.in, Dr Sam Prasad, country programme director of the AIDS Healthcare Foundation, described the daytime ban on condom ads as a retrograde move. I don’t think he was asked about whether this was a positive step as far as the morals of the country were concerned, or whether the government should bother itself with morals at all. What should receive more priority: culture, fidelity and morals, or unwanted pregnancies and the prevention of sexually transmitted diseases?

I must point out that the government hasn’t specified what constitutes ‘indecency’ and whether only ‘indecent’ ads will be banned; there seems to be a blanket ban on all condom ads. These developments have raised a few questions in my uncultured mind, which I would like to share:

First, which wise person believes that children only watch TV between 6 am and 10 pm (I am most intrigued by the ban on adverts during school hours —assuming that the ban really is for the benefit of children, that is)? Second, 10-year-olds use mobile phones these days. In the age of internet, who believes that it is possible to hide content from children, as opposed to educating and training them to process undesirable content? Third, even if the government has taken upon itself the noble task of saving children from moral corruption, why fixate on condoms in an age where everything from Mango drinks to cement is sold via advertisements that objectify women and are sexually suggestive?

Fourth, the child of a friend of mine recently asked her mother what her religion was, and whether her religion meant that she was a Pakistani. What exactly is it that the government must block on television to prevent such ideas from entering the minds of children? Fifth, when a person who compares women with demons and endorses calls for mass murder is appointed to high office, what effect does this have on children?

Sixth, and this is more a plea than a question, while the government is at it, can it please do all of us a big favour and also take a look at the effect of what is being passed off as information on many ‘news channels’? I am not sure, but I have a feeling that anchors screaming and inciting hatred all day have a far more damaging effect on morals and culture than anything else.

Finally, since the government is showing tremendous concern for children, any advice on what to tell the child who recently saw her father being lynched to death by a man who was recording this on camera? And to others who lost family members to violence that is passively encouraged or ignored by the powers that be? What should be blocked to prevent that?

An edited version of this article was first published on Mumbai Mirror

Hadiya and Draupadi

That man did not have the right to put fetters on my freedom and neither do you, a woman tells the court. Some debate follows. Did he have the right to decide what happens to her? A man says, of course, he did, and now we do. We will decide what will happen to her body, where she can and cannot go. These are the few similarities between what happened to Draupadi and what is happening to Hadiya. In Draupadi’s story, she is attacked by a person in the court and a man/’lord’ saves her.

The highest court of the land, the guardian of the Constitution of India and of individual liberty, is keeping an adult woman away from her husband because it suspects she may have been brainwashed by evangelists-cum terrorists. Even if there is a grand conspiracy to trap women into romantic alliances for terror-related activities, the most any court can do is lodge an FIR and throw people into prison. Hadiya, her husband, everyone who is a Muslim, throw everyone in prison on grounds that they may be associated with criminal activities.

But discussing whether an adult is speaking for herself, or has been brainwashed? Debating whether she is suffering from Stockholm Syndrome? Looking for ‘guardians’ for an adult? If any institution other than one which constantly hangs the sword over our head had done this, I would only have three words to say- how dare you!

Why doesn’t the Supreme Court just make our lives easier and direct the government to create an institution that will approve marriages between a Muslim and a person of any other faith? Why don’t the institutions of the State abandon all pretense and say, anything a Muslim does should be considered suspicious? The food they eat, the people they marry, the places they live in, the institutions they study in. The apex court has as much right to compel Hadiya to live at x place or under x person’s ‘guardianship’ as it does to compel you and me to whip ourselves with lashes, to dance naked on the streets, to bang our heads on the wall, to live with a particular uncle or aunt. What will you do the day the court actually directs you to do something as absurd? What is more absurd, asking a man to dance naked on the streets or telling an adult woman that she may have been brainwashed and thus can’t speak for herself? Who is to say that those giving her these sermons have not been brainwashed by the regressive patriarchal culture prevalent in this country? According to a report in Newslaundry, when Senior Advocate Indira Jaisingh tried to speak for Hadiya, she was met with dismissal and a remark that this wasn’t a gender justice issue? What if the judges in courts across the country have been brainwashed into not being able to recognize gender justice issues because they shamelessly continue to deny women entry on the bench?

I request the government of India, spare us this anguish, this shame, burn the Constitution of India and declare that the law will be whatever a judge sitting in the apex court decides it will be. Please explicitly declare that even the Constitution imposes no limits on what judges can and cannot do, and while you’re at it, remind everyone that the only people responsible for preserving the prestige of the court are those outside the court, not inside it. Those inside are above any boundaries whatsoever.

I have no hesitation in saying- the Supreme Court has conducted itself no better than the most regressive khap panchayat in the country. The difference is only of attire, location, fancy buildings and a façade of respectability.

Let me try a bit of good old plain-speaking. Hadiya is being punished because she married a Muslim, because she chose to convert to Islam – everything else is secondary. Any person, especially a woman, who dares to do this must obviously be brainwashed. The whole country must transform itself into an uncle and take her life into its hands to save her from something that is still extremely radical for women in this country – making decisions for themselves. At this rate, in a few years, the Supreme Court will take the burden of finding suitable grooms for all women on itself. The government will do a thorough investigation and guarantee the crime-free antecedents of the groom. The state will be one large, oppressive, disgusting joint family.

The woman, inside and outside the court has been repeatedly saying – give me freedom. Shame on us.

Supreme Court’s judgment on Privacy.

A nine judge bench of the Supreme Court of India yesterday unanimously held that privacy is a Fundamental Right. Simply put, this means that it has become extremely difficult for the State to make laws which infringe on a person’s privacy. 

If a layperson was compelled to read this 547 page judgment, the first thing she would notice and in all likelihood feel awestruck by, is how vast the ambit of ‘privacy’ really is. 

The judgment talks about surveillance; freedom to choose and express one’s gender and sexuality; it talks about reproductive rights, the right of an unwed mother to notify the father about the existence of the child; about the freedom to eat and wear what one wants to; it talks about the balancing of community interests with individual freedom; asserts that the individual is at the forefront of the constitution. If this judgment was written in or was translated in Hindi the one word which would feature a lot would be – aazaadi. The court reiterated that certain rights inhere in individuals and are not a concession granted by the state or even the constitution of India. It reminded the government and all of us that one of the most critical freedoms is the freedom to be let alone (unless there is compelling interest such as commission of a crime of course). The court has almost consigned to garbage its cruel judgment holding that S. 377 of the Indian Penal Code criminalising ‘unnatural sex’ is constitutional. Sooner (hopefully) or later the Indian State will not be able to oppress anyone for expressing their sexuality.

My favorite and rather timely bit given the times we are living in and the propaganda we are suffering is the following excerpt from the judgment: 

“We are unable to agree with the contention that in order to build a welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the State should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.” 

The court warns us that ‘freedom of the home’ or of an individual must not however be construed as women being oppressed inside homes, even if they are ‘willing’ to suffer this oppression. Hopefully one day the court will criminalise marital rape as well.

The government of India argued that privacy is too vague a concept to be given any constitutional protection. That privacy is the concern of the elite. The Supreme Court demolished both these rather ridiculous and shameless arguments. I have earlier written in this paper about what a failure of the court to hold that privacy is a fundamental right could have entailed; what the argument that individual privacy must be sacrificed at the altar of community interest means- to use a few more examples, it means that a citizen can be compelled to carry a recorder in her pocket at all times to ensure that she does not commit any crime; for every room including bathrooms of your house to have cctvs to ensure you don’t beat up your family or consume drugs. That a cop should accompany each citizen at all times. I am making these examples to illustrate the fallacy in the argument: “Why do you want privacy if you have nothing to hide.” It is only the elite who can argue that the poor don’t need privacy.

There are many other things this judgment is a reminder of- how grateful we must be for the constitution of India; how we must remain suspicious of those who disrespect it; what happens when institutions like the judiciary do their job (even if belatedly). It has reminded us about a fact that the journalist Ravish Kumar recently made in a blog post- citizens must not dissolve into the state, must not blindly trust any government. That unless stopped in their tracks almost all governments go to any lengths to control citizens and deprive them of their freedoms. It illustrates the limits governments are willing to go to unless checked by institutions and citizens. 

While our dear leader had promptly tweeted about how the judgment outlawing triple talaq empowers muslim women, at the time of writing this piece there isn’t a whisper from him for the privacy judgment which protects women across religions in a far broader manner.

There was however more than a whisper from Ravishankar Prasad a Union Cabinet Minister about the judgment. He spoke a white lie and argued that in fact the government had never opposed privacy becoming a fundamental right. If this is true i) I am not sure what the government was resisting in court ii) The Supreme Court of India is lying iii) The Attorney General has acted against the government’s instructions and must be most embarrassed and in an awkward position now. I am grateful to Prasad however- he has done the most to demonstrate that the government is capable of speaking white lies. 

Today they are saying this, tomorrow they could say they have won the election even if they lose it (oh wait). A small bit of unsolicited advice for him- not everyone is good at speaking white lies. If the government was going to speak one they should have at least sent their best liar to bat for them. So far we haven’t heard from him on this.

An edited version of this post was first published in Mumbai Mirror

Triple Talaq- The courts, the politics, the society and the media.

Yesterday, the Supreme Court of India finished hearing arguments in a case challenging the constitutionality of the practice of ‘instant triple talaq/talaq-ibidat’, Nikah Halala and polygamy. The issue needs an intersectional analysis. It cannot and should not be seen from the sole perspective, either of law, gender, politics or religion. It is also critical to evaluate the role and quality of discourse.

First, I say this with great respect that in refusing to evaluate the constitutionality of Nikah Halala (Loosely described as a religious requirement that a divorced woman first marry and sleep with another man before returning to her husband) and polygamy and restricting itself only to triple talaq, the Apex Court has abdicated its duty. Despite being urged to do so by the government as well as the All India Personal Law Muslim Board (AIPLMB), the court has also refused to rule on whether all personal laws should come within the ambit of the Constitution of India. Instead, it chooses to continue with analysing whether a practice is essential/fundamental to the religion. This is most disheartening.

The court is not a panchayat, and it is not a priest. I am guessing that the reasons behind the court’s approach to this are (i) the court not wanting to open floodgates of litigation and causing ‘chaos’ in society and, ii) the belief that such changes must happen incrementally. The chaos reason makes no sense especially since the government itself is willing to take the responsibility of maintaining ‘order’. It is rather cruel that women must once again bear the burden of ‘preserving order’ because the court refuses to uphold their rights which are otherwise guaranteed in the constitution.

Secondly, the reasons that are being put forward against abolishing triple talaq. The AIPLMB shamelessly said that the court’s interference might revive a ‘dying practice’. This is tantamount to saying that don’t impose reform or we will wreck even more cruelty on our own brethren. Shame. Some argue that in such situations reform must come ‘from within’. There is (and reasonably so) a certain amount of anxiety being felt by a part of the Muslim community because of the timing of these developments. Is a majoritarian government on a rampage? What if this attempt at ‘liberating Muslim women’ is just a charade to fool people into believing that it is indeed secular and liberal? Flavia Agnes points out in her book Family Laws and Constitutional Claims that in such times religion becomes an even more important marker of identity. She argues that the intended reforms are rendered ineffective because such imposition pits women against their community.

The obvious question is, why didn’t these regressive practices get abolished when other governments were in power. If the intentions of the BJP are indeed mendacious, who is to be blamed for letting things coming to such a pass? The formula of incrementalism has only led to more chaos. It has only led to all political parties pandering to the regressive clergy of all religions.

Third, some people have also expressed pain at the discourse painting Muslims as this regressive, primitive community which abandons women at the drop of a hat. They ask, are there no inhumane practices in other religions? Why aren’t they being dealt with first/together? In her book, Agnes reminds us of the long, painful and continuing journey that is the reform of Hindu Personal Law. Sardar Patel, Rajendra Prasad, and the RSS opposed the right of women to divorce, the abolishing of coparcenary and inheritance to daughters amongst Hindus. Until 1955, polygamy was permitted amongst Hindus. Until 2005, daughters had limited rights in the ancestral property. Marital rape and child marriages are still pervasive across religions. These are, however, arguments in favor of abolishing all regressive laws and practices.

Fourth, the sensationalist approach of the media. The media would have everyone believe that an average Muslim man is a regressive adulterer at best and a terrorist at worst. Tragically, an average non-Muslim rarely interacts with Muslims. Again, all communities, the government, and the courts share blame for this. For instance, there is zero movement on housing discrimination being outlawed. Everyone loves their ghettos. An average non-Muslim learns about Muslims through the media which paints an astonishingly ridiculous picture. The media has failed to educate people about the reform of the personal law in every religion. It has failed to point out that instant triple talaq is not the only way (and by some accounts not even the prevalent) mechanism of divorce. It has failed to inform people that Islam and Muslims are not monoliths. It was duty bound to do so. It must reflect on the damage this failure is resulting in before it is too late.

Finally, instant triple talaq must be abolished pronto. Obviously, these are not the ideal set of circumstances in which this should have happened. But they will have to do. The society, courts and the government already compel women to bear too many cruel burdens. No more.

This article was first published in Mumbai Mirror

Courts and religion. A very short story.

In a mythical land called supremistan, the following series of events happened. We begin, for obvious reasons, from the middle of the story.

C: No we don’t want to do this Article 13 business. All we want to talk about, is ERP. All five chant: *ERP! ERP!*.

L: But mygods, the constitution..

C: Boooooringggggg. Do you want to talk about ERP or not? We are ready to write judgment. My minion has taken out 377 quotes!

L: Sure mygod. ERP it is. So mygod this focus on ERP raises some preliminary jurisdictional issues.

C: Huh?

L: Yes. You see the book only recognises a,b,c and d sources of law. There is no mention of mygods. It appears that it is essential to the practice of this book that no one cares about anything a bunch of people sitting in something called Supremistan say. In fact, I think it is essential that supremistan and ummm the offices held by mygods cease to exist.

C: What nonsense. We are not at the mercy of this book. We only understand and interpret.. *awkward moment*.. oh.

L: Sorry mygods I think I have misunderstood. I think mygods said essential constitutional practice…?

C: Yes of course. Please proceed.

The Great Betrayal

The govt has, for all practical purposes, final veto over the appointment of judges.

Judges of High Courts across the country and the Supreme Court are appointed by a ‘collegium’ consisting of the Chief Justice of India and four senior-most judges of the Supreme Court. This system was a creature of three judgments passed by the Supreme Court, popularly known as the Three Judges Cases. In 2014 the National Judicial Appointments Commission Act and the Constitution (Ninety-Ninth Amendment) Act, 2014 were passed by Parliament, thus replacing the collegium system with a commission comprising of 3 Supreme Court Judges, the Union Minister of Law and Justice, and two ‘eminent persons’. Suffice to say that the NJAC act was a horrible legislation that claimed that the collegium system gave excessive and unchecked power to the judiciary and to remedy this, the act simply gave unchecked and excessive power (over the appointment of judges) to the Parliament.

One of the many common threads running through the Three Judges Cases and the NJAC case was the question that in the event the executive and the court reach a deadlock over a prospective appointee, which organ of the state will get primacy (final veto)? This is a question not just about a procedural conflict, but also one deeply impacting independence of the judiciary. Why is the independence of the judiciary important? Because it keeps the Parliament and the Executive in check and protects citizens from excesses by these organs. Various cases decided by the Supreme Court, including the NJAC case, concluded that independence of the judiciary could not be achieved without judicial primacy over the appointment of judges. In the NJAC case, the Supreme Court held that since independence of the judiciary is an un-amendable feature (part of the basic structure) of the Constitution of India and since this independence cannot be achieved without judicial primacy over appointment of judges, a law which takes away this primacy (the NJAC act) is unconstitutional and is therefore struck down.

The judgment in the NJAC case, however, concluded by saying that the government should draft a Memorandum of Procedure (MOP) to suggest changes in the collegium system and that M.O.P would be vetted by the apex court. This was most bizarre because the changes the government wanted to suggest were being reflected in the NJAC Act. Secondly, why did the Supreme Court not bring about these ‘changes’ and ‘reforms’ in the process of deciding the case, or in the final judgment passed by the court? Your guess is as good as mine. The Union Government, which initially seemed to be reluctant to participate in this exercise, enthusiastically began the process and a to-and-fro over the MOP began. There was much that the judiciary and the government disagreed over.

Meanwhile (presumably a tactic of the government to pressurise the court) appointment of judges to various courts was more or less put on hold by the government much to the anguish, at least of the previous Chief Justice of India, T.S. Thakur, who reportedly broke down in tears over the government’s obstruction and arrogance.

One of the many clauses that were the subject of this deadlock over the MOP was the ‘national security’ clause. The government wanted a veto to reject any judges if it felt ‘national security’ was at risk. This assessment of the government was not open for discussion. The 87th report of the Parliamentary Standing Committee on Law and Justice said that this clause was a bad idea and tantamount to a veto being given to the government. Thakur said as much and expressed concern that this clause would be misused by governments. Ravi Shankar Prasad reportedly gave assurances in Parliament that the government was not seeking a veto.

According to a report in the Times of India, the deadlock over this clause has suddenly been resolved, and the court has conceded with the caveat that the government must give reasons for rejecting someone under the clause. This may look like a compromise at first glance, but the fact is that the government now has the final veto over appointment of judges. This development is contrary to the judgment of the Supreme Court itself in the Second Judges Case and the NJAC case (and therefore violative of the constitution). What was the point of long disputes over decades and especially the entire NJAC case if, finally, primacy was to be given to the executive? We are now in a bizarre situation in which a lengthy, detailed judgment was passed only for a MOP to go against the said judgment, all behind closed doors. There is no provision in the constitution of India which allows for judgments to be altered in this manner. Will this now become a custom? Each time the government is upset with a case, will it be allowed to have closed door discussions with the court, which will end in the judgment being changed? Another fact that casts a shadow over the matter is allegations of corruption against certain judges of the SC (among others) made by Kalikho Pul, the former CM of Arunachal Pradesh, in his suicide note. In an ideal world, all judges named should have recused from all work, including drafting of the M.O.P. We don’t live in an ideal world. The summary is that once again, we have been thoroughly and collectively betrayed by all the organs of the state.

This article was first published in The Mumbai Mirror