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




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Marital rape should be criminalized

‘Marital’ cannot be used as a disclaimer. Sex without consent is a crime, and the law needs to punish it.

Consensual sex is a crime in India. Rape is legal in India. Shocked? Disgusted? Disbelieving? Then the next two facts may leave you conflicted. Anal sex is a crime under Section 377 of the Indian Penal Code (IPC). Marital rape is legal, unless (thanks to an amendment passed in 2013) the wife is living separately or, per the IPC, is under the age of fifteen.

How common is marital rape? One-third of men interviewed by International Centre for Women (ICRW) and United Nations Population Fund’s (UNPFA) across seven states in India admitted to having forced a sexual act on their wives.

In 2013, a three-member committee comprising the Late Justice JS Verma, Justice Leila Seth and Senior Advocate Gopal Subramaniam recommended that marital rape be criminalised.

However, both the UPA and the NDA governments have failed to. A union home secretary under the UPA reportedly claimed ‘marriage presumes consent’ and the minister of state for home, under the NDA government cited illiteracy, religious beliefs and ‘sacrament of marriage’ as hurdles.

You know what else has been presumed to be sacred, derived from religious belief and existed in a time of severe illiteracy? Sati. Our minister also claimed that the concept as ‘understood internationally’ cannot be applied in India. The supreme court of neighboring Nepal didn’t think it was too cosmopolitan—it has held that marital rape is criminal since 2006.

A report published in a national newspaper last year claimed that our Supreme Court, the guardian of the constitution and the protector of individual liberty refused to entertain the petition of a woman seeking an amendment, on the premise that ‘law cannot be changed for one person.’

Those who oppose criminalisation of marital rape raise the bogey of abuse of the law. A senior advocate recently wrote that ‘If at any stage in a marriage, the wife seeks to withdraw the presumed consent that accompanies a marriage, it is open to her to live separately.’ If that’s so, the argument assumes that the husband will jump away the moment his wife screams ‘I separate’ as she is being raped.

Troublingly, the statement assumes an equality between genders. Is separation always possible for women who face abuse? We live in a patriarchal society where prejudice, discrimination, lack of access to education and work, makes many women financially dependent on their husbands. A woman living separately from her husband is stigmatized. She is often urged to ‘adjust’ or ‘save her family’ or ‘settle matters’ – even by her own family.

If abused women found it so easy to separate, then we might as well do away with laws criminalizing domestic violence too—tell women to walk out instead of putting up with it. And even if they are able to walk away, that first instance of violence- which necessitates the exit from a marital home – is still a cognizable offense and should be punished.

There is, of course, the argument that since Section 498A – our dowry law – is abused, a law criminalizing marital rape will be abused even more. Now women will be free to accuse husbands of rape once their relationship turns sour. Or trick men by giving consent and then allege rape. In response, let me state the obvious.

Every. Law. Is. Susceptible. To. Abuse. False allegations are possible within a marriage and without. That thankfully has not led us to decriminalize an act of rape outside of marriage. Secondly, and I cannot emphasize this enough: it is tough for a woman to prove the absence of consent especially in a bond of matrimony. Thirdly, for context, the crisis our society faces is one of under- or unreported sexual violence, categorically not an epidemic of false cases.

All that differentiates an allegation of rape within marriage from one beyond it is the unstated presumption that marriage entails perpetual consent on the part of the wife, a presumption one would like to believe that no law would support in the 21st century.

The 205th report of the Law Commission of England and Wales pointed out (citing a family court judgment: “Whatever may be the difficulties, actual or imagined, foreseen by lawyers, the criminal law should as a general proposition at least aim to demonstrate and to delineate what conduct is or is not to be tolerated”.

The same report went on to quote the Police Superintendents’ Association of England and Wales: “Of course, all problems that are inherent in bringing a successful prosecution for domestic assault and/or injury will also be present in trying to prove an offense of marital rape. But that is no excuse for failing to provide the appropriate legislation. The police role in trying to prevent injury and misery is weakened by the absence of appropriate legislation. Indeed, we hope that the very existence of such a law might serve as a deterrent”.

The absence of a law recognizing that marital rape is a crime curtails women’s ability to counter abuse. There is, however, hope for India. Last month, the Delhi High Court asked the Central Government to respond to a petition seeking to declare Section 375 of the IPC unconstitutional— as it discriminates against married women sexually assaulted by their own husbands.

The terrorist group Daesh (IS) among other things believes that its members own the women they marry and should be free to rape them. One hopes that the government of India disagrees.

This article was first published in 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

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

The farce of women’s day.

A lot of things have remained unchanged between the last Women’s Day and the one that just went by: marital rape, triple Talaq…

It lasted twenty-four hours. I suspect these twenty-four hours must be torturous for so many. It wasn’t like brave souls didn’t raise their voice against the oppression, so powerful was the onslaught, they were summarily crushed. I am talking about International Women’s day, which was recently celebrated all over social media, by several brands, and in several restaurants and bars.

While there were those who weren’t worried, some people rightly expressed apprehensions that it was unfair for women to have one special day for themselves, while men didn’t. Well, to be fair, it’s possible that in the early days of patriarchy, men must have felt special but they soon got used to and bored of all the oppression they perpetrated, and now there’s nothing special about the remaining 364 days.

I mean, are men really wrong when they complain about stores offering discounts to women? So what if men enjoy far bigger ‘discounts’ in the form of much higher wages? (A 2010 report of the World Economic Forum claims that even in the corporate sector, women are paid one-third of what men in the same position are paid.)

There is a school of thought, which believes that if things get out of hand, one day could soon increase to two and maybe even a whole month. We must not get carried away. I believe that all such concerns are unfounded, because men march on as gloriously as ever and nothing really changes.

To reassure other men I have made a list of the things that remained unchanged in India between the last women’s day and this one:

1) Marital rape continues to be legal. Several studies show that it is also commonly prevalent. Rape is legal in India, as long as the person doing it happens to be your husband. Yes, there are many countries in the world where marital rape is a crime (including Nepal) and there is no significant abuse of law. Yet, people continue to raise the spectre of the institution of marriage and family getting destroyed if marital rape is criminalised in India. Women being raped is a small price to pay for the long life of these institutions.

2) Adultery continues to be a crime. If a married woman sleeps with a man who isn’t her husband, her husband has the right to sue the said third man. The woman’s consent in filing this case, or the fact that she chose to do as she pleased with her body is irrelevant. Her body is not her own. The law’s origins can be traced to the 16th century (four hundred years ago), a time when it was cool to openly acknowledge that women were the property of men. Those were the days.

3) Women’s reservation bill, originally tabled in Parliament in 1996, has still not been passed. The bill is futile anyway, because there is still a lot of confusion over what women should be allowed to eat and wear and who they should have sex with.

4) “Sex against the order of nature” continues to be a crime under Section 377 of the Indian Penal Code. This is simple. We are regressive and cruel by nature, so members of the LGBTQ community having sex is against our nature. Indians have tremendous clarity when it comes to sex- we are busy either arguing that we must be allowed to forcibly have sex, or arguing that someone else must not be allowed to have any sex.

5) The government has not come out with a law that prohibits housing discrimination – and the society takes care of the rest by ensuring that single working women find it difficult to rent houses. They are getting discounts once ayear, though, and one shouldn’t be too greedy.

6) While there is plenty of debate around the matter, Triple Talaq continues to be legal. When it is otherwise clear that men own women, why is there so much conversation around whether they can be summarily dumped and abandoned?

7) On Twitter, the Prime Minister of India continues to follow people who threaten and abuse women. In case you’re not a Twitter person, ‘follow’ here does not mean he is monitoring them, it actually means that he finds them interesting.

8) The government continues to make a mockery of the Nirbhaya Fund, with a large part of the funds lying unused. Also, the government had initially planned to have 660 one-stop centres, which would provide medical, legal and psychological assistance to rape survivors. The number has now been scaled down to 36. The government clearly came to its senses and realised that not all men are rapists and so, we don’t need these many centres. Modi marked the occasion of women’s day strangely not with an acronym, but by saying that he ‘salutes nari shakti’. This is large-hearted of him, because we all know that while oppressing a group of people, it is helpful to tell them that they are very brave and full of shakti. There was this slogan doing the rounds during the 2014 national elections. Was it ‘Bohot hua naari pe vaar, abki baar discounts in bar’? No, I don’t think so.

This article was first published in the Mumbai Mirror

On Police Reforms

If you love conspiracy theories, I have one. February has been designated as ‘beat up someone for not being patriotic enough month’. Last year it was Kanhaiya Kumar, this year self-proclaimed patriots are beating up students and professors in Delhi University. Patriotic people are also threatening Gurmehar Kaur with rape and murder for basically saying there should be peace between India and Pakistan. Many people are also claiming that Gurmehar is, in fact, an agent of the ISI. The ISI has a very simple recruitment policy. All you need to do is express an opinion different from the currently popular brand of patriotism.

But worry not, because we have a proactive government in power and the matter is being dealt with at the highest level. Kiren Rijiju, minister of state for home affairs, has expressed anguish. I am no longer sure what the home ministry’s job is, but Wikipedia says it is responsible for the maintenance of internal security and domestic policy and is also the cadre controlling authority for the Indian Police Service. Therefore you will be satisfied to know that the anguish Rijiju expressed was about how Gurmehar’s mind is being polluted. Priti Gandhi, a spokesperson of the BJP, tagged Gurmehar and told her that Gurmehar’s deceased father would be ashamed of her. All is well. I, however, agree with Rijiju. Anyone who wants to talk about peace and interrupt a country in the middle of an orgy of rage certainly has a polluted mind.

I am not going to launch into yet another rant about crazy ideas like freedom of expression or fascism that no sane person cares about. Instead, I have another radical idea: that the police should prevent/promptly hold accountable anyone engaged in violence regardless of the emotions in the mind of the person committing the violence. Even a motive/emotion as exalted as patriotism. To ensure that the police do this, it needs to become professional and free of political control. Politicians survive on popular opinion, if popular opinion is murderous, or if politicians provoke people to become murderous then they often direct the police to look away from people committing violence. Sometimes they also direct the police to frame people who haven’t committed any crime.

Even in matters free of political ramifications/crimes that the average Joe/Jill often becomes a victim of, the common perception is that the police are corrupt. That access to influence and/or wealth is critical to ensure that the police will treat you with respect /discharge its duty well. A friend whose car got stolen went to the police station only to be told by a head constable that he had two options: a) leave twenty-five thousand rupees in a packet, and the car would be delivered to him the next morning b) Scream and shout about this demand of bribery and get the FIR for car theft registered and wait for justice. He paid, and the car was duly delivered.

In 2006, in a PIL filed by Prakash Singh, who retired as the Director General of the BSF, the Supreme Court of India delivered a judgment directing the State and Central governments to bring about police reforms. The judgment, inter-alia, directed governments to ensure that the function of investigation is handled by a part of the police force free of all other duties (this would radically improve the quality and pace of investigation); form a police establishment board that would decide on transfers below the rank of Superintendent of Police; fix a minimum tenure for police officers etc. All this was intended to free the police force of political interference. More than ten years later no government has seriously implemented these reforms. Yesterday even the Supreme Court seemed resigned to this fate. During a hearing in the case seeking implementation of the judgment, the court observed: “Nobody listens to our orders”.

The BJP, which rode to power promising to remove all corruption, overhaul all institutions, and is being led by the greatest prime minister in the world, has also done zilch to implement these reforms. Which is understandable because the home ministry is occupied with the urgent task of identifying each and every anti- national person in India. The police can stay the way it is, patriotism will cure everything.

To be fair, Narendra Modi has done one thing: coined an acronym. In 2014, he said the police need to become S.M.A.R.T. = Strict and Sensitive, Modern and Mobile, Alert and Accountable, Reliable and Responsive, Techno-savvy and Trained.

Unless we enjoy being distracted by this frenzy of patriotism, maybe it is about time we become smart too.

 

This article was first published in Mumbai Mirror