Sunday, July 31, 2011

Slut Walk, Personal Freedom and Appropriate Dressing

I am surprised at the clarity that some people attain on complex issues.  I am also surprised at their ability to reduce any issue into US vs YOU or WE vs THEY conflicts, leaving no space that can be described as the middle ground.  I pity myself for continuing to be confused on most of these issues....  But with the belief that I am not alone and that I represent a number of people, who prefer to remain confused rather than taking premature positions based on prejudices, I will continue to record my confusions in these Thoughts!

Taslima Nasreen tweeted on the Delhi Slut Walk; “I'm proud of those men who joined Delhi's #SlutWalk and am ashamed of women who didn't join the campaign against rape & violence”. 

To suggest that one should be ashamed of all those women who didn’t join the slut walk or that those women were somehow supporting or condoning rape and violence is taking the WE vs THEY logic a little too far.  Can’t a woman have the right to be against rape & violence and the slut walk at the same time? 

 It was on January 24, 2011 that the Toronto Police Officer Michael Sanguinetti stated in a crime prevention forum: "women should avoid dressing like sluts in order not to be victimized”. There is no doubt that this statement is highly deplorable. These words amounted to blaming the victims for a crime committed on them.  It is another example of the “Leaf and Thorn” prejudices that make women responsible for all the sexual violence inflicted upon them and exonerate the perpetuators!  Michael subsequently apologised for his remarks.

However, with active support from social media, many activists decided to use this as an occasion to destroy the prejudices against women in matters of sexual violence.  The first slut walk took place in Toronto on April 3, 2011.  It was followed by similar marches in many parts of the world. It has now reached India with the first such walk already completed in New Delhi and more being planned for other cities as well.

I respect the right of all the participants of these walks.  They have a right to express their opinion in a way that they think is effective.  Also, these walks have succeeded in bringing attention to the prejudices of the societies.  However, these walks were not without any opposition.  Many people objected to it on the ground that such walks in which participants were expected to be scantily dressed are against the culture.  I wouldn’t go into details of these contrarian views here.  Suffice to say I have nothing against the concept or method of slut walks as a means of protest against a deep rooted prejudice.

Let us consider the more fundamental issue of dressing ‘properly’. I, being a votary of personal freedom, am against any external prescription as to one’s dressing style.  I believe each person has a right to decide how he or she wants to live and that includes as to how he or she wants to dress.  If the society starts prescribing the standards, then it won’t be long before such standards end up in Burkhas or veils or similar requirements.   Today the society may demand that the woman stop dressing like a ‘slut’; tomorrow it may demand that the woman should dress in a specific manner and later may ask them to cover their entire body and face under some veils.  One may say that I am exaggerating here.  Well, I may be, but history shows otherwise!

When we say that every person should have the right to decide what he or she should wear, are we suggesting that the freedom is absolute?  No; personal freedoms, like any other freedom, are not absolute. Right to dress does not amount to right not to dress.  Any Freedom that is not tempered with responsibility is a sure recipe for disaster. In a public place, therefore the right to dress needs to be exercised subject to the prevailing laws and customs of that place.

‘Indecent’ dressing could definitely attract unwanted attention. In a country like India, if one walks around skimpily dressed, it is most likely that people will stare, even though all those who are staring may not be criminals and may not harass the woman beyond the staring. Without going into the criminality of the staring itself, I would only state, as a matter of fact, that in today’s India if you are skimpily dressed you got to expect stares. There is no wishing away that fact for at least some time, though that should not condone people like Delhi Police Chief BK Gupta from abdicating their responsibility for providing security to the women in public places.

That brings us to the third aspect of this post- what is appropriate dressing?  Well in my opinion, there are no set standards for appropriate dressing. It depends on the taste of individuals and the society.  What is appropriate for one person or society may not be appropriate for another person or society, as the case may be.  However, if one cares for appropriate dressing, it is very easy to decide. 

There is no point in wishing away the fact that nakedness does attract the attention of opposite sex. If a young girl is wearing a micro mini or a very deep cut t-shirt, not many men will be able to completely disregard that.  How one will react to that will depend on person to person.  A man with normal values may just give a glance and move on but a criminal may try to take it further than that.  Irrespective of how the viewer reacts and the culpability or otherwise of that viewer, when a girl knows that her nakedness is bound to attract attention why should she dress in such a way if she doesn’t want to attract such attention?  This is a question to which I have no answer!  But my commonsense suggests that when one knows that dressing in a particular way is likely to attract unwanted attention in a particular context, then one should avoid that dressing for that context.  One is not expected to dress in the same manner for a dance bar and a visit to say, the nearby temple!   

Like I said in the beginning, I have no hard positions on any of the aspects discussed above.  I have just stated my confused thoughts here with the expectation that this post may invite readers’ perspectives and that will throw more light on the issues! 

Friday, July 29, 2011

Why I Welcome Cabinet’s "Jokepal"?

Are we closing down our Parliament and/or its legislative powers in the near future?  Are we having the last chance of legislating something, so that we have to cover anything and everything in this ONE LAST CHANCE that we have?  Answer seems to be YES, if we go by the hurry with which our activists are trying to push through a panacea called Janlokpal!

(I have an issue with the name Janlokpal itself as it implies that all other laws, existing or proposed, in India are not that of the people (jan) but pushed down our throats by some external forces.  The underlying inference seems to suggest an aversion to the representative system of democracy itself.)

Coming back to the demands of an all inclusive and instant Janlokpal, what is the big hurry?  This country has survived for sixty four years without a Lokpal.  No doubt that we need to create one now as the corruption level in public life has increased to alarming levels.  But, when we create a new institution with wide ranging powers , to the extent of going against the very basic features of the Constitution itself (such as Separations of powers and independence of judiciary etc), cant we afford little more time and deliberation?

We cannot forget that all through these years there have been efforts, albeit half-hearted, from the Executive itself to bring in an institution of Lokpal.  Various Bills were introduced in the Parliament at different points of time.  So, it would not be correct to say that the concept of Lokpal is something that was not acceptable to the entire political class.

Anyway, that is past.  Thanks to the increasing awareness of wrongdoings in the Executive (this awareness itself being a result of various developments like transparency though RTI, Media, judicial activism, social media and public activism etc), there is a growing demand for introducing a credible and independent institution to curb the menace of corruption.  Government, bowing to these voices, agreed to bring in a reasonably strong and practically feasible Lokpal Bill, before the Parliament, in its very next Session.  Cabinet has now approved tabling of this Bill.

The proposed Bill has not satisfied many activists, including the Anna Hazare group.  Major defects being pointed out are; it does not cover Prime Minister and Judiciary, it does not cover entire administration but only the higher bureaucracy, and it does not cover MP’s actions within the Parliament, such as voting and debates etc.   Each of these points has its own merits and demerits. 

Government argues that bringing Prime Minister under the ambit of investigative powers of Lokpal may lead to destabilising the Executive and may be counter- productive at times.  One may agree or disagree with this argument.  But can’t we even keep one institution outside the purview of Lokpal?  Do we really worry that a Prime Minister left outside Lokpal’s purview (so long as he is in power, with the power to remove him in the next election safe in the hands of people) would make the entire institution of Lokpal a mere joke?  That too when all his colleagues in the ministry can be investigated and prosecuted?  I refuse to believe so. 

Same is the case with judiciary.  True independence of judiciary from executive is the cornerstone of our constitutional democracy.  That cannot be compromised, even if we have all our trust in the magical integrity and effectiveness of the Lokpal.   No one would really want to be tried by a judge who himself is worried about antagonising the prosecutor!  (Please remember it is not always the guilty alone, who have to face prosecution)  In any case the Accountability Bill for Judiciary is already in process.  If we have a Lokpal like institution within the Judiciary to ensure accountability of judicial officers would that not serve the purpose?  In my opinion it would serve the dual purposes of accountability as well as independence.

As regards the issue of excluding MP’s conduct within the House, I am really ambivalent.  However, I am not against the view that instead of subjecting them to a jurisdiction of an external entity, we must ensure that the respective Houses strengthen their own disciplinary committees to deal with any misdemeanours by its members.  After all, the Constitution has given the immunity to MPs for their behaviour inside the Houses, with certain objectives.  Those objectives cannot be sacrificed merely because of some rotten eggs!

Finally, let us look at the issue of not including the entire administration under the ambit of Lokpal.  The sheer size and reach would dilute the effectiveness of Lokpal, if we were to make it the watchdog for the entire administration.  We have our criminal procedures and anti-corruption systems that can be strengthened, if necessary, to cover the lower rungs of the administration.  We can leave the Lokpal to deal with corruption at the highest levels of Executive, so that the Lokpal does not end up like our judicial system, slow and ineffective!

As discussed above, all the major issues related to the proposed Bill have various dimensions.  We need not make it a prestige issue so as to have an all encompassing Lokpal at the beginning itself.   Let us get the one that the Legislature and Executive is comfortable to begin with. Let us study its operations for some reasonable period.  If we find it as effective, as much as being claimed to be, in dealing with corruption and we find that the institutions left outside the purview is defeating the purpose, we can always revisit the law and make changes. 

Let us not put all our eggs in one basket, which is yet to be made.  “Power corrupts and an absolute power corrupts absolutely”- We have no reason to believe that this saying would not be applicable to Lokpal.  Let us not concentrate all powers under one institution. Have watchdogs and not overwhelming superpowers.  Let us not destabilise the existing system in one stroke.  We can speed up evolution instead of trying out revolution.

When I say this, it doesn’t mean that the door is closed yet.  In any case, the Bill will go to Parliament’s Subject Committee for further studies.  As per the existing practice, this Committee will definitely seek public opinion on the provisions of the Bill.  Convincing arguments can be presented before the Committee, to be included in the Draft Bill.

Before I conclude, let me look at some of the arguments being put forth by advocates of Janlokpal to justify its immediate necessity.  They say, our politics have no future- because it cannot attract better candidates; restrict money power in elections; make people to vote.  But do they really believe Janlokpal will change all these?  If the life was only with such simple, straight forward and holistic solutions!

How can an institution like Lokpal change the very basis of our society?  At best it can investigate and prosecute corruption cases.  Can it change the way people behave?  Can it change the value system prevalent in the society?  Can it prevent corruption, if the people continue to be as greedy?  Can it ensure that all discretions are exercised for considerations that are above board?  Can its own members (hailing from the same society/ system) completely keep away from the temptations of the bad world?

I find it difficult to believe that one institution or a group of officials, whether Lokpal or Janlokpal can make such fundamental changes in the way a nation’s affairs are conducted.  It can no doubt, improve investigation and bring to book the perpetuators of corruption who are not smart enough to avoid some evidences getting left behind.  It can instil a fear of detection in the minds of corrupt officials.  But would that fear make them honest?  Or merely make them more careful? This is a question to be answered by time alone. 

What a Lokpal or even Janlokpal cannot be is a panacea for all the ills of this country.  The people of this country, civil society, political parties and media should continue to be vigilant all the time and cannot just outsource their responsibilities to Janlokpal.  For this Nation to be free from corruption, we the people have to change.  That change will only come through sustained efforts at awareness and change in values.  What we need today is more social reformers than political activists. But unfortunately, it is the latter class that can hog limelight these days and therefore there is a dearth for the former class!

Let us not get greedy and over enthusiastic.  Or let us not bring in egos and arrogance into the public affairs.  Let us tread cautiously; some steps at a time.  Let us welcome the current Bill (what some refers to as the Jokepal) and ensure implementation of the institution of Lokpal.  We have all the time in the world to study its functioning and to improve / enlarge its scope.  Lokpal is not doing away with our Parliament; we can still exert pressure on it to make necessary amendments in the law, from time to time, to make the institution more effective!

P.S: Please read the comments as well, as they provide different perspectives!

Monday, July 25, 2011

Supreme Court is not all that supreme- Judicial Activism Vs Judicial Overreach

In a recent blog titled ‘Indian Constitution- Supremacy of Basic Features”, I discussed about the supremacy of certain Basic Features of Indian Constitution.  These Basic Features have been held to be supreme, so much so that even  Parliament cannot amend the Constitution if such amendment results in altering any of the Basic Features.

A reading of various pronouncements of the Supreme Court of India will tell us that the following are the Basic Features of Indian Constitution:

1.            Supremacy of Constitution
2.            Republican and Democratic form of government
3.            Secular character
4.            Separation of Powers
5.            Judicial review
6.            Independence of Judiciary
7.            Harmony between Fundamental rights and Directive principles
8.            Limited power of Parliament to amend the Constitution

I am concerned here about the 1st and 4th items of the above list, i.e., ‘Supremacy of Constitution’ and ‘Separation of Powers’.  It is a well accepted principle of governance that ‘Power corrupts and absolute power corrupts absolutely’.  Founding fathers of Indian Constitution were aware of the risk of concentration of power in individuals or institutions and therefore created the fine balancing of various constitutional agencies through the principle of separation of powers and supremacy of Constitution.

Under the Constitution, various powers are delegated to various agencies by the people of India.  It provides for an independent legislature for law making; an independent executive for implementation and an independent judiciary for judicial review- all subject to the provisions of the Constitution.  There is also a separation of law making powers between States and Union.  Each of these organs is subjected to constitutional checks and balances (the least being on the judiciary) so that nobody crosses the proverbial line and assumes more powers than what is delegated to it by the Constitution.

Under the provisions relating to judicial review, the Constitution grants wide powers to the judiciary so as to ensure effective review of legislative and executive functions of other arms of the State.  It also makes judiciary fairly independent of other arms to ensure their review powers are not curtailed through subjecting them to any indirect control. 

Is the powers of judicial review entrusted in Supreme Court, being the apex court of India, unlimited?  Answer is obviously negative.  Supreme Court is equally constrained by the provisions and basic Features of the Constitution.  Before, examining this further, let me state couple of Articles in the Constitution that make the powers of Supreme Court seem unlimited:

Article 141: Law declared by Supreme Court to be binding on all courts:  The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

These Articles, no doubt, confers very wide powers upon the Supreme Court.  However, exercise of these powers is subject to the existing laws and the Constitution itself.  Even Supreme Court cannot step beyond the limits assigned by Constitution.  While Article 141 is limited to declaration of law (as in interpretation of an already existing law) the powers under Article 142 (1) is restricted to passing of decree or orders for doing complete justice in any cause or matter.   It is not the intention of these Articles to make the Supreme Court a supreme body, lording over all other organs of State or to make it a supreme law maker, who can overrule the legislative powers of Parliament/ legislative assemblies.

By land large Supreme Court has adhered to this principle and respected the Basic Feature of separation of powers under the Constitution.  Many a time the Apex Court refused to declare any laws in virgin territories, stating that the law making is the function of legislature.  It even refused to issue directions to the legislature to pass laws.   On the other hands, Supreme Court has effectively utilised these powers to interpret the provisions of law in many cases so as to increase the effect of constitutional protections to the citizens.  Commonly known as judicial activism, these interpretations by the Supreme Court, especially with respect to Article 14 and 21 of Fundamental Rights have brought in lot of positive changes in our legal framework, in the past.

However, it is often said that the character of a person is tested only in the bad times and not in ideal conditions.  Some recent developments relating to corruption in the Executive has caught the attention of the Nation and its people.  These developments have put the Executive and to some extent even Legislature on the back foot.  There is a credibility crisis in the Government.  Decision making is almost in a limbo, with no bureaucrat willing to risk his neck by taking decisions that could potentially be called into question in future.

These weaknesses in the other two arms of the State and the relative faith in the Judiciary (despite some nasty allegations being raised in the recent past against judiciary itself) is apparently making the Supreme Court more and more powerful.  Any adverse comment, even verbal comments in the course of hearings, against Government is lapped upon and celebrated by the Media and the anti-corruption crusaders.   Even the political class, with their short –term narrow views, are willing to look the other way when judiciary is trying to assert itself over the weakened Executive.

We are seeing a recent tendency in the Supreme Court to take things in its own hands, if it is not satisfied about any of the actions of the Executive.  No doubt, in cases like infamous 2G scam investigation it may seem the right thing to do.  Even in the case of an order by which a Bench of the Supreme Court appointed a retired colleague to head the Special Investigation Team (SIT) that it constituted to trace the alleged black money stashed in overseas banks, the order was received with lot of appreciation.  These actions, often amounting to usurpation of powers/functions of Executive is, in the opinion of many experts, Judicial overreach than judicial activism.

I think the jubilation among sections of people and media is understandable, given the lack of trust in our political class and the lack of credibility of the present Government in fighting corruption.  However, it would not be prudent on our part to overlook the long-term effect of such judicial overreach, merely because it suits our purpose for the time being. 

Prevention of black-money and its recovery is obviously a function of executive.  Governments have indeed been lax in these accepts in the past and it was almost accepted as a part of life to have certain portion of GDP to be unaccounted.  It was in the spirit of judicial review to have sought explanation from the Executive on the lack of progress in its efforts.  Government on its part had also appointed a very high powered Committee to monitor and coordinate its actions against the menace of black money, although when knuckled by the Supreme Court.   Yet, for the Supreme Court to have gone ahead and constituted the SIT with a retired Judge as its Head was, in my opinion, a clear overstepping beyond Constitutional scheme of things.

Consider this. Tomorrow, you or I may approach Supreme Court stating that the anti- Naxal operations are not effective and needs to be tightened up.  What if the Bench hearing the case agrees with this view and appoint a retired Judge to head the anti-Naxal operations in the Country? Or for that matter, appoint another retired Judge to head our Municipal Committee, since the Court is not happy about the way municipal administration is being run?  If the Court is not happy about the law and order situation in a State, can it be appointing a retired judge to oversee the police administration of the State, keeping out the political leadership? 

If we extend the logic of appointing SIT or overseeing investigations further, the above scenarios are clearly possible.  We already have committees appointed by High Courts administering even ‘Devaswom Boards’ (the Body that administers Hindu temples in Kerala) and entrance examinations.  

Such actions that clearly trespass into executive or legislative functions could still be justified on the basis of Article 142.  However, the Supreme Court being the guardians of the Constitution must be conscious about the supremacy of the Constitution and must exercise self-restraint while exercising its powers derived from the Constitution.  Supreme Court cannot and should not close its eyes to violation of the Basic Feature of ‘Separation of Powers’ by its own actions. Usurping the powers or functions of other arms by judiciary will not be in the long-term interests of Indian Constitution.  It is the judiciary that needs to ensure the harmonious co-existence of all the arms of the State.

Supreme Court should avoid the temptation to play for the gallery, even if that brings much acclaim.  It will do a lot of good to keep in mind these words of its own Chief Justice; “The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values, our own likes and dislikes on the society”.   These words were about speeches given out by Judges; but the principle is equally or even more applicable to the orders and decrees passed under Articles 142, as well. The importance of this message only increases when it comes to verbal statements that honorable judges make during the hearing of the arguments in a trial.

Supreme Court must not assume itself to be supreme; it must subordinate itself to the supremacy of Indian Constitution and its Basic Features while exercising the powers. 

Monday, July 18, 2011

Why am I not Proud of my Parents and why am I not a Proud Indian?

Recently, I had an occasion to indulge in a rather lengthy debate on linking one’s religious pride and patriotism. It all originated in one of my friends on Twitter tweeting that he is a proud Muslim who doesn’t believe in preaching but practising. Another friend replied saying that the former has all the rights to be proud as a Musilm, provided he is first a good Indian. I was disappointed at this tweet for various reasons. Firstly, being proud about one’s religion has nothing to do with one’s pride in his/her country. Secondly, religion itself being a personal choice, others should not be condescending by granting a right to be proud about it. Thirdly, the tweet clearly demonstrated a religious profiling of Muslims, as if to show that Muslims, unless proven otherwise are not good Indians.

While we were at debating this issue, I suggested that it is not right for us to be proud of mere status, but pride should be in our achievements. My point was that things which are not in our control, or are not results of our efforts, but just happened to us like our country, religion, caste, mother tongue, race, colour, sexual orientation etc are nothing to be proud of, as these attributes are mere matter of facts.

As an aside, another friend of mine questioned the logic of this view. To prove his point he asked me that if one can only be proud of one’s achievements, how is that I am proud of my parents? I replied to him through a counter question as to what made him think that I am proud of my parents at all? I further explained to him that I may love and respect my parents but did not find anything to be particularly proud of that that they are my parents. Rather, I would be proud about the fact that I have been a good son to my parents (fulfilling all my duties) than taking pride in the fact that they happen to be my parents.

My friend was not convinced of the logic of this view. He repeated that he finds the argument illogical. I replied to him that I have no problem in his being proud of his parents (or being a proud Hindu or proud Muslim or proud Indian) so long as he doesn’t hold that pride against others who do not meet this qualifications. In other words, one may be proud of his parents but that should not extent further to hold in contempt others who do not share same parentage with him.

These exchanges prompted me to look at the concepts of ‘pride’ and ‘proud’ little more deeply. What is pride? What makes one proud? According to Wikipedia, one of the first definitions of pride came from St. Augustine, who defined pride as “the love of one’s own excellence”. In this sense the ‘pride’ is the opposite of either ‘humility’ or ‘guilt’.

In the words of Sullivan, “Pride is an inward directed emotion that exemplifies either an inflated sense of one’s personal status or the specific, mostly positive, emotion that is a product of praise or independent self-reflection. Pride is distinct from happiness and joy.

‘Proud’ is the adjective form. It is feeling pleasure or satisfaction over something regarded as highly honourable or creditable to oneself. It is also ‘having, or proceeding from, or showing a high opinion of one’s own dignity, importance or superiority.

I will not go further deep into the abstract thinking on the concept of pride. It would serve our purpose to know that pride and proud are associated with one’s own superiority or excellence viz-a-viz other persons.

Being proud about a particular status usually follows that absence of that status is a cause for guilt or inferiority. If I say I am proud of being straight in my sexual orientation, I am also making an implied statement that I would have felt guilty or I would be inferior if I happened to be a gay. Similarly, if I am proud of being an Indian, it would mean that I wouldn’t have been so superior, had I been born as anything but an Indian.

The above juxtaposition of pride and guilt/inferiority is not a cause of botheration so long as they remain internal to a person. But what happens if this mindset is extended to other persons who does not confirm to the same status? The classical ‘us’ versus ‘they’ prejudices? For example, when I am proud of being the son of my parents , am I saying that not being the son of my parents but of any other parents is a cause for inferiority or guilt? In other words, does being son of my parents make me superior to those who were not lucky to be born to same parents? Remember, pride is distinct from mere joy or happiness for being the son of one’s parents or belonging to some other status.

That is how it ends up more often than not. We know any number of prejudices associated with status. The proud whites found the blacks and coloured not worthy of any respect. A proud Muslim often finds a non-Muslim as mere Cafir, infidel and unworthy person, against whom even a bloody Jihad is permitted. No wonder we have so many prejudices in this world as we have so many factors about which we are proud! We hold other non-conformists (to our status) in contempt!

The problem gets even worse when one’s pride is exploited by some unscrupulous persons or groups. These elements exacerbate the pride of individuals in some common status, real or perceived, through propaganda and then exploit that intense pride to achieve their nefarious objectives. We can see lot of instances of such exploitation.

By appealing to a follower’s pride, the reason and logic are easily sidestepped. What remains is only emotion and by manipulating that emotion you can get almost anything done by the unsuspecting follower, be it a pogrom of ‘others’ or a bomb blast directed at innocents. Almost all religious denominations are guilty of manipulating pride of its followers, at one time or other, to achieve superiority over other religions.

At the time of wars (even sometimes at the time of peace), regimes effectively whip up the pride in one’s country to the extent that no one dares to question any wrong doings of that regime. In patriotism, the line between benign pride and chauvinism is not too thick.

How can we overcome this exploitation and channelize our energies towards creating a better human race that is organised only on the principles of mutual love, respect and dependency? Well, the first step is to recognise that a status is not something to be proud of.

Any status that gets bestowed upon us is not something that we earned. If I am son of my parents it is not my achievement but a mere coincidence. Every son or daughter in this world is a child of some or other parents, though the quality of those parents may differ. If my parents are good, I should feel joy and be thankful about it; not take any pride in it. If my birth happened in India, I may feel happy about it and love this country; but nothing to be proud about that birth. Every person is born in one or other country; not by his/her choice.

Same is the case of religion or other such statuses. Your religion, caste or mother tongue is only a fact that occurred due to mere chance of your being born to certain parents and not to others.

Second step is to consider how many of others who do not conform to the status in question would feel proud of our status? Would any person other than those born to Indian parents (with the exception of miniscule number of persons who adopted Indian citizenship for their love for India) feel proud about being an Indian? In other worlds, how many Pakistanis, British or French men would feel deprived that they were not born in India? When we start considering this, we feel most of the ‘they’ are also proud of similar yet very dissimilar status and that there is nothing great in our own status to be proud of.

Finally, we must all try to restrict our pride to our own achievements. Not what we were given with, but what we created/gave back, should be the reason for our pride. Our pride would then soon get deflated to the feeling humility because we have often got much more than what we could give back, be it our family, society, nation or humanity.

Let us be proud in not being the child of certain parents but in being a good child to them. Let us not feel pride in being an Indian but what we gave back to India. Let us not find pride in being a Hindu/Muslim, but in following the true tenets of those religions – in other words, being a true Hindu or Muslim.

Above all, let us find pride in being better human beings and making this society more humane.

Thursday, July 14, 2011

Who carried out Mumbai Blasts?

I live just about a kilometre away from one of the three blast sites in Mumbai, Dadar Kabootharkhana. I realise I could easily have been one of the victims, if it was only another time and another day. So, I am concerned more than many of the others about what happened in Mumbai on this 13th July and who are the black forces that carried out such a dastardly act on us!

The Police who are investigating these Blasts have not yet come to any conclusions as to the identity of the people or groups behind them. They are still working on the leads and trying to establish the identity. Some of the indications pointed fingers at Indian Mujahideen (IM). There are also other indications that do not confirm to their usual modus operandi, as per the media reports.

However, not all of us are in doubt. Some of the immediate reactions to the blasts blamed Pakistan, even before the extent of the tragedy was known. Some others pointed fingers at a section of our own society. However, these were emotional and immature reactions to an unfortunate incident and therefore, to be rejected out rightly.

But, as the day progressed, we witnessed attempts at politicisation and exploitation of the emotions. Mr LK Advani, who visited Mumbai today, had no doubts whatsoever that the Pakistan was behind the blasts either directly or indirectly by sustaining the Indian Mujahideen. He went on to demand that the Government of India take strong actions to get the ISI declared as a terrorist organisation and stop all talks with Pakistan until that country takes concrete steps towards terrorism. These were not ranting of an old man, because the BJP spokespersons like Chandan Mitra reiterated this position of directly holding Pakistan responsible for the blasts.

I believe it is irresponsible for supposedly responsible people to start blaming countries or groups without establishing the truth, or at least credible suspicion. As reported in the media, the rains at the site (open umbrellas making CCTV recordings less effective) as well as total absence of any electronic exchange among the perpetuators, unlike in the past, makes it difficult to confirm IM’s involvement. As it used to happen in the past, there were no communications sent to media from IM, claiming responsibility for the blasts.

That leaves the lists of suspects vide open. I am not a security or terrorism expert. Yet I can list many entities that could be behind these blasts. Just to prove the futility of premature blaming, I will list some of the possible suspects. Please do not take this as my accusation against one or the other named entity.

1. Indian Mujahideen – They have done it in the past. They have the expertise in IEDs

2. SIMI- The modules of the now banned organisation could easily be behind the blasts

3. ISI or its elements- Our usual suspects in any blasts in India. Also to disrupt proposed talks between Foreign Ministers of India and Pakistan

4. Pakistan based Kashmiri terror groups- with or without active support from ISI

5. Elements of Mumbai underworld – They have the training, resources and manpower

6. Any new groups that may have emerged under the radar in recent times.

7. Remnants of Abhinav Bharat or other disciples of Assemanand – They have done that in the past and successfully shifted blame on to the other organisations

8. Any other right wing organisation to bring additional pressure on Central/State Government.

9. Any political parties with the intention of destabilising the present government

10. Maoists who are in continuous struggle with Maharashtra Government.

11. China, with the intention of keeping India and Pakistan apart.

12. Any local forces, so that they can use these incidences in furthering their agenda

It is easy to accuse any one of the above (this list can be longer depending upon who creates it) but such accusations in the absence of proof will only be irresponsible. I know some of the above suggestions are laughable, but no sane investigating officer will rule out any possibility unless there are reasons for that.

Whoever it may be, those who conducted these blasts chose not to claim responsibility. I do not understand what purpose will be served by terror strikes unless one claims them, except for trying to defeat the spirit and morale of the people. People of Mumbai have defeated the designs of those terrorists by not losing their spirit and by keeping calm. If they chose to react, as the terrorists might have wished for and like some of our social and mainstream media friends wanted, there would have been riots in this city today.

People of Mumbai deserve a big salute for not falling for the designs of these terrorists or those who are trying to fish in the troubled waters.

Wednesday, July 13, 2011

Jan Lokpal Bill and Basic Features of Indian Constitution

In the light of new developments, this Blog was updated and the same is now published in the e-magazine The  

Kindly click this link to visit the same

Inconvenience is regretted

Tuesday, July 12, 2011

Indian Constitution- Supremacy of Basic Features

The preamble of the Constitution of India is not a mere ornate statement but one that establishes the basic features of the Constitution itself. It goes as follows:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;


Before going further, let us consider two important factors; (i) Indian Constitution is a result of solemn resolution of the people of India; and (ii) People of India have enacted and given it to themselves in their Constituent Assembly.

Amending Constitution

A Constitution cannot be completely rigid. It is expected to be flexible enough to meet the requirements of changing times. Therefore amendments may become necessary to the Constitution from time to time. Question arises as to who can amend the Constitution? Constituent Assembly is not there anymore. Can people of India amend it (as in the case of a referendum) each time, there arises a necessity? Impracticality of a referendum based amendment of Constitution is quite obvious in a country like India. Therefore, Constituent Assembly, in its wisdom, entrusted the power to amend provisions of the Constitution to the elected representatives of People of India, i.e., members of Indian Parliament (with or without concurrence of majority of the States, as the case may be, depending upon the provisions), through Article 368.

As a popular Malayalam saying goes, ‘Can salted be as salty as salt itself?’ When the power of Parliament to amend the provisions of Constitution is derived from the Constitution itself, can that power be as powerful as the Constitution itself? In other words, can Parliament amend the entire Constitution or replace the present Constitution with another Constitution? Answer is very clear and is in the negative. The Constitution is supreme and therefore, even Parliament and judiciary are bound by it. Any amendments carried out, therefore, cannot challenge this supremacy.

Why such a rigidity? Such rigidity is mandatory to protect our system from the shenanigans of the political dispensation in power. We have seen at least some efforts by political class to overcome the restrictions placed upon them by the Constitution, but all such efforts were thwarted by the judiciary, using the very same Constitution.

Challenge to Supremacy

The power of Parliament to amend provisions of the Constitution came up for judicial review in many cases; most important of them being Keshavananda Bharati Vs State of Kerala, the famous decision of 13 judges’ Bench in 1973. The majority in this case held that the power of amendment under Article 368 is not absolute but subject to various implied and inherent restrictions imposed by the basic structure of the frame-work of the Constitution. In other words, the power to amend under Article 368 is subject to the qualification that the basic structure of the framework of Constitution cannot be altered.

Indira Gandhi Vs Raj Narain (1975) is another case where Supreme Court struck down a constitutional amendment that sought to exclude certain electoral process from the judicial review. Readers may know that the genesis of Emergency (the black days of Indian democracy) was in the same incidences that led to this case.

The Parliament in its efforts to regain the ‘supremacy’ in amending Constitution, added clauses (4) and (5) to Article 368, trying to make the amending power of Parliament unlimited and to limit the judicial review over such amendments. However, this amendment was also struck down by Supreme Court in Minerva Mills Vs Union of India (1980) case.

Basic Features

In all the above cases, Supreme Court had relied on the doctrine of Basic Feature to limit the amending power of Parliament. While the judges are not unanimous on what all features constitute the basic features of Indian Constitution, some of them have by now become unassailable. Let us look at the basic features listed under various cases:

Kesavanda Bharati Case:

(i) Supremacy of the Constitution

(ii) Republican and Democratic form of Government

(iii) Secular character of the Constitution

(iv) Separation of powers of various arms of the State;

legislature, executive and judiciary

(v) Federal character of Constitution

Indira Gandhi Case:

This case established Judicial Review as one of the basic features of Indian Constitution

Minerva Mills Case:

(i) Limited power of Parliament to amend the Constitution

(ii) Harmony between fundamental rights and directive principles of the Constitution

Power of judicial review

The legislatures tried to circumvent judicial review by including the amended provisions in the 9th Schedule of the Constitution. (This Schedule lists the provisions that are not open to judicial review in the normal course). However, this loophole was also closed down by the Supreme Court through its decision in I.R. Coelho v. State of Tamil Nadu (2007). The Court held that: All amendments to the Constitution made on or after 24th April, 1973 (Keshavanda Bharati Decision) by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provision would be open to attack on the ground that they destroy or damage the Basic Structure of the fundamental right or rights taken away or abrogated pertains or pertain to the Basic Structure.”

By now, these repeated decisions have firmly established the supremacy of Basic Features of the Constitution and subjugated Parliament’s powers of amendment. It is very clear that, as per the existing laws as stated by the Supreme Court, no amendment of Constitution or enactment of laws will stand the judicial scrutiny, if they are on the wrong side of the Basic Features.

Recent Developments

As we all know, there are some developments that are taking place in India, today. There is a distrust being developed against the elected representatives and their motives for enacting or not enacting laws. The number of scams and corruptions cases, involving political functionaries at high levels, is only exacerbating this distrust. The so called representatives of Civil Society are increasingly trying to assert themselves over the elected representatives of the Country.

The proposed Lokpal Bill is such a case. Mr Anna Hazare and his Jan Lokpal Group is holding the Union Government to ransom with renewed threats of agitation, seeking acceptance of their version of the Lokpal Bill. While we have heard enough arguments, for and against the Bills being proposed by Government and the Janlokpal Group, we have not seen many analyses on the validity of clauses in the proposed Bills against the basic Features of the Constitution itself.

Assuming that the Jan Lokpal Group succeeds in getting their version of the Bill passed into a law, will that law stand against the test of Basic Features? Will Courts be called upon to strike down that law on the ground that it violates the Basic Features?

I am afraid many of the proposals that are part of that Bill would go against the Basic features of the Constitution. A complete analysis of provisions of the Bill viz-a-viz judicial review is beyond the scope of this post. The objective of this post is limited to understanding the Doctrine of Basic Features and its operations over legislative changes. However, I hope to come out with such a detailed analysis in a day or two.

PS: I kept my promise :) Please see