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Law and Other things and the Indian Express have a series of posts and articles on Mayawati and her understanding of the constitution; the latest being Vinay Sitapati’s article in the Indian Express available here.

In a gist, Vinay argues that while most legal commentators view individual rights as being the core of the Constitution, group identities as mere political concessions, Mayawati subscribes to the inverse idea — of the Constitution being a power-sharing agreement between groups. He also adds that in Mayawati’s view, the provisions for weaker sections were the result of a political compromise.

Perhaps the only politician who is so vocal about the constitution during the times of elections has been Mayawati and we must give the devil her due for that. She also has raised some serious questions that Vinay brings forth but doesn’t go further into. For instance, would we have specific provisions for the minorities if there hadn’t been a political compromise as he puts it ?

Most of the provisions today in the Constitution talk of group rights and identities within the paradigm of individual rights; Articles 15, 16 (reservations), prohibition of untouchability (Article 17), rights to administer minority institutions (Article 30) etc…. They make you think as to whether they would’ve existed even if there wasn’t an Ambedkar in the 1950s being a part of drafting the Constitution. I wasn’t alive back in the 1950’s but the recent examples of South Africa and its struggle for the inclusion for group rights makes me understand that it surely wasn’t an easy thing to attain and incorporate. Readers may read Barbara Oomen’s article here to get an idea of the same.

In the Constitution, we do talk of the individuality of rights. That part III incorporates the civil and political rights that are primarily individual in nature and part IV is to have social and economic rights that are group rights. But having a lot of these group rights in part III for the benefit of minorities is not such a bad thing either. India and now South Africa mark a shift in this traditionalist thinking and perhaps maybe for the better. If the Constitution is a power sharing agreement between groups, then the rights are surely the result of a political compromise. It took 300 odd people sitting for more than 2 years to debate and frame our constitution, in exchange for the discrimination that the dalits had faced and their rights (may be not for a separate state as mayawati argues though) some provisions in Part III may be considered as a compromise to them.

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For starters, I don’t intend to be prophetic in my evaluation of the recently concluded Gujjar Community-Rajasthan Government wrangle. However, I cannot help but observe, quite candidly, that the whole situation serves as a dark episode in the history of civil liberty movements in this country. The reasons for such analysis are not too far to seek.

For a moment, let us relive the influence of caste in shaping the political, cultural and even geographical history of India; caste as an index continues to affect our public policy, be it through coalition governments or affirmative action, and hence is a critical determinant of the upward/downward mobility that the Indian citizen attains in life. Central and State Governments, have throughout the course of post-Independent India, engaged in active programmes that seek to mitigate the wrongs of historical discrimination meted out to various castes. One may indeed argue that the whole gamut of events has only recently, acquired a political twang. Caste-based violence still continues to be a haunting reality in rural India, with incidents of isolated and systematic torture frequently surfacing in the news.

Taking such grim reality as the backdrop to this article, it is important that we understand the repercussions of granting ‘special, backward community’ or ‘ST’ status to Gujjars. Not because the additive 5% would increase the ever-burgeoning basket of reservations in the quota system, but because the 5% so granted was the direct and immediate consequence of untoward and violent rebellion against the State. Of course, the million-dollar question is always going to be whether the Govt. was right in granting such privileged status to the community? Nonetheless, the finer aspect of the issue still remains: Was the Govt. right in acquiescing to the violent methods of the Gujjars in granting reservation? The next logical question would then be: Is not the Govt. setting a bad precedent, effectively indicating that ends can be achieved through such caste-based violence? The answer, unfortunately, is a loud and thumping Yes.

(To be continued.)

On June 5, the Supreme Court of India in a significant ruling, held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 would not hinder a divorced Muslim woman’s right to maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

Prior to delving into the importance of this judgment, it is imperative that the gamut of events, triggered with the Shah Bano verdict, be explained. In 1985, the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, upheld the maintenance claim of Shah Bano, a divorced Muslim woman of 60 years, under S.125 of the CrPC; the Section provides for relieft to a wife (among others), “unable to maintain herself”. However, this judgment created a huge outcry from the Islamic orthodoxy in India. The Rajiv Gandhi-led Government in power, passed the Muslim Women (Protection of Rights on Divorce) Act, to appease the outraged sentiments. The Act, quite ironically, curtailed the rights of Muslim women rather than protecting them. It limited the Muslim husband’s responsibility to maintain his divorced wife to the period of iddat. Over the past decade, the Act has challenged over various grounds of Constitutional validity. The apex Court’s decision in Daniel Latifi v. Union of India was instrumental in clearing the fog of confusion. The Court in that instance, gave a liberal interpretation of the Act,(specifically S. 3(1)) in so far as the “fair and reasonable” provisions to the divorced Muslim woman shall include maintenance for her future extending beyond the iddat period.

Earlier this month, the two judge-bench comprising Justic Arijit Pasayat and D.K. Jain in the case of Iqbal Bano v. State of Uttar Pradesh overruled the Allahabd High Court’s order on the same matter; the H.C had held that the divorced wife is not entitled to maintenance under the CrPC in lieu of the existing Act of 1986. There were questions raised as to whether the divorce effected was proper; to which the Court answered in the negative. While the Act only deals with divorced women the CrPC, in the opinion of the Hon’ble Court, is of broader ambit.  A relevant passage from the judgment is quoted below:

Under the 1986 Act the husband has two separate and distinct obligations, viz. to a make a reasonable and fair provision for his divorced wife [for her residence, food, clothes and other articles], and to provide maintenance for her. Though it may look ironical that the enactment intended to reverse the decision in the Shah Bano case it actually codifies the very rationale contained therein.

 A judgment is certainly a step in the correct direction to secure the rights of divorced Muslim women unable to maintain themselves, and relieve them of their plight perpetrated by legal instruments such as the Act of 1986.

The National Rural Employment Guarantee Programme (NREGP), formulated consequential to the NREG Act, 2005, has no doubt, been of benefit to a vast number of families from rural India. This social-welfare legislation has proved instrumental in creating employment, albeit temporary, to those lacking adequate means of livelihood. The present context upon which I wish to comment, is one that exemplifies the connection, or rather the absence thereof, in the spheres of law and society. The exclusion of single women and widows from the ambit and benefit of the NREGP is no small matter.

The background to this comment is based on P. Sainath’s article in the Hindu dated May 22, 2007 and can be read here:  http://www.hindu.com/2007/05/22/stories/2007052200840900.htm 

The article, in essence, deals with case-studies of single and widowed women in Andhra Pradesh who have been refused employment under this Programme on the ground that they lacked a male partner joining for work. Many of the widows’ farmer-husbands committed suicide in light of the extremely miserable conditions for agrarian production which have been long prevalent in A.P (and many other parts of the country) now. Such reports have even received confirmation from officials in the Government. Digressing slightly, it can be stated there is a complete lack of awareness as to the fact that the widowed women of farmers are all the more in need of employment as a result of the deficient means of livelihood.

If one observes the reasons for refusal to provide employment to these women, it can be noted that such employment is contingent on the presence/ absence of a male partner at work. The fundamental assumption, therefore, is that productivity and work will be compromised if single/widowed women are employed without male workers to “compensate” such depletion in productivity. In short, only male workers can be trusted, so to say, to maintain standards of efficiency at work. Inherently discriminatory in nature, such tendencies do well to perpetuate the myth of the “able-bodied worker”. It would be truistic to say that the very purpose of the NREG Act is destroyed if such notions are encouraged. If employment were to be provided on such fallacious grounds based on efficiency, rooted in gender bias, we would only be promoting discrimination; not to mention the fact that livelihood of families run by women (no meagre number, that) would be thrown into (further?) economic backwardness.

The law in its implementation has to be conscious of ground realities in society. A social welfare legislation is absolutely redundant if in practice, it encourages such myths and discriminates on the basis of norms clearly unconstitutional. An understanding of social and gender equality is critical to the benefit of its subjects in society.

I just got hold of an interesting document.
Below is Amnesty International’s letter to George Bush ahead of his visit to India is 2006. A good read.

USA: Letter from Amnesty International to President Bush on His Upcoming Visit to India

The Honorable George W. Bush
President of the United States
The White House
Washington, DC 20500

Dear Mr. President,

Amnesty International welcomes your visit to India during the first week of March. Your visit represents a rare opportunity for you to directly communicate your concerns about human rights in India. While you discuss economic cooperation and civilian nuclear partnership with the Indian Prime Minister, it is vital that you also raise human rights concerns affecting large numbers of Indian citizens. Amnesty International strongly urges you to include Indian human rights concerns in your joint communiqué with the Indian Prime minister Manmohan Singh.

Even though India is the world’s largest democracy, there remain serious and disturbing human rights practices, including “disappearances”, rape, extrajudicial executions, deaths in police and military custody, torture, cruel, inhuman, and degrading treatment, arbitrary arrests, dowry deaths, and numerous other human rights abuses.

The Government of India not only fails to prevent these abuses, but also shelters members of security forces from facing justice. People living in several of the northeastern states of India, Kashmir, religious minorities, those belonging to the lowest social order called “dalits”, and indigenous communities called “adivasis” face the brunt of these abuses. Other socially and economically marginalized groups including women face discrimination at the hands of the police and criminal justice system. While some laws were passed to address some of the human rights abuses; serious concerns remain about the implementation of such laws.

There are numerous human rights violations taking place in India. Following are some of the abuses and concerns:

Massacre of Sikhs: Over three thousand Sikhs were massacred when the governing Congress Party incited mob violence targeting Sikh civilians in reaction to the 1984 assassination of Prime Minister Indira Gandhi by her Sikh bodyguards. Scores of women were gang raped and some were burnt alive. After two decades, a judicial commission concluded that members of the governing Congress party were involved. Several belonging to the same party were cleared of charges, which led to criticism from several civil society and Sikh organizations and opposition political parties. Twenty years have passed since the massacre, but only a few have been brought to justice for this mass killing.

Massacre of Muslims: In 2002, over 2,000 Muslims were massacred in Gujarat as a reaction to a train fire that killed 59 Hindus. This train fire was blamed on Muslims. Hindu mobs allegedly incited by state Bharatiya Janata Party members went on a killing spree targeting Muslims. Several hundred Muslim women and girls were gang raped and some were burnt alive. Pregnant women and children were also targeted. After three years, very few individuals have been brought to justice.

Bhopal tragedy: Several thousand people have died and many more continue to die from a 1984 gas leak at Union Carbide’s pesticide plant in Bhopal in 1984. Twenty years have passed since the leak occurred, but the plant site has not been cleaned up and toxic wastes continue to pollute the environment and ground water. Tens of thousands continue to live with debilitating illnesses. Despite numerous efforts, survivors continue to be denied adequate compensation, medical help, rehabilitation, and justice.

Armed Forces (Special Powers) Act of 1958: The Armed Forces (Special Powers) Act of 1958 has remained in effect in “disturbed areas,” including Kashmir and large parts of the northeastern states of India for over forty years. This act is a major contributor to massive human rights abuses in these areas of India. This law protects Indian Security forces from prosecution by requiring permission to prosecute from India’s Central Government–permission which is rarely given. As a result, security forces often take the law into their own hands and commit massive human rights abuses against the civilians. This law has facilitated grave human rights abuses, including “disappearances,” rapes, extrajudicial executions, and deaths resulting from torture. This law also gives the security forces power to shoot to kill anyone even without any threat to the lives of security forces.

Northeastern States: One of the areas “hidden” from international attention is the region of northeast India. A reign of terror is prevailing in this area, which is largely facilitated by the above mentioned Armed Forces (Special Powers) Act of 1958. Security forces kill, rape, “disappear” and commit other gross human rights abuses with virtual impunity. Amnesty International has never been permitted to visit the northeastern states of India.

Kashmir: The Indian side of Kashmir is another area where Indian Security forces commit massive human rights abuses with impunity. This is once again facilitated by the Armed Forces (Special Powers) Act of 1958 and other similar laws. Indian Security forces “disappear,” rape, extra-judicially execute, torture people to death, and commit other severe human rights abuses. Authorities arbitrarily detain people and use preventive detention to stifle political dissent. The civilian population of Kashmir has paid a high price for the conflict. Thousands have disappeared and the total casualties since 1989 are believed to be around 38,000.

One example of impunity in Kashmir is that of a human rights lawyer and activist Jalil Andrabi. Nine years after the “disappearance” and killing of Jalil Andrabi, an army major identified as responsible by a special investigation team had still not been brought to justice. Army representatives asserted that they have not been able to locate him. Amnesty International has never been permitted to visit Kashmir.

Abuses against “Dalits”: India’s caste system involves a social hierarchy and individuals are considered to be born into a particular caste and remain in the caste throughout their lives. Outside these caste categories are the “untouchables,” now commonly known as “dalits”, whose occupations – sweepers, tanners, sanitation workers, etc – were viewed as “polluting” the community. Nearly 200 million people in India belong to this category and this system has been called India’s “hidden apartheid.” Abuses against “dalits” are numerous and take many different forms including: parading of naked dalit women through the streets, socioeconomic discrimination, killings, arson-burning of dalit communities, gang rape, bonded labor, denial of land rights, and many more. The police and the criminal justice system also discriminate against dalits. Though important strides have been made, much remains to be done.

Abuses against Adivasis: The indigenous communities called adivasis face immense pressure from dam and mining development projects and settlements. Adivasis face socioeconomic discrimination as well as discrimination by the police and the criminal justice system. For example, recently police used excessive force during a protest against the construction of a steel plant on traditional adivasi land in the state of Orissa. At least twelve adivasis, including three women and a twelve year old boy, were reportedly killed in the police firing.

Abortion of female fetuses: Traditional preference for boys has led to thousands of female fetuses being aborted despite the prohibition of pre-natal sex discrimination for the purpose of the abortion of female fetuses. In May, the Health Minister stated that there had not been a single conviction for breaking the ban since it was introduced eight years earlier.

Mr. President, Amnesty International urges you to secure a meaningful commitment from Prime Minister Manmohan Singh to improve India’s human rights situation. It is essential that human rights be treated as an important issue like trade and civilian nuclear partnership.

We urge you to include human rights as part of your overall discussion with the Prime Minister and that you demand the following:

1) Abolition of the Armed Forces (Special Powers) Act of 1958 and other similar laws.
2) Immediate release of those held under such laws.
3) That those involved in the massacres of Sikhs and Muslims be brought to justice.
4) Immediate resolution to the Jalil Andrabi case.
5) Adequate compensation, medical help, rehabilitation, and justice to those who were affected by the Bhopal tragedy, including full cooperation to bring Dow Chemical in compliance with their responsibility.
6) An immediate investigation into the abuses happening in northeastern India.
7) That Amnesty International and other human rights organizations be allowed access to Kashmir and to all northeastern states.

Mr. President, we urge you not to miss this opportunity to speak for those whose rights have been violated in India. They need your help.

Sincerely,

William Schulz
Executive Director