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Subhadra sent me an email article about the recent spate of attacks on women wearing ‘western clothes’ in Bangalore. It’s disheartening to read them and ponder on the state of things in this Country.

In this earlier post, I have talked about morality and the Dworkinian conception of harm and the enjoyment of rights. I shall talk about it briefly here and go about an extension of it.

The Dworkinian concept of harm, also called the ‘harm prinicple’ rests on the idea that one should be allowed to enjoy his/ her rights as long as they do not affect the rights of others. First, conceptualized in his article “Do we have a right to Pornography”, it now lays the foundation of any debate on morality. This idea also does away with any role the State may claim to play as the upholder of morality and leaves the choice to the people itself as long as it does not affect others. Reading pornographic magazines and open sexual acts are a few of the examples that Dworkin gives to explain the ‘harm principle’.

More importantly, I saw this principle being applied completely in the context of anti-smoking legislation. It must be noted that the reasoning against smoking in public places is not that it is bad to the smoker itself, but that it harms the passive smoker and thus to discontinue the violation of his rights, the laws have been made. (See Murali Deora v. Union of India, AIR 2002 SC 40). This has also been explained in this previous post of mine here.

On the State being the ‘upholder of morality’ notion; it is sad that the Constitution contains various references [Article 19 (2) and Article 25 ] to morality being a ground for a restriction and it being used in the same manner even though the harm to others may not be evident.  

If this be so, then perhaps Mr Muthalik and the State should lay no claim as regards deciding on what people should wear or Drink.

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Below is Manav’s post on the Pink Chaddi campaing. Interesting read. May not be that legal though.

Where are they, those advocates of human dignity? 

While I am ensconced in Santa Clara, the internet serves me well in providing me with information on what is going on in our motherland. About a week back, all that I heard from home was on the Pink Chaddi campaign.

Initially, it amused me, made me laugh, was interesting. I thought it would be a good cock-a-snook at Those-Who-Are-The-Sole-Custodians-Of-Indian-Culture. Later, I thought more about it. It didn’t seem so funny then.

A few girls were beaten. Beaten badly. At least two of them were hospitalised. For being in a pub. The Hindu right evidently thinks that these women have strayed from the path of Indian Culture and Morality (“Women?” “Drinking?” “India?” Horror!). In fact, it was suggested that these women deserved the beating because they were “getting too close to Muslim men”.

And how did we- the liberal, the elite, the English-speaking (partly) convent-educated react? We, who speak for rights? We, who believe in equality, in human dignity, in the freedom of choice? What did this group of people do?

Decided to send pink underwear to the Sri Ram Sene. That’s all. Pink, because it was “a frivolous colour”.

Well, pardon me for my ignorance. Just what is so frivolous about being beaten up for choosing to go to a pub? What is frivolous about people making your decisions for you? Where you should be, what you should do, who you should “be close to”? Instead of making a rational point, instead of sending a message out saying such harassment is unacceptable, all we chose to do was send undergarments- the equivalent of saying “Nyah-Nyah, losers, you suck. Kiss my ass”.

Indian culture, morality, our notions of religion, are all fast becoming the domain of a set of right-wing reactionaries. Instead of ensuring that such interference ceases immediately, or even engaging them in debate, of trying to get them to see our side of the picture, of asking them what gives them the authority to interfere with our lifestyle, all we do is send them chaddis- thus suggesting that we, the liberals, don’t think their viewpoint befits more than insults, not even when it manifests itself in ways so entirely unacceptable to us.

No one I’ve been able to speak to has given me an answer to this one, let’s hope the comments do.

 

At a time when questions of moral turpitude are being raised all over the country due to the assault on women at pubs in Mangalore, there comes a judgment, that stands out. While defining the contours of law and morality, the Delhi High Court has ruled that there is nothing wrong with a couple kissing in a park and that doing so would not be violative of Section 294 of the Indian Penal Code.

Noting that a public display of affection in the form of kissing does not in any way constitute obscenity and violative of public order, Justice Muralidhar dismissed the charges against the couple as laid down by the police.

Now the question of morality and what kind of perverse acts should be permitted by law has always been a debate. Those in favour of the public display of affection (like myself) turn to Dworkin’s “Do we have a Right to Pornography?” written in his book A Matter of Principle. In the article Dworkin makes a case for the open publishing and distribution of pornographic magazines and states that such an action is based on the society’s conception of individual liberty and privacy. Arguing that there is no harm to the individual himself/ herself with the expression of feelings in such a manner, Dworkin adds that there is no right of the State to tell the individual what to do, especially if it blatantly violates his liberty.

He however adds, that this isn’t the main concern. He states that it is not the expression of such feelings that matter, but the disgust caused to the public at large that is the main cause for concern in regulating such expression. He adds;

“Of course individual liberty would be very restricted if no one was allowed to do anything that any single other person found offensive. … The question is whether the harm to those who find offense would outweigh the desire for all those who wish to do what would offend them ?”

 

Dworkin says that the answer would lie in as to how such acts are perceived in the society at large and the level of maturity that is attributed to it. Regulation must not be such as to hamper the ideal of individual liberty that we hold so dear to ourselves.

Muthalik’s actions in Mangalore, Shilpa Shetty kissing Richard Gere and many other must be looked in the context of individual liberty and not what a third person would perceive of them. There should be nothing wrong with girls drinking in a bar and we must attribute to them that level of freedom. Not doing so, would make citizens lose their respects for Government (Dworkin, ‘Taking Rights Seriously’).

Justice Muralidhar’s decision I would say throws light on this issue and could be compared to Dworkin’s argument.

 

P.S. : I had the good fortune of clerking with Justice Muralidhar in 2007. Ranks amongst my best internship experiences. The judgment can be viewed at the Delhi High Court website. 

 

 

I undertook a project titled ACCESS TO JUSTICE: ARGUING FOR MIRANDA RIGHTS IN INDIA for my Law and Poverty Course this semester. It involved a field study wherein I sought to provide the ground work for having Miranda in India. Ofcourse, we do have DKBASU guidelines, but they arent enough to ensure due process in our Country. The next few posts are going to be specific chapters of my project.
The Complete Project may also be downloaded here
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INTRODUCTION

It is very often said that poverty means the degeneration of human rights. Rights, that are meant to be inalienable to human kind since their existence. One of the most important of these rights is the right to due process. Every person has a right to life and be tried by fair and just procedure[1]. It is highly unfortunate that while law seems to be in place for the protection of such rights, it fails in its implementation. The citizen is not aware of such law and more often that not, the poor man has to bear the brunt of actions. Poverty, is inextricably linked to the criminal legal system when it comes to the ‘access to justice’ and the protection of rights and freedoms.

The right to life and liberty[2], of which due process is an essential part has been given the highest regard in the Constitution and considered inviolable in nature. The ‘procedure established by law’ as explained in Maneka Gandhi’s case[3], must be reasonable, fair and just. In a country where more than 250 million people are below the poverty line, the fairness of the system still remains to be seen. The legal system in the country is against the poor. The goals of socialism and equality have not yet been realized and remain a distant dream. Most laws are made to facilitate the growth of wealth for the rich and the few that are made for the poor fail in their implementation. The legal system itself, apart from the provision for legal aid, has done nothing to support the poor in the country.

Access to justice can be understood in two ways- firstly, getting justice to the victim of a particular crime and secondly justice, in the protection of the rights of the accused. The procedure to every conviction must be fair and just. An achievement of justice in a case must consider the procedure by which it is conducted. Rights must be preserved, procedure must be followed and the accused must be given a free and fair trial. In the research, I have chosen to look at the latter aspect of ‘access to justice’. The rights of the accused are vital in the conduct of a trial. When a poor citizen stands as an accused, he needs to be aware of his rights. He needs to know that he has a right to free legal aid, a right to have his relatives informed, and most importantly, not to be tortured or be subjected to custodial violence. The situation in the Country is such that with a large majority of the people illiterate, such people are ignorant of their rights and the government on its part is doing nothing to educate them. It seeks to rest on the clichéd principle of ignorantia juris non excusat, that ignorance of the law is no excuse.

On the same lines, the Federal Court of the United States in 1966 pronounced the famous ‘Miranda Rights’ in Miranda v. Arizona[4]. What is said was that on arrest, every person must be read out his rights and the consequences of such abrogation would be the freedom of the arrested person. It attached, some degree of accountability on the police and state machinery for the protection of the rights of the citizens. In India, the case of DK Basu v. State of West Bengal[5], the Court issued directions in the form of requirements that are to be followed at the time of arrest. In the case, the Court relied on Miranda and tried to secure, atleast in theory, rights to the accused. However, such procedures are far seen to be implemented. Numerous incidents have taken place where the police authorities have abused procedure and resorted to violence. This project looks at rights granted to the accused in relation to poverty and illiteracy. It shall seek to critique the legal system and address the issue of police accountability that is gaining importance today. To facilitate his research, the author has conducted a field study, the data collected from which will be used to further his conclusions about the topic.

[1] Biswanath Prasad Singh v. State of Bihar, 1994 Cri LJ 242.

[2] Article 21, The Constitution of India.

[3]Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[4] Miranda v. Arizona, 384 US 436.

[5] DK Basu v. State of West Bengal, (1997) 1 SCC 416.

TAKING RIGHTS SERIOUSLY

In 1977, Ronald Dworkin wrote ‘Taking Rights Seriously’, a book that argued that that rights must be understood as extremely important moral concerns, and cannot be outweighed merely because a majority would be better off by violating the rights of an individual. Rights need extremely strong protection because they are necessary for the dignity and equal respect of individuals, especially when those individuals form a minority within a society. Dworkin believes that the right to free speech and due process is a paradigm example of a right that should be given extremely strong weight-what he elsewhere has called treating rights as trump cards. Dworkin finally says that only when governments respect rights will respect for the law be generally reestablished.

A few weeks ago, President Bush signed the Military Commissions Act, a piece of legislation that has undermined the notion of civil liberties in the legal setup. What the Act has basically done is, to legalize Guantanamo, disallow Habeas Corpus petitions and prohibited the invocation of Geneva Conventions protocols. In brief, it is a law that has diluted the basic principles of justice and righteousness in the garb of providing security for the citizens. In most ways, this Act makes people think. To what extent can the State violate civil liberties? When Dworkin writes that only when Governments respect rights will the law be respected, what and whose rights are we talking about? Looking at this situation in the example of India, we see that with two major terrorist strikes in the past one year, people are questioning the Centre’s stance on terrorism. Some are even advocating the invocation of POTA and to do away with the Unlawful Activities Prevention (Amendment) Act, 2004. While such debates continue all over the country, the question still remains unanswered, ‘to what extent can the state restrict a right?’.

Fundamental rights and due process are the very foundations on which our legal system is based. It goes without saying that the benefit of the rights mentioned in part III of the Constitution goes to all citizens of the country and not a section of them. If a democracy cannot protect these rights, then it ceases to be one. When we talk of the democratic state of ‘rule by the people’, at least in theory it is not meant to be the rule of a majority but the rule of each and every citizen and the protection of his rights. What terrorism does, is that is creates pressure on the centre to look at other means of curbing terrorist activities, the most common of which is to abridge and take away the fundamental freedoms of certain people. When the Prevention of Terrorist Act (POTA) was introduced in 2002, the majority cheered for they had found a way to tackle terrorism, but some remorsed for the greater harm that was being caused under the cover of national security. And what’s more, the Supreme Court gave sanction to such legislations in Kartar Singh and PUCL v. Union of India. The Unlawful Activities Prevention (Amend) Act, 2005, was, in issues like the collection of evidence, harsher than the POTA. Over a length of time, if we notice and plot the legislations against terrorism on a continuum, they move towards the taking away of civil liberties.

This problem, however is not India specific. The detention of people in the United Kingdom, the terrorist laws in Spain and of course the measures of the United States are examples where developed legal systems are compromising civil liberties and rights in interests of national security. There is an unequivocal settlement that national interests are of primary importance. But what about rights and fundamental freedoms? Alan Dershowitz once emphasized that the Government loses credibility when it cannot tackle issues along due process concerns and resort to other means of prosecuting people. The point that is sought to be made out here is that terrorism’s greatest victory is the shackling of the state system. If we, as a democratic state do not stand by the very principles of rights we are made of, we shackle the very foundation of democracy. In the interests of protecting a majority, the rights and freedoms of a minority must never be compromised. Once again I emphasise, that a democracy is not of a majority but comprised of each and every citizen living in it. We must deal with terrorism within our existing setup. The history of our nation has begun with the protection of liberties for everyone and must not end at any stage.