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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.
One of our readers Jeffery Anderson sent us an article on a recent death-by-stoning in Somalia. The article is written by Prof Sumbul Ali-Karamali from his book, The Muslim Next Door.
The views in this article are of the author himself and do not in any way represent the opinion of The Social Blog.
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Stoning to Death for Rape is Barbaric, Uncivilized, and Un-Islamic
By Sumbul Ali-Karamali,
Author of The Muslim Next Door
A few days ago, I read that a 13-year-old Somali girl had been stoned to death for being raped by three men. I could hardly bear to read it, as sickened as I was, and as revolted that the criminals carrying out such a barbarous act – the stoning, I mean, though the rape was barbarous, too – would call themselves “Islamic.” They might have been Muslim, but they certainly weren’t “Islamic,” because murder is condemned by Islam.
The militants claimed the girl was twenty-three, but even if she had been 90, her death would still be murder.
Implicit in this news story, the unmentioned elephant in the room, was the assumption that that this Somali stoning had something to do with the ancient punishment of stoning for adultery. Contrary to popular belief, the 1400-year-old Qur’anic punishment for extra-marital sex, for both men and women, is 100 lashes, not execution. Nevertheless, in the man-made books of Islamic jurisprudence, the penalty for adultery by unmarried persons remained 100 lashes, but that for married persons became execution – but only according to some early Muslim scholars, not all. No one knows quite how this happened. It’s possible that it came from Judaism, under which stoning was the punishment for adultery in the 7th century; Muslims have always considered themselves to be religious brethren to the Jews, and a story relating to the Prophet implies influence from Judaic law.
But rape is not adultery. Rape is a violent “taking” crime, more akin to the violent taking of life or the violent taking of property than to consensual sexual relations. The victim is not punished when she has suffered a violent taking crime. Rape, therefore, should never even have been associated with the Islamic law of adultery.
And even if this child did have consensual sex, there is no possible way she could have been guilty under any form of Islamic law.
Why? First of all, no one can be punished, under Islam, without a trial.
Even more significantly, for a conviction of adultery for either a man or a woman, Islamic law requires the unimpeachable testimony of four eyewitnesses to the act of intercourse itself. And, they must witness the actual unlawful penetration, mind you; two people under a blanket does not qualify.
Moreover, under the selfsame classical Islamic law, a court can dismiss a conviction of adultery if the defendant (this applies to men and women both, remember) can show duress, fraud, decreased mental or physical capacity, mistake, or repentance. Duress is clearly present in a case of rape.
And even if the prosecution can produce those four eyewitnesses and prove that they’re reliable – the penalty for perjury is 80 lashes – and still the defendant cannot show any of the defenses (anyone should be able to show repentance, surely?), then the judge may still nullify the punishment if he or she feels the slightest doubt about the conviction or for any other reason.
In other words, even in classical Islamic law, the crime of consensual extra-marital sex was a deterrent punishment, purposefully made so impossible to prove that the punishment could not be applied.
Islamic adultery laws were meant to protect the woman. A woman’s chastity has often been, in patriarchal cultures, connected to her family’s honor. Gossip about a woman’s chastity could destroy her future. So the Qur’an commands that gossip about a woman’s chastity must be resisted, because it is not something of which we should be speaking. In other words, if there’s a question of chastity, bring the four eyewitnesses and provide the nearly impossible proof; otherwise, be quiet.
So even if this had been a case of consensual extra-marital sex, for militant thugs in Somalia to sentence a girl or a woman or a man or anyone else to a summary execution that violates Islamic law on so many levels would have been sheer murder. Because this was a case of rape, it’s so much worse than murder – it’s murder plus the barbarous pollution of an entire justice system.
And is it bestial human nature that compelled 1,000 people to pack the stadium to watch the child die? The same nature that made public hangings in England a spectator sport? Or lynchings in the United States? And if it is, at what time in our evolution will we finally purge ourselves from it?
As an American Muslim woman, I have the luxury of education. I don’t worry about my next meal. I have access to medical care. I am literate and have, compared to most of the world, endless resources with which to educate myself. But in war-torn Africa, suffering from high illiteracy rates, abject poverty, hunger, authoritarian governments, and rebel movements that style themselves as “Islamic” to legitimize brutality that is antithetical to Islamic law, what defense do women have?
We in the industrialized world must address the underlying problems of the developing world if we are to put a stop to these sorts of horrific crimes, whether they’re carried out in the name of religion or not. Islam, like other religions, limited the violence of the time in which it was revealed. What passes as Islam these days in many parts of the world is often an amalgam of culture, politics, expediency, and religion. Greg Mortensen, author of Three Cups of Tea, understood years ago, despite no background in politics, that the way to prevent violence was education; the way to prevent terrorism was education.
I don’t mean to naively simplify; certainly a myriad of factors contribute to situations like that in Somalia. But if the people in Somalia had the luxury of education, like I do, then – just maybe – this little girl might not have been a victim.
©2008 Sumbul Ali-Karamali
Author Bio
Sumbul Ali-Karamali grew up in California frequently answering difficult questions about Islam and its practices posed by friends, colleagues, and neighbors. (“What do you mean you can’t go to the prom because of your religion?”) She holds a B.A. from Stanford University and a J.D from the University of California at Davis and earned a graduate degree in Islamic law from the University of London’s School of Oriental and African Studies. She has served as a teaching assistant in Islamic Law at SOAS and a research associate at the Centre of Islamic and Middle Eastern Law in London. Her book, The Muslim Next Door, is available from White Cloud Press.
Its soon going to be six years since the Gujarat carnage took place in our ‘Democracy’. The actions we have seen so far have not been surprising. The Chief Minister gets re-elected, none of the people who arranged the attack on the muslims have been prosecuted yet and off late, the Court yells at one person who has been instrumental in getting justice to the victims of the carnage.
Let me begin by re-counting some of the incidents to most of my readers. The Tehelka issue on the Gujarat riots have been quite helpful in helping most of us re-visit the events. For people like Babu Bajrangi, the magazine is his worst nightmare. Surely it should be so when he is caught in the sting operation which giving an account of the Naroda Patiya massacre.
“Kauser Bano, was nine months pregnant that day. Her belly was torn apart and her foetus wrenched out, held aloft on the tip of a sword, then dashed to the ground and flung into the fire. Bajrangi recounts how he ripped apart “ek who pregnant b******d sala”; how he showed the Muslims the meaning of wrath – ‘if you harm us, we can respond- we’re no khichadi kadhi lot”
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Then there’s also 22 year old Sufiya Bano who was raped and burnt in front of her father and when the father and three sons went to save her, the sons were killed and the father beard was cut off.
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Naroda is an open area with a large pit that is actually a cul de sac – a slope leads into it from one side but the other side is a sheer rise that cannot be scaled. Several muslims had sheltered there; the mob surrounded the pit, poured fuel into it and set it afire. Around 200 people have said to have died in it.
Without going further in recounting these horrid tales, it must be stated that the action taken against those who were involved(hindus) in these crimes is as good as nil. On the other hand, the Supreme Court has denied bail to each of the 84 accused (muslims) of the burning of the Sabarmati express and all of them have been in jail for the past six years.
This is the irony of the Indian governance system. We are told that we are a democracy where everyone’s rights would be protected and there shall be no arbitrariness involved but on the other hand, communalism has penetrated so deep within us, that it is evident in the everyday actions of our Government. Most of the muslims in Ahmedabad still live in ghettos with inadequate facilities of water and electricity while Modi and his compatriots manage to come to power on the pedestal of “Gujarat Shining”.
Now when most of these issues are highlighted by Teesta Setalvad in an article, she gets a highly critical reaction from the Court. Well the article highlighted the fact that the Supreme Court had not done enough to deliver justice to the victims of the Gujarat riots and in fact was delaying the hearing time and again and not giving it much importance. This in a country where the Court has held that “Justice delayed is at par with Justice denied”. She also raised the following questions;
- · Can no questions be asked about the systems in operation in the Supreme Court of India?
- · Which matters get automatic priority and which do not?
- · Which matters suffer because of the delays and interim orders of the Supreme Court?
- · Is there no prioritization of cases where issues of personal liberty, denial of basic fundamental rights, mass crimes and impunity to the rich and powerful is concerned?
If we can ask no questions, we will receive no answers. - · The time has come to question the basic accountability procedures of the highest court in the land.
Has the Supreme Court of India lost its soul and is it turning a blind eye to cases related to fundamental rights violations? - · If so, where then do we turn?
In reply, when the Court was to hear the case on the 16th of this month, the Court was apparently fuming over the article and went to the extent of asking the lawyers whether they had any association with Teesta and if so, that they wouldn’t be hearing the petition. Well, quite juvenile I must say in a land where free speech is a highly cherished ideal.
So while the we enter the Sixth year since the riots took place, a lot of questions are raised about the efficiency of the administration in maintaining order and securing justice to the victims. In addition to this, it is disheartening to point out that even still we don’t have a law dealing with mass crimes in India and the Communal Violence Bill has not yet been passed. Like I said earlier, the irony of Indian democracy.
(See articles in the hyperlinks provided in the text)
A lazy sunday for me. While I was whiling away my time reading the paper I started wondering if there would ever be a time when the Government would apologise for the great wrongs committed against the poor agrarian people that has led to the naxal problem. Or perhaps the dalits.
The incident in Australia marks an important revelation in the progress of a welfare state. To understand that the state program must secure the rights of all is one of the most important facets of the democracy. But while this historic apology has taken place, the aborigines have already started planning their law suits asking to be compensated for it. An apology and further measures for protection was what they deserved but law suits are way too much. The irony of the law I presume.
Coming back to India, the Courts have made it clear that the idea of affirmative action under Articles 15(4) and 16(4) of the Constitution will be only to those communities that are ‘historically wronged‘. This is an interesting classification I must say and to add that the only form of benefit that comes to these communities is in the form of reservations. The greater issue at hand is the mistakes that the government is committing in furthering the interests of the minor rich and sacrificing the lives and means of livelihood of the majority poor. If there is an apology involved, it is in this area. With the series of property amendments to the Constitution, legislations regarding meager monetary compensation and not to forget the thousands of farmers who have killed themselves for the Government doesn’t give a damn about them; surely there is an apology to be given here.
Killing 80 (or more) people in Nandigram was no joke but a serious consequence of this mistake. The naxalite problem is also a related consequence. Perhaps we need a reformed government to re-consider the claims of such groups; because their penury was caused by government action itself and not by any extraneous circumstances. I always believe that society reforms and proceeds towards rationality with time but I think the time of us Indians is way far to come.
Swaminathan Aiyar has written a somewhat interesting piece in the Times of India today. Titled ‘Democracy depends on the unelected’, he raises some appealing issues on the status and working of the democratic process in India and the role of the unelected institutions. (See TOI, Sunday, Editorial 27th Jan, 08)
“The Constitution created other unelected bodies such as the Supreme Court and the Election Commission – which are the most respected in India precisely because they keep elected politicians in check.”
These are the last few lines in the Article that sum up his basic arguments in the paper. What is worth to be noted is that Mr. Aiyar bases this on the primary premise by drawing a link amongst what he suggests are the most respected institutions in the Country (The SC, Election Commission and the Army) – that they all are unelected. Theoretically this statement could be true, but I’m not sure with the present state of things in the Country, I’d agree with it.
When the Supreme Court goes on a popularity track, deciding cases it is not authorized to do so, creates new mechanisms to solve issues; it violates the democratic ethos in the Country. When the Court has decided according to the law, it has always gained respect in the eyes of the people. On the other hand, when it has involved itself with political questions and not decided otherwise according to the law, it has lost the respect of the people. The best examples of losing respect that I can give are ADM Jabalpur and PV Narsimharao’s case( JMM Bribery case).
I have written earlier that there is an idea of constitutional limitations prevalent in our Country and the Court is presented with the task to see that the executive and legislatures work within these limitations. Needless to say, the Court itself is bound by these limitations and cannot violate them. Mr. Aiyar rightly points out that the Constitution has created institutions such as the Supreme Court and the Election Commission to limit the abuse of political power – that is the very idea of judicial review that is prevalent in the paramount parchment. However, the ‘most respected institution’ in the Country must exercise some amount of self-restraint in interfering with the democratic process. The more it does so, the more it loses respect.
The second part of Mr. Aiyar’s piece, one that I totally agree with, is about the two pillars of democracy. Mr Aiyar elucidates that democracy stands on two pillars- Constitutional democracy that lays down the rule of law, and popular democracy that elects the politicians.
“Constitutional democracy nurtures dissent, which elected politicians would dearly love to squash if they could”
The essence of democracy is about the right to dissent and be heard and it is the Constitutional democracy that protects this rights, while popular democracy supports the majority with and interplay of money and vote-bank politics. It is very essential in a democracy that the rights of minorities are protected and Constitutional mechanisms do precisely that. The individuality of the rights guaranteed under Part III of the Constitution and remedies for the same under Article 32 are sacred in this nature.
I was a little surprised to see Mr. Aiyar writing like this at first, but after remembering his views on Gujarat and other similar situations, one is expected to get such views from him. On republic day, he seeks to pay tribute to the unelected officials for preserving the democracy, mainly the unelected constitutional framers (Constituent assembly) who gave us the document.
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