Tuesday 15 July 2014

Looking Beyond Zenana Dabba Politics- Need to Improve Provisions of Women’s Reservation Bill

Now that Prime Minister Narendra Modi has promised on the floor of the House that the women’s reservation bill will be enacted at the earliest, we can be sure women will soon occupy 33% of the seats in parliament because he is not known to make empty promises. But I sincerely hope he will go about it in a democratic manner and not try to shove the existing reservation scheme down everyone’s throat, as the Congress Party under pressure from Left parties tried to do. The Bill in its present form is a classic example of the growing gap between pious promises and actual results of government policies and legislation in India.

We need a thorough debate on the proposed legislation so that some of the glaring infirmities and defects inherent in the Bill presented by the UPA government can be removed before it becomes law, especially since it requires an amendment to the Constitution.

The Bill provides for reservation on a rotation basis through a lottery system, which means that:

·   Two-thirds of the incumbent members will be forcibly unseated in every general election and those remaining will remain in limbo till the last moment.  Such compulsory unseating violates the basic principal of democratic representation and is fair neither to men nor to women. It jeopardises the possibility of effective planning to contest by nurturing a political constituency for both male and female candidates. 

·    Women will be ghettoised and forced to fight elections only against other women.  This will deny them the legitimacy of being mainstream politicians.

·     As male legislators will be forced to surrender their seats for a term to women, those who have worked hard to nurture their constituency, are likely to insist that the seat be given to a woman of their family. Since a seat will be reserved once in 15 years, males who will be pushed out of their constituency are likely to field their own female relatives or even  proxy candidates as a stopgap arrangement and women will not get the chance to cultivate deep roots in their constituency. 

·    That is how we have dominance of Biwi-Beti-Bahu brigade in our elected bodies, even at the panchayat and zila parishad level where this rotation system has already been imposed. Go anywhere in rural India and you find panchayats dominated by “Pati Panchas” and “Pati Sarpanchas”—that is while women have been elected to the seat, the real business is in the hands of their husbands.

     (For a more detailed analysis of the flaws in the UPA government proposed Reservation Bill & MANUSHI's alternative Bill, see http://www.manushi.in/articles.php?articleId=1100#.U8UfppSSyE4)

   In recent years, as India goes through its own version of sexual liberation, a new trend is all too visible:Girlfriends and mistresses of powerful politicians are now demanding that they be rewarded with seats in state assemblies and even parliament as quid pro quo for their services. In the absence of inner party democracy, grass root level workers rarely rise to leadership roles. In such a situation, women who are patronised by key power wielders are more likely to get tickets and catapulted to high positions on account of their intimacy with patriarchs in the party. This sends a very wrong signal to the rest of women. When women enter into humiliating relationships with men and compete with each other for male patronage in order to grab power positions, there is no scope for gender based solidarity which alone can enable women to acquire power as a group.

·   Finally, this Bill is completely silent about women’s representation in Rajya Sabha and Legislative Councils. It is unfortunate that the UPA Government under pressure from the CPM & foreign funded feminist NGOs did not take several more viable alternative proposals that have been mooted in the last few years for enhancing the representation of women in legislatures. The Alternative Bill proposed by MANUSHI, CSDS and Loksatta had received the endorsement of the Election Commission and several political parties who are opposed to the UPA tabled reservation Bill. (For a comprehensive critique of the existing Bill and a detailed account of the Alternative Bill see: http://www.manushi.in/articles.php?articleId=1100)

This Bill  proposes that a law be enacted amending The Representation of the People Act, 1951, to make it mandatory for every recognized political party to nominate women candidates for election in at least one-third of the constituencies. In the event of any recognized party failing to nominate one-third women candidates, for the shortfall of every single woman candidate, two male candidates of the party shall lose the party symbol and affiliation and all the recognition-related advantages. This Bill has the following plus points:
·     Firstly, parties will be free to field women candidates where they can offer a good fight rather than in pre-fixed lottery based constituencies, where they may or may not have viable women candidates. Thus there is flexibility and promotion of natural leadership.

·   Women candidates will be contesting both against female and/or male candidates of rival parties. The democratic choice of voters will thus not be restricted to compulsorily electing only women candidates in one-third constituencies while 2/3rd constituencies will be treated as male monopoly.

·     Unlike with the lottery system of reserved constituencies, in which women’s presence is likely to get ossified at 33% since there would be resistance to letting women contest from non-reserved constituencies, this model allows for far greater flexibility in the number and proportion of women being elected to legislatures. If women are candidates for one-third of all seats contested by each party, theoretically they could even win the vast majority of seats - all on merit.

·     Our Alternative Bill also obviates the need for a quota within a quota as is being demanded by certain OBC parties. Since the onus of fielding women candidates will be left to each party, those who are concerned about increased representation of OBC and BC women can field as many BC/OBC women as they think appropriate.  Given the prevailing electoral arithmetic, OBC/ BC communities have a great numerical edge over so-called upper castes.  That is how most of our state legislatures are heavily dominated by OBC/BC men even without a reserved quota for them.  The same caste arithmetic will work in favour of women of these communities.

The rotational reservation scheme is likely to face endless delays and obstructions because it requires an amendment to the Constitution, which mandates a 2/3 vote in favour of the Bill in the Lok Sabha and Rajya Sabha.  Thereafter, it has to be ratified by at least half of the state legislatures.  Given the overt and covert opposition to this Bill within all parties, including the BJP, the Bill will face endless hurdles and delays along the way.  By contrast the Alternative Bill proposed by Manushi can be passed by a simple majority in the two Houses since all it requires is an amendment to the Representation of Peoples’ Act.

However, whatever the form and shape the women’s reservation law takes, we cannot overlook the tragedy inherent in the fact that 67 years after independence women need to seek the quota route to entry in politics. This acquires more poignancy by the fact that at the time of independence when the new constitution was coming into force, most prominent women leaders refused to accept the principle of reservation as a route to political power. They did so in the belief that as in the Mahatma Gandhi led freedom movement, they would be able to carve out a respectable space for themselves without being offered crutches and crumbs. While in post-independence India women have been successful in entering all other professions on the basis of merit, politics is one field where they have remained marginalised. This is because a polity where money and muscle power dominates doesn’t make space even for honest men and is therefore intrinsically hostile to women as a group. Only those who can outperform or gang up with men in crime and corruption are likely to survive in the existing scheme of things. Narendra Modi understands better than anyone else that radical governance and electoral reforms are needed to cleanse our politics of crime and corruption. That alone will make politics women-friendly.

For our Power Point Presentation on this issue see....
http://www.slideshare.net/ManushiIndia/women-reservation

An edited version of this article was published in The Indian Express on 15-07-2014:



Sunday 13 July 2014

Don’t like this temple? Choose another

Male priests offering prayers to Lord Ayyappan at
Sabarimala Temple
The imperious missionaries of liberalism have no respect for the diversity of India’s belief systems and have taken it upon themselves to reform everything they perceive as outdated and incorrect.

Do we want to create a world in which everyone thinks alike? A world in which there is no space for divergence of views or foolish people? I write this after witnessing poor Rahul Easwar, one of the young hereditary priests of Sabarimala, being flagellated on television for the nth time on January 7, 2013, for allowing the presiding deity of his temple to shun the company of female devotees.

The media’s job is first and foremost to inform and not browbeat people to “reform.” TV news programmes in particular have come to resemble inquisitions or kangaroo courts with anchors and their hand-picked panellists flagellating those with politically incorrect views, issuing diktats on everything from political views to religious practices and rituals, and even the conduct of gods and goddesses.

Intolerant
Just as our colonial rulers with their faith in the superiority of their monotheistic faith, despised Hindu religious practices, with their millions of gods and goddesses, our modern day missionaries can’t stand the temperamental nuances of our diverse deities. They have no problem in accepting that women are barred inside friaries meant to house Catholic priests who have taken a vow of celibacy. But they can’t stomach the idea of a male deity who has likewise vowed eternal celibacy avoiding the company of women. They take it upon themselves to cure this kink because in their moral universe with its borrowed vocabulary, this amounts to misogyny and gender discrimination!

Rahul Easwar has asked each television anchor who has grilled him over the years how would they deal with all those temples which only allow female devotees, where the presiding goddess forbids men’s entry. Would they likewise force “women only” temples to open their doors to men? Not one has ever condescended to answer this simple question; nor did any of the anchors tone down their aggression or hostility towards Rahul’s intelligent defence of his faith and his Ishta dev.

Following in the footsteps of our British rulers, who despite their disdain for our gods and goddesses, took away shiploads of priceless ancient idols to display as art objects in their museums and living rooms, so also our westernised elites have taken to displaying paintings, bronze and stone carved idols of diverse gods and goddesses as decoration pieces in their homes as proof of their aesthetic lifestyle. But their disdain for those who treat them as objects of worship remains as ferocious as that of our colonial rulers.

Respect for differences
If that were not the case, they would have no difficulty in appreciating that Hindu divinities are not unknowable, distant entities. They have distinct personalities, character traits, likes, dislikes. Even in matters of food, floral offerings, puja ritual, each deity has his or her preferences. If you don’t respect their unique temperaments, you are free not to worship them and choose the devata or devi that suits your taste.

Even the most illiberal among Indians do not insist on uniformity of rituals or modes of worship. They let each faith group, each sect decide for itself how to define their relationship to their chosen deity, what foods to offer her, what modes of worship they think appropriate to express their devotion and how they interpret her likes or dislikes. This spontaneous, mutual respect for differences in ways of being, ways of worship, singing, dancing, clothing, cooking and so on, is what enabled the rich diversity of India to survive through millennia.

But our self-proclaimed modern liberals can’t deal with these lived forms of diversity. They can only relish in museumised versions such as folk dances on Republic Day or as consumer goods. For example, possessing a collection of Kanjeevaram, Ikat, Chanderi or Patola saris, Madhubani and Worli paintings, Moradabad brassware, wood carvings from Kashmir, Tanjore paintings, Rajasthani miniatures, etc. is a fashion statement. But the moral universe of those who create these diverse art objects is unacceptable. It is assumed that they all need a dose of reform to cleanse them of antiquated beliefs and values.

For engagement
I won’t be surprised if tomorrow someone decided to reform the food habits of our gods and goddesses saying, for example, that modak and laddoo are both high cholesterol, high calorie food items. They encourage devotees to have pot bellies. Therefore, they should be banned in favour of sugar-free diet chocolates!

It is time the imperious missionaries of “liberalism” understand that our temples are not meant to be tourist centres — where entry must be free for all. Most of our traditional temples are run by specific sects for the devotees of that particular deity. If you don’t like the values of that sect, if the preferences of that particular deity are offensive to you, just avoid going to that temple. There are lakhs of others to choose from.

If I walked into the homes of our self-appointed reformers and insisted that they change their lifestyles and food habits, I’d be shown the door and asked to mind my own business. What gives these non-believers the right to dictate to Lord Sabarimala how he should live and act in his own abode or dictate terms to harmless little sects among Hindus who prefer to indulge in the whims and wishes of their chosen deities?


Young Rahul Easwar has been pleading for respectful engagement with faith leaders in order to bring about changes in allegedly outmoded customary practices and cultural values. In the Hindu faiths, nothing is written in stone. Devotees have the right to dictate their deities to change with changing times. But they can’t be ordered around by those who only have contempt for them. They cannot be bullied into surrendering their unique being and become colourless and soulless robotic creatures that yield to every new wave of political fashion we import from our intellectual mentors in distant lands.


First Published in The Hindu on January 17, 2013.




Friday 11 July 2014

Police & Judicial Reforms First Priority - Need for Surgeon's Precision while Amending the Anti Rape Law



Written and Oral Submissions by MANUSHI before the Justice Verma Commission
The countrywide anger and protest following the brutal gang rape of a 23 year old student has galvanized public opinion as never before. Even though the ostensible demand of protesters is to make the rape law more stringent, the real intent is to express "No Confidence" in the machinery of governance, especially the political class, police and law courts. That is why protests refuse to die down despite numerous pious announcements by the highest functionaries of the state- from the P.M to the Home Minister to the Chief Minister. True to character, the government has come up with a series of knee-jerk responses. These include appointing a Commission to suggest changes in rape laws in 30 days, a Special Task Force of all the big wigs in Delhi Government, proposal for chemical or physical castration of rapists, death penalty for all cases of aggravated sexual assault, mandatory registration of F.I.R.s in every complaint of sexual violence, special fast track courts, and gender sensitization programs for the police and so on.

Changes urgently needed in existing rape law: The most basic improvement required in the anti-rape legislation is to get rid of antiquated definition of rape as "outraging of modesty" of a woman. This needs to be replaced with "assault on the bodily integrity of a woman". The second important change required is to treat rape by security forces at par with custodial rape meriting stricter punishment than meted out to civilians because their job is to protect citizens, not violate them. However, this amendment should include safeguards against malafide complaints and misuse of law to weaken anti-terror operations.

However, many of the demands being made by the anti-rape protestors as well as those proposed by the UPA government have come as knee jerk reactions and are potentially harmful

Demand for stringent law: A common demand from both public and media is that the rape law should be made more "stringent". This overlooks the fact that in India, the gap between what the law prescribes and what actually happens in practice needs to be addressed as the first priority. When a law fails to deliver what it promises, instead of undertaking a cool headed honest review of what is wrong with the law and its implementation, the tendency in India is to assume that the law is not stringent enough, that it has too many loopholes which enable the culprits to escape punishment.

Unfortunately, most of those demanding changes in law to make it more draconian, including most T.V. anchors at the forefront of this mass hysteria, have not read the existing law.The rape law was amended in 1983 due to pressure from women's organizations following the rape of a young woman named Mathura in a police station of Hyderabad. It provides for a minimum 7 year punishment which may extend to life imprisonment. It also has special provisions for custodial rape including a minimum of 10 years in jail since Mathura was raped while in police custody. In case of brutal rape leading to murder, our law already provides for death sentence. Thus the existing law can hardly be called "lenient".

Proposal to chemically or physically castrate men indicted of rape: This has come from leading national parties, including the ruling party in the Centre. Such a punishment assumes that rape is all about uncontrollable sexual urge or certain men being oversexed. Apart from being an instrument of striking terror with a view to subjugate women, rape is often accompanied by brutal forms of violence of the kind the 23 year old gang rape victim went through. Rods were shoved into her vagina and her intestines pulled out. It is common for rapists to shove stones and other pain giving objects inside a woman with our without penetration of the rapists' penis. These pathologies and brutal acts will not be controlled by castration. In fact, there is evidence that men with performance anxieties are usually more brutal.

Demand that police be trained to be gender sensitive: Our colonial minded police are no doubt very gender insensitive and have a disgraceful track record of handling cases of violence against women. But it is not as if they treat men any better as is illustrated by examples below. Police are trained to understand only two codes: a bribe from below or a kick from above. Whether the hand that bribes or the one who gets the kick delivered is that of a woman, a gangster or a terrorist makes little difference to the police. It is well known that the likes of Dawood Ibrahim exercise enormous influence on the police and can make it dance to its tunes. Our police have no hesitation in harassing and brutalizing men. Women are no doubt doubly vulnerable but only if they are not well connected. Ask the poor slum dwellers, street vendors, rickshaw pullers, auto rickshaw drivers and other vulnerable groups who survive on the mercy of the police, whether the men among them have any special advantage vis a vis the police.

Compulsory registration of sex crime complaints: Another common refrain is that the police must be obligated by law to register an F.I.R on the basis of every complaint of rape or sexual harassment that comes to them and that rape should be made a non-bailable offence in addition to mandating longer and harsher prison terms.  It has also been suggested that women should be able to make online complaints of rape and it should be mandatory for the police to register instant FIRs on the basis of such online allegations.

It is also being demanded that the burden of proof in rape cases be shifted to the accused, even though in most other criminal cases, including murder, the burden of proof is on the complainant. Tamil Nadu Chief Minister Jayalalitha has set a high benchmark by announcing a 13 point plan of action for her state which includes amendment to the Goonda Act to include sexual offenders. This law provides preventive jail for one year, with no scope for bail. To this list, Sunitha Krishnan, one of the most courageous and inspirational gang rape survivors has added another important demand that once the lower court has convicted a man of rape, appeal to the High Court or Supreme Court should not be permissible at all.

When we demand that every complaint must result in an instant F.I.R and that bail to alleged rapists be denied as a rule, we are opening the flood gates for fraudulent cases being registered by the police to extort money and other vested interests to browbeat those who stand in their way. If all those accused of sexual violence are going to be booked under the Goonda Act and kept in preventive detention for one year without the possibility of bail, as announced by chief minister Jayalalitha, there is nothing to stop extensive abuse of law given the lawless police we are saddled with. Let us not forget the kind of attacks R.T.I and other political activists have faced from police and politicians for exposing their criminal acts. (As an illustrative example see Indian Express report dated 3/1/13: http://www.indianexpress.com/news/bengal-crusader-against--rape--pays-with-his-life-because-of-police-harassment/1053560/)

The problem is not confined to police reluctance to register cases of genuine victims but also its increasing propensity to blackmail innocents by registering false cases against them as an instrument of extortion or implicate genuine victims in patently bogus counter cases in order to force them into withdrawing their complaints against powerful persons. This happens even in first world countries which boast of efficient police and law courts. The manner in which WilkileaksgeniusJulianAssange has been hounded by the US and European countries on what appears like a trumped up rape charge after adult consensual sex, points to the ease with which false criminal cases can be used to destroy lives, especially if you shift the burden of proof on the accused, as is being demanded.

This danger is even more acute in our country where we are saddled with a totally lawless police. I am myself saddled with the burden of facing a whole array of false counter cases on account of my policy reform work for street vendors which brought MANUSHI, into conflict with political mafias who prey on the illegal status of street hawkers. Every time I or other MANUSHI volunteers were subjected to murderous attacks from politically patronized gangsters, the goons succeeded in filing fake counter cases against me and other MANUSHI members involving serious criminal charges-- including attempt to murder, Section 420, impersonation, extortion and fraud-- with a view to forcing us to abandonour work.(Read http://www.manushi.in/articles.php?articleId=1586&ptype=campaigns)

One of our most active and valuable members Mehboob, has also been implicated in a bogus "attempt to rape" case through the use of call girls who he had never seen or met before. They just came to his shop and started beating him with chappals alleging that he had tried raping them. When one of the men named Sanjay who knew those call girls intervened to save Mehboob, he was attacked by local goons with iron rods and bricks which resulted in serious head and other injuries. He could have died from the injuries but the police refused to file an F.I.R. on the basis of his complaint though they quickly entertained the complaint of the two women hired by local goons to implicate Mehboob in a bogus "attempt to rape" case. This happened in 2008. Five years down, Manushi is still saddled with defending Mehboob in this false case. If there was no provision for bail, this poor street vendor would have rotted in jail for endless years.

The horror story does not end with Mehboob. When Sanjay insisted with the police that they file an F.I.R. against local goons who caused him serious injuries for defending Mehboob against false charges, the S.H.O. of KotlaMubarakpur police station arrested 5 adult male members of Sanjay's family, locked them up in the thana and threatened Sanjay that if he did not withdraw his complaint, all of them would be locked up and sent to jail under the Goonda Act. Those arrested included the old bed-ridden grandfather of Sanjay, plus his father who is a Class IV employee working as a maali in a government department. We took up this case to the Deputy Commissioner but got no help. Therefore, we had no choice but to advise Sanjay to withdraw his case. These cases, filed in 2008, have gone on and on without an end in sight. They have caused us endless grief, humiliation, harassment and a waste of time on addition to financial burden.

This is not a solitary case. Implicating innocents in false cases is a well-established practice of the police. The Muslim community is particularly vulnerable on account of the popular stereotype of their being pro-Pakistan and pro-terrorism. But even well-educated Hindus from respectable families are not spared wherever and whenever the police decide to hold them to ransom. For an account of how my brother became a random target of extortion by the police, read  "Police Can't Be Women Friendly without BeingCitizen Friendly".

In short, you cannot make our police "gender sensitive" by subjecting them to special training sessions or sermons unless they are made "citizen sensitive". This too doesn't happen by subjecting them to occasional sermons. It happens only by institutionalizing principles of accountability and transparency in the very structure of the police - including better recruitment criteria, and creating incentives for honest work.

In other words, the existing failure of the police to act honestly, to follow due diligence in investigating whether a complaint merits filing an F.I.R. cannot be set right by doing away with the need for honest investigation altogether. Let us not forget, even Rahul Gandhi was implicated in a gang rape case by some woman in his constituency. It was later pronounced as a fabrication. Not everybody has Rahul Gandhi's clout to escape being locked up in jail without bail.

Shifting the burden of proof: The demand that the burden of proof should be shifted to the accused appears reasonable in cases of brutal violence is also fraught with danger. It is noteworthy that under pressure from women's organizations in case of dowry related violence, the burden of proof has already been shifted to the accused and the bail made extremely difficult. Can anyone claim that dowry giving and receiving has stopped or that incidents of domestic violence on account of dowry demands have come down? Can we claim that all genuine victims have been dealt with fairly by the police and law courts as a result of stringent laws in favour of alleged victims of domestic violence?

On the contrary, we have plentiful evidence of gross misuse of law by the police, lawyers and their unscrupulous clients to implicate innocent families in false cases with a view of extorting money from them. Even in terrorism related arrests, the police have consistently misused provisions that shift the burden of proof as well as denial of bail to the accused. In the process, lives of numerous innocents have been destroyed while real terrorists roam free. If the police have failed to use these provisions responsibly in cases involving national security, why do we put so much faith in their ability to use them with integrity in cases of rape? There is no substitute for honest, professionally competent investigations by law enforcement agencies.

Denying provision for appeal to higher courts: The most dangerous of all is the demand that once a man is convicted by the lower courts, there should be no provision for appeal to the High Court or the Supreme Court. This is no doubt proposed with good intent by people who have seen how rapists go scot free by dragging the case for years on end through adjournments and appeals to higher courts which also function at a snail speed. During that time, the rapists roam free on bail and often intimidate the victims into turning hostile against themselves

Once again, the dysfunctionality and tardiness of our judicial system cannot be set right by doing away with the right to appeal. By that logic, why not do away with courts altogether and let the police deliver instant justice? The right to appeal is available even to perpetrators of terrorist attacks as well as those who indulge in mass murder. Those guilty of communal massacres are also protected under this constitutional right. To demand that this right be denied only to those who commit atrocities on women is to play with fire. When brushing aside of constitutional rights and due process gains legitimacy, it has a way of spreading into all areas like a virus and eat into the very vitals of democracy.

Marriage to rapist cannot be treated as rehabilitation measure: Police and courts have often pushed for such a settlement as a measure to "rehabilitate" the raped woman. Therefore, the message needs to go down strong and clear that forcing marriage between the two parties amounts to legitimizing rape.

However, what if a woman demands this "relief"? We need to take into account all those cases as well where the woman files a rape case as a retaliation measure against a man who refuses to marry her after a long standing sexual and/or a live in relationship. Several such cases are reported routinely in the press. I have personally been approached by a half a dozen such women but declined to take up those cases. We have also witnessed the ugly drama played out in the media, including on TV channels, by a young woman who dragged famous film director MadhurBhandarkar to court pressing rape charges when by her own account she had sexual relations with him over a long period in return for his promise to cast her as a heroine in one of his films. This in my view is a patent misuse of law. A woman who enters into pre-marital sex with a man or offers a sex bribe in return for a favour, ought to take full responsibility for her actions, instead of playing victim, if the man changes his mind and terminates the relationship or fails to deliver the promised reward as did Bhandarkar. This may amount to "cheating" but certainly not rape.

Demand that "marital rape" be included in the anti-rape law: Mahatma Gandhi was among the first in modern times to assert that a woman has the right to say "No" even to her husband. This was much before feminists came to demand that rape in marriage be treated as a serious offence. I strongly support the Gandhi's position but including marital rape as a punishable offence is a very tricky proposition. How does a man prove that the sexual relation on a particular day or night with his wife was with her consent? Have her sign an affidavit every time they go to bed together? The law against domestic violence already gives strong protection to a woman who alleges "cruelty" by husband with or without rape. This too has been subject to wide spread misuse because of insufficient safeguards against false charges. Adding "marital rape" is likewise fraught with danger unless strong safeguards are put in place against baseless, malafide complaints.

Selective fast track courts: The demand for special fast track courts in cases of rape comes from an unrealistic faith in "special measures". In a country where national security related crimes, including open and shut cases, take decades despite all the attendant "special" procedures, including suspension of due process requirements, to expect "special courts" for rape to act as a magic wand is to live in cloud cuckoo-land. Just as special police stations for women cannot perform miracles when the regular police stations are citadels of crime and corruption, so also "special courts" become mere tokens if regular courts are dysfunctional and court procedures are not thoroughly overhauled. In any case, there is no "fast track" provision in the High Court or Supreme Court. Our courts have not only failed rape victims, they have also failed victims of caste and communal massacres, hate crimes, victims of criminal mafias, as also those involved in simple property disputes.

There is much to be learnt from the fate of special dedicated courts set up in 1986-7 to deal with monetary compensation and rehabilitation of victims of the Bhopal Gas Tragedy of 1984. This case attracted widespread national and international attention. In full glare of national international media, first the Government of India played foul by making an infamous settlement with the Union Carbide in return for payoffs. Then it played foul in disbursing the pitiful compensation it announced. When gas victims sought the intervention of the Supreme Court, special courts were set up to deliver the measly compensation to be given to families of those who died of the poisonous gas as well as to those who developed serious illnesses.

The delays, deliberate hurdles, harassment and humiliation suffered by those who went to claim the money due to them was no less than those inflicted in regular courts. Hardly anyone got the full promised amount. Families had to accept far lower amounts than officially sanctioned and even from that they had to give cuts in order for payment to be processed. This when some of our best NGOs worked tirelessly to help victims make claims through "special dedicated courts". They brought the corruption and harassment suffered by victims to the notice of the Supreme Court. Yet the scam continued unchecked. It has been 28 years since the tragedy. Ask what the victim families think of these special courts!

Closer home, in February 2010, in response to a PIL by MANUSHI, the Delhi High Court passed a historic order banning the lawless confiscation and destruction of cycle rickshaws by the municipal agencies and police. This order was endorsed by the Supreme Court. When both these agencies continued flouting the High Court and Supreme Court judgments, the Delhi High Court set up a dedicated special court in June 2012 to investigate complaints of rickshaw owners whose vehicles had been confiscated involving contempt of court. Till date, the special dedicated court has been able to cross examine only 8 complainants! The procedure for cross examination remains as farcical as it is in regular courts. To add insult to injury, all of us complainants and victims are being treated as if we are in the dock. The entire attempt of lawyers representing government agencies is to prove us liars who brought in false complaints. All this is happening even though two of the best judges of the High Court, Justices Ravindra Bhatt and Murlidharan are monitoring the case.

Merely naming a particular court "special" cannot work as a magic wand to cure our colonial minded legal system of its deeply entrenched incompetence, inefficiency and deviousness.

Demand for special courts has come from many other disadvantaged groups- environmentalists, anti-corruption crusaders, victims of domestic violence, as well as those routinely displaced from their lands and villages through arbitrary land acquisition laws. The list of those demanding special fast track courts will keep growing if the entire judicial system is not reworked thoroughly. The soul destroying, torturous and corruption friendly court procedures require fixing for all cases, not just for those crimes that become hot issues thanks to high profile media coverage.

Need for accountability of lawyers: Among many other judicial reforms, one of the most urgently required measures is to clarify the role of lawyers as officers of the court. At present, it is taken for granted that the job of a lawyer is to defend his/her client and save the person from punishment, no matter what the crime and no matter how foul the measures used for the purpose. This makes a total mockery of the entire judicial system and renders it incapable of delivering justice. Those who can afford to hire competent lawyers can get away with murder, rape or worse. This is because giving false evidence and browbeating vulnerable victims through hostile and devious forms of cross-examination to mislead the court in practice is never treated as unethical. Perjury and false testimonies are almost never punished under our judicial system.

The job of a lawyer is to assist the court in arriving at the truth, in ensuring that no innocent gets punished, no wrong doer escapes the punitive action he deserves, and that the punishment is in proportion to the crime. Lawyers who encourage their clients to give false testimonies to browbeat the system should be dealt with severely.

Police and judicial reform first priority: In short, the situation calls for far reaching police and judicial reforms, not knee-jerk tokenisms. The rape law certainly requires improvements. But simply providing for "more stringent" punishment will achieve nothing except enhance the scope of abuse, if the police as an institution are not thoroughly overhauled to make it a fit instrument for ensuring safety of life and liberty of all citizens. Likewise, without simplifying court procedures, making laws more rational and investing heavily in improving the quality and proportion of judges and making access to justice more affordable, a few fast track courts here and there will inevitably rot out. In any case, if the police have messed up the evidence at the stage of primary investigation, what will fast tracking of the case achieve?

We have all witnessed the crude and mischievous ways in which the police used lathis, tear gas and false cases against people to break the morale of anti-rape protestors at India Gate in full view of T.V cameras. This was proven when some of the young men arrested for allegedly causing the death of a policeman were acquitted by the court because they could prove that at the time the police claimed they were stoning policemen at India Gate they were travelling in Delhi's Metro. This was corroborated by the CCTV footage provided by the Metro. The policeman who collapsed during the protests suffered a heart attack, he did not die on account of injuries caused by protestors as the police have falsely alleged. Can we afford to put AK-47s in the hands of those who routinely use their lathis to tyrannize people?

Finally, when demanding changes in legislation or legal procedures, let us not think of men only as potential rapists or wife-beaters. We are all connected to men in intimate caring relationships- as brothers, fathers, uncles, sons, nephews, lovers, husbands, friends, colleagues and caring neighbours. My pain and grief at the life of my brother or nephew being ruined on account of being implicated in false cases is no less than when I am directly victimized by our corrupt, criminalized police and dysfunctional judicial system. 

In short, we cannot let our concern for women victims of domestic or sexual violence blind us to the possibility of further damage by the already corroded police and judicial system of our country, leave alone blind us to the dangers of selectively depriving people of their constitutional rights. We need a surgeon's precision while amending the anti-rape law, not a butcher's hatchet. All cases deserve speedy trials without sacrificing due process. If so many countries in the world can do it, why can't we?

Immediate measures needed for improving police & judicial performance:
While the task of refashioning our police and judicial system requires many far reaching systemic reforms-something that can't be done in haste with unrealistic deadlines --the following immediate measures can kick start the process without delay:

  • Speedy implementation of the Supreme Court directives regarding police reforms. Contempt of Court proceedings against all those chief ministers, home secretaries, chief secretaries of state governments who fail to implement these modest guidelines.
  • Installation of CCTV cameras in all police stations to monitor how the police handle complainants and their work style.
  • Mandatory video recording of all complaints so that the police don't get a chance to distort the complainant's testimony. This should be made available to the court instead of shoddily written, incomprehensible F.I.Rs that are usually submitted to the court.
  • Institutionalised mechanisms for involving local communities in policing their neighbourhoods in coordination with the police.
  • Independent audit of the functioning of police stations every three months by qualified professionals.
  • Mandatory recording of court proceedings to monitor whether lawyers and judges do justice to their jobs.
  • Encouraging petitioners to argue their own case to reduce the dependence on lawyers.
  • Providing dedicated time to petitioners to present their case in person even when they are being represented by a lawyer, especially in cases of rape.
  • Restrictions on adjournments so that the case is not allowed to drag on endlessly.
  • Holding district magistrates under whose charge the police functions, and the Lt Governor in the case of Delhi, accountable for police lapses.

The following non police measures which can be implemented with speed can play a vital role in making our cities safe
  • Well lighted streets all over the city
  • Safe footpaths for pedestrians
  • Keep cities alive at night by creating citizen friendly public spaces with benches, vendor kiosks, night stalls, spaces for performances for local artists to keep the city alive at night. Deserted areas are more crime prone. Cities are safe only when they are walking friendly and ordinary families come out in the evenings to keep the streets and public spaces alive.
  • Massive investments in adequate and safe public transport-such as buses- in all our towns and cities as well as for connecting urban centres to villages equipped with CCTV cameras and other technological devices to monitor their movements.
At the same time, the government should facilitate a nationwide debate on the recommendations of various commissions on police reforms as well as proposals for judicial reforms suggested thus far in order to seek inputs from a range of concerned citizens as well as best available experts on measures needed to make our police and our law courts worthy of a democracy. This debate will be taken seriously only if the government announces clear time frame and mechanisms for implementing the systemic reforms arrived at by way of a national consensus.

Madhu Kishwar

Madhu Kishwar
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