Archive for August, 2022

27 Aug

Bilkis Bano case – the interface of law and ethics

Posted by vramani in government, human interest, political economy, public affairs, public policy. Tagged: , .

If 2012 saw the conscience of a nation shaken by the Nirbhaya rape incident, 2022 has witnessed an equal nightmare in the wholesale release of eleven men convicted of gangrape and mass murder in 2002 in Gujarat, that too on the very day that India was celebrating the 75th anniversary of its independence. The Government of Gujarat utilised its good fortune in being declared the “appropriate government” by the Supreme Court decision of May 2022 (which overrode Section 432(7) of the Code of Criminal Procedure (CrPC)) to arrive at the facile reasoning that the 1992 remission policy provided for remission of life sentence (even in cases involving rape and murder) after 14 years in prison. The subsequent tightened guidelines on remission by the Government of Gujarat (2014) are apparently not applicable since the 11 men were convicted in 2008, when the 1992 remission policy was in place.

The decision of the Government of Gujarat begs many answers. Let us accept the argument that, as per the 1992 remission guidelines, these 11 men were eligible for release from prison. Some other nagging questions of law still remain. The case was prosecuted by the Central Bureau of Investigation (CBI), an agency created under the Delhi Special Police Establishment Act, 1946. Section 435 of the CrPC makes it mandatory for the state government to consult the Union Government in cases prosecuted by the CBI (note well that consultation here means concurrence of the Union Government). If such permission was not taken, the remission of sentence is ab initio void in law. If concurrence was taken, the Union Government is a willing party to this decision. Since, as in many other decisions of the Government of India today, no clarification is provided on this issue, the public is left guessing. Even if concurrence of the Union Government under Section 435 of the CrPC was taken, there is still the matter of taking the opinion of the presiding Judge of the court which passed the original order of conviction, regarding grant of remission of sentence under Section 432(2) of the CrPC: this has been mandated by the Supreme Court as well. This process has definitely not been gone through in the appropriate special CBI court in Mumbai.

These are the legal issues on which no clear answers are forthcoming as of now. But even more troubling is the process of decision making at the level of the committee on remission headed by the District Magistrate, Godhra, and the Home Department, Government of Gujarat. Even granting that the 1992 remission guidelines allowed for remission of sentence to those convicted of murder and rape, there are still other considerations that have to be kept in mind when granting remission. The Supreme Court has, as far back as 2000, laid down guidelines for remission of sentence which include, inter alia, whether the crime affects society at large and whether recurrence of commission of crime is possible. In the Bilkis Bano case, there can be no doubt that the nature of the crimes committed — gangrape and mass murders — definitely affected society at large. On the issue of possible recurrence of criminal acts by the convicts subsequent to their release, newspaper reports indicate that witnesses were threatened when the convicts were released on parole during their incarceration. Whether these factors were taken into consideration while granting remission is a matter of speculation — there is no clarification from the state government.

However, as much as these legal issues, what ought to concern us all as citizens of a humane, compassionate society are the ethical dimensions of this entire episode. Photographs have been shown of the distribution of sweets to the released convicts; even more appalling are reports of the felicitation of the convicts by the Vishwa Hindu Parishad, this in a criminal case monitored by the Supreme Court and where verdicts of conviction were confirmed by the Bombay High Court. Common decency dictated that the release, even if in accordance with the procedure laid down by law, be kept low-key in deference to the sentiments of the survivors of the crimes. A member of the remission committee and a sitting ruling party legislator went so far as to suggest that the convicts were of high caste, had good upbringing and that charges were framed against them because of ill intentions of some persons. It was incumbent on the administration of the Government of Gujarat to take steps to prevent the organisation of such events and to discourage such statements which could cause unease in the minds of the victims and the minority community.

In fact, the Government of Gujarat should have taken the initiative to organise a reconciliation meeting between the victims and the perpetrators of crimes. The effort should have been to bring a sense of closure to the tragic incidents of 2002 and promote a spirit of harmony in the village where both sides would be residing henceforth. Nelson Mandela adopted this approach with his Truth and Reconciliation Commission, following the end of apartheid in South Africa, to build an atmosphere of trust and cooperation between the coloured and white communities. Our own Bapu, Mahatma Gandhi, spent the first Independence Day wiping the tears of the victims of communal fury in Bengal.

It is this spirit of fraternity (bandhutva) that is sorely lacking in the India of today. We can debate till eternity whether the 11 persons should have been released or should have continued in prison, depending on our ideological predilections. But unless those who committed these crimes are fully aware of the damage they have caused to the psyches of their victims and are truly remorseful for their past misdeeds, there can be no meeting of minds between the different communities. Immense damage is caused to the social fabric, when vested interests dabble in spreading hatred and misunderstanding among communities. Let us, in this 76th year of India’s independence, move from untruth to truth and from darkness to light: only then will we truly be free.

15 Aug

The Idea of India – at 75

Posted by vramani in political economy, public affairs, public policy. Tagged: , , , , .

As India celebrates the 75th anniversary of her existence as an independent nation, it is time to reflect on what ‘India’ truly represents. What has given this country the resilience to meet multiple challenges on the economic, political and social fronts over three-quarters of a century and retain her status as the largest democracy in the world (even if there is still a gap between the actual and the potential)?

India has been fortunate that eminent personalities oversaw the transition from imperial to democratic rule, developing a robust Constitution of India (‘the Constitution’) that has, in spite of many amendments, stood the test of time. At this juncture in our history, it would be appropriate to identify the core principles that have enabled India to chart her course of nationhood. The strength of India rests on three fundamental principles embedded in her Constitution: the primacy accorded to the individual, the emphasis on pluralism and the operation of the federal structure of the nation.

India has, over the ages, taken into her fold people from diverse races, cultures and religions. The country displays a heterogeneous collection of languages and traditions. Pluralism is not confined to religion: it is the trait which welcomes and embraces different ethnicities, linguistic groups and those from diverse cultural backgrounds. The Constitution’s greatest boon has been its focus on bringing together in one nation-state people who were earlier subjects of British India and nearly 600 princely states. It has located a number of pluralist measures in the Part on Fundamental Rights (‘Part III’). These include the freedom to profess, practice and propagate any religion as well as the protection of cultural and educational rights of minorities. Discrimination on grounds of religion, race, caste, sex or place of birth is specifically prohibited.

What is equally noteworthy is the primacy accorded to the individual in Part III. Article 14 guarantees equality before the law to all persons, irrespective of whether they are citizens or not. The subsequent Articles lay down clearly the rights of citizens — of life and liberty, freedom of speech and association, public employment, etc. This marks a sea change in a social milieu where the collective, in the shape of the family, clan or community, was, in centuries past, the arbiter of the rights and duties of the individual. The Constitution gives the individual a dignity of her own, not linked to any entity other than the nation of which she is a citizen.

It is significant that the very first Article of the Constitution defines India as a ‘Union of States’. The territories administered by the British and the princely states which signed the Instrument of Accession to the Indian Union were amalgamated into different states. Article 1 of the Constitution was a recognition of the reality that it was these states that constituted the nation.  There is a clear division of responsibilities between the Union and the States in the matter of governance. The Seventh Schedule delineates the subjects which are the exclusive domain respectively of the Union and of the States (as well as those where there is concurrent jurisdiction of both). The Constitution provides for a Finance Commission to propose, at regular intervals, the allocation of financial resources between the Union and the States; it also created All India Services that serve both the Union and the States. These provisions are intended to ensure a collaborative and synergistic relationship between the two, often governed by different political parties. Recognising that federalism has to strike roots below the state level, the Constitution (73rd and 74th) Amendments provided for substantive devolution of powers to rural and urban local bodies.

However, there are areas where closer attention from the Union and state governments, the judiciary and civil society is necessary if India is to serve as an example of a healthy democracy. Powers of arrest are still exercised by law enforcement agencies in a routine fashion and subordinate courts treat bail applications with a negative frame of mind, so much so that the Supreme Court was constrained to recently observe that India should not become a “police state”. Special acts have severely circumscribed the granting of bail in certain cases. These lead not only to the “process becoming the punishment” (as observed recently by the Chief Justice of India), but also to the burgeoning number of undertrials in jails in India. The 2006 directives of the Supreme Court to insulate the police forces from political pressures need to be implemented by all governments in letter and spirit if the sanctity of individual liberties is to be maintained.

The pluralist ethos has come under strain in recent years, through a combination of executive actions (and inaction) and the emergence of vigilante groups that seek to deliver ‘justice’ in a summary manner. Increasing intolerance for the views of others, especially with the explosive growth of electronic and social media, has contributed to the growing incidence of hate speech, which sows the seeds of bigotry and hatred in large segments of society. It is time governments impartially administer the laws which check such actions (and courts take a severe view of infractions of laws causing social unrest). The media and civil society also need to call out those elements that seek to sow dissensions among different sections of society.

There is an urgent need to tone down the adversarial relations between the Union and state governments. A spirit of mutual goodwill, respect and consensus between the Union and state governments, especially those governed by parties other than that governing the Union, is crucial in furthering the economic development of the country and improving the lot of the common citizen.

The promise in the Preamble of the Constitution to secure to all citizens of India justice, equality, liberty and fraternity will be realised in ample (if not full) measure when all the stakeholders in the country actively promote the values enshrined in the Constitution. Only then will India’s tryst with destiny truly be fulfilled.

This blog was published in the Free Press Journal (15 August 2022) (here)

1 Aug

Sisyphus and detachment

Posted by vramani in human interest.

The ongoing controversy over the visages of the Sarnath lions, which form the national emblem, brings to mind the emphasis laid by Gautama Buddha on the impermanence of life. What memories of this controversy will survive the ravages of time is a moot point. Many thinkers and poets over the past many centuries have lamented the ceaseless quest of the human for the material aspects of life — wealth, fame, power, glory, lineage, you name it. What unites these thinkers and writers is their recognition of the futility of human efforts directed wholly towards material ends and the need to develop a perspective that recognises the ephemeral character of all human achievements. I am not decrying the efforts of (wo)man as a sentient being trying to achieve self-actualisation through putting efforts into actions that create things: whether objects, ideas or empires. But, in the last analysis, every creation must be accompanied by the realisation that it is doomed to change and, ultimately, destruction.

Thus, Solon had the wisdom (and the courage) to counsel the Greek monarch Croesus about the shifting sands of fortune, which proved true when Croesus was taken prisoner by Cyrus, King of Persia. Ashtavakra, in imparting knowledge to King Janaka, focused on the necessity of detachment (‘vairagya’) in the individual, thus freeing him from bondage to earthly cares and concerns. Bhartrihari, in his Vairagya Shatakam, stresses the fears that accompany the accomplishments in life: enjoyment-disease, honour-humiliation, beauty-old age, body-death.

Shelley’s Ozymandias graphically highlights the futility of seeking permanence in human endeavour in the following words

“My name is Ozymandias, King of Kings;

Look on my works, ye Mighty, and despair!

Nothing beside remains.”

The ruins of so many capital cities over the ages are testimony to the vagaries of fortune. Delhi itself has gone through at least eight metamorphoses over two millennia. The modern equivalent is the destruction of business empires, exemplified by Joseph Schumpeter’s term “creative destruction “, referring to the destruction of existing economic structures and their replacement by new economic structures. Only five of the top 100 US companies of 1917 retain their position today; half of the top 100 US companies in 1970 have been replaced by newer companies today. This is not because of price competition, but reflects a revolutionary discontinuity following the introduction of new technology, new products and new forms of industrial organisation, much of which could not even have been envisaged decades earlier: we are only too aware of this in the age of the Internet and the ubiquitous all-in-one mini computing devices.

In the arena of twentieth century politics, we have the empty boast of a Thousand Year Reich in Germany which lasted barely twelve years, a mighty Soviet Union that crumbled almost overnight after a little over seventy years of existence and the endless parade of monarchs and dictators in countries around the globe. Pax Americana, which was taken as a given after the collapse of the Berlin Wall in 1989, is under serious threat today, as a multipolar world order seeks to rise to the surface. Scholars like Francis Fukuyama were sanguine about the rise of liberal democracies after the end of the Cold War; the first two decades of the twenty-first century see even long established democracies struggling to avoid being submerged in the tide of popular authoritarianism.

It is in the realm of the individual that the issue of impermanence assumes its most poignant shape. We are all witness to the movie superstar who fades into oblivion or the sportsperson racked by disease or facing impoverishment. Little wonder then that in the Mahabharata, Yudhishthira gave a reply to the Yaksha that “day after day, countless creatures are going to the abode of Yama, yet those that remain behind believe themselves to be immortal”. Adi Shankaracharya’s admonition to the person who takes pride in his/her youth, wealth and lineage is an apt reminder that all these accoutrements will fade away over time and will be of no avail once the mortal body is shed.

What then is the meaning of this grand opera that we call life? Are we to shun all material comforts and pleasures in the gloomy knowledge that all these will be left behind by us one day? Not really. What needs to be realised is the evanescence of all that we enjoy today and the stoic acceptance of the fact that much of it can be taken away from us even before we leave this earth. We need to adopt the philosophy of the King of Persia, highlighted by a not so well-known American editor, Theodore Tilton “EVEN THIS SHALL PASS AWAY”.

Perhaps the last thought on this subject in the present piece should rest with a person whom I consider one of the greatest writers of the twentieth century, Albert Camus. His Myth of Sisyphus illustrates the absurdity of human existence even as it stresses the nobility of apparently meaningless human endeavour. Sisyphus was condemned by the gods to “futile and hopeless labour”, involving pushing a rock to the top of a mountain from where it would roll down all the way to the plains below, necessitating a fresh effort from him to push it up to the top of the hill (in some ways, this reminds me of the Vikram and Vetal stories, where the king, Raja Vikramaditya, has to repeatedly bear the burden of a corpse and answer the questions of the spirit inhabiting the corpse , though the latter tale has a definite closure, unlike the former). Sisyphus is the ‘absurd hero’, going through a torment which will never end. And yet, his awareness of the torment and his scorn for the fate that has befallen him makes him a truly wise man “…who lives on what he has without speculating on what he has not…”. Only when we reach awareness of our human condition can we say “…I am the master of my fate, I am the captain of my soul”.