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Anshul is a Political Science and Law graduate from the University of Delhi. He is interested in political and legal developments in India and around the world and frequently writes on related themes. You can contact him on anshulkumarpandey [at] gmail [dot] com.

Tuesday, December 20, 2016

Debating UCC - Saving Secularism from 'Secularists'

(Above) Untitled by M.F. Hussain

Part IV of a series of articles on the Unifrom Civil Code. To read Part I, Part II and Part III, click here, here and here.

Where did the politics of appeasement disguised as Secularism take us by the dawn of the 21st century? In an article published in LiveMint, Director of the India Enterprise Institute, Mr. Rajiv Mantri, listed some of the shameful instances through which ruling parties had sought to bribe the members of the minority community to secure their votes. Aptly titled “Saving Secularism from the Secularists”, most of the paragraphs from his article are worth reproducing here in their entirety:
In 2005, Prime Minister Manmohan Singh appointed the Sachar committee to study the social and economic condition of India’s Muslim community. In 2006, the Prime Minister said that minorities have the “first claim on India’s resources”. In the same year, the government tried to conduct a survey on the religious affiliations of India’s soldiers. In 2009, the United Progressive Alliance (UPA) government enunciated the Right to Education (RTE), from the provisions of which minority schools are exempted but with which most “Hindu” schools must comply. In 2011, the UPA government brought forward the Communal Violence Bill, which did not recognize communal violence committed by minority communities against the majority community.

In March 2013, Union home minister Sushilkumar Shinde wrote to minority affairs minister K. Rahman Khan that special Muslim-only fast-track courts would be set up for trial of terror cases. In January 2014, in an astounding display of New Delhi’s executive interference in the functioning of states’ police and judiciary, Shinde wrote to all chief ministers asking them to set up special screening committees to look at cases where minority youths had been jailed, following up on a communication in September 2013 by the home minister that told all chief ministers to ensure “wrong arrests” of minorities were not made.

In January 2014, Jains were declared a “minority” community by the government, the same month when the Union minority affairs minister said the government was seriously looking into religion-based reservations for minorities. Like in the case of the RTE, the government is creating incentives for the balkanization of society, since becoming a “minority” results in benefits flowing from the minority affairs ministry, and various exemptions become available with minority status under existing laws.

This has happened before, when in 1980 perverse incentives forced Swami Vivekananda’s Ramakrishna Mission to try and declare itself non-Hindu in a bid to escape the Indian state’s intrusive hand. As early as 1951, T.S.S Rajan, a minister in the Madras state government, had said that it was the wish of Jawaharlal Nehru, that paragon of “secularism”, that there should not to be any private temples. This thinking cemented government control on Hindu temples, but allowed “minority” places of worship to remain outside the state’s influence.

Uttar Pradesh, which has been run by a “secular” Samajwadi Party government since 2012, has been creating Muslim-only welfare schemes. The state government has an education scheme only for Muslim girls—spare a thought for the Hindu girl denied aid because of her faith. The government has created special tribunals to expedite the hearing of cases relating to Muslim-owned property. The Akhilesh Yadav government went so far as to attempt unilaterally dropping charges against those accused of terrorism—something it had promised it would do before the 2012 assembly elections—but was restrained from doing so by the Lucknow bench of the Allahabad high court. In August 2013, Yadav announced that 20% of the share in all 85 state-administered development schemes would be reserved for minorities.

Andhra Pradesh, under Y.S. Rajasekhara Reddy (YSR) and the unquestionably “secular” Congress party, set a new benchmark for persistence in the pursuit of minority appeasement. As Arun Shourie documented in an Indian Express article titled “Chasing that bank of votes again”, the Reddy government tried relentlessly to create Muslim job reservations, starting June 2004, but kept being rebuffed by the judiciary which held that such reservations were unconstitutional. The state government eventually secured religion-based reservations within the other backward classes (OBC) quota for a subset of “caste” Muslims only.

The YSR government also created a special allowance for Christians to visit Bethlehem, on the lines of the Haj subsidy provided for Muslims, besides doling out taxpayer funds to Christian organizations for the refurbishment and construction of churches. YSR’s son-in-law, Christian evangelist Anil Kumar, held large-scale evangelism programmes with assistance from the state government.

In the most tragi-comic manifestation of Nehruvian economics combined with “secularism”, government-controlled temples in Andhra Pradesh were so inefficiently managed that they were unable to deal with the large number of cows being donated by devout Hindus and stopped accepting such donations. In the most grotesque illustration of the YSR government’s insensitive attitude towards Hindus, it has been reported that such cows may have been auctioned to slaughterhouses.
One can go on and on with this list as it is endless. Is this the secularism that Nehru and the Indian National Congress championed at the time of independence? Can these instances of blatant minority appeasement for votes be justified in the name of affording "special protection"? Does this kind of political behavior incentivize or disincentivize the need of reform? 

However, I need to reiterate and rehash the original point that I have been trying to make through these articles - blaming Nehru and the original Congress leadership for this degeneration of secularism to psuedo-secularism to outright minority appeasement is unfair.

In the heat to denounce the behavior of Indian National Congress and its politics of minority appeasement, there is a tendency among most writers to clump the entire leadership together. This leads to a complete distortion of truth and does a great disservice to the ideas and the ideals that went into the making of our constitution. Here is former BJP MP and the Editor of The Pioneer Chandan Mitra saying this in as many words:
“…the fact is Nehruvian secularism, with all its flaws was not minority appeasement.

In Nehru's time, history was never officially doctored. We did not have school textbooks that insisted Vedic Indians merrily slaughtered cows for dinner, or extolled the virtues of Aurangzeb's "even-handed" treatment of all his subjects, or accused Guru Tegh Bahadur of letting loose "plunder and rapine" in Punjab. We studied books written by nationalist historians like R C Majumdar without being told he was a "communal" writer.

Sir Jadunath Sarkar was revered as a pioneering historian, not reviled as a hagiographer of a "Maratha bandit". We did not have special financial provisions for minority institutions to pursue obscurantist educational agenda. Nehru did write to Congress leaders after Independence that the "need of the hour is to secularise the intelligentsia", but never advocated courting the mullah.”

- The Daily Pioneer, August 16, 2004, Web: http://www.sify.com/legal/fullstory.php?id=13545030
The fact is that far from prodding the leadership of the minorities to embrace reform and develop "scientific temper", the Indian National Congress and the other so-called 'secular' parties have only practiced vote bank politics which has, in the end, done incalculable harm to the minority community itself. Their representation in government services, education levels, job availability etc. as documented through the Sachar Committee Report, makes a compelling case for the abolishing of personal laws and the enactment of a uniform civil code which guarantees the rights of Muslim women in keeping with the constitutional scheme of liberty and equality for each citizen. I will examine the Sachar Committee report and its findings in one of the upcoming articles in this series.

Sunday, December 18, 2016

Photo Essay - Glimpses of Guna

Guna exists as a proverbial blip on the map of Central India; a sleepy town which has evolved, almost reluctantly, with the changing times, while still keeping most of its archaic atmosphere intact. It is the place which defined my imagination of the "town" while I was growing up, barely an hour away, in NFL Vijaipur, whose story I will record some other day. As one navigates through the various lanes, by-lanes, alleys, alleyways, roads, routes, paths and pathways of this small town, one is flooded with memories - the hotel where once a birthday was celebrated with all the friends, the favorite ice cream parlor which serves cheap yet delicious variety of, well, ice creams, the shop for books, the shop for watches, the shop for clothes, the family jeweler and so on and so forth until one wonders how far has one traveled and whether one was really that far away?   




























Friday, December 16, 2016

Debating UCC - Accomodating Orthodoxy

(Above) 'Hindu Triad' by M.F. Hussain.
 
Part III of a series of articles on the Uniform Civil Code. To read Part I and Part II, click here and here.
 
As a student of History, Nehru chose to look at India not in a short time span of 1757-1947, but in a larger context – as a 5000 year old civilization. In his view, India’s woes at that time were a mere blip in its civilizational journey and as with all the other dark chapters of its past, this too was to pass. He also tried to look at the common threads that bound the history of our subcontinent; the threads which would have to be woven in the modern idea of India. Speaking of the need to counter the British divide and rule policy, he writes in his Autobiography:
“If there is no common national or social outlook, there will not be common action against the common adversary. If we think in terms of the existing political and economic structure and merely wish to tamper with it here and there, to reform it, to ‘Indianise’ it, then all real inducement for joint action is lacking. The object then becomes one of sharing in the spoils, and the third and controlling party inevitably plays the dominant role and hands out its gifts to the prize boys of its choice. Only by thinking in terms of a different political framework – and even more so a different social framework – can we build up a stable foundation for joint action.”
Secularism was the ‘stable foundation’ of the joint action that he spoke of, for without secularism, the old inter-religious disputes had the power to reduce to dust all the efforts that had gone into gaining independence. Modern India, India of the new age, was to be a society in which people would have the freedom to practice any religion that they wanted and the state would not judge them on the basis of their religious background as the British state notoriously did.

However, was Secularism a western concept being imposed on India? Was there anything in the history of the subcontinent which warranted such a religiously neutral approach? Or was it just a figment of one’s imagination – a hope elevated to the level of national policy?

As opposers of British rule, as desirers of independence, all freedom fighters had a tendency to focus on India’s positives rather than despair by dwelling on its negatives. They wanted to eradicate the social and political ills that the country had accumulated over time, but they wanted to first build on its innate strengths. They wanted to make the people of the country aware about its rich and varied past and were themselves influenced by India’s history in sufficient measure. If Secularism was not in the character and history of the Indian people then they would rise up and reject it and like with all their demands, the Indian state will have to concede this too. 

But Indians did not rise up in arms against Secularism. They had no reason to do so. And that was characteristic of their heritage. In The Discovery of India, Nehru writes:
“India with all her infinite charm and variety began to grow upon me more and more, and yet the more I saw of her, the more I realized how very difficult it was for me or for anyone else to grasp the ideas she had embodied. It was not her wide spaces that eluded me, or even her diversity, but some depth of soul which I could not fathom, though I had occasional and tantalizing glimpses of it. She was like some ancient palimpsest on which layer upon layer of thought and reverie had been inscribed, and yet no succeeding layer had completely hidden or erased what had been written previously. All of these existed in our conscious and subconscious selves, though we may not have been aware of them, and they had gone to build up the complex and mysterious personality of India.”
Had Nehru been alive in the 1980s, would he have objected to the telecast of such serials on India’s national broadcast network? I don’t think so. These serials became a vehicle of arousing Hindu political consciousness in the background of the gaffes committed by Rajiv Gandhi. Devoid of context, these serials would have just remained a non-political religious discourse. As mentioned earlier, the Indian version of Secularism is that of equal respect to all religions. Nehru wouldn’t have caved in to the demands of the Muslim orthodoxy and he definitely wouldn’t have allowed the locks of the disputed structure to be opened. As regards the serials, even if the initiative was taken up by someone else, his record shows that his attitude would have been one of mild indifference.

Orthodoxy begets orthodoxy. The way the Indian state began caving into the demands of the minority orthodoxy one after another, rightly made the majority of the Hindus feel alienated. If anything, the meteoric rise of the Bhartiya Janata Party was an electoral expression of that feeling of alienation – a feeling which political leaders had actively fostered through the complete distortion of Nehru’s concept of Secularism.

By the early 1990s, the idea of Secularism had meta morphed into the politics of minority appeasement and by implication, the politics of Hindu hatred. As Shashi Tharoor notes in his book Nehru: The Invention of India, the Congress party had no problems allying with Indian Union Muslim League (IUML) in Kerala, but counted the Bhartiya Janata Party as “communal” and its worst enemy.

The haste to garner Muslim votes meant that by the turn of the millennium, the Congress leadership had started bending over backward to accommodate the Muslim orthodoxy, throwing all the pretense of their alleged secularism to the winds. Anyone speaking against the ill practices prevalent in the minority community was branded as "communal" and "Islamophobe" and conversely, anyone forwarding even the most ridiculous criticism of Hinduism and Hindu practices even without researching adequately about the same, became a "reformer" and a "secular" person. A Wendy Doniger or an A.K. Ramanujan were entitled to secular liberal outrage in the name of free speech, but the same outrage was subdued or was expressed with reservations in case of a Salman Rushdie or a Taslima Nasreen for the fear of "stereotyping the minorities". The Congress leadership felt no hesitation in ordering a lathicharge against Yoga Guru Baba Ramdev when he organized an anti-corruption rally in the heart of Delhi, despite him having a mammoth Hindu following, but were at pains to defend themselves after Zakir Naik, a radical Islamic preacher who had been hailed as a "messenger of peace" by Congress General Secretary Digvijay Singh and who had been provided police protection by the then Congress government in Maharashtra, was found to be the inspiration behind the terrorists who wreaked havoc in Bangladeshi capital Dhaka.

It is no surprise then that the voters, sick of this deliberate twisting of words and double standards for different communities, elected the "communal" Bhartiya Janata Party first in the states, then at the center with full majority in May 2014.

Thursday, December 15, 2016

Debating UCC - From Nehruvian Secularism to Rajiv's Psuedo-Secularism

(Above) Untitled by M.F. Hussain.

Part II of a series of articles on the Uniform Civil Code. To Read Part I, click here.

The intention of the Congress leadership may have been good i.e. to avoid discomfiting the Muslims especially after the horrors of partition riots when their community was under siege from all quarters. However, the numerical logic of democracy converted this intention into Muslim appeasement and vote bank politics in no time and whose biggest victims, ironically, turned out to be Muslims themselves.

An increased liberty to marry and conduct their private affairs according to their scriptures tightened the hold of religion on the Muslim community. Nehru’s insistence that the community itself had to come up with reforms seemed to suggest that it was the ulema and not the parliament which had the power and the authority to make rules for the Muslims. The religious orthodoxy derived its legitimacy from this attitude of the state and began to consolidate power in its hands. Western education was frowned upon as it constituted a threat to their stature and leadership. Instead, young men were advised to take up religious education and become Maulavis (An example is the brilliant Dars system of education among Muslim communities in Kerala which despite its innovativeness, remained confined to religious education). Women were treated as second class citizens and were strongly advised to remain in the Burqa or the Niqaab. Divorce meant a life of penury and hardship as most of them were uneducated and could not find employment. In addition, the scriptures did not allow women to claim any lifelong maintenance from their husbands. Polygamy remained unabolished, further reducing their rights in the household.

It is not as if the Hindu shastras were charters of Women Empowerment. They too allowed Polygamy. Manusmriti, the ancient Indian text said to be authored by law-giver Manu, said that women should not be allowed any independence. However, the Hindu Code Bills put an end to all that and regulated the private affairs of Hindus according to Law. These bills took the power that was till now in the hands of the Hindu orthodoxy and vested it with the Supreme Court. The Jan Sangh, the ideological forefather of the Bhartiya Janata Party, was at the forefront of the protests against the Hindu Code Bills which were nevertheless passed and made into Law. The long reign of Congress as the ruling party ensured that an entire generation of Hindus, Jains, Buddhists, Sikhs and Christians practiced their religion but did not look up to the religious orthodoxy when a dispute arose regarding their private affairs. They approached the Supreme Court instead. This resulted in them believing in the rule of Law instead of the rule of scriptures and made them wary of the religiously orthodox.

In sharp contrast the consolidation of power in the hands of Muslim religious orthodoxy meant that Muslims became more insular and religious in their outlook and due to the rigid interpretation of their scriptures advanced by the orthodoxy, they were not able to keep up with the changing times. They were never able to produce an Ambedkar because to criticize Islam meant inviting a social boycott. The only way to criticize Islam and its customs then was by becoming a Maulavi in the first place!

Over time, instead of assimilating the best practices of other religions, the Muslim orthodoxy adopted their worst practices to further consolidate power in its hands and a system resembling the caste system came to be informally practiced in Islam too. No Islamic scripture speaks of any caste structure in Islam. Yet, in India today, Syed, Quereshi, Ansari, Pathan, Shah, Malik etc. are considered upper caste Muslims and Kunjra, Dhobhi, Halalkhor, Churihara etc. are considered backward caste Muslims. This has spawned a wave of identity politics within the Muslim community itself. In addition, the All India Muslim Personal Law Board, the non-governmental organization tasked with the protection of Muslim Personal Law in India and which comprises primarily of ulemas (religious scholars), has become a loudspeaker of the most retrograde thoughts from within the Islamic community.

A major fillip to this Muslim Religious orthodoxy was provided by the Rajiv Gandhi government when it buckled under their protests and enacted the misleadingly named Muslim Women (Protection of Rights on Divorce) Act, 1986. This act was enacted to reverse a Supreme Court judgement which granted Muslim women the right to alimony on divorce. The Muslim orthodoxy, patriarchal to the hilt, came out in full force against the judgement of the Supreme Court, citing Sharia and demanding that the government enact a legislation to reverse the judgement. Rajiv Gandhi had a crushing majority in the parliament and public support for his government was very high. He could have stood up to the Muslim orthodoxy and said that his grandfather did not envisage a secularism where Muslim women did not have rights enjoyed by women belonging to other religious communities. He could have said that he supported the Supreme Court judgement and would not buckle under the pressure of some religious chauvinists. He could have elevated his stature further and could have helped in reforming the patriarchal personal laws of Islam.

But he didn’t.

Instead, he chose to appease the Muslim minority under the assumption that the voice of a few Quran thumping Mullahs was representative of the views of the entire Muslim community. That is when L.K. Advani called the Rajiv Gandhi government “pseudo-secular” and brought that term in mainstream political discourse. The young Prime Minister had made the cardinal mistake of treating the Muslim community as a vote-bank, a mistake whose proportions would be magnified in the coming years by the governments that assumed office after him.

He compounded the mistake further by trying to appease Hindus. The Rajiv Gandhi government filed an appeal in the district court where the case regarding the Ram Janmabhoomi (birthplace of Lord Ram) was going on and testified that opening the locks of the disputed structure would not affect law and order situation in the area. Inder Malhotra in his column for The Indian Express wrote that this was done on the advice of his cousin, Arun Nehru. The judiciary and the administration worked with alarming alacrity and the locks were open within an hour after the permission was granted. The result was a rush of Hindu worshippers in the disputed structure and the exacerbation of the fault lines between the Hindus and Muslims. This was precisely the moment when L.K. Advani decided to launch his pan-India Rath Yatra (Chariot Journey) to rouse Hindu consciousness.

An unwitting addition was made to these mistakes by Mr. Gandhi’s decision to produce TV serials on Ramayan and Mahabharat to instill moral values of Lord Ram and other Hindu deities in the people of the country. Prof. Arvind Rajagopal, Professor of Media Studies at NYU, wrote in The Indian Express: (http://bit.ly/1WQ72Dl)
“No one predicted the response that the Ramayan generated. It should be remembered that it was the Congress that launched the serial, just as it was the Congress that launched the campaign to re-open the Babri Masjid. Arun Govil, who played Lord Ram in the serial, was brought out in full costume along with Deepika Chikhalia, who played Sita, to campaign for the Congress in a UP by-election, and Rajiv Gandhi offered Ram Rajya to voters as a campaign promise in 1989. Whatever gains accrued for the Congress from these moves, the net beneficiary was the BJP, who between 1984 and 1989 grew from two to 85 seats in the Lok Sabha, aided, of course, by its national campaign to wrest Ram Janmabhoomi away from the Muslims.

The Ramayan functioned not only as myth and as history. It also appeared to some as a manifesto to assuage the pride of Hindu civilisation and to ensure that Hindus were once again at the centre of the polity. This was, in fact, the declared aim of the Ram Janmabhoomi movement led by the Vishwa Hindu Parishad. Processions to build the Ram temple in Ayodhya were led by volunteers dressed to look like Ram and Lakshman in the tele-epic. Battle scenes from TV became models for Hindu militancy, and the serial itself began to echo themes from the campaign, with Ram saying prayers addressed to his “janmabhoomi,” represented by a lump of earth he carried with him in the forest.

Where reality ended and illusion began was hard to say. With the tele-epics, media and politics began to merge into each other. Illusion could be turned into reality for a while, if fortune was on your side. As LK Advani remarked in 1993, “For the purpose of securing the non-committed vote, you must, at least, create an illusion that you are likely to come to power.” Previously, the future had been the subject of state planning. In the 1990s, it turned into projections of market reforms, with televised Hindu dreaming alongside. Opinions may differ about where this has led us, but there should be little doubt about how we got here.”
I myself was born in the early 90’s and can testify to the effect even the repeat telecasts of these television serials had on me. In my village, 1 out of 10 houses had a television set and every Sunday, people would gather at the appointed hour to watch these serials in pin drop silence. Needless to say, people became more aware of the stories of Lord Ram and Lord Krishna. Their religious consciousness was roused and when Mr. Advani launched his Rath Yatra to channel this consciousness by invoking (legitimate) Hindu greivances, people wholeheartedly supported the cause.

Rajiv Gandhi was assassinated during the election campaign in 1991. The BJP’s tally went from 2 MPs in 1984 to 85 MPs in 1989. Mr. Advani’s Rath Yatra culminated in the demolition of the Babri Mosque in 1992. President Pranab Mukherjee, writing in his book The Turbulent Years 1980-1996, was measured in his criticism of Rajiv Gandhi when he said: "The opening of the Ram Janmabhoomi temple site on 1 February 1986 was perhaps another error of judgement. People felt these actions could have been avoided".

Wednesday, December 14, 2016

Debating UCC - Nehruvian Secularism and the Uniform Civil Code

(Above) Painting titled 'The Language of Stone' by M.F. Hussain

Part I of a series of articles on the Uniform Civil Code.

Among the principles dear to Nehru, it is Secularism that has come under attack most sharply in recent memory. The Socialist economic policy - or rather the mainframe of it - was abandoned when the Narsimha Rao government decided to open up the economy and unleash its 'animal spirits' in 1991. The gaze has now turned to Secularism, in fact, the skeleton of Nehruvian Secularism that has remained with the passage of subsequent governments. It is important, at the outset, to keep in mind the fact that Secularism as a policy was pursued by the Congress, not Nehru alone, as a counter to Jinnah's two nation theory. The Congress leadership had failed to avoid the partition of the country and they were determined to see that Jinnah did not have the last laugh, which he would if the administration of India was organized on majoritarian lines.

It was then that the subtext of Indian secularism became affording special protection and opportunities to the minorities. With subsequent Congress governments, the original sense of Nehruvian Secularism was lost and this subtext overshadowed the principle headline itself.

To Nehru it was clear that the minorities of the country could not be afforded special protection or any other protection unless the hostilities between the two main communities - Hindus and Muslims - ceased to exist. An atmosphere of communal harmony had to prevail if the country was to focus its attention on more pressing matters such as development of industries, employment and economic growth rather than trifling diversions such as religion.

Hindus and Muslims had started to view each other with suspicion under the British rule, which was the handiwork of the British divide and rule policy at play. After the revolt of 1857, the English government came to view Hindu Muslim unity as a key stumbling block to its rule and moved quickly to exacerbate religious differences and tensions between the two.

Muslims came to view Hindus as idolaters and a social and political threat to their prosperity as the latter outnumbered them. Hindus came to view Muslims as foreigners and beef eaters who had subjugated them in the past and who created the fertile ground for the English to take over. As the Indian national movement under the leadership of the Congress gathered steam, riots increased, distrust grew and finally the Muslim League emerged out of the shadows with its vitriolic agenda to translate the basest of Muslim political desires into a movement for separate nationhood.

It was this two-nation theory that Secularism aimed to counter. In Nehru’s mind, the two nation theory constituted the apotheosis of the British divide and rule policy and it was to be countered by showing the world that co-religionists are not necessarily the best of countrymen. 

Religion- or rather - practical religion, with all its rituals and superstition and folklore, never attracted him. He was more interested in its aesthetic and philosophical aspects. He had a vast knowledge of India's ancient past as was made clear by his rambling ode to his country - The Discovery of India. Perhaps he had come to view religion as a primitive and man-made phenomenon which would evaporate as the human race became wiser and more rational. The Scientist and Atheist Richard Dawkins quotes him approvingly from his autobiography in his book 'The God Delusion'.

But there was a catch. The Western concept of Secularism advocated a complete separation of the Church and the State, at least theoretically if not in practice. It was not possible for a multi-religious country like India to organize administration and policies that would remain insulated from religion. In fact, the leader of the Indian national movement and the father of the nation Mahatma Gandhi was himself a deeply religious man. He had been able to wield such a power over the masses not because of his image as a politician, but because he was perceived as a saint. Even if the Congress was able to devise such policies and put such administration in place, there was an obstacle they wouldn't be able to overcome: the people who would be responsible for overseeing administrative affairs and implementing policies would themselves be deeply religious men and women; if not all then the majority of them at least.

It was with these thoughts that the Indian version of Secularism was born. The Nobel laureate Amartya Sen in his book The Argumentative Indian calls it 'neutrality'. Instead of it being equidistant from all religions, the state would be equally close to all of them and would not take sides i.e. it would remain neutral and would come to a conclusion with national interest in mind in cases of conflict.

But what constituted National Interest? In the context of matters divine it certainly meant that people were free to follow any religion they liked. They could worship any god - with or without an idol - without any fear and could also convert if their preferred deity was not answering their calls. But no such religion would play any part where the law was concerned - except, in some cases, in the private sphere. The rule of law was to apply on everyone equally and in the eyes of the judge the quantum of punishment was not to increase or decrease on account of one's religion. Religion was to play a part in national integration and the state was to keep a watch and intervene when it promoted division instead of cohesion.

This justification of Secularism as safeguarding national interest and promoting national integration lost its sheen when the personal laws relating to Hindus, Sikhs, Jains, Buddhists and Christians were codified under a slew of legislation and polygamy was abolished while the Muslims were allowed to practice polygamy and the law relating to marriages, adoption and inheritance according to their scriptures.

In the aftermath of the horrific partition riots and the general hostility that Muslims had to encounter in the Indian society, it seemed that the Nehru government was bending over backwards in this area to afford them 'special protection'. The line between 'protection' and 'appeasement' seemed blurred and it was completely wiped out by the time Congress lost power and was reduced to its lowest tally since independence in May, 2014. The reluctance to impose a Uniform Civil Code revealed a chink in Secularism's moral armor and in subsequent battles with majoritarianism it was exploited to the hilt.
“We have passed one or two laws recently and we are considering one … in regard to Hindu marriage and divorce … These are personal ingrained in custom, habit and religion … Now we do not dare to touch the Muslims because they are a minority and we do not want the Hindu majority to do it. These are personal laws and so will remain for the Muslims until they want to change them … We do not wish to create the impression that we are forcing any particular thing in regard to Muslims’ personal laws.” - Speech by Jawaharlal Nehru, Reproduced in Six Thousand Days: Jawaharlal Nehru, Prime Minister by Amiya Rao and B.G.Rao
In hindsight, it is clear that Nehru and the Congress leadership committed a big mistake by not enacting the Uniform Civil Code. He believed that the time was not right for such a legislation. However, I disagree. I believe that only the first generation post-independence Congress leadership had the stature and the mettle to enact such a code without being accused of majoritarian bias. They had stellar secular credentials, long history of fighting for the freedom of the nation which raised their stature and the requisite political will to forge a national consensus on the issue.

Hindus had a harsh critic and social reformer in the form of Dr. B. R. Ambedkar, the champion of the lower castes, an intellectual par excellence and the main architect of the Indian constitution. Ambedkar resigned from Nehru's cabinet because his version of the Hindu Code Bill was stalled in the lower house of the Parliament. Nevertheless, Nehru made the passage of a diluted Hindu Code Bill as his poll plank in Independent India's first General Elections held in 1952 and entered the parliament with a thumping mandate to do so. The Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act were passed between 1955 and 1956, thus codifying the personal laws of Hindus, Jains, Buddhists, Sikhs and Christians. The Special Marriage Act, which provided for inter-caste and inter-religious marriages, had already been passed in 1954. Only Muslims were allowed to regulate the system of marriage, divorce, inheritance etc. according to their scriptures. This, in my view, was a great mistake.

Wednesday, November 30, 2016

The Election of President Donald Trump


Note: In keeping with President-Elect Trump's utter disregard for facts, no links are being provided in the article below.

Defying all the poll predictions, controversial real estate business tycoon and television celebrity, Donald J. Trump, was elected as the 45th President of the United States on Wednesday, 9th November 2016. The date is important, as it will go down in history as the day on which one of the most remarkable events in the 21st Century took the world by surprise. A substantial number of world leaders seemed to be in a state of panic and confusion, as most of them had been preparing to congratulate Mrs. Clinton as the next President. However, in a spirit that has defined his entire career, The Donald, as he is known to the American public, defied all odds and traveled the narrow path to victory which led him to the White House.

Unconventional and Bitter Campaign

Mr. Trump was roundly slammed by the mainstream media, his Democratic Party opponents as well as colleagues within the Republican Party, for his outlandish policy proposals as well as controversial statements denigrating immigrants, women, minorities, veterans, the disabled etc. which led many to conclude that he did not possess the temperament, experience or the wisdom required for the post of the Commander in Chief of the American armed forces. To the majority of observers, his campaign seemed to be mired in endless controversy and on the verge of implosion, which suggested that either he was not serious about his bid to become the President or more dangerously, that he seriously believed in everything that he was advocating. His constant about turns on his own statements, coupled with a complete disregard for factual accuracy, flustered long time political observers on both the right and the left, who were shocked at the unprecedented show of callousness from a major party nominee. The general consensus, before going to the polls, largely among the educated and opinionated section of the American public, was that Mr. Trump was seeking to capitalize on a wave of resentment caused by the export of American jobs to other countries, fears regarding immigration, racial tensions and general stereotypes against anyone who was not a white male American. This was in stark contrast to the long line of preceding American Presidents, including incumbent President Barack Obama, who had sought the highest office of the country, by associating themselves with the shared values of the American people. One thing more that separated Donald Trump from all the recent Presidents was that he had no prior combat or political experience. He was a TV celebrity cum real estate business tycoon, who was perceived fit to entertain and not to govern.



Hobbled by deep distrust, extremely bad press, just a handful of endorsements, grim poll predictions and a lesser budget than his opponent, The Donald went around his rallies, telling people about the number of votes that he had polled in the primaries ('highest in the republican primary history'), denying the fact that his statements were controversial, denying climate change as a scientific fact, threatening to jail his opponent and promising 'extreme vetting' for immigrants coming from countries 'compromised by terrorism'. In short, he just remained himself. And, perhaps, therein lay his key to the oval office, because, in complete contrast, his opponent, Democratic Presidential Nominee Hillary Clinton, 'the most qualified candidate for the office of President in the United States History' according to President Barack Obama, came across as a darling of the 'establishment', never letting people know what she really thought and never uttering a word in public that was not scripted, and hence being 'fake'. Trump was the original bigot, Clinton was the fake saint.

A day before the polls, the election experts, political commentators, reporters, journalists, pollsters and vocal public opinion was convinced that Trump had a very very slim chance of becoming the President while Clinton was the favorite. There had been some last moment ups and downs with both the campaigns which had increased anxieties, but had done nothing to signal that the applecart has been completely upset.

Election Night

As the votes began to come in, people around the world settled down for some time to relive the moment from 2008, when Barack Obama had won the election against his Republican rival Sen. John McCain and had thus become the 1st African American President in the United States History. If Hillary Clinton were to win this election, which she very well was, the American people, women in particular, would have clinched another historic first, that of the election of the first female President of the United States. The added bonus seemed to be the satisfaction of seeing the loss of Donald Trump, who was smeared as the symbol of orthodox patriarchy, treating women as objects and workers as disposables, basking in the company of white supremascists and outright fascists, defying the established norms of his own party (not for good, for worse) and being an insufferable racist in general. If everything was to go down well with the results, liberal Americans would wake up the next day filled with pride and happiness.



One by one, as all 'battleground' states went to Donald Trump, pride, happiness and hope vanished from the faces of those supporting the Clinton campaign. By the time it had become clear that Mr. Trump was going to become the next President of the United States, Mrs. Clinton had locked herself in a hotel room, probably because her campaign had not thought it as important enough to draft a concession speech, and her many female supporters outside were reduced to tears in the face of the 'impossible'.

The people had spoken. Donald Trump was going to be the 45th President of the United States of America.

Chaos
and Acceptance

The power of the verdict of the United States Presidential election was on full display as the markets around the world tumbled, world leaders scrambled to prepare a strategy of dealing with the incoming Trump Administration and people in America rioted on the streets, repulsed by the outcome. How could the impossible happen? How could the same states who had voted to elect President Barack Obama, now elect Donald Trump? How could the people trust such a xenophobic, racist, misogynist, run of the mill bigot? How could the people NOT trust Hillary Clinton, who had dedicated 30 years of her life fighting for them?

The answer was there for everyone to see, if only they wished to see it. The countryside of the United States was reeling with loss of jobs, reduction in standard of living, ageing infrastructure and hostility to immigration. By dismissing these claims as the claims of a racist, sexist, xenophobic - in short - politically incorrect mob, the Democratic Party alienated a large section of the working class of the country, trying to pursue a loftier 'global' agenda. While as a consolation it can be said that Mrs. Clinton polled nearly 2 million votes more than Mr. Trump, the fact is, there is no runner's up trophy in a Presidential Election. You either win or you lose. And Donald Trump had won according to the electoral college system that determined the winner of the race.

Soon, the focus shifted from the loss of Mrs. Clinton to the win of Mr. Trump. Was Donald Trump serious about pursuing the outlandish policies that he had vaguely outlined while running for the office of President? What all had he said about the specific issues that concerned other countries? No one had thought it worthy enough to listen to what Mr. Trump had to say on various issues of ancillary concern to the American public, as his remarks were always controversial and he wasn't winning anyway. Now that he had won, an American newspaper observed, the same kind of remarks, from now on, would determine troop movements and market sentiment.

Indo-US Ties under President Trump

The question of single most importance to an Indian observer is, how is President Trump going to conduct his Foreign Policy? What is going to be the future of Indo-US ties under his administration and what does India stand to gain, or, more importantly, lose, from such a foreign policy? 



The President-Elect has grumbled about the number of H1B visas being provided by the US, while those close to him have expressed dismay over the number of Asian CEOs in the Silicon Valley. However, in an event organized by the Republican Hindu Coalition, the President-Elect professed his admiration for "the Hindus" and Prime Minister Modi. He has promised that under his administration, India and America are going to be the "best friends".

In keeping with the President-Elect's campaign promise of fighting "radical Islam", India should use all available opportunities to shore up support against the proxy war being fought in Kashmir by Pakistan through the use of terrorism.Unlike any other President, President-Elect Trump has indulged in unprecedented behavior with respect to his policies and campaign promises and therefore it would be too early to comment upon the shape that Indo-US ties will take in the future. Only time will tell.

Tuesday, October 18, 2016

BRICS and the Art of Stonewalling

At the recently concluded BRICS Summit in Goa, China once again came to the rescue of its all weather ally Pakistan and stonewalled any attempts to name Pakistan based terrorist outfits JeM (Jaish E Mohammad) or LeT (Lashkar E Taiba) in the Goa Declaration, instead agreeing only to a watery reference of "relentless pursuit against terrorist groups so designated by the UN Security Council".  

However, India forcefully put forward its views on state sponsored terror with Prime Minister Narendra Modi describing it as the "mother ship of terrorism". Emphasizing that the growing arc of terrorism today threatens Middle East, West Asia, Europe and South Asia, India submitted that "the most serious direct threat to our eco-prosperity is terrorism". Slamming Pakistan even further, PM Modi said that the country not only shelters terrorists, but that it also nurtures the mindset of terrorism. 



These comments are in line with the strategy of isolating Pakistan diplomatically on international forums, adopted by the Indian government after the Uri terrorist attack. The gains from this strategy may not fructify overnight, as many in the mainstream media, habituated to a 'breaking news' culture, seem to think. The fact that BRICS grouping's main focus is on Investment, Trade, Energy and Infrastructure is not lost on anyone. By forcefully putting forth its views on cross border terrorism, India has sent out a clear signal that development cannot be delinked from security and that at least for the Indian government, development and security go hand in hand and are not mutually exclusive.

BIMSTEC to the Rescue

Displaying his unconventional style of conducting Foreign Policy, PM Modi extended an invite to six countries - Bangladesh, Bhutan, Nepal, Myanmar, Sri Lanka and Thailand, which are a part of Bay of Bengal Initiative for Multi Sectoral Technical and Economic Cooperation or the BIMSTEC grouping. While the Thai premier was unable to attend because of the recent demise of the Thai Monarch, all the other countries were represented by their leaders who welcomed the invite.




Not only did the BIMSTEC countries actively participate in the summit, they also endorsed India's stand on terrorism. In complete contrast to the Goa Declaration, the BIMSTEC Leaders' Retreat Outcome Document 2016 noted:
Recognizing that terrorism continues to remain the single most significant threat to peace and stability in our region, we reiterate our strong commitment to combat terrorism in all its forms and manifestations, and stress that there can be no justification for acts of terror on any grounds whatsoever. We condemn in the strongest terms the recent barbaric terror attacks in the region.We strongly believe that our fight against terrorism should not only seek to disrupt and eliminate terrorists, terror organizations and networks, but should also identify, hold accountable and take strong measures against States who encourage, support and finance terrorism, provide sanctuary to terrorists and terror groups, and falsely extol their virtues. There should be no glorification of terrorists as martyrs. We recognize the need for urgent measures to counter and prevent the spread of terrorism, violent extremism and radicalization. We express our determination to take concrete measures to step up cooperation and coordination among our law enforcement, intelligence and security organizations.
The language employed in the above mentioned document is forceful and checks all the right boxes for India. What was not so soothing, however, was the ambivalent stand taken by Russia.

The Tight Rope to Moscow

Considering the stiff opposition by China, and keeping in mind the national interest of Russia in the face of EU-US Sanctions, President Vladimir Putin did not stress too much on India's position on cross-border terrorism, but did not exclude it from his remarks either. At the end of his remarks in the restricted meeting with PM Modi, he said that "one of our priority issues is combating terrorism together".



The Indian Prime Minister sought to rekindle the warmth of time tested friendship that India enjoys with Russia by remarking that an old friend is better than two new ones. The joint statement released at the end of the meeting between the two leaders noted:
India and Russia recognize the threat posed by terrorism, and believe that the full implementation of the relevant UNSC resolutions, the UN Global Counter-Terrorism Strategy without application of any double standards or selectivity will be instrumental in countering this challenge.....They stressed the need to deny safe havens to terrorists and the importance of countering the spread of terrorist ideology as well as radicalisation leading to terrorism, stopping recruitment, preventing travel of terrorists and foreign terrorist fighters, strengthening border management and having effective legal assistance and extradition arrangements. Furthermore, stressing the need to have a strong international legal regime built on the principle of ‘zero tolerance for direct or indirect support of terrorism’, both sides called upon the international community to make sincere efforts towards the earliest conclusion of the Comprehensive Convention on International Terrorism (CCIT).
It is clear that India understands the need to balance the growth of its bilateral relations with the United States with the deft handling of relations with its old friends like Russia, because Moscow and Washington have many antagonistic positions on issues of global concern. The agreement to buy the S-400 ‘Triumf’ air defence systems from Russia, worth over $5 billion, and to collaborate in making four state of art frigates besides setting up a joint production facility for making Kamov helicopters, is an attempt to walk the tight rope of seasoned diplomacy.

Conclusion

Zhou Enlai famously said that all diplomacy is a continuation of war by other means. Although China's stonewalling of India's continued efforts to isolate Pakistan diplomatically on every international forum might not be a call for a diplomatic war, but it certainly is a thorn in the flesh for the bilateral relations between both the countries. The Indian government will be well advised to play its cards cautiously while dealing with Beijing, as there is more to gain through trade and cooperation rather than by annoying an increasingly assertive neighbor. Though China might continue to protect Pakistan from severe international backlash, India must continue its newfound strategy to isolate Islamabad, as it is an improvement upon the previous policy of passivity in the face of terror and is bound to yield substantial gains, sooner rather than later.     

Monday, September 19, 2016

Uri Attack: Hard Choices before India

In yet another example of cowardly proxy warfare promoted by the Pakistani Army and the Inter Services Intelligence (ISI) Directorate, four heavily armed militants infiltrated the Army Headquarters in Northern Kashmir's Uri Sector in the Baramulla District and killed 17 soldiers, in one of the worst attacks on the army in 26 years. The Indian Director General of Military Operations (DGMO) Lt Gen Ranbir Singh said
"All four killed were foreign terrorists and had some items with them which had Pakistani markings. Initial reports indicate that the slain terrorists belong to Jaish-e-Mohammed Tanzeem (militant group). Four AK-47 rifles and four under-barrel grenade launchers along with a large number of other war-like stores were recovered from them."


"Days of Strategic Restraint Over" 

The government and the ruling party both issued strong statements, with BJP General Secretary Ram Madhav asserting that the days of strategic restraint were over. He said:
"We feel that the time for strategic restraint is over. India needs to tackle this menace with a firm hand and we need to take proactive measures. That is why Prime Minister has said that perpetrators behind the attack shall not go unpunished. Terrorism is the policy instrument of cowards and in this case the footprint of involvement of our neighbour is all over there. They have been using terrorism as a state policy in the most cowardly manner to attack, maim and kill people, soldiers as well as civilians, in our territory."
The Prime Minister too condemned the attack and in a series of tweets asserted that the perpetrators of the attack will not go unpunished. The Home Minister, who was to visit the United States and Russia, cancelled his trip and called Pakistan a "terrorist state" and appealed for its global isolation.

The statements, coming from both the ruling party and the government, are unparalleled in their severity and point to the increasing escalation in the tensions between both India and Pakistan. Indeed, with an elected leader commanding an absolute majority at the center, India possesses the political will necessary to take swift and punitive action this time against Pakistan, "at a time and place of its choosing".  

The numbers provided by a report in the Economic Times are alarming with regard to infiltration of terrorists from across the border and demonstrate the extent to which India's patience has been stretched thin. For example, in 2011, there were 247 infiltration attempts, followed by 264 attempts in 2012, 277 attempts in 2013 and 221 attempts in 2014. 13 infiltrating terrorists were killed in 2012, followed by 38 in 2013, 52 in 2014 and 37 in 2015.

Death by a Thousand Cuts

Ever since it realized that it stands nowhere in terms of conventional warfare when it comes to India, a fact that led to its ignominious defeat in three wars, the Pakistani Army and the ISI seem to have perfected terrorism by non-state actors as a means of sub-conventional warfare, a strategy which has come to be known as "death by a thousand cuts". A dysfunctional and failed state apparatus in Pakistan has meant that while the Pakistani Army and the ISI execute their nefarious plans through their remote control of Pakistani Defense and Foreign Affairs, the civilian leadership is left to deflect the blame, obfuscate the issue and deny any wrongdoing.


In such a scenario, where the real power is exercised by the Army, talks with Pakistani Civilian Leadership are just a hogwash designed to keep India engaged while simultaneously inflicting multiple terror attacks in Jammu and Kashmir and Punjab to stoke militancy and unrest. Parity with India is an obsession in Pakistan and an economically, strategically as well as globally resurgent India does not help their strategic imperatives. In fact, Islamabad has repeatedly scuttled any attempts at establishing good relations between the two countries, either by sponsoring terrorism against India, ceding a part of its illegally held territory in Kashmir to China or by repeatedly trying to internationalize the issue of Jammu and Kashmir while carrying out massive human rights violations in its own province of Baluchistan.

It is for India to realize that it is futile to expect any major changes in Pakistan's attitude given that there is a diffusion of power between various stakeholders in Pakistan. 70 years of Pakistan's existence has shown that it is happy to remain a satellite state of one major power or the other (earlier it was the US and now its China) and that its leadership, both civilian and military, is motivated by personal pecuniary interests coupled with Indophobia, which rationalizes the existence of the state in the first place, and has no vision of an independent foreign policy or resolving domestic issues amicably. In short, the average Pakistani be damned but the Generals need their kick by instigating India. In an interview with Arnab Goswami of Times Now News Network, Prime Minister Modi admitted as much when he said that there are different forces working in Pakistan.

A House Divided

While the reaction among Indian media, political and strategic experts and civil society at large has been that of taking stringent action to stop the flow of terror from Pakistan, on the other hand there is the usual clique of naysayers who have characteristically put their numerous if's and but's in the debate.

Shivam Vij, writing in the Huffington Post, advises the Indian government not to engage Pakistan militarily as it could backfire. Among the reasons cited are "risk of war", "risk of failure", "international pressure", "economy" etc. In short, let there be status quo ante and what if our few soldiers are dying, we can absorb the losses. The Left Parties, are perpetually in favor of an unconditional political dialogue, even when their own Members of Parliament were humiliated by the separatist leadership on their recent visit to the state. I am constantly amazed by the fact that the Left Parties still have Members in the Parliament. This opinion piece by Mohammed Zeeshan in DailyO starts by stating that India can't effectively respond to Pakistan anyway, asks it to decide on a consistent course of action towards Islamabad and says that the only consistent course of action towards Islamabad is Track-II dialogue and maybe economic sanctions. But that's a big maybe.





It is this multiplicity of opinions in the face of terror that stopped successive governments since the outbreak of the militancy in Jammu and Kashmir since 1990 from taking any concrete steps against this proxy war. These governments were also hampered by the fact that all of them were coalition governments requiring endless debates and discussions, cajoling and cooing, to come to any conclusion. However, Prime Minister Modi has no such compulsions. The country has given him a decisive mandate with full majority in the Lok Sabha and the ball is now in his court and he has to make some hard choices if he wants to fulfill the election promises he made in the run up to the 2014 General Election.

Options Before Us

India must boldly consider moves that it has refused to consider so far fearing escalation and risk of failure. The dream to become a superpower can never become a reality without ensuring that the cardinal duty of a nation state is fulfilled, i.e. achieving security for all its citizens. Given below are some of the steps that India can consider while formulating its future strategy viz-a-viz Pakistan.

1. PoK is Indian Territory, Take Out Terrorist Camps: Kashmir formally acceded to India in 1947 but Governor-General Mountbatten made the accession conditional on a plebiscite. According to the resolution passed in the United Nations, a plebiscite could only take place when Pakistan vacated its troops from the region. Since it has not done so for the last six and a half decades, India should now treat the matter with an iron fist and carry out surgical strikes in the PoK to take out any terrorist camps being run in the region to spread militancy and unrest.

2. Scrap Article 370: It is only India's constitution which guaranteed full autonomy to the State of Jammu and Kashmir in the form of Article 370 which limited the center's role in the state to defense, foreign affairs and communications. Pakistan was not able to formulate its constitution for a long time and when it finally attempted to do so, it did not grant any autonomy to their side of Kashmir. The result was that although the demography in PoK has undergone a profound change since 1947, the demography of Indian Kashmir more or less remains the same (except for the exodus of Kashmiri Pandits in 1989). With no industries due to militancy and security situation in the state and not much tourism or trade either, the people of the valley unofficially live in a ghetto where Azadi is a chimera, poverty a reality and darkness is most probably the future.

3. Balochistan: India should maximize its efforts to fix the international spotlight on the massive human rights violations perpetrated by the Pakistani Army in Balochistan. It should patronize the human rights organizations working for Baloch Rights and grant citizenship to prominent Balochistani activists working for the cause. By increasing its contact and network among the Balochi activists, India can in future attempt to create similar militancy and unrest in Balochistan as exists in Kashmir today.

4. Disrupt Pakistan's Aid Infrastructure: Pakistan is a bankrupt state surviving on the aid distributed to it from numerous capitals across the world including the United States. India must bring its enormous international goodwill to bear upon these states (except China) and must categorically state that any aid to Pakistan will only go towards the funding of non-state actors and towards maintaining the luxurious lifestyles of Pakistani Generals, and hence should be stopped. India's diplomats are among the finest in the world and they would be able to bring results if given a clear mandate to do so.

5. Tackling the Dragon: China, Pakistan's all weather ally, should be handled in a different manner. It is no use grandstanding before a nation that has everything to gain by keeping the factors that fuel instability in the region alive. We must leave no stone un-turned in creating hurdles in the implementation of CPEC (China Pakistan Economic Corridor) while simultaneously baiting China in the South China Sea. We must make it even more difficult for Chinese businessmen to do business in India when we know that the money earned will only be used against us. We should also make it clear that China's strategic imperatives do not precede India's and that terror is not acceptable as a stratagem.  

Conclusion

The National Security Advisor Ajit Doval and Defense Minister Manohar Parrikar, celebrated as doers and men of their word, have lost their face before the public due to the repeated terror attacks taking place on the Indian soil and the failure to counter them. Their role in guiding the Prime minister as he contemplates the future course of action is going to be critical and can make or break their reputation in the time to come. It is hoped that the Indian leadership does not squander away the huge mandate accorded by the public to the government and wipes the menace of militancy and terrorism from its very roots.    

Sunday, September 18, 2016

All You Need To Know About The Bhanwari Devi Case That Led To The Formation Of The Vishakha Guidelines

This was published in Indiatimes

Sexual assault is a serious offense which has destroyed the reputation of many a public figure. Whether it's ex-TERI Chief Rakesh Pachauri here in India or comedian Bill Cosby in the United States, the offenders are swiftly isolated from the society, no matter how high they sit, and are brought to stand trial in the court of justice. However, it wasn’t always this way. The case of Vishakha v. State of Rajasthan in 1992 was the landmark case where the Supreme Court dealt with the question of safety of women from any kind of sexual harassment at the workplace and laid down detailed guidelines for the same.




Bhanwari Devi was a Saathin working in the Women’s Development Project of the Rajasthan Government. The state government had recently launched a campaign against child marriages and Bhanwari Devi took an active part in spreading the influence of this campaign in her area. She tried to stop the marriage of a one-year-old girl and was furiously resisted by the villagers. In 1992, she was raped by five villagers in front of her husband for her temerity to stop an evil practice from spreading further. The district court acquitted all the five accused.



The matter came before the Supreme Court via a Public Interest Litigation (PIL) filed by a group of NGOs by the name of “Vishakha” in which the petitioners urged for judicial intervention to make workplaces safer for women due to the legislative inactivity in this regard. The Supreme Court observed that India was already a signatory to Convention on elimination of All Forms of Discrimination Against Women (CEDAW) and held that international conventions are to be read into the fundamental rights to enlarge their scope and advance their objective. It thus read the provisions of CEDAW (signed by India in 1980) in Articles 14, 15, 19 and 21 of the Constitution and laid down binding guidelines to be followed by every private and public sector employer to ensure the dignity and safety of women in the place of employment.

This was a landmark step by the apex court as it strayed into the territory of the executive by issuing guidelines which were binding, and hence, were law. The judiciary cannot make the laws, it can only interpret them, but in Vishakha vs State of Rajasthan, the Supreme Court resisted such orthodox theoretical interpretation of separation of powers and proved that it would not hesitate to occupy the space vacated by the legislature by its inaction, to meet the ends of justice. For this, the Supreme Court earned a fair share of criticism with some critics citing this judgment as an example of judicial overreach.

However, the passage of time has proved that the Supreme Court was correct in intervening in this regard. Today, due to the power and reach of social media and other information networks, sexual harassment has emerged as a very serious issue in our public discourse. However, back in 1992, it had not acquired the sense of seriousness that it commands today. Fundamental Rights were supposed to be enforceable ‘vertically’ i.e. an individual could only enforce them against the state. But through this judgment, the apex court ruled that in some worthy instances, fundamental rights were also enforceable ‘horizontally’ i.e. by one individual against another.



While there have been numerous cases where women have secured justice and a safer work environment for themselves by pursuing litigation against employers indulging in sexual harassment, there have also been some cases where this shield accorded to women has been misused to file frivolous cases and to bargain for higher pay and promotions. Therefore these guidelines have come to be known as a “double edged sword” which can secure justice for worthy litigants and can also cause havoc for those abusing it to secure petty personal gains.

Meanwhile, the legislature has sought to shake off its decades-old attitude of treating such issues regarding the safety and dignity of women lightly. This is less because of a genuine awareness regarding such issues and more because of the fear of ceding their power to the judiciary. The 2012 Nirbhaya Gang Rape case has galvanised public support for enacting tough measures against the culprits indulging in this sort of sexually predatory behavior.



It is to be noted that even though more than 20 years after the judgment in the Vishakha case was passed, the parliament has still not passed a comprehensive legislation directed at combating sexual harassment against women at the workplace. It can only be hoped that our parliamentarians heed the developments in this regard and take urgent steps to ensure a welcoming environment for women in both public and private spaces of employment.