Kangaroo Courts Must Go!

This first appeared in Daily News and Analysis

The recent gang rape of a 20 year old woman in West Bengal on village council orders highlights the need to stamp out such extra judicial kangaroo courts in compliance with the previous Supreme Court orders.

In West Bengal’s Birbhum district, a village council ordered a 20 year old girl to be gang raped in front of the entire village on the accusation that she was having an affair with a married man from another village. The accusation wasn’t proved, but the girl had “visited Delhi and spoke Hindi” and that was enough for the village council to order such brutality on her.

Such incidents are not new. In Mushahari district in Bihar, a rape victim was offered Rs. 10,000 as compensation by the village council and her family was threatened not to report the incidence to anyone. Another famous case is that of Siya Dulari of Bhawanipur, who was burnt to death just because her son eloped with a girl belonging to an upper caste family. The incidence sparked widespread condemnation and was later the inspiration for a Bollywood film called ‘Lajja‘.

One can go on with a list of such incidences which were ordered by village councils and dutifully carried out without a hint of shame or remorse. These village councils do not exercise any power to mete out criminal punishment under any law and yet, there are frequent cases in which these councils not only order gang rapes, illegal confinements and social boycotts, but go to the extent of ordering killings, a phenomena which has come to be known as ‘honor killings’.

The Supreme Court has time and again delivered judgments against such village councils, asking them to be stamped out from the country. In Lata Singh v. State of UP and Another (2006), the apex court observed:

We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner’s husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.

In Fiaz Ahmed Ahanger and Ors. V. State of J& K (2009), the court held that:

“In such cases of inter-caste or inter religion marriage the Court has only to be satisfied about two things:

(1) That the girl is above 18 yeas of age, in which case, the law regards her as a major vide Section 3 of the Indian Majority Act, 1875. A major is deemed by the law to know what is in his or her welfare.

(2) The wish of the girl.

In the circumstances, we direct that nobody will harass, threaten or commit any acts of violence or other unlawful act on the petitioner, Chanchali Devi/Mehvesh Anjum and the petitioner’ family members and they shall not be arrested till further orders in connection with the case in question. If they feel insecure, they can apply to the police and, in such event, the police shall grant protection to them.”

In Arumugam Servai v. State of Tamil Nadu (2011), the apex court ruled that:

We have in recent years heard of ‘Khap Panchayats’ (known as katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh’s case (supra), there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.

In the Manoj Babli case (2011), the Punjab and Haryana High Court remarked:

"Even in the 21st century such a shameful act of hollow honor killing is perpetrated in our society. We feel that it is really a slur on the fine fabric of the Indian society. Abduction is really cruel and that too murder of the abductees is barbaric."

In addition to constituting a crime, any political justification of the acts of these village councils cannot stand the test of law as their actions are violative of Article 21 of the constitution, which guarantees the fundamental right of life and liberty to everyone in the country.

Failure of the state authorities to curb such crimes which are primarily directed against women also runs afoul of India’s international commitments as India is a party to Convention on the Elimination of All Forms of Discrimination against Women (1981) and the International Covenant on Civil and Political Rights.

The Law Commission of India in its 242nd report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” has suggested a draft bill to penalize these honor killings and other crimes committed in the name of preserving one’s honor. The proposed bill prescribes strict punishment for unlawful assemblies of the panchayats, objectionable behavior towards any couple, criminal intimidation etc. and empowers the district magistrate or the SDM to take preventive measures against the same (salient features here).

It is high time that the state governments took note of the rising incidences of crimes committed on the orders of these Kangaroo courts and ruthlessly stamped them out to rid the society of their evil influence. The sooner such stringent measures are taken, the better it will be.

A Question of Reasonable Freedom

First Published in Youth Ki Awaaz

Till 1983, October 31st was marked as the birth anniversary of India’s first home minister and one of the tallest leaders of National Independence movement, Sardar Vallabhai Patel. Known and feared for his shrewdness, presence of mind and clever deployment of tactics to force his enemies into submission in the political arena, Patel is also considered the best Prime Minister India never had. While his stormy relationship with India’s first Prime Minister Jawaharlal Nehru may had earned him some detractors within his own party, respect for invented traditions and the fierce loyalty of his supporters and followers ensured that Vallabhai was never reduced to a distant figure buried in the yellow and dusty pages of history.

That was until 1983 of course. In 1984, at the height of the Punjab separatist movement, two Sikhs, who also happened to be the personal bodyguards of the then Prime Minister Indira Gandhi, decided to pump their anger into the PM’s body via their automatic machine guns and thus burden the fateful date of the Julian calendar with another marking of History.

Rules of nature and science validate that Vallabhai’s birth anniversary still falls on 31st October. However, he now shares the extra tight compartment of that one day in the books of history with a lady, whose successors have ensured that their madam suffers no inconvenience by being reduced to the margins. Entombed under the eventful baggage of his Prime Minister’s daughter, Mr. Patel’s birth anniversary has today become a forgotten appendage to a greater event that transformed India.

Although joined by fate on the same page, a study of the style of functioning of the two leaders is a study in contrast. I would choose to speak of their attitudes and behaviours towards the issue of freedom of speech, because for me no other sphere of activity can shed more light to their glaring differences as this one.

Independence, Republic and The First Amendment

One can say that Sardar Patel resided over the most tormentous phase of national security over the country as its home minister. Given the situation, he could have acted in a dictatorial manner citing law and order; however, Gandhian principles and the ritual of consensus building ensured that things did not come to such a pass. Fresh out of the rule of the British, which had left their stamp on the history of freedom of speech in the country in the various forms of gag orders and press censorship, Mr. Patel and his government were determined to reverse the trend as a crucial part of their aim of nation building.

Perhaps the first and the only serious challenge which arose in his lifetime as the home minister regarding the freedom of speech and expression in the country was from the hallowed corridors of the courts which necessitated the Indian parliament into passing the first amendment in 1951, shortly after his death.

In a series of two judgements (Romesh Thapar vs The State of Madras and Brij Bhushan vs The state of Delhi), the courts in the country interpreted the scope of the term “public safety” or “public order” in Article 19(1)(a) of the constitution to imply only those actions or expressions which would pose a grave danger to the security of the nation as a whole. The court opined that banning such expressions or speech would constitute a violation of fundamental rights unless it could be shown that the particular case fell under the exceptions provided by Article 19(2) of the constitution which said:

“Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as it relates to or prevents the state from making any law relating to libel, slander, defamation, contempt of court or any matter which offend against decency, or morality or which undermines the security of the state or tends to overthrow the state”

This interpretation left the acts of hate speech which could incite violence and hate crimes totally out of the purview of the Article and hence provoked a great deal of alarm in the government. Lawrence Liang, in his paper “Reasonable Restrictions, Unreasonable Speech” writes:

“The government argued that the expression “public safety” in the Act, which is a statute relating to law and order, means the security of the Province and, therefore, “the security of the State”. Within the meaning of Article 19(2), “the State” has been defined in Article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces. The court, however, stated that the phrase “public safety” had a much wider connotation than “security of the state”, as the former included a number of trivial matters not necessarily as serious as the issue of the security of the state. It concluded that “unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that Section 9(1-A), which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order, falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional” (Regarding Romesh Thapar vs State of Madras)

This decision, coupled with that of Brij Bhushan vs State of Delhi, triggered hectic discussion in the government over the need to introduce an amendment so as to bring hate speech and incitement to violence under the purview of the aforementioned article.

It was a unique situation. Patel thought that the Romesh Thapar decision “knocked the bottom out of most of our penal laws for the control and regulation of the press” and hence supported the idea of introducing an amendment so that adequate controls could be established in order to safeguard law and order situation in the country in view of the fragile relationship between its various religious communities. Even so, the intention was not to place a blanket ban on the expression of such ideas in the media, but was to place “reasonable restrictions” which were justified by the kind of atmosphere people lived in.

Such decision making characterised the working style of the home minister: to find balance and unanimity, to be benevolent but also be a realist.

Indira, India and Emergency

However, by the time Indira Gandhi came to power, these values of democracy, of tolerance and of thoughtful action had already started withering from the arena of India’s polity. Transformed into a battleground for power struggle, the chief objective became to acquire power and thwart the rival interests in favour of one’s own. Indira Gandhi, not known too much for her intellect as for her family background, turned out to be the quintessential politician that one would have expected once Indian democracy started to mature and show its true colours. Having acquired a following and legitimacy by promoting her personality cult after the 1969 split of the Congress into two rival parties, it became imperative for her to silence her critics, either by hook or by crook.

It is in this regard that the emergency of 1975 should be seen. Far from the considered pragmatism of the country’s founding fathers, the Emergency is a case study in intolerance to criticism and blatant disregard for the principles enshrined in the Indian constitution. The press was censored, opposition members jailed, free speech and freedom of expression revoked and the judiciary just made a compliant cog in the wheel of the state’s vehicle of things.

Could things have been any different without the Emergency? One cannot say. However, with the benefit of hindsight, one can safely conclude that the deterioration in the belief of rights to freedom of expression, which gathered pace after Nehru’s death, was accelerated with the catalyst of the Emergency and even without it, would have continued to grow, albeit at a slower pace.

In our Times

Thus, it is with a certain sense of deja vu that one analyzes the events of the past year. The cheap trick through which Salman Rushdie was not allowed to attend the Jaipur Literature Festival, apparently to soothe the hurt sentiments of a particular religious minority, the route of Baba Ramdev from the Ramlila Maiden during his fast against corruption and black money, the arrest of cartoonist Aseem Trivedi and Binayak Sen on charges of Sedition, the arrest of a professor of Jadavpur University for allegedly forwarding “insidious” mails against Chief Minister Mamata Banerjee, the censorship of the internet in reply to the North East exodus in the aftermath of Assam Riots and the latest, the arrest of a small time businessman for tweeting against the present Home Minister’s son.

It seems that the modern Indian state is in a state of limbo. Confronted with the rapidly advancing means of communication and modes of dissemination of information, the present administration finds itself inept of taking action in a balanced manner like that of Sardar Patel and fearful of going whole hog in destroying the civil liberties enshrined in the constitution to assume complete control like Indira Gandhi. In this state of indecision, the blunders that the government commits, with regard to free speech and free expression, only weaken the base of the limited liberties we enjoy and thus paves the way or a bleaker future.