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.

The Next Step For LGBTQ Rights In India - Scrap Or Amend Section 377 From The IPC

This was published in Indiatimes

After the unexpected decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, where it recriminalised homosexuality, efforts have increased to either amend or scrap Section 377 from the Indian Penal Code. It is conceded even by members of the ruling dispensation that Section 377 violates the right to equality and right not to be discriminated on the basis of sex as well as right to life and liberty as enshrined in the constitution. Some of the steps taken in this regard are enumerated below.

Rights of Transgender Persons Bill, 2014

On April 24, 2015, The Rajya Sabha unanimously passed the Rights of Transgender Persons Bill, 2014, which provides for reservation in education and jobs, financial aid and social inclusion for transgenders. It is rare for any house of the parliament to pass a private member’s bill, and this particular bill, moved by DMK’s Tiruchi Siva, became the first bill in 45 years to be passed in the Rajya Sabha. The Government has also assured to bring an updated bill in the Lok Sabha after removing some technical anomalies.

Curative Petition on Sec 377 in Supreme Court

The Supreme Court is currently hearing oral submissions on a curative petition filed against its judgment recriminalising homosexuality. It is rare for the judges to hear oral submissions on a curative petition, and decisions on such petitions are taken usually after the judges confer with each other. However, this departure from practice is being seen as an acknowledgment by the apex court of the changing social realities. It is to be noted that the curative petition against Sec 377 is the last legal resort for the petitioners to get any relief on this issue.

Medical Opinion

Medical Opinion in India has undergone a radical change since the days when arguments were repeatedly advanced claiming homosexuality to be a disease that can be cured. The Indian Psychiatrists Association, in a statement released in February 2014, said that there is no evidence to substantiate the claim that homosexuality is a mental illness or a disease. Earlier in 2011, in representations before the Supreme Court, the Vice President of the Indian Medical Association submitted that homosexuality is not a disease or mental illness.

Emerging Political Consensus

In view of international developments with regard to the issue of homosexuality, political consensus in India is also slowly building up. From Arun Jaitley of the BJP to P. Chidambaram of the Congress, political leaders have expressed their opinions supporting homosexuality. The RSS too has climbed down from its earlier position of vehement opposition to the decriminalisation of homosexuality to maintaining ambiguity on the issue. The Aam Aadmi Party and the CPI(M) have outrightly demanded the reversal of the Supreme Court Judgment in Suresh Kumar Koushal v. Naz Foundation.

Pride Parades and Awareness Building

The most stringent opposition to homosexuality comes not from the legal or political circles, but from the society where it is still frowned upon. However, the LGBT community has taken a number of steps to spread awareness about same-sex couples and homosexual relationships, including the organisation of various pride parades in major Indian cities and constituting LGBT groups in many college campuses. Various internet magazines and radio channels are dedicated to covering LGBT issues and spreading their culture. LGBT issues have featured prominently in Bollywood films such as My Brother Nikhil, Honeymoon Travels Pvt. Ltd. and Aligarhleading to a slowly building acceptance of the community.

The Road Ahead

With major developed countries like the United States, Canada, United Kingdom, New Zealand, South Africa, France etc. legalising gay marriage and homosexuality in general, it would be tough for the Indian government to drag its feet any longer. One can reasonably expect the Supreme Court to either strike down Sec 377 or for the current parliament to pass a bill decriminalising homosexuality in the country. In short, the question is not of “if”, but more of “when”.

Everything You Need To Know About Section 377 Of Indian Penal Code And The Story So Far

This was published in Indiatimes

Section 377 of our constitution, introduced with the Indian Penal Code way back in 1860, criminalises sexual acts “against the order of the nature”. This Victorian era statute was struck down by the Delhi High Court in 2009 in the famous Naz Foundation case, but the decision was overturned on appeal by the Supreme Court in 2013, which reasoned that the matter relating to LGBT rights and decriminalisation of homosexuality should be left to the legislature.

There is widespread support for the scrapping of Section 377 among the enlightened sections of Indian society, including eminent lawyers, jurists, renowned writers, political activists, journalists, doctors, actors, producers, directors, teachers, students etc. The Supreme Court judgment overturning the Naz Foundation case has come in for heavy criticism as it runs against the history of the apex court acting as a champion of the underprivileged.

What was the Naz Foundation Case?

In Naz Foundation vs Govt. of NCT of Delhi, the issue before the two-judge bench of the Delhi High Court was whether Section 377 of the Constitution violates the fundamental rights of the LGBT community and if so, should it be struck down as unconstitutional? And should homosexual acts between consenting adults be legalised?

The bench of Justices Ajit Prakash Shah and Justice S. Muralidhar answered in the affirmative and read down Section 377 holding that it violated Articles 14, 15 and 21 of the constitution, which guaranteed the right to equality before law, right not to be discriminated on the grounds of sex and right to life and liberty respectively.

The Appeal – Suresh Kumar Kaushal vs. Naz Foundation

In their appeal in the Supreme Court, the petitioners argued that Section 377 does not classify any particular group or gender and hence is not in violation of Articles 14, 15 and 21 of the Constitution. They also argued that if the High Court judgment was approved by the Supreme Court, “India’s social structure and institution of marriage will be detrimentally affected and it would cause young people to be tempted towards homosexual activities”. They finally submitted that the Supreme Court could not legislate and it should leave the matter of legality or illegality of Section 377 to the Parliament.

Sadly, the Supreme Court accepted the arguments advanced by the appellants and observed that Section 377 is the only law that criminalises pedophilia and crimes like sexual abuse and assault. It also reasoned that if Section 377 was a pre-constitutional statute and if it were in violation of any fundamental right, the framers of the constitution would not have included it in the first place. Based on such observations, the apex court overturned the decision of the Delhi High Court.

Subsequent developments

The decision by the Supreme Court was met with heavy criticism and a general outcry from the intelligentsia, but was welcomed by many religious groups. However, some religious organiaations have begun favoring decriminalisation of homosexuality keeping in view the worldwide trend of acceptance for the practice.

Congress MP Shashi Tharoor has introduced a private member’s bill twice in the Lok Sabha to decriminalise homosexuality, but has been unsuccessful in getting it passed. Many voices within the government, including Finance Minister Arun Jaitley, have favored decriminalisation of homosexuality. In February 2016, the Supreme Court agreed to review its decision in the Suresh Kumar Koushal case and referred the curative petitions filed against the decision to a five-judge constitution bench.

The LGBT community in India is no more a minuscule minority as was made out by the apex court in its judgment. It is a thriving community whose members include prominent public figures such as renowned author Vikram Seth, fashion designers Rohit Bal and Manish Arora, film directors Karan Johar and Onir etc. Today, there are various LGBT groups in college campuses across India, which are doing spectacular work in spreading awareness about the LGBT community and in combating homophobia. 

As the practice of homosexuality starts getting acceptance worldwide, it is only a matter of time before the Parliament and the Supreme Court in India get rid of the Judeo-Christian morality imposed on the Indian public by Section 377 and give the LGBT community in India their right to lead their lives with dignity.

Modi's Speech to US Congress: Culmination of Bipartisan Effort for Closer Indo-US Ties

As India's Prime Minister Narendra Modi travelled to Washington to address the joint sitting of the US Congress, becoming the fifth Indian Prime Minister to do so, Indo-US ties reached a new high in a saga of deepening cooperation between the two democracies. Banned for about 9 years from travelling to the United States, the Prime Minister must be credited for not holding a personal grudge and instead focusing on the advancement of India's national interest through closer cooperation with the United States, a policy which has been pursued strongly by his predecessors. Indeed, endorsement by the United States, Switzerland and Mexico for India's entry into the Nuclear Suppliers Group (NSG), an elite club of 48 nations governing trade in items used for nuclear technology, is the culmination of a coherent Foreign Policy followed in this regard by Prime Ministers Vajpayee and Manmohan Singh even in the face of strong opposition at home.

Hesitations of History 

Prime Minister Modi, in his 45 minute address to US Lawmakers, emphasised that Indo-US relations have overcome the hesitations of history. It is a poignant phrase which wonderfully captures the troubled relationship India and the United States shared at the time of the Cold War. A newly Independent India followed a policy of non-alignment as opposed to its neighbour and rival Pakistan, which opted to become a member of SEATO (South East Asia Treaty Organization) and CENTO (Central Treaty Organization), both military alliances modelled on the lines of NATO and lead by the US, for safeguarding its security interests. As time passed, India increasingly became close to the Soviet Union for its security needs, especially through the Treaty of Peace, Friendship and Cooperation signed in the backdrop of Indo-Pakistan war of 1971.

The ties plummeted to an all time low when India conducted its nuclear test in 1998. Codenamed Operation Smiling Buddha, the covert nature of the tests left the intelligence community in the west red faced and led its failure to detect Indian preparations for an imminent test being known as "intelligence failure of the decade". The United States and other European Nations imposed sanctions, which were lifted by President George W Bush in an effort to stitch together a global alliance against terrorism following the 9/11 attacks. Economic and Strategic cooperation between the two countries began to pick up given the converging geo-political interests and economic reforms at home, but India continued to be a victim of nuclear apartheid by reason of its being excluded from important institutions like the NSG and MTCR (Missile Technology Control Regime), denying it an opportunity to engage in trade of nuclear technology with other nations.

Indo-US Civil Nuclear Deal

What changed the contours of the relationship between the two countries was the hard push given to and the personal leadership shown with regard to the Indo-US Civil Nuclear Deal by Prime Minister Manmohan Singh in 2008. The soft-spoken Prime Minister who was accused of lacking real power and the ability to take decisions on his own, showed uncharacteristic defiance and stuck to his guns in order to support the Agreement with the United States, even risking his own government. The Left Parties famously withdrew support to the United Progressive Alliance, and the government was saved through the outside support of several regional parties. 

Manmohan Singh's leadership also benefited Indo-US relationship in the aftermath of the 2008 Global Financial Crisis, when he and President Obama developed personal rapport and a close working relationship. In his own address to the US Congress, Prime Minister Singh called India's non-proliferation track record as "impeccable" and said that the country neither has, nor will, support the proliferation of sensitive nuclear technology to third countries. He also gave a call for the end of nuclear apartheid against India and an early admission of India to NSG. In his speech to the Indian Parliament in 2010, President Barack Obama endorsed India's case for a permanent seat in the United Nations Security Council, thus taking one more step in the direction of strong Indo-US ties. 

Strategic Autonomy to Strategic Alliance

Prime Minister Narendra Modi, seeking to build on the progress made by his predecessors, has shifted the focus of Indian Foreign Policy from Strategic Autonomy to that of Strategic Alliance. This is a policy which is mindful of the rapidly changing geo-political realities in the region as evidenced by the strong and deepening partnership between China and Pakistan. Nations cannot change their geographies, but they cannot be tied down by their neighbours either. Modi seeks to develop India into a major manufacturing hub and needs enormous foreign direct investment to make that dream come true. The Indian Economy is a lone bright spot in the current global scenario with a growth rate of 7.5% and a young population with majority of its citizens below the age of 35 years. 

In his speech to the US lawmakers, Modi tried to leverage both these strong points and also made a case for closer economic and strategic cooperation and reiterated his focus on government's flagship initiatives like Skill India, Smart Cities, Digital India and building rail, road and port infrastructure. In agreeing to ratify the Paris Climate Change Deal in exchange for a US led push for India's entry into the NSG, the Prime Minister also displayed the Gujarati characteristic skill of striking a good bargain. His call for greater investment from US Businesses drew serious attention given the slowing down of the economy of China and increasing strains in US-China bilateral ties. 

A Roadblock Named China

One of the strategic objectives of a closer Indo-US relationship is to secure the freedom of navigation in the seas particularly in the Asia Pacific region. China's increasing assertiveness in the South China sea has seriously impacted the security considerations of the countries such as Japan and Australia. The United States has led an effort to check China's activities in the region and prevent a major conflict from taking place. Closer Indo-US ties would go a long way in counterbalancing China's influence in the region and maintaining a balance of power in the South Asian region. 

There are obvious implications. China is leading an effort to block the entry of India in the NSG, demanding that its ally Pakistan also be admitted under a "non-discriminatory approach" if India's entry is to be considered. This is obviously not possible since Pakistan has a horrible proliferation record (Iran and North Korea acquired nuclear technology from A Q Khan, father of Pakistan's nuclear program) and its entry into the NSG would render the body meaningless. 

As the United States gets ready to elect a new President, Prime Minister Modi will have to act to make sure that the gains made so far in the Indo-US ties continue to bear their fruits irrespective of the kind of administration that takes charge next. He must improve India's human rights record and continue to protect the interests of India's religious and ethnic minorities while delivering sustainable economic growth. The deepening relations between the world's oldest and the world's largest democracies will significantly benefit people of both the countries if allowed to blossom to their maximum potential.  

Everything You Need To Know About The KM Nanavati Case - How An Affair Turned Friends Into Foes

This was published in Indiatimes

This is a story involving an extra-marital affair that resulted in a murder. The trial of the murderer generated unprecedented media coverage and the circumstances in which the murder took place resulted in huge public sympathy for him. This is also one of the first cases through which the maverick lawyer, Mr. Ram Jethmalani, came into the limelight for the first time.

Kawas Maneckshaw Nanavati was an Indian Naval Officer who had settled in Mumbai with his English wife, Sylvia, and their two children. As his work required him to be away from his family for long periods of time, his wife began an affair with his friend Prem Ahuja. Sylvia wanted to divorce Nanavati and marry Ahuja, but he refused. Distraught by the refusal, she spilled the beans about the affair to Nanavati when he returned to his family.

Nanavati was enraged, but he did not show it. He dropped Sylvia and their two children to a nearby cinema hall, proceeded to the Naval Docks from where he withdrew his pistol and six cartridges on an excuse, finished his shift and went to Ahuja’s office. He did not find him there. He proceeded to Ahuja’s flat and confronted him there asking whether he would marry Sylvia and take in his children.

He refused.

Nanavati shot him dead.

After committing the murder, he proceeded to the Provost Marshal of the Western Naval Command, where he confessed to his crime. The Provost Marshal asked him to surrender before the Deputy Commissioner of Police, which he did. Nanavati was an upright, moral and patriotic officer who did not have any prior history of criminal activity. The jury that heard his trial was sympathetic to his suffering and declared him to ‘not guilty’ by a majority of 8-1.

Ram Jethmalani, a young lawyer at the time, was assisting the prosecution on the request of Ahuja’s sister Mamie Ahuja. The trial court judge found this verdict to be perverse and referred the matter to the High Court.

Throughout the trial, the Bombay Daily Blitz, which folded shop in the 90s, championed the cause of Nanavati. One copy of the magazine, which was usually priced at 25 paisa, was selling at 2 rupees per issue at the height of the trial. The coverage of the trial pitted the Parsi and Sindhi communities in the city against each other. When the matter reached the High Court, a sentence of life imprisonment was read out, upon which Nanavati preferred an appeal to the Supreme Court.

The Supreme Court confirmed the verdict of the High Court in November 1961. Blitz now went into an overdrive. It published a mercy petition in its pages, forcefully conveying the sentiments of the Parsi community which was wholly in favor of pardoning him. The rule of law and the demands of the society had clashed with each other. It was obvious that one had to bend in favor of the other.

Around the same time, Vijayalakshmi Pandit, newly appointed Governor of Bombay and sister of Prime Minister Jawaharlal Nehru, received a mercy petition from Bhai Pratap, a prominent Sindhi leader, in March 1962. Bhai Pratap had a business of import-export of sport goods and bureaucrats around her agreed that he could be pardoned. Pandit pounced on the chance. Bhai Pratap could be pardoned, she reasoned, after Nanavati had been pardoned. This way, both the Parsi and the Sindhi communities would get what they want. The proposal was conveyed to Jethmalani, who was asked to convince Mamie Ahuja for the same. She acceded to the government’s request.

Soon after being pardoned by the government, Nanavati left for Canada along with his wife and two children and was never heard of again. He died in 2003. Sylvia is still alive.

The case has inspired several Bollywood movies, plays and books including R K Nayar’s Ye Raaste Hain Pyaar Ke (1963) starring Sunil Dutt and Leela Naidu, Gulzar’s Achanak (1973) starring Vinod Khanna and Lily Chakraborty and Indra Sinha’s book The Death of Mr Love (2002). It is also rumored that Akshay Kumar and Neeraj Pandey’s latest offing Rustom, is based on the case. 

Even after 50 years, the Nanavati case continues to have a tremendous recall value among a public infamous for its short memory. The question that animated discussions in countless chai shops of Bombay at the time of the trial remains relevant till today - “What would you have done if you were in his shoes?”