Scrap Section 377, bring in a uniform civil code: Justice Vikramajit Sen – Utkarsh Anand

Justice Vikramajit Sen

Utkarsh Anand“Justice Sen was associated with many important verdicts, the latest being the approval of the Kerala government’s policy to ban consumption of liquor in public and restriction of bar licences. Earlier, he also held that a single mother can be appointed as the sole guardian of a child.” – Utkarsh Anand

Days after demitting office, former Supreme Court Judge Vikramajit Sen said it is time to do away with Section 377 of the IPC, which makes gay sex, irrespective of age and consent, an offence punishable with a sentence up to life term.

Speaking to The Indian Express, Justice Sen, who retired on December 30, also said that secularism means “not recognising any religion”, and stressed the need for a uniform civil code.

“It is time for Section 377 to go. The society is mature enough to make its choices and exercise sexual preferences in private.

“Why a penal law and a court have to regulate what you do in private? Personal choices are to be validated if they do not violate anybody else’s rights,” he said.

“Secularism does not mean recognising all religions. It means not recognising any religion. This is why the uniform civil code is a major step towards attaining true secularism. Why should personal laws be allowed to trample upon civil rights? After all, religion is a private affair. Why should the state recognise any religion,” he said.

Uniform Civil CodeRecalling how he had nudged the government to initiate the process of consultation on the uniform civil code when a petition relating to divorce under the Christian law came up before him, he said a majority government must “strive towards it”.

“I believe most of the religions and communities are ready for it. And the rest can be brought on board by assuring them of a meeting ground after a broad-based dialogue. The uniform code will be helpful for women in particular,” he said.

Asked about the debate on intolerance, he refrained from commenting on the “politics of it”. Secularism, he said, entails unqualified tolerance to all thoughts and beliefs.

“It is only through secularism and tolerance that our country will reach great heights. What the Islamic State (IS) is doing today is a sign of intolerance. And therefore, it must also be highlighted that the Muslim community in India has opposed the propaganda and methods of the IS. You have to provide a sense of inclusiveness to everyone,” he said.

Justice Sen, who is from Delhi, also commended the fact that the issue of pollution in the national capital has taken centrestage. “I am hopeful all the deliberations and attempts will lead to some positive results. The success, or otherwise, of the odd-even policy is yet to be seen so it will not be prudent to comment on it. But the fact that the issue of pollution has triggered debates and generated awareness is definitely encouraging,” he said.

Justice Sen was associated with many important verdicts, the latest being the approval of the Kerala government’s policy to ban consumption of liquor in public and restriction of bar licences. Earlier, he also held that a single mother can be appointed as the sole guardian of a child. He also gave rulings on expediting the land acquisition process, and was part of the bench that ruled against quota in super-speciality medical courses. – The Indian Express, 4 January 2016

Demonstration against Section 377 in New Delhi

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A reductive reading of Santhara – Shiv Visvanathan

Santhara of Muni Jasraj (28 February 2013)

Shiv Visvanathan“The court has held that extinguishing life, sacrificing it or effacing it cannot be considered as acts of dignity. A right to die cannot be a part of a right to life. In constructing such a judgment, the court’s ethno-centricity becomes obvious. It enshrines a piece of Christian theology and Anglo-Saxon law in its response to the logic of Santhara. Eventually, the judgment creates a monologic sense of life and a standardised sense of what death and dying is. In fact, it has missed an opportunity to look at life and death and the ethics of dignity and dying in a creative way.” – Prof Shiv Visvanathan

Charles Dickens: "If the law supposes that," said Mr. Bumble, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience." Courts, as institutions of interpretation, intrigue citizens, and often awe them. The dignity of their ritual, the imprimatur of the official, the detailed litany of textual interpretations before a judgment is arrived at, are often impressive. Judgments often have the moral gravitas and the narrative power of a novel. Yet, a badly done judgment, even if it appeals to the secular mind, lacks conviction. One felt that about the judgments around nuclear energy; equally, one senses these limits in the judicial reading of Santhara.

I refer to the Rajasthan High Court’s verdict against Santhara, or the centuries-old Jain practice of voluntarily starving to death. On August 10, 2015, the court’s Jaipur Bench ruled on a public-interest litigation (PIL) filed in May 2006 against the practice. It held that Santhara would henceforth be treated as “suicide” and accordingly made punishable under the relevant sections—Section 309 (attempt to commit suicide) and Section 306 (abetment of suicide)—of the Indian Penal Code. It made its absolute rejection of the Jain philosophy underlying the practice unequivocally clear. An appeal challenging the order has now been filed in the Supreme Court.

A way of life

The word Santhara means a way of life and encompasses a way of dying as well. In Jainism, the body is seen as a temporary residence for the soul which is reborn. One must remember that a word can embrace a multiplicity of worlds and meanings. As a result, translation is one of the most difficult of acts. It demands a delicacy of understanding about words which, in their consequences, can be lethal. Equivalences are welcome when we seek unity but we need a unity that can sustain the multiple senses of difference.

The critical word here is suicide. One is almost tempted to be facetious. I remember that moment of epiphany in the film Sholay when actor Dharmendra, as the character Veeru, standing up on a water tower, tells Basanti (played by Hema Malini) that he will commit suicide. An old man in the crowd asks: “what is suicide?” The answer is profoundly wise. It says when Englishmen kill themselves, the act is called ‘suicide’.

I was struck by this scene as I read the High Court judgment on suicide in the case of Nikhil Soni vs. Union of India. There was an element of irony to it. The scene in Sholay is straight from the 1969 classic, The Secret of Santa Vittoria and yet, in the very moment of mimicry, the movie emphasises the essential drama of difference. The court judgment, while playing with the cultures of difference, eventually succumbs to a reductive act which is textually disappointing.

There are critical nuggets of information in the initial pages. It claims that the Jain attitude to the body is different from the Christian attitude to the body and that Santhara is a ritual farewell to the body; it is an act of non-violence performed as an ethical act. The court hints that for the petitioners, Santhara cannot be suicide. The etymology and the cosmologies are radically different.

The English word ‘suicide’ means a deliberate killing of oneself. The Etymology Dictionary cites W. E. H. Lecky, in a History of European Morals where he writes of the stigma attached to suicide. He claims that even in 1749, “a suicide named Portier was dragged through the streets of Paris with his face to the ground, hung from the gallows by his feet and then thrown into the sewers.” Right from its origins up to the French Revolution, suicide was a mark of stigma of criminality and pollution.

Different narrative

Santhara encapsulates a different narrative. It is a ritual act of purification, done in consultation with a guru, and follows the most detailed of procedures. It cannot be an impulsive act or an egoistic one. It bears the imprimatur of theology and the approval of society.

As India became colonised, many Indian rituals came under the critical Anglo-Saxon lens, and translation and interpretation became a critical part of legal exegesis. Is Santhara a giving up of life or of taking death in one’s stride? For a culture that believes in rebirth, is Santhara philosophically or ethically suicide? The frame widens as the drama becomes sociological because then there will have to be a differentiation made between sati, suicide and Santara.

French sociologist Emile Durkheim, in his Suicide, a groundbreaking book in the field of sociology, basically made a differentiation between three forms of suicide—the anomique [anomie], the egoistic and the altruistic genres of suicide (based on the personalities of people). Anomie is a state of normlessness of rootlessness where an individual commits suicide because nothing binds him. It is associated with social disorganisation and imbalance and Durkheim has tried to illustrate this by giving examples from economic life. Egoistic suicide occurs when the individual feels full of himself. These are suicides committed by persons who are self-centred and to whom self-regard is the highest regard. In altruistic suicide, a person sacrifices himself. It is a form of sacrifice in which a person puts an end to his life by some heroic means in order to promote or further the interest of the cause or idea dear to him. In a sociological sense, altruistic suicide comes closest to Santhara. It is a ritual of giving up the body in times of old age, famine or catastrophe or when an individual feels the need to be closer to cosmic cycles.

As one looks at the colonial interpretation, the critique of sati, where a woman sacrifices herself for her husband, brought condemnation. Santhara was read in a different way as an act of non-violence tuned to the deepest norms of Jain culture.

Prof Shekhar HattangadiLanguage and interpretation

Experts cited indicate that it adds a dignity to dying, where death is in continuum with rebirth. Shekhar Hattangadi, a Mumbai-based professor of constitutional law, has sought to outline some of these conflicts in his award-winning documentary, Santhara: A Challenge to Indian Secularism? But one cannot reduce it to an encounter with colonialism. To place it in the alleged opposition of religion and secularism fails to read it as a failure of language. There is a flatness, a narrowness to the English language which even the presence of James Joyce, William Blake, Gerard Manley Hopkins and Shakespeare could not contain. For example, the word ‘corruption’ lacks the multiple senses and the flair of society which invents words like upari, dakshina, seva for a bribe. Santhara is a multivalent term which cannot be reduced to the dreariness of suicide as closure or a termination. The English term cannot comprehend Santhara in terms of being a ritual exit and a rite of passage to a different world. Santhara, performed correctly, is ritual non-violence. In fact, I would feel that the court’s judgment misinterprets both the word and world.

There are doubts about Santhara. Many people have pointed to the coercive, even aspirational aspects of the practice. Witnesses claim that families whose reputations are at stake often refuse to let a person change his mind. There is an aspirational aspect as families of the individual who wishes to observe Santhara get respect and status, so they often tend to advertise the act. Here, Santara is often presented as sati. Its voluntariness is forgotten.

The court had to make a differentiation between Santhara and euthanasia, sati and suicide. It has made brief and superficial attempts to do so. And in this abortive act of comparative sociology, the ritual dignity of Santara has been lost. In the confusion between the literal and the symbol, between a construction of fact and celebration, the meaning is lost.

Santhara PetitionA narrow view

The court—after its abbreviated move through philosophy, ethics, language and law—has reduced the whole to one narrow issue, namely the test of essentiality. It asks where Santhara is an essential tenet of Jainism and declares that it is not. Such a litmus test might work in textbook chemistry but it fails to work in the contextuality and polysemy of culture. The court could have been strict about aberrations or deviations from Santhara but to reduce the ritual act to suicide amounts to an exhibition of illiteracy. The court seems more worried about the debates on euthanasia and sati than about looking at Santhara as a cultural practice with its own repertoire of meanings.

The court claims that some rights can encompass their opposite. The freedom of speech does not compel one to speak. Yet, a right to life does not include the right to die under certain circumstances. Ethics and religion lose out to the wooden definitions of Santhara, which, as a ritual, has qualities of a controlled experiment. The court has held that extinguishing life, sacrificing it or effacing it cannot be considered as acts of dignity. A right to die cannot be a part of a right to life. In constructing such a judgment, the court’s ethno-centricity becomes obvious. It enshrines a piece of Christian theology and Anglo-Saxon law in its response to the logic of Santhara. Eventually, the judgment creates a monologic sense of life and a standardised sense of what death and dying is. In fact, it has missed an opportunity to look at life and death and the ethics of dignity and dying in a creative way. In creating such a standardised theology, the fact of justice becomes secondary. This has wider implications because words in one culture cannot lose their meaning in translation. Language and justice die or are diminished when language is deprived of its right to polysemy and to a multiplicity of meaning. When language is rendered captive, justice loses out in the long run.

The aridity of a reductive secularism often comes out in displays of language. In fact, translation becomes a test of justice. This is the epic tragedy of the Santhara judgment. It conveys the fact that nation states that can inflict and adjudicate death, often feel lost in the complexity of the phenomenon. – The Hindu, 24 August 2015

» Prof Shiv Visvanathan is a social scientist who teaches at the Jindal School of Government and Public Policy in Sonipat, Haryana.

Jains

Members of the Jain community staging a demonstration in front of the Deputy Commissioner’s offic,e in protest against the Rajasthan High Court judgment on ‘Santhara’, in Belagavi on Monday.

Jains

The flawed reasoning in the Santhara ban – Suhrith Parthasarathy

Rajastan High Court Jaipur

Suhrith Parthasarathy“The Jaina practitioners contend that Santhara is not an exercise in trying to achieve an unnatural death, but is rather a practice intrinsic to a person’s ethical choice to live with dignity until death. These arguments were brushed aside by the Rajasthan High Court. It simply found, based on an incorrect reading of Gian Kaur, that there is no dignity whatsoever in the act of fasting, and that therefore, there exists no freedom to practise Santhara as an extension of one’s right to life under Article 21.” – Suhrith Parthasarathy

The Rajasthan High Court, in a judgment on the August 10, 2015, declared the Jain practice of Santhara, which involves a voluntary fast-unto-death, an offence punishable under the Indian Penal Code (IPC). This decision in Nikhil Soni v. Union of India, is likely to have far-reaching consequences, not only amongst the Jain community in Rajasthan but also across the country. Unfortunately, it conflates several important issues of constitutional law, and symbolises the confusion over the fundamental guarantee of religious freedom in our constitutional jurisprudence.

The court’s judgment is superficially reasoned, misconstrues findings of the Supreme Court, and, most significantly, ignores vital considerations that go to the root of a person’s right to ethical independence.

It is undeniable that Indian secularism—a form quite distinct from western conceptions of the term—envisages the intervention of the state in matters of religion, where general social welfare or substantial civil liberties are at stake. But, what our Constitution, properly interpreted, does not permit is the bestowal of any specific discretion on the courts to tell us which of our beliefs and practices are essential to the following of a religion. By directing the State government to move towards abolishing the practice of Santhara, and by holding that the practice is tantamount to an attempt to commit suicide, punishable under Section 309 of the IPC, the High Court in Nikhil Soni has created a damaging precedent, which requires immediate re-examination.

Santhara, which is increasingly widely practised by Jains in India, is a voluntary tradition of fasting till death, that Jains believe will help them attain ultimate salvation. As pointed out in The Hindu ( “Santhara in the eyes of the law”, August 15) by Shekhar Hattangadi, Santhara is embedded in deeply philosophical beliefs. The practice is premised on a foundational idea that the act of fasting, as an exercise of bodily autonomy, allows a believer to attain a state of utter transcendence. However, the court has now found that such matters of integrity, of choosing how one wants to lead life, do not enjoy any constitutional protection, and that voluntary fasting is nothing but a performance in self-destruction. By any reasonable construction, fasting ought to be considered indistinguishable from an act specifically aimed at ending one’s own life.

Effectively, the judgment in Nikhil Soni is predicated on two primary grounds. First, that the guarantee of a right to life does not include within its ambit a promise of a right to die, and therefore, that the practice of Santhara is not protected by Article 21. Second, that Santhara, as a religious practice, is not an essential part of Jainism, and is hence not protected by Article 25, which guarantees a person’s right to religious freedom and conscience. While on the first ground, the court’s reasoning is difficult to accept, on the second ground, the court’s finding is premised on a wrongly considered doctrine, carved by the Supreme Court in its earliest rulings on the right to freedom of religion.

As the Rajasthan High Court correctly recognises in Nikhil Soni, Section 309, which criminalises the attempt to commit suicide, has been found to be constitutionally valid by the Supreme Court, in 1996, in the case of Gian Kaur v. State of Punjab. However, the Supreme Court was concerned here primarily with the unnatural extinguishment of life. To die through an act of suicide, the court held, is not an extension, or a recognised corollary, of one’s right to life under Article 21. But contrary to what the High Court holds in Nikhil Soni, as a recent intervention petition filed by the Delhi-based Vidhi Centre for Legal Policy points out, the Supreme Court in Gian Kaur explicitly recognises that a person’s right to life also partakes within its ambit the right to live with human dignity. “…This may include the right of a dying man to also die with dignity when his life is ebbing out,” the court wrote, in Gian Kaur. “But the “right to die” with dignity at the end of life is not to be confused or equated with the “right to die” an unnatural death curtailing the natural span of life.”

Taraben Chovatia, 78 years old, had renounced food in 2008, as part of Santhara.A dignified choice

The Jaina practitioners contend that Santhara is not an exercise in trying to achieve an unnatural death, but is rather a practice intrinsic to a person’s ethical choice to live with dignity until death. These arguments were brushed aside by the Rajasthan High Court. It simply found, based on an incorrect reading of Gian Kaur, that there is no dignity whatsoever in the act of fasting, and that therefore, there exists no freedom to practise Santhara as an extension of one’s right to life under Article 21. But, perhaps, even more damagingly, the court in Nikhil Soni also rejected arguments that sought to locate such liberty in Article 25. Here, though, the folly in its reasoning wasn’t as much a product of its own making, as it was a consequence of a vague doctrine established by the Supreme Court.

Plainly read, Article 25 guarantees to all persons an equal entitlement to freedom of conscience and the right to profess, practise and propagate religion. The right is subject only to public order, morality, and health, and other recognised fundamental rights. However, as the debates in the Constituent Assembly demonstrate, these community exceptions were included purely to ensure that the guarantee of religious freedom did not come in the way of the state’s ability to correct age-old social inequities. It wasn’t the Assembly’s intention to allow organs of state any substantial latitude in determining which religious practices deserved constitutional protection. But, in practice, perhaps out of an anxiety to ensure that the state is not constrained in passing legislation to remedy social evils, the Supreme Court has interpreted Article 25 in a manner that has greatly restricted the scope of religious liberty.

Interpreting religious practices

The court’s constriction of this freedom has been achieved by invoking a rather curious principle: that Article 25 protects only those exercises that are considered “essential religious practices.” Through the 1960s, this doctrine, which was first envisaged in the Shirur Mutt case, decided in 1954, ingrained itself as an integral part of India’s constitutional theory. The court, on a case-by-case basis, often examined individual religious canons to determine what constituted an essential religious practice. Significantly, the court began to examine whether a particular exercise was indispensable to the proper practice of a religion.

This interpretation has allowed the court authority to determine for the people what their religious beliefs and practices, through a correct reading of their religious texts and customs, ought to comprise. Invariably, the determination of what constitutes an essential religious practice, therefore, amounts to a very particular form of moral judgment—a form of cultural paternalism that is quite antithetical to a liberal democracy.

It is this authority, which the High Court in Nikhil Soni, has invoked to rule that the criminalisation of Santhara would not breach a Jain’s right to religious freedom. “We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara … has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha,” the judgment states. This analysis, as is evident, does not consider whether a person indulging in Santhara performs the act out of an intrinsic belief that the practice flows from his religion, but rather adopts an almost-avowedly paternalistic outlook. It tells followers of Jainism that under a purportedly proper interpretation of their religious texts, Santhara is simply not an essential practice. As a result, the question of whether a Jain’s right to religious freedom is violated by prohibiting Santhara is examined in a wholly unsatisfactory manner.

If, and when, the Supreme Court sits on appeal over the judgment in Nikhil Soni, it must ask the right questions: of whether any social inequities arise out of the practice, of whether any other right of its practitioners are violated through Santhara, of whether the rights of any other person are infracted when a person goes on fast. In so doing, the court must also reconsider its now age-old doctrine of essential practice, which has caused a substantial weakening of the state of religious freedom in India.The Hindu, 24 August 2015

» Suhrith Parthasarathy is an advocate practising at the Madras High Court.

Santhara Petition

Santhara in the eyes of the law – Shekhar Hattangadi

Prof Shekhar Hattangadi“The systematic codification of Indian criminal law … began soon after the colonialists survived the blood-soaked Mutiny of 1857 and formally established the British Raj. The IPC, which forms the bulwark of our criminal jurisprudence, bears an 1860 vintage … and was drafted by Lord Thomas Macaulay who was known to be a devout Christian. Inevitably, … the wily administrator put forth a code that not only set a low threshold of culpability for political dissent and for spreading disaffection against the government … but which also reflected his own deeply held convictions about right-and-wrong, and good-and-evil.” – Prof Shekhar Hattangadi

Jain Hand : The word inside the Dharma Chakra reads That conflicting religious philosophies often propel nations into war has long been a truism of history. But when Samuel P. Huntington gave the oft-used “clash of civilizations” phrase a foreboding—ven menacing—contemporary context during a 1992 lecture in the aftermath of the Gulf War, it’s unlikely that the American political scientist was thinking of an emaciated Jain muni peacefully awaiting death on a bed of dry grass after weeks of starvation.

Although it may seem far from obvious, Huntington’s thesis—that differences in religion and culture would spawn conflict in the post-Cold War world—lies at the root of the angst that has gripped the Jain community following the Rajasthan High Court’s verdict against Santhara. Earlier [Monday, 10 Aug], the court’s Jaipur Bench ruled on a public-interest litigation (PIL) filed in May 2006 against the centuries-old Jain practice of starving to death. It held that Santhara would henceforth be treated as “suicide” and accordingly made punishable under the relevant sections—Section 309 (attempt to commit suicide) and Section 306 (abetment of suicide)—of the Indian Penal Code. In the use of harsher language in its directive to the State—that the latter shall “stop and abolish” the practice “in any form” and register any complaint against it “as a criminal case”—the court made its absolute rejection of the Jain philosophy underlying the practice unequivocally clear. It also unwittingly bared the cultural divide between disparate end-of-life concepts.

During the five-year-long research for my documentary film on this controversy—Santhara: A Challenge to Indian Secularism?—I met several members of the Jain clergy and other lay adherents of the faith as well as scholars who had studied the philosophy of Jainism through its scriptures and rituals. Without an exception, they were all at pains to point out the fallacy of characterizing Santhara as a form of suicide. True, both acts culminate in the self-extinguishment of a human life, but the motivations of the actors are poles apart. Whereas suicide is an act of extreme desperation fuelled by anguish and hopelessness, a Santhara practitioner relinquishing food and drink voluntarily by this method has arrived at that decision after calm and unruffled introspection, with an intent to cleanse oneself of karmic encumbrances and thus attain the highest state of transcendental well-being. Santhara, for him, is therefore simply an act of spiritual purification premised on an exercise of individual autonomy.

Admittedly, dietary abstinence as religious ritual isn’t unique to Jainism. There’s Ramzan among Muslims, Lent among Christians, fasting during Yom Kippur and Tisha B’av among Jews, and a host of astronomy- and astrology-related fasts among Hindus. But none of the others takes fasting to the point of starvation and ultimately death as does Santhara. Since any kind of eating or drinking would result in a disruption (however minimal) of and add a burden (however small) to the natural ecology around them, orthodox Jains consider zero-consumption—i.e. starvation unto death a la Santhara—to be the high-point among the Jain traditions of austerity and self-denial, and therefore the truest real-world act of ahimsa or non-violence, the fundamental tenet of Jainism.

Disregard, for a moment, the radical extremism of the act itself. And contrast its broader theological rationale—which is more or less common to Eastern religions, and which resonates nicely with the basic theory of karma that underlies the beliefs and practices of most Indian religions—with the ecclesiastical values prevalent in the cultures that brought us the forms of governance we presently live with. A conspiracy of history, circumstance and expedient decision-making has resulted in our law-making and law-administering bodies being structured on the Westminster model of our colonial rulers, not to mention our judicial machinery and its key statutes—notably, criminal laws—remaining largely untouched since the time they were first designed by the British and written with their colonial feather-pens. Even the bulk of our Constitution, mulled over for all of three years on the cusp of Independence by worthy home-grown sons and daughters representing a cross-section of our population, was derived from the Government of India Act, 1935 and arguably its most important articles (i.e. those enshrining our Fundamental Rights) were inspired by the American Constitution.

Thomas Babington MacaulayThe concept of suicide associated with religion is a repugnant one for the mainstream Anglo-Saxon West, whose Judeo-Christian beliefs would denounce such an act as antithetical to the moral and ethical principles espoused by Christianity. The systematic codification of Indian criminal law as we know it today began soon after the colonialists survived the blood-soaked Mutiny of 1857 and formally established the British Raj. The IPC, which forms the bulwark of our criminal jurisprudence, bears an 1860 vintage (it came into force two years later) and was drafted by Lord Thomas Macaulay who was known to be a devout Christian. Inevitably, it would appear, the wily administrator put forth a code that not only set a low threshold of culpability for political dissent and for spreading disaffection against the government—which was tacitly welcomed by successive regimes well into the post-Independence era, and which is why it’s still so easy to slap “sedition” cases against innocuous cartoonists—but which also reflected his own deeply held convictions about right-and-wrong, and good-and-evil.

The Crown couldn’t have found a more faithful and capable servant. As a public policy maker, Macaulay had telescoped his personal beliefs into an official document that upheld the “civilizing mission” of his masters while taking care of the everyday chore of maintaining law and order among the unruly “natives” as well as the tricky task of subverting their pagan values. The IPC accomplished the first, and Macaulay’s introduction of English as a medium of instruction in schools and colleges contributed to the second. It paved the way for Christian missionaries to press forward with their conversions mainly among the needy, and with their “convent education” among the aspiring middle-classes. From this large-scale acculturation emerged a new generation of brown sahibs and babus eminently qualified to maintain the institutions of the Raj.

But it also set the ball rolling for a fundamental and deep-seated—albeit seldom articulated—discordance between the Western ideologies that created those institutions and devised their operating norms and procedures, and the Eastern philosophies that shaped the world-view of the people those institutions were meant to serve. Compare, for instance, the singularly focused zeal of a proselytizing religion like Christianity with the Jain tenet of anekantavada (non-absolutism or openness to differing—and even contrasting—opinions and beliefs) or with the inclusive live-and-let-live approach of Hinduism, and you begin to empathize with Rudyard Kipling’s twain-shall-never-meet conundrum.

And the Santhara case serves to emphasize the seemingly irreconcilable difference in perspective on the specific issue of “suicide.” In contrast to a Christian believer who looks upon the human body as a God-given “temple of the human soul” and therefore beyond the realm of willful and deliberate destruction by any human being, a devout Jain views that same body as a “prison of the human soul,” the fulfillment of whose needs corresponds to the accumulation of bad karma.

This basic contradiction between a statute founded largely on a Christian-inspired bioethic and the essentially Eastern variant of the idea of spiritual advancement through abstinence and renunciation rears its head whenever an ancient religious practice like Santhara collides with contemporary law. The conflict becomes particularly glaring in a faith-based society like ours whose polity has embraced norms of governance and administration that are transplants from an alien soil.

What, according to me, remains a significant take-away from the court proceedings in the Santhara case is not so much the petitioner’s—and consequently, though not expressly, the court’s—characterization of the death-ritual as suicide simpliciter masquerading as a religious practice wrapped in the mantle of hoary tradition. That approach could arguably be critiqued as a narrow, unkind and mechanical application of the law. More telling however is the fact, recorded for posterity in the judgment, that the pro-Santhara counsel, seeking to establish the scriptural validity of the practice, recited slokas “to the amusement of the general public sitting in the Court.” Is the recitation of a sloka in an Indian courtroom during the hearing of a case involving the legality of an ancient rite or ritual such an incongruous act that it should invite mirth and derision? Could there be a more vivid illustration of the incompatibility between traditional religion and modern governance?

Which raises the question:

Are countries such as those in Europe, which enforce a strict separation between religion and governance and which discourage public displays of religious festivity, faring any better?

Having painstakingly achieved that ideal—the Church-State divide—through centuries of struggle, these countries are apt to look askance particularly at the Indian nation-state where an avowedly “secular” (the word figures in the Preamble to our Constitution) government regulates religious institutions, subsidizes Haj trips and deploys state resources to safeguard Amarnath Yatra pilgrims.

But times might be changing. Although the conventional idea of secularism in western democracies largely keeps religion out of governance, the influx of immigrants of various faiths into these countries in recent times and their assertive—even militant—stance with regard to their rights of religious practice has made these countries confront the problem anew. The spiky issues of burqa-wearing in France and of circumcision in Germany manifest the same law-religion conflict with which we are grappling here. The unease over Santhara may well be part of a global discontent. – The Hindu, 15 August 2015

» Prof Shekhar Hattangadi is a Mumbai-based professor of constitutional law and an award-winning documentary film maker.

Santhara

India’s era of sexual inquisition – Madhav Nalapat

M.D. Nalapat“Since the legal duo of P. Chidambaram and Kapil Sibal got their joint chance to nudge the IPC even further into medievalism than it has been for a century and a quarter, the definition of what constitutes a jailable offence has been made so vague and broad in scope that any individual can be sent for a spell in prison on the most subjective of reasons.” – Prof. Madhav Nalapat

Shah Rukh Khan blowing kisses to his fans; Why isn't he in jail for this 'obscene' act?On 1 December, at 11 minutes past 11 p.m., 22-year-old Rahul Tilak’s life changed. He was taken into custody off Gulistan Hotel at Grant Road, Mumbai, and is still in jail. Arraigned under  Section 509 of the (19th century but still extant) Indian Penal Code, the youthful office worker is likely to spend the next couple of years in prison, from whence he will hopefully emerge a reformed man. His crime? That he, according to a young lady passing by about 20 feet from him, “blew a flying kiss” in her general direction. Whether it was actually a flying kiss or Tilak trying to brush away a fly that had settled on his upper lip is irrelevant.

Since the legal duo of P. Chidambaram and Kapil Sibal got their joint chance to nudge the IPC even further into medievalism than it has been for a century and a quarter, the definition of what constitutes a jailable offence has been made so vague and broad in scope that any individual can be sent for a spell in prison on the most subjective of reasons, such as interpreting a gesture to be that of a most indefensible of deeds, blowing a flying kiss at a lady from 20 feet away. Steeped as he is in Sibal-Chidambaram logic, it took but an instant before a police constable in Grant Road (which, it may be mentioned, gets somewhat lively in the evenings) hauled the young man off to prison.

One of Manmohan Singh’s “reforms” has been to make prison the default option for a variety of transgressions that in a democracy would either be ignored or be punished by just a warning or a fine.

The Medievalists: Sibal & ChidambaramThis columnist comes from a matriarchal family and is proud of the fact that he bears his mother’s surname rather than his father’s. Women are far and away the better sex, and only those societies which acknowledge this truth achieve their full potential in creativity and progress. It is only the healing presence of the fair sex that makes life tolerable in a country with a Kafkaesque system of law and administration. However, thanks to the post-2004 introduction of laws that are diffuse and therefore impossible to escape from, subjective accusation has trumped any need for substantive proof before penal action gets initiated. It may soon become necessary to introduce in India the same segregation of the sexes at the workplace and in educational and outside locations as was prevalent in Mullah Omar’s Afghanistan, and which is largely the rule in that citadel of modernity, Saudi Arabia. While in Mumbai, this columnist looks forward to his daily walk along the Marine Drive. Let it be admitted that the collateral advantage of the sight of many charming members of the opposite sex having the same idea (of taking a walk) has been as big a bonus as gazing at the seas washing in waves across the shoreline. However, these days, one needs to focus less on calories than on weaving right, left and in a circle while walking, so as to avoid the merest chance that there may be accidental physical contact with a lady who may subsequently feel motivated to summon the nearest policeman to report a case of “rape” . Of course, this as per the Sibal-Chidambaram definition, of a man being guilty by declamation, and to blazes with the (lack of) evidence. As Rahul Tilak found out exactly a week ago.

Eve teasing in IndiaA woman has the right to her own body, and those who take liberties with it without willing (i.e. non-coerced) consent deserve severe punishment. In the Damini case, the so-called juvenile deserves the same punishment as the other perpetrators of the heinous crime they jointly committed. A technicality which ought not to allow this predator to get released back into society, once again to place young women in danger. However, to embrace medieval codes of morality by sending to prison a man on the (unsupported by other witnesses) word of a woman in the absence of any verifiable evidence, and before an impartial examination takes place of the incident, is to make nonsense of the concept of innocence until proven guilty.

The same day as Tilak lost his liberty, a postman dismissed for the alleged theft of a Rs 57 money order won exoneration from a court, a mere three decades after loss of livelihood and liberty. Will those who filed false charges against the man ever get prosecuted? Never, just as those policemen who destroyed India’s cryogenic engine program by arresting key scientists on false charges still walk free and get promoted. The 21st century was thought to be the era of the sexual revolution, the freeing of women from patriarchy. Instead, it is becoming the age of the sexual inquisition, the swelling virulence of which is making contact between the sexes a danger to individual liberty. – The Sunday Guardian, 8 December 2013

Section 377: A Hindu view of alternative sexuality – Sandhya Jain

Sandhya Jain“Hindu tradition … has recognised the wide range of human sexual diversity and proscribed none, though non-mainstream versions have always been relegated to the margins of society. Srimad Bhagvatam says, ‘Sometimes you think yourself a man, sometimes a chaste woman and sometimes a neutral eunuch. This is all because of the body, which is created by the illusory energy. This illusory energy is My potency, and actually both of us – you and I – are pure spiritual identities. Now just try to understand this. I am trying to explain our factual position.'” This verse has generally been understood as recognition of three genders and sexual orientations.” – Sandhya Jain

Shakuni: He is an enigma!The cacophony following the Supreme Court’s verdict setting aside the Delhi High Court’s 2009 judgment on [Chapter XVI,] Section 377 that decriminalised gay sex has generated more heat than light. Till one makes a proper study of the judgement, some points may be made to counter the misinformation dominating the public discourse, with words like ‘liberty’, ‘privacy’, ‘consenting adults’ and ‘religious bias’ being bandied about as substitutes for facts and cogent reasoning. The principal grievance of those unhappy with the Supreme Court decision is that same-sex relations in India will again fall under the purview of a 153-year-old British era law which defines them as “unnatural” and makes them punishable by a potential 10-year jail sentence. This means two things.

First, the Indian Constitution, drafted by the Constituent Assembly, despite quality debates on some issues, is a less than perfect document, being mostly a cut-and-paste job based on the Government of India Act of 1935 and the Constitutions of other, mainly European, countries, with little reference to the culture and traditions of this country. This is best seen in the fact that matters closest to the heart of the Hindu majority, such as cow protection, the issue that sparked the Hindu social and political resistance to the British, have been pushed into the non-justiciable section called the Directive Principles of State Policy.

The great lesson from the revival of the Victorian era law on homosexuality, therefore, is that the Indian Constitution and the Indian Penal Code need to be revisited Clause by Clause; Sections that need amendment must be amended and those need to be junked must be junked. Article 370 and special rights for undefined minorities, imposed by Jawaharlal Nehru, need special examination. Constitutional experts must enlighten us if the Constituent Assembly found it fit to review and discuss the IPC and CrPc as they are tools of implementing critical contents of the Constitution.

The second point that all those lambasting the Apex Court fear to admit is that this Victorian era law derives from biblical tenets which have no resonance in Hindu tradition. Unlike the Abrahamic faiths, Hindu tradition does not have a canon or canonical laws. It is an inclusive tradition. Nothing is proscribed, though some practices are not approved and are sometimes even punished. This is pertinent as the criticism that the judgement reinforces religious prejudice does not seem to target the faith of the former colonial masters, even though the point is made that most Western nations have junked these archaic laws!

Arjuna as the hijra BrihannalaSince the ascent of the UPA, and particularly under UPA-II, there has been a virtual assault on Indian cultural sensitivities with an aggressive in-your-face promotion of alternative sexuality, gay parades, slut walks, and attempts to legitimise these as an equal-parallel form of sexuality through films, with the active involvement of Western activists. Many who gave media interviews at Delhi’s first gay parade had come from the West, mainly America, to attend the event; no one knows how these events are funded. They caused revulsion in society but the media never gave space to these views and demonised those who expressed disagreement.

It may be relevant that nearly two decades ago, when the United Nations was exercised over the burgeoning world population and there was a worldwide campaign for the small family norm, some Western thinkers quietly mooted same-sex relationships as a means of satisfying sexual urges without the side effects of procreation. This suggests that homosexuality can be ‘cultivated’, and this could throw open the doors to wider forms of sexual abuse of men and women. This is an aspect that needs taking care of whenever a stable Government at the Centre moves to protect truly consensual relationships between adults.

Given that the promotion of alternate sexuality is a prominent Western agenda – a bandwagon recently ascended by Pope Francis – it is hardly surprising that the normally reticent Congress president Sonia Gandhi has been quick to express disappointment with the Supreme Court verdict. Saying, “I hope that Parliament will address this issue and uphold the Constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgement,” she hinted that this is a priority for UPA-II in its remaining tenure, even though it seems a remote possibility that the lame duck regime can get any important legislation passed. However, it is certain that the regime will file a review petition or curative petition as Finance Minister P Chidambaram and Law and Justice Minister Kapil Sibal have also come out against the judgement.

Krishna & Gopa KumarComing to Hindu tradition, it has recognised the wide range of human sexual diversity and proscribed none, though non-mainstream versions have always been relegated to the margins of society. Srimad Bhagvatam (4.28.61) says, “Sometimes you think yourself a man, sometimes a chaste woman and sometimes a neutral eunuch. This is all because of the body, which is created by the illusory energy. This illusory energy is My potency, and actually both of us – you and I – are pure spiritual identities. Now just try to understand this. I am trying to explain our factual position.” This verse has generally been understood as recognition of three genders and sexual orientations.

Several texts, including the Kama Sutra and Narada Smriti, and medical texts like the Caraka Samhita (4.2), Sushruta Samhita (3.2) and Smriti Ratnavali, and Sanskrit dictionaries and lexicons like Amarakosa and Sabda-Kalpa-Druma include references to tritiya prakriti (eunuchs, or persons who cannot be exclusively categorised as male or female). This third gender has generally been held to include bisexuals, homosexuals, intersexuals, transexuals and asexuals. Patanjali takes notice of the third sex, as do some medieval era Jaina Acharyas who note that third-sex desire can be very intense.

The overall attitude has been one of accommodation. The Dharma Sastra and Dharma Sutra texts maintain that the third gender should be minimally maintained by their family members as they usually do not have children (Manu Smriti 9.202, Arthasastra 3.5.30-32), and do not inherit property. The Vasista Dharmasutra advises the king (state) to maintain third-gender citizens with no family members and the Arthasastra forbids vilification of third-gender men or women (3.18.4-5). In the Mahabharata, king Virata shelters Arjun as the eunuch Brihannala; he teaches dance to the royal princess who later becomes his daughter-in-law.

In totality, ancient India was not enthusiastic about same sex relations, but persecution was generally absent in Hindu society. This, as the Supreme Court noted, is the reason why there have been barely 200 prosecutions of homosexuals under a law that has been around for over 150 years. Thus, it may be desirable to amend the Criminal Procedure Code to accommodate same sex relations, but it is puzzling why this should be the priority of a tottering regime. – Sandhya Jain Archive, 14 December 2013

» Sandhya Jain is a journalist, political analyst, independent researcher and editor of the opinions forum Vijayvaani. She is the author of Adi Deo Arya Devata—A Panoramic View of Tribal-Hindu Cultural Interface and Evangelical Intrusions. Tripura: A Case Study

See also

  1. Homosexuality and Hinduism – Ruth Vanita
  2. Homosexuality and Hinduism: Beware of alien Christian morals – Swami Aksharananda
  3. Homosexuality in India: A literary history – Nilanjana S. Roy

Section 66A of the IT Act has to go – Ravi V.S. Prasad

Shaheen Dabha's FB post

Ravi V.S. Prasad“In view of the various instances in which Section 66A has been misused by the police to harass citizens who were exercising their right to free speech, there is a strong case for the judiciary striking down Section 66A. The instances of Ms Banerjee jailing a professor for forwarding a cartoon, the arrest of two women for posting their opinion about Bal Thackeray’s funeral disrupting public life, and the arrest of cartoonist Aseem Trivedi, are all instances which have outraged the nation and indicated to the world that India is not a democracy which values freedom of expression.” – Ravi V.S. Prasad

Freedom of ExpressionThe arrest of two women in Mumbai for posting their views on their Facebook profiles regarding Bal Thackeray’s funeral has drawn attention to the draconian provisions of Section 66A of the Information Technology Act, 2000. Numerous eminent lawyers are of the opinion that this section is in violation of several provisions of the Constitution, especially the right to freedom of speech and expression, and should either be amended suitably by the government or struck down by the judiciary as unconstitutional.

On November 20, the Madurai bench of the Madras high court issued notices to the Central government on a public interest litigation filed by the People’s Union For Human Rights seeking direction to repeal Section 66A on the grounds that it violates freedom of speech guaranteed by the Indian Constitution. Further, an officer of the Indian Police Service filed a writ petition in the Lucknow Bench of the Allahabad high court praying for Section 66A to be declared as ultra vires of Article 19(1)(a) of the Constitution which guarantees freedom of expression. This will be heard tomorrow (November 23).

Section 66A of the Information Technology Act, 2000, which was inserted vide the Information Technology Amendment Act of December 2008, states:
“Any person who sends, by means of a computer resource or a communication device:

(a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Terms such as “causing annoyance”, “causing inconvenience”, “causing obstruction”, “causing ill will” etc are vague and ambiguous, and can be interpreted in multiple ways by different people.

Markandey KatjuMost insidious is sub-section (c). While sub-section (b) uses the qualifier “persistently”, the phrasing of sub-section (c) implies that the sending of even one single message or piece of information, which may be construed as being sent with the purpose of causing annoyance or inconvenience, shall be punishable with a jail term. An April Fool joke among friends or a quarrel among family members could be interpreted as causing annoyance or inconvenience, and punishable by a jail term if sent over the electronic medium, whereas these would hardly be punishable in the offline, physical world.

Section 66A has been used by state governments and the police to jail their opponents several times in the last few months. In addition to the arrest of the two Mumbai women, Section 66A was used by the Puducherry police to arrest a man who posted tweets about the son of finance minister P. Chidambaram amassing more wealth than Robert Vadra, and by the Mamata Banerjee government in West Bengal for arresting a professor who forwarded cartoons about her.

It appears that the intention of the legislature in drafting Section 66A was to prevent cyber stalking and cyber harassment of the kind that thousands of women face everyday through anonymous emails and SMSes. Indeed, two people were arrested under this section for posting obscene comments about the singer Chinmayi Sripada on Twitter.

But there is ambiguity about whether posting on a website or on social media platforms such as Facebook and Twitter is governed by Section 66A. This is because the first sentence of Section 66A begins with “Any person who sends…”, and the term “publish” does not appear anywhere in this section. In contrast, the phrase “publishing or transmitting” is used in several other sections of the Information Technology Act.

Since Section 66A does not use the term “publishes” but only the term “sends”, it appears that the intention of the legislature in using the term “sends” instead of “publishing or transmitting” was to cover harassing email messages between a single sender and a single recipient, rather than publishing on a website or on social networking platforms. Further, since sub-section (c) of Section 66A uses the phrase “…or to deceive or to mislead the addressee or recipient about the origin of such messages…” it appears that the legislature had a single sender and a single recipient in mind.

Kapil SibalIndeed, during his TV appearance on Monday, information technology minister Kapil Sibal insisted that the entire Section 66A applied only when there was an intent on the part of the sender to deceive or mislead the addressee or recipient about the origin of such messages. That may have been the intention of the legislature, but Section 66A uses the word “or” before this phrase. The use of “or” between phrases makes the various clauses stand alone and independent. Thus, as phrased, it appears that Section 66A can be used to punish a single email message which causes annoyance or inconvenience, even when there is no intention to deceive or mislead the recipient about its origin.

There are other inconsistencies as well. The offence, for instance, “of criminal intimidation by an anonymous communication” is punishable under the Indian Penal Code by a jail term of two years, whereas if the same message is sent by electronic means, the punishment may extend up to three years.

With regard to the use of Section 66A by politically powerful persons to harass their opponents, courts in several countries have held that governments and political parties cannot sue for defamation. In the Lingens case in 1986, the European Court of Human Rights held that “…The limits of acceptable criticism are wider as regards a politician than as regards a private individual…When choosing his career, a politician knowingly allows himself as open to close scrutiny, and must therefore tolerate more…” In Goldsmith versus Bhoyrul in 1997, the Queen’s Bench Division in the United Kingdom ruled that governments and political parties could not sue for defamation.

In view of the various instances in which Section 66A has been misused by the police to harass citizens who were exercising their right to free speech, there is a strong case for the judiciary striking down Section 66A. The instances of Ms Banerjee jailing a professor for forwarding a cartoon, the arrest of two women for posting their opinion about Bal Thackeray’s funeral disrupting public life, and the arrest of cartoonist Aseem Trivedi, are all instances which have outraged the nation and indicated to the world that India is not a democracy which values freedom of expression. – Asian Age, 22 November 2012

» Ravi V.S. Prasad heads a group on C4ISRT (Command, Control, Communications and Computers; Intelligence, Surveillance, Reconnaissance and Targeting) in South Asia.

Shaheen Dhaba and friend Renu