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Archive for January, 2013

FUNDAMENTAL LIBERTY!


It is time we moved an amendment to the Constitution of India and renamed our Articles which have found a place in Part III, i.e from 12 to 35, as FUNDAMENTAL LIBERTIES instead of FUNDAMENTAL RIGHTS!

One has to understand Hohfeld’s expatiation of Rights and Liberties. The following  is excerpted from WIKIPEDIA, which clarifies the issue!

Hohfeld argued that right and duty are correlative concepts, i.e. the one must always be matched by the other. If A has a right against B, this is equivalent to B having a duty to honour A’s right. If B has no duty, that means that B has a privilege, i.e. B can do whatever he or she pleases because B has no duty to refrain from doing it, and A has no right to prohibit B from doing so. Each individual is located within a matrix of relationships with other individuals. By summing the rights held and duties owed across all these relationships, the analyst can identify both the degree of liberty — an individual would be considered to have perfect liberty if it is shown that no-one has a right to prevent the given act — and whether the concept of liberty is comprised by commonly followed practices, thereby establishing general moral principles and civil rights.

Let us see whether Kamal Haasan’s movie had a RIGHT or merely a LIBERTY. When the movie VISWAROOPAM passed the Central Board of Censors, the National perspective must have been factored in and naturally the amity of Indian people, in the opinion of the members of the Censor Board, is NOT likely to be threatened. Thereafter the movie acquires a “RIGHT” in the eyes of a common man to be screened. But is this a RIGHT? According to Hohfeldian analysis the passage obtained from the Central Board of Film Certification is merely a LIBERTY, as an Executive Magistrate (read District Collector) could issue an order under Section 144 of the Criminal Procedure Code and prohibit the cinema owners from screening the movie. Therefore this RIGHT of the movie maker can be thwarted by an executive order and the movie maker could find other avenues of screening his movie. In effect the movie maker’s RIGHT does not cast a DUTY on the STATE to protect his RIGHTS, therefore his RIGHT AS A MOVIE MAKER IS DOWNGRADED TO A LIBERTY!

The next is the Freedom of Speech, which is enshrined as a RIGHT under Article 19 of the Constitution. Mr Ashish Nandy, in his speech at Jaipur Literary Festival, makes a point which i have understood as “AS OF NOW CORRUPTION IS NOT LIMITED TO THE UPPER CASTE, BUT THE SCs, STs and OBCs HAVE ALSO INCLUDED THEMSELVES IN CORRUPT PRACTICES AND ARE ENJOYING THE ILLEGAL FRUITS UNLIKE OLDEN TIMES.” But as the wording could be construed differently, an FIR has been filed against him under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act!

Let us see if Mr. Ashish Nandy has committed a crime warranting an FIR? Firstly, the JLF is supposed to be a meet of intellectuals, literary figures and artistes who participate and put forward their HYPOTHESES, which are contested, debated and then accepted or rejected or put in abeyance depending on the outcome of such brainstorming by intellectuals. The audience and the spectators (those who come to watch but do not understand a word uttered there!) are allowed, so that though they do not have the reputation to participate at that level, could be the audience and form opinions based on the free flow of opinions. A LITERARY FESTIVAL is NOT A SCIENTIFIC MEET neither was JLF envisaged to be a forum for exciting the political class. However, even those who have not shown any interest in LITERARY DEBATES have suddenly sprung to life and are baying for the blood of a literary figure. Mr. Ashish Nandy’s RIGHT to free speech here seems to have DWINDLED INTO LIBERTY OF SPEECH. If the event was a political speech, then i can understand that such words could inflame the passions of a section of the society and lead to undesirable consequences. But in a Literary Festival…….?

Suddenly from nowhere an MLA belonging to a political party (not all MLAs have to belong to a party!) makes a POLITICAL statement, stating therein that “Instead of the Babri Masjid, if the kar sevaks had gone towards the TAJ MAHAL to dismantle it, he himself would have led that mob! “ Supposing i were to be a DEVOTEE OF ROMANCE and the TAJ were to be a symbol of LOVE FOR A WOMAN BEYOND HER EARTHLY LIFE, should I take offence and file an FIR in a court where I have been hurt ‘religiously’ under section 295A of the Indian Penal Code? Well, the reader might think I am presuming ROMANCE to be a RELIGION, when CRICKET can be a religion and a puny human being can be called a GOD, why not ROMANCE which sustains the spirit and life of most humans?

Further, when the then Chief Minister of Tamizh Nadu cited Kambar’s RAMAYAN and when someone in Uttar Pradesh relied on Valmiki’s RAMAYAN and took offence at the utterance of Mr. Karunanidhi with regard to Lord Rama, why should I not take offence?

I do NOT take offence because an IDEA HAS TO BE COUNTERED ONLY BY ANOTHER IDEA, AS AN IDEA UNTREATED SHALL RESURFACE AGAIN IN FUTURE IF NOT SETTLED BY ANOTHER IDEA!

Filing FIRs and attempting to settle IDEAS through violence can at best make an idea to retreat strategically and resurface when the ecosystem becomes conducive for a dialogue. NO ONE CAN KILL AN IDEA. LET US FACE IT SQUARELY AND FORM AN INFORMED, FAIR and JUST OPINION ON IT!

I would like to cite an apocryphal story which is supposed to have happened in Tamizh Nadu politics: during the Chief Ministership of Ms. Jayalalitha, an invitation for the WORLD TAMIZH CONGRESS at THANJAVUR was sent to Mr. Karunanidhi addressed as “EX-MLA”. Mr. Karunanidhi did not fret and fume and attempt to get political sympathy, instead he is supposed to have returned the invitation to the then Chief Minister Jayalalitha, addressing the invitation as “to EX-ACTRESS“. That is countering an IDEA linguistically and not emotively!

We have lost this sense of humour, which is tragic- so my solution is that since we have become an “INTOLERANT LOT” let us name Part III of the Constitution of India as FUNDAMENTAL LIBERTIES!

 

 

     
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VISWAROOPAM & Intolerance!


VISWAROOPAM is a Trilingual movie by Kamal Haasan’s brother and Kamal Haasan himself is said to be cast in the lead. But the Thamizh version of the movie VISWAROOPAM has been prohibited from being screened by orders passed by each Disrtict Collector under section 144 of the CrPC, prohibiting the theatre owners from screening the movie VISWAROOPAM in any of the cinema halls in Tamizhnadu!

Who is INTOLERANT? Truly the STATE GOVERNMENT.

But why? Simple, there are groups advocating any IDEA at any given point of time. To collect people and bring them to the streets and organize a protest is not very difficult in Tamizhnadu. So there were a few Muslim organizations which have alleged that the Movie “portrays Muslims in a poor light” therefore they objected to the movie being screened in Tamizhnadu. There have been other Muslim organizations which claim themselves as moderates and have protested against the prohibitory orders against the screening of VISWAROOPAM. So here we have two groups from the same community which have protested, one for suppressing a ‘perceptional portrayal’ the other is for ‘freedom of creative expression’!

DEMOCRACY merely provides for a mechanism to elect Legislators for passing Legislations and also to form a Government, so that the cabinet becomes responsible to the Assembly or the Parliament, as the case may be. This makes a Prime Minister or a Chief Minister the Chief executive of the state machinery. But the state machinery is much bigger and gives continuity to the Administration more than the elected legislature or the cabinet. The POLICY could be changed by the legislature, or the CABINET could oversee if the implementation is carried out by the state machinery – which is within the powers of the executive. But unfortunately the Executive’s postings are decided by a Minister of the Cabinet. This ensures that the Cabinet gets its will enforced through the hapless executive!

In the instant case, since each District Collector in Tamizh Nadu, has issued separate PROHIBITORY ORDERS to the individual CINEMA OWNERS, even the movie maker is said NOT TO HAVE ANY LOCUS STANDI TO CHALLENGE THE PROHIBITORY ORDER,  AS THE ORDER IS TO THE CINEMA HALL OWNER AND NOT THE MOVIE MAKER!

What a super fallacy!

There have been enough cases where an ordinary shareholder of a Company could implead himself on issues relating to the company. Likewise,  in the interpretation of Article 21, ‘Life’ has been given an extensive meaning by the Supreme Court of India, therefore a movie maker HAS INALIENABLE RIGHTS WHEN A CINEMA OWNER IS SPECIFICALLY RESTRAINED from screening his movie. What more LOCUS STANDI is required?

Here the reasons cited by the executive is that COMMUNAL HARMONY is likely to be disturbed!

That is merely a PREDICTION of the executive, which is threatened by the LEGISLATOR not to use force against a miscreant, even if the miscreant uses unlawful means. The executive is told of consequences which he would have to face, if the electorate is troubled- as the electorate’s whim is of more consequence for a legislator than ORDER through enforcement of LAW!

This being the case,  PRESCRIPTIONS by all and sundry that the VICTIM should be modest and not excite the criminality of the OFFENDER is freely given by legislators and Godmen! In Nirbhaya’s case people had the gall to tell that women should be modestly clad, not go out in the dark late etc. etc. instead of realizing their own duties.

In the matter of VISWAROOPAM, the Film Board of Certification has certified the worthiness of the movie to be screened, so from where does the Tamizhnadu government get its right to thwart its screening by issuing prohibitory orders?

Simple, the List II of the 7th Schedule lists cinemas and gambling houses under the State list and therefore the State govt is emboldened to restrain the cinema owners and are in no way restricting the movie maker. Surely PERVERSE.

Next, if an artiste cannot express his or her views and feelings, where is the freedom of speech and expression? It is the FEAR OF THE CRIMINAL ELEMENTS which makes the government suppress these legitimate creative expressions.

Let us resolve that we become refined enough to tolerate whatever others may express creatively and if we want to retaliate, let us retaliate through creative means and not make FREEDOM OF EXPRESSION a casualty.

The Government instead of predicting criminal consequences should equip itself to deal with such FEAR PURVEYING  elements with an iron hand.

Rape & WE THE PEOPLE!


This programme called WE THE PEOPLE in NDTV 24/7 anchored by Barkha Dutt on 20/01/2013, was relating to the issue of Rape. I watched the programme and there were two retired Justices, and eminent persons including Ms. Flavia Agnes in the panel, which discussed the issue of RAPE in the Indian context.

My impression was that they came very close to the crux of the Legislative issue but somehow prevaricated tangentially leaving the core unattended to.

The crux according to me is two fold: firstly, the definition of the offence, which is essential for conviction. Secondly, the sentence part which would prescribe the maximum sentence prescribed for that offence.

The law of the land starts with the various legislations passed by the Legislative bodies and ratified by the head of the State or the Nation, as the case might be, to be called as ACTS and the rules/regulations made thereunder. Subsequently, if a matter is escalated to the courts, the judgements of the High Courts would be binding on those States to which the jurisdiction of the court extends, if there is no case law on the same topic if not decided by the Supreme Court of India.

The courts could however strike down the provisions if they are in derogation of the Fundamental Rights and other rights enshrined in the Constitution of India. This is the scheme, in a gist.

So, the definition of RAPE needs to be amended suitably. There could be discussions on end on this topic with no conclusion on it- so select committees and interested legislators could thrash it out. My ‘idea’ is that if HOMICIDE could be classified as MURDER, CULPABLE HOMICIDE and DEATH CAUSED THROUGH RECKLESSNESS& NEGLIGENCE, sure RAPE could also be classified into different categories and the corresponding sentences be prescribed through suitable amendments to the Indian Penal Code.

The real issue is how to ensure that the judges and justices throughout this vast country would be compelled by LAW to impose uniform penalty?

There is this Section 303 of the Indian Penal Code, which prescribes that if a person had been sentenced to life imprisonment and during that period commits MURDER, he shall be visited with DEATH PENALTY! There was NO DISCRETION LEFT FOR THE JUDGES. This section was struck down by the Supreme Court of India, on the grounds that the sentence was offensive of the provisions of Article 14 and 21 of the Constitution of India. So essentially, this Section 303 of the IPC, remains in the statute as a dead letter. No amendment has been made by the Legislatures or the Parliament to ratify the striking down of the provisions.

The point i am labouring to make is that, when a statute- in this case the IPC- could contain a provision prescribing a FIXED PENALTY for a particular crime, it is statutorily possible to bring an amendment to the IPC by imposing a fixed penalty for any of the three classes of rape, which i suggest to classify RAPE into.

This taking away the discretionary power of the judges would enormously help codifying a law which would be stringent and also provide the necessary deterrence!

Quintessentially, the Judges have only to option of weighing evidence and convicting the person, but the statute should be strengthened so that there are no whims of the judges coming into play when the offence has been established. Otherwise, like in a recent case, merely on the grounds that a person was inebriated and is young, judges may be swayed without any consideration of RETRIBUTIVE JUSTICE and award disproportionate sentences. I am aware that it would be the prerogative of the Judiciary to arrive at sentences in the normal course, but if the ACT prescribes sentences which will also not fall foul of the constitution, the vagaries besetting sentences could be avoided.

WE THE PEOPLE, did not broach this point adequately, even though the person from NLSUI came very close to it.

Analyzing a problem is one thing but attempting to find a solution is another thing. I think, the second is preferable, as otherwise there is every chance of the whole matter petering into vain sensation!.

 

 

 

Understanding Chennai!


The most difficult hurdle to overcome about Chennai is the barrier of PROCEDURE, which are strewn all over the place. It is not difficult to find a procedure, which seems irrational at the first look, but the deeper one gets into the procedure one understands that these procedures are not only laid down but implemented scrupulously- to start with!

For example, to get a ticket for a first day show of any Rajini starrer is nigh impossible- unless one has diligently pursued the procurement of the ticket in advance. So, for the movie SIVAJI (SHIVAJI for the glottalized Sanskritwallahs!) I was accompanied by my family and we made our way to the entrance after jostling against a sea of crowd consisting of of lungi wearing boisterous young men, middle class families and all other types. When we reached the entrance the crowd was segregated gender-wise and me and my wife, who were united in a Holy Matrimony by God, were parted to take different queues. The next was the metal detector but before that the frisking! So i was frisked and the frisker feels the cigarette packet in my trouser pocket and tells me to take it out. With no sense of compunction i take the cigarette case and tell the frisker triumphantly that I do not have any matches or lighter! To my utter surprise the frisker tells me to drop the cigarette box along with the contents in a cardboard box set a little away from the frisking point  (in Chennai they do not believe in providing tokens for your belongings and securing them- especially cigarettes- that is the moral text there!). Just before getting into the cinema I had bought those cigarettes, so that at midnight i do not have to go hunting for cigarettes after the movie was over. The crowd behind me was milling and i had no time to get back to my car and leave the pack and get back. My sons were egging me to do as told. I had a quick peep into the cardboard box and saw a whole lotta cigarette boxes lying therein. Of course those who had dropped were not fools- the inner voice which works in flashes told me. Yet the innate smartness gathered through association with the Chennaivasis and reading gave a counter idea – You are just required not to take cigarettes into the cinema, and you are not getting the same back- so just pull out all the 20 cigarettes and twist them into tobacco lumps and dump them, so that even these friskers and their cohorts would not be able to benefit from those cigarettes.

So in one swish i pulled out those cigarettes and in the anxious view of the frisker, twisted the cigarettes and with all the gusto of a man performing a ritual on a new year’s eve towards initiating a resolution, i crumpled the cigarettes and threw the lumps inside. The frisker was having a disappointed look, whereas some of those in the queue were happy and even said, “Good sir, those fellows just want to steal our cigarettes that way!” I felt a sudden brotherhood surging in my heart with those sympathizers.

Coming back to the thread of PROCEDURES OF CHENNAI, it is only the matches and lighters which are required to be dropped, so that none has access to any material which could be used for nefarious purposes. Even in aircrafts, where the security requirements are stringent, there is no procedure for not taking cigarettes, but in a cinema hall, the management had prescribed a rule to not only deprive an exorbitantly excise paying individual from enjoying a smoke in the interval but denudes him of cigarettes he carries for future use. Suddenly, like in the NDPS Act, tobacco possession becomes an offence! So cigarette is a CONTRABAND item. The only way to overcome the rule is to deprive the benefits that “might” accrue to the friskers and other low level personnel of the hall, and also show like a defeated army regressing to backward positions after destroying the assets in its possession.

This procedure laid by the cinema hall conductors was an overkill of the objectives to be met for the proper conduct of the screening. They had taken advantage of the crowd and the situation to impose and implement a procedure.

Likewise, in Chennai, at every level one can find all kinds of procedures laid down for any progress in the matter. These will have to be viewed as a barrier and complied with or ‘jumped over’. The biggest barriers are the MORAL PRESCRIPTIONS which are strewn around and if the weak hearted stumble upon those, they are discouraged from pursuing their objectives. But those who have sufficient experience in the Chennai ways adeptly jump over or make a by-pass to those hurdles and continue their journey. It is that mental alertness which is important and any amount of arguing will lead a man nowhere.

In certain other parts of our great country, when they prescribe a procedure which curtails the LIBERTY of an individual, the procedure is sugar coated to avoid the denizens from feeling that their “rights” are being curtailed, but not so in Chennai- they are BLATANT.

So in effect a Chennaivasi, has learnt all the procedures and keeps parroting the same, whereas the go getters know that the procedures are there merely to reduce the crowding and find means and ways to circumvent the irrational procedures.

So what happens in the long run is that every Madrasvasi gets to talk high moral norms but makes convenient choices for himself. The reader may be tempted to call that HYPOCRISY, but i beg to differ- it is learning to live life in one’s own terms but at the same time not offending the sensibilities of those who have nothing to do except by-heart the procedures!

Not for nothing the SWAMY’S HANDBOOK OF CENTRAL GOVERNMENT PROCEDURES ARE PUBLISHED FROM CHENNAI.

Chennai is not merely the Detroit of India but also the PROCEDURE CAPITAL of INDIA! Long live the procedures!

Sudhir Kakkar & Women!


This morning (09/01/13), Sudhir Kakkar had written an article in the TOI, Bangalore edition , in a gist, stating therein that women in India have not been ‘treated’ as a ‘PERSON’, but always are mentioned as a wife, daughter, niece etc.! I find this inference hilarious, as even men who have nothing more to themselves except as a relation to another person, are mentioned as so and so’s son, husband or even father! For example, i do not know Kiran Shaw Mazumdar’s husband except for the fact that his name is  possibly Shaw or Mazumdar, but I know Kiran- as she is better known, therefore if i have to introduce him at any point, i would mention his name and add that he is the husband of Mrs. Kiran Mazumdar. When we have not created an identity for ourselves we are identified in a relational way with a person better known.  Therefore to make a hypothesis that women have not been treated as a PERSONS, is nothing but lending a meaningless voice to the revolution which is going on across the country consequent upon the gang rape and murder of Nirbhaya.

From a person of such standing I was probably wrong in expecting a little  too much.

No one except God can be everything to everyone!

If i am a father of teenage daughter, as an anxious father, i may tell her NOT TO WEAR MINI AND MICRO SKIRTS and walk around in areas where men are not accustomed to women in such attire. But those words of an anxious father to a callow daughter cannot be published in the media and be made to  seem as if i have antediluvian ideas.

When a spiritual guru tells his followers who find themselves in such situation to call the potential rapists as “brother” he is probably offering a palliative to the perturbed girls and women – who run and rerun in their own minds the tragedy Nirbhaya had gone through. It appears in no way, to me, as suggesting to the victim Nirbhaya that her method of tackling the impending rapists was wrong. Asaram Bapu was addressing from a different stand point. He was not motivating people for a proper legislation to be put in place, as he is a Spiritual Leader and not a Legislator.

But when politicians, suggest measures which are not helpful in the passage of a stringent  legislation against rapists, they are conducting themselves in a condemnable way, as each politician is a POTENTIAL or an ASPIRING LEGISLATOR.

Therefore the point that I am attempting to make is that, we should not condemn the protective measures suggested by parents, well wishers, executives who in their line of duty are anguished for the well being of the women and girls.

Rape is an offence under the Indian Penal Code and the definition needs to be amended to include the suggestions made by various women’s fora, as no man can fully understand what it is to be ‘raped’. Though I as a male might have an idea of how traumatizing rape could be, i may not ‘feel’ mentally the way a woman might feel. If we go back to Sigmund Freud, a man is supposed to have felt the fear of castration very early and the occasional knocks he receives in his crotch might help him to understand what ‘castration complex’ is, but to expect a women to “feel” the same way would be demanding a feeling not in keeping with her body structure. Likewise, a man is also incapacitated structurally to ‘feel’ the trauma as a women would feel, so the legislative amendments will have to be predominantly left with the women so that they define “rape” and that there is deterrence to rape. However, men should also ensure that the society does not relapse into primitive punishments like ‘quartering’ – even though there is a severe urge to inflict such punishments on perpetrators.

Men have to be taught that they have no right to encroach on the private space of women. I have said men, as women mostly are not capable of overpowering a man (except in remote circumstances). Education must impart that PERSONAL INTEGRITY OF ANY HUMAN BEING OUGHT TO BE RESPECTED! That is the crux of the preventive measure.

Instead of having these ideas in mind, the collective consciousness of the people seems to be moving towards brutal retribution, which needs to be tempered, but at the same time stringent laws ought to be enacted to put fear of the consequences of even attempt to rape (which so far is not an offence as per our IPC!).

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