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Posts tagged ‘fundamental right’

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!

 

 

     

NARCO TESTS & THE SUPREME COURT OF INDIA.


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Today’s (6th May, 2010) news in Times of India on the Supreme Court of India declaring the subjection of the accused to narco analysis test, without his consent, as ILLEGAL,  restores human PRIDE & DIGNITY. (http://timesofindia.indiatimes.com/India/Verdict-splits-cops-forensic-scientists-into-rival-camps/articleshow/5895908.cms )

There are many tools used to arrive at the FACTS before TRUTH is distilled and presented to the courts. One of the commonly used tools now-a-days is the narco test. There is nothing new about this being used to arrive at facts. Certain facts could be gathered and those facts have to be corroborated with independent facts before the courts, for those narco tests to be of some value.

When the person is subjected to NARCO ANALYSIS, firstly the accused’s “person” is violated without his FREE CONSENT. He is injected with drugs which he may not be willing to be administered with, in the first place.

Let us take a specific example, I know of some extreme Christians who do NOT take medicines at all. They go by the name PENTECOSTAL and APOSTOLIC fellowships. They had taken a religious vow not to take any MEDICINES even unto DEATH. Do not they have a RIGHT, a fundamental one at that, as an Indian citizen to make a vow like that? I believe, they do have the right, as guaranteed by the constitution, and therefore the STATE should do everything to PROTECT that right.

Secondly, the RIGHT TO PRIVACY, both physical and mental. Every human being is given an inalienable, indefeasible RIGHT to have MENTAL PRIVACY. There are domains in the sub-conscious which are not known to the UNAWARE, and domains within the CONSCIOUS mind which are “private”. Merely because an Investigating agency in its opinion believes that there is something which is hidden with or without the knowledge of the ACCUSED, does it gain a RIGHT to destroy the FUNDAMENTAL RIGHT guaranteed by the Constitution of India? I GUESS NOT. The Supreme court  has DECLARED that every INDIAN CITIZEN’S RIGHT TO PRIVACY CANNOT BE DESTROYED IN THE BOGUS ALTAR OF COLLECTING EVIDENCE!

We have been witnesses to many of the statements made by senior police officers ( eg. in Aarushi’s case a sardar DIG said that Aarushi’s reputation was not beyond doubt, when he was not called upon to give an opinion on that!) who have EXERCISED POWER more than subjecting themselves to bringing out the TRUTHS. If they could say such things so openly in front of cameras, what protection of RIGHTS could one expect from them? They are not TRAINED to work around the rights guaranteed, but TRAMPLE upon them – ALL IN THE NAME OF FINDING OUT THE TRUTH!!

Thirdly, I had seen some videos which were telecast showing suspects under narco tests in the Aarushi murder case. The questions asked during the session were questions asked by an amateur, with no opening up of the mind. What kind of treatment the suspects are subjected to, is NOT made available to the accused’s relatives and friends immediately upon conclusion.

Let us look at it this way- if the NARCO ANALYSIS brings out incontrovertible TRUTHS and FACTS, why  not record the statements in the presence of a judicial magistrate? to ensure that atleast the accused is treated FAIRLY. The scientific opinion is divided on, as to whether all which are stated during NARCO tests,  are TRUE or figments of a person’s FANCY.

IN ANY CASE- I AS AN INDIAN, AM HAPPY THAT THE SC OF INDIA HAS CATEGORICALLY RULED OUT FORCED NARCO TESTS. MY ONLY APPREHENSION IS THAT, THE POLICE DO NOT TAKE FORCED CONSENT IN FUTURE TO PERVERT THE SC JUDGEMENT.

METRO DRIVE-II


Well in my earlier blog i had written about traversing between two metros in India, the route, the charm that it holds, the uniqueness et al. I like to discuss in this blog about a problem that is becoming rampant and the remedial measures that one can take, and if one can’t take those measures -for want of power or the attitude of others- at least to make mental changes to get out of stereotype prejudices and build a multi cultural strong India.

One of the papers carried a news item that mentioned that a car bearing another state’s registration number was stopped on the Bangalore- Mysore state highway, damaged and the occupants threatened by the locals. When the occupants reported the matter to the police, they are reported to have said that THEY SHUD BE THANKFUL THAT THEIR LIVES ARE SAFE.

It may be politically right to accuse the police of callousness, but we shud be acutely aware of the fact that we as a nation had lost a PM who was protected by the best force, another ex-PM to the terrorist act of an overseas organization. WE HAVE TO TAKE MEASURES TO PROTECT OURSELVES. Structurally DISTINCTIONS that distinguish our statehood, language, affiliations shud be done away with.

Distinctions that incite anger, hatred and violence have to be controlled by adapting ourselves and merging with our surroundings. Seeing the registration of a number plate shud not become a red rag to the fanatic bulls, but their attitude shud be deflected by causing confusion in the minds of such fanatics.

We may consider having a FEDERAL VEHICLE REGISTERING AUTHORITY, which shud be bound to register those desirous of having a more SECULAR(!) number plate.

The safest as i see today is to have a DL registration as the state of Delhi is common to all INDIANS and is OUR capital. Therefore the attrition levels against Delhi registration numbers are the least. Further, everyone has something to identify himself with Delhi. The next best is to have Daman registration DN, as it is confused with Delhi number plates, even by the traffic cops of Delhi!!

As a reasonable alternative let us give options for Indians to have IN as the registration tag.

We as individuals have to protect our lives and property from hooligans, to effectively uphold the FUNDAMENTAL RIGHT enshrined in ARTICLE 21 of OUR constitution. Post facto damages are meagre, and meaningless when it concerns loss of lives and limbs.

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