There is a commotion right now on Indian Social Media following a story in the Open Magazine on Love Jihad. Some folks dismiss the whole thing as laughable and others consider it to be a criminal act. Here is my take on the matter.
First : What on Gods Green earth is “Love Jihad” ?
Any random Muslim – non-Muslim love affair or marriage is not called a Love Jihad.
One or more of following additional elements seem to be required for a Hindu Girl- Muslim Boy to be termed as Love Jihad 1) an element of deception 2) the girl is usually not one who is a highly educated or urban type 3) there is alleged conversion to Islam
In addition to the above three, there is sometimes, but not always an alleged conspiracy angle. The charge is that a group of religious leaders sponsor young men with leisure, money, accessories, and training to fall in “love” with unsuspecting Hindu or Christian girls and get them to convert.
Two parallel legal systems & the contract of marriage
India has a unique system of personal law. Muslims are allowed to “register” (in a sense) their union under the Shariah Law and Hindus under the Hindu Marriage Act. There is also a “Special Marriage Act” popularly known as register marriage which couples from any religion can use. For simplicity, I am omitting Christians/ Sikhs etc – even though Christians in Kerala have been complaining about Love Jihad.
Irrespective of the route used, the act of Marriage should be viewed as a legal contract to distinguish it from just cohabiting. Furthermore as with any contract, a marriage contract bestows both husband and wife with rights and duties.
In the Hindu and Special Marriage Act the rights and duties of the husband and wife are more or less equivalent. As per the Shariah Law they are not. The rights of the wife are dramatically lower in the latter. In a grand compromise our secular state has created two parallel systems. This was done to chicken out of a tough judicial and political situation like most of the Idea of India laws. But nothing is free.
Transiting legal systems
Given the two legal systems , one of which has dramatically reduced rights of the wife – the conflict moves to the interface between the two. You may notice that instances of Love Jihad always involves a non-Muslim girl crossing over. On paper, a Hindu Male marrying a Muslim Girl can convert and acquire enhanced rights vis-a-vis the girl. This appears to be not very common as the Muslim girl who is about to marry outside would seek parity and opt for the register marriage.
A lot of people are pointing out the “forced conversion” angle. That is not the main point in my view.
See, under Shariah Law both the man and woman have to be Muslims. So the real issue is that in all cases of Love Jihad – the man is forcing the girl to get married under the Shariah Law instead of the Special Marriage Act. The conversion is just a formal requirement – there just cant be a Nikah (i.e the Maulvi will refuse to conduct it) unless both the participants are Muslim.
So you may rightfully ask. Whats the big deal ? If the girl WILLINGLY marries – what difference does it make to anyone what law that is used to solemnize it ?
Here is the issue in my view:
When a Hindu girl gets married under Shariah Law, she waives her existing rights . So even if she consented – was it an informed consent in the sense that she voluntarily waived her rights ?
Matter of informed consent
The girls that usually show up in Love Jihad stories dont seem to be of the type that would know what rights they had to begin with. I don’t have any proof but I guess a lot of these young girls they would be just thinking that the marriage ceremony is done in Muslim style while they retain all their rights. They agree to go through the marriage routine then discover that the guy is already married or is getting ready to marry another girl. Pregnancy and childbirth complicates things further because simply walking out is easier said than done under these circumstances. This is a common thread to all these stories. Therefore, the “deception” part of Love Jihad seems to related to the loss of rights.
It would be ludicrous to ban cross religious marriages. I am not even remotely suggesting such a thing. But to work around this issue of rights, I propose the following.
- Hindu girls marrying under Shariah (after converting of course) must be either required to sign or atleast informed about exactly the rights they are losing. I prefer the waiver form to be direct so that these rural girls understand whats going on. Something of the kind : Do you agree to waive your right that your husband does not need your consent if he wants to marry again ? Do you agree to waive your right to divorce procedure ? etc
There are plenty of Hindu girls who marry Muslims and lead happy lives out of love and out of their own informed choice. This post isnt about them.
It is obvious that this is not a zero-sum game. An act of Love Jihad does result in a net loss of rights. Therefore we have to put up checks to ensure that information about the loss of rights are readily available to these women. Before they make the biggest decision of their lives.
Today on Aug 14 2014, the new Lok Sabha passed a historic constitutional amendment bill that would put an end to the controversial “Collegium” system of judicial appointments. It is expected to clear the Rajya Sabha too easily given that all parties including the Congress support it. Recent revelations by maverick Supreme Court Judge Markandey Katju seems to have lent a sense of urgency to this. The bill text is available at 121 Const Amendment Bill and NJAC Bill 2014
Here is my take on little discussed aspects of the bill.
Competing visions – why it is crucial
The biggest issue I have with the new commission is the presence of two “eminent” persons. But first let me explain the background situation.
Here are three axes you can plot a candidate on. For example : Incompetent and Corrupt with a Wrong vision would be the least desirable.
- Corrupt vs Honest
- Meritorious vs Incompetent
- Right Vision vs Wrong Vision
The first two are qualities we can all agree on ; although there is severe pressure to weight merit downwards using sectarian considerations. This leads to the explicit quota for SC/ST/OBC/Minority/Women for the one slot which would deny a more meritorious candidate not in these categories.
The third one regarding vision is extremely important and something that needs more elaboration. Perhaps I should call it “Idea of India Vision” vs “Rule of Law Vision” instead. You can have an extremely competent and honest candidate such as Gopal Subraminum but who are committed to an ideology that is ultimately hurtful. I think a lot of folks agree that over the decades the doctrinal development of our judiciary has led to the following situation.
- Court generally steps aside on fundamental rights issues by adopting a very low “baby rational basis” standard of scrutiny.
- A positivist legal system is encouraged. This means that whatever the state decrees is law and there can be no moral or immoral, logical or rational arguments. This is borne out by the fact that there has been no major confrontation between the court and the executive in the last three decades.
- The governance trend in the last decade is towards an expansive positive rights regime. Various Right to XYZ are pass scrutiny easily – even if they impinge on fundamental rights. But as with any regime of positive rights (like the USSR) the state can deny these to any class of citizens at will. This is evidenced by the unanimous constitution bench judgment in Pramati vs Union of India (the Right to Education case)
- Having waived its right to a stricter level of scrutiny, the courts job now is much more mundane. It counts on a system of PIL (Public Interest Litigation) to make the machine go. Through these PILs, they are now left to decide bone-on-bone interactions and anomalies brought to it by injured parties from these positive rights programmes. The best illustration is the flood of Delhi Nursery Admissions cases in both the Delhi HC and the Supreme Court. Striking down the original regulation by Jung would have been the alternate route.
- This status quo has extraordinarily weak support in the constitution. It is largely brought about by a culture of activism and requires a particular intellectual environment and media co-operation to thrive.
- This status quo in my view is undesirable. It doesn’t matter if the judges are selected via the collegium or by the new NJAC. You are likely to have the opposite view and that is okay.
- I would support a system that has a better chance of turning the tables on the status quo.
- A constant threat to the status quo even today is a couple of mutant “first principles” judges can upset the applecart. Even judges who are not necessarily articulate but who rule on simple principles can cause a lot of grief to this climate. See my post on Justice Altamas Kabir whose NEET judgment caused quite a rumble – although it was the correct one.
- It is within the realm of possibility that the two eminent people will K.O any such threat to the grand positive rights driven sectarian state by filtering mutants upfront. Just the presence of these two folks might act as a strong pull to junior judges and advocates who harbor career prospects to fall in line.
The two eminent people who together can veto any appointment is a loaded gun. As per the law passed yesterday they are not accountable to anyone. The 121st Constitution Amendment Bill does not prescribe any qualifications for these people either.
Right leaning people should realize that while it is true that you and I can contest any appointment to these eminent people slots. But the activist / NGO complex is far more organized, better resourced, politically connected, and more importantly media savvy than we will ever be. So their favourites are going to be hard to resist and ours hard to appoint. Suddenly you have no symmetry – what was 1:1 in the collegium (both us and activists locked out) is now 1:1000. A majority of appointments to these kind of NAC civil society bodies have been contested all the way to the Supreme Court. The SC even rejected the first batch of civil guys and girls to the NCPCR (NAC inspired Child Rights Watchdog). It was not due to any principled stand on transparency but due to Delhi NGOs and activists fighting among themselves through PILs.
I am also not shy to talk about the other issue. The new quota baked into the constitution that one eminent person belong to the SC/ST/OBC/Minorities/Women is poorly drafted and sure to cause endless strife. Here are my objections.
- There is no support for reservation for women and non-Hindus in the constitution. This is downright atrocious and bound to cascade into all other quotas as well.
- The text is not clear – the constitution says ONE eminent person must be from the selected communities/gender. But that is not very useful. Is it ATLEAST one eminent or EXACTLY one eminent from these groups ?
- This kind of precision is very important because you avoid months and crores in fees of litigation later.
- How it is to be distributed ? If it is by rotation – what is the order ? This resembles the roster point system.
- Say you select the most eminent legal mind Fali Nariman – does he fall into the minority category or due to his scholarship take the open slot. If he takes the open slot ; does it not lock out other Hindu Unreserved Males such as Gopal Subramanium unfairly ?
- Does the women slot just favour women or those women who explicitly fight for women ?
- Say an open category slot opens up after X years? Will everyone including women be considered for that slot ? We have learnt nothing from decades of hairy litigation on these kinds of issues in public appointments.
There are other issues such as vetos. One is not sure if the two eminent persons are appointed by consensus or by simple majority. Both have major issues
- If it is by consensus – then Mallikarjun Kharge can stonewall and force an average middle of the road candidate instead of a brilliant principled judge.
- If it is by simple majority – then opposition has no voice. Modi and Lodha can agree on eminent persons and push it through. This was seen in Lokpal, CVC appointments where BJP’s Sushma Swaraj was humiliated.
As I was typing this up – it seems like Fali Nariman is going to challenge the act and amendment. We shall see what happens in the days ahead.
The essay itself is a template activist manifesto, celebrating such wild things as PN Bhagwati’s breathing life into Article 21, “landmark decisions such as ” Unnikrishnan, maybe even Mohini Jain. Standard trajectory but what really stunned me was that the article seems to build up to the following punchline.
Wait! That cant be right. If Arun Jaitley indeed cut MHRD allocation by 76% – he would have been hauled over coals by now. I decided to cross check the numbers and sure enough it shows up as plain wrong. I think the Think Tank as well as The Hindu just ran the article in their activist excitement without basic fact checking. Let me break it down.
Lets check the facts (PDF).
Holy ravioli ! Modi slashed education by 44,200 Crore. !!
Let just look at the other allocation document and we have the answer.
This is why you need to read the footnote.
So lets do the maths again.
Modi actually INCREASED MHRD allocation by 50,694 Cr – 44,220Cr = 6,494 Cr. The whole piece from the Think Tank now lies deflated.
Hope The Hindu issues a clarification and pulls the piece because everything else in the piece leads up to this incorrect factual claim.
The Jallikattu judgment was the culmination of ignorant posh activism by PETA India , followed up by muddled often conflicting arguments from AWBI and Jairam Ramesh. Now, Hindu villagers in southern Tamilnadu and their beloved bulls are in for dark days while the state has prepared a review petition.
Today, we see the same pattern repeated with the Madras HC effectively banning Sevalkattu (Seval = Rooster in Tamil) – an ancient cock fighting game, prevalent in southern Tamilnadu, Karur, and Salem districts.
A petition filed by one S. Kanan on April 4th plead the holding of cock fighting in the Arulmigu Muniyandi Temple in Virattipathu.
The petitioner requested permission for the event in the local Muniyandi temple, which was denied by a Division bench of the Madras High Court. The logic is identical to that of the Jallikattu ban. Sample this:
Right to exist at par with human beings is conferred upon animals through legislation. When the rights of animals are infringed, it is only through human intervention that such rights could be extended to them. It was such a case where judiciary was fit to intervene for “poor animals which could not plead and initiate action by themselves.”
The court said, “After all, we human beings are also one of the creatures of God along with other living creatures in the world. Though man is considered to be the supreme form of God’s Creature, whether the supreme creature has got any right to injure intentionally, torture deliberately, cause pain and mental torture make the birds to fight unnecessarily? Certainly not”.
The basic argument is that a Speciesism standard be applied to interaction with animals. I have explained why this is approach is untenable in the Jallikattu blog. The reason this is unsustainable is worth repeating.
If animals have same rights as man, then the doctrine of necessity should also be the same as that for man. Today, one man can legally kill another man only in self defence. And that must be the same rule for animals.
In both the Jallikattu and the Cock Fighting cases, the Speciesism standard is mixed with an inconsistent reading of the Doctrine of Necessity that includes slaughter and pre-slaughter conduct – such as transportation and preparation for slaughter. It is bizarre because an exact analogy would disallow one human from chaining another, except if the final purpose of the chaining is murder ! You have to drop species-ism for this to make sense.
There is plenty of online material for you to research on Google. I just want to quickly state some key points here.
- The Sevalkattu rooster is an exotic type of fowl ; there are about 6-10 different varieties which have an immediate danger of extinction pursuant to this ban.
- Like the Jallikattu bull, the cock is a status symbol. The breeders house them in luxury typically in a large dog kennel. They are fed dry fruits, cashews, and other high nutrition products.
- They are trained for both strength and stamina. Swimming exercises are also given.
The actual event could be a bit hard , but I hope you are able to to zoom out and see the large picture.
- The actual game is usually a deathmatch. The winner takes both the cocks – generally the winning cock is treated medically and recovers. The losing cock ends up as biriyani.
- The well organized ones – restrict the fight to about 1 hour. So there is a possibility of a tie.
- A winning cock is treasured and used for breeding and usually lives out its natural life of about 10 years.
- The interaction between the trainers and the animals are typically Indian Hindu. Urbane recently westernized may not understand how one can be intimate with many of the cocks being assigned names and therefore having an individual personality. You may ask, C’mon now – Is this a “necessary” conduct ? Who are you and I to decide? Is burning wood and ghee and rice in smoky polluting Yagnas a necessary conduct ?
Granted that unlike Jallikattu , where the bulls are NOT EVEN INJURED, this event results in one of the cocks dying. Even so, it cannot be denied that the roosters live a life of inherent dignity and die a death worthy of a warrior.
Lets turn our attention to the life of the Sevalkattu roosters cousins.
The life of a broiler chicken
Have you wondered why the meat is called “chicken” in stores and not “hens and roosters” ?
That is because the broiler chicken you eat is actually an immature baby hen/cock. They are only six to eight weeks old. Compared to a Sevalkattu rooster who is probably a 3-4 year old young adult with a good chance of living out his natural life.
- Broilers parent stock introduced by US/UK companies to India
- Designed to be a genetic mutant and unviable bird. Rapid growth with accumulation in thigh and breast
- Debeaked and declawed at birth.
- Confined in tiny cages stacked on top of one another indoors in warehouse like settings for the entirety of their short lives.No room for any natural behaviour including simple pleasure of spreading their wings.
- Rapid growth of fat tissue without bone development – means they cant walk for more than 4-5 steps. Observe this at your local chicken shop this week.
- In India unlike the west, slaughter occurs close to consumer. So they are transported in the most horrendous and unhyeginc conditions. It is a common sight in India to see jam packed chicken lorries parked out in 42-deg sun with stacks of filthy cages. No food no water.
- The last mile is usually on a bicycle hanging upside down, legs broken, and tied up to front and rear. Getting their faces rubbed against the sidewall of tyres.
I am not a Indian Veggie Nazi. By all means, lets enjoy our Tandoori chicken, but when you PROHIBIT age old sports and a kind of pagan interaction with animals – you’ve crossed my line.
Since we are pretending that fowls are humans.
Ask if a broiler chicken if he’d like to be a Sevalkattu rooster ?
A great tragedy has befallen innocent Jallikattu bulls in India.
WARNING. NOT AN EASY READ.
Egged on by juvenile animal rights activists, their enthusiasm captured and curated by vested interests, and finally condemned by an incoherent judgment with strange reasoning. Innocent, magnificent, indigenous bulls who have been the most pampered beasts in India for the past 1000+ years now have no reason to live. Their raison-d-etre’ has been snatched away. This is a great example of legal activism gone spectacularly awry. This is my 471st post on this blog, and the most difficult one for me to write.
A backgrounder of Jallikattu
For those who have no idea what this event is. Stop right here and read my 2008 blog on it. “On Jallikattu” and some misconceptions in this comment. I had blogged about it again in 2009 following another SC ban. Have you read the post? If you’ve read it, all you need to take away for the rest of this article is the following : The bull isnt killed or injured at the end of the event. Set aside the “torment” during the event itself for now. We will get to it after we analyze the judgment.
May 07 2014, a black day for the bulls. Supreme Court bans the sport (Judgment)
A 2 judge panel of the 30 judge Supreme Court of India on May 7 essentially declared Jallikattu to be illegal. The actual “legalese” isn’t that important but for completeness lets see what that is.
- For the past few years, Jallikattu was allowed under the Tamilnadu Regulation of Jallikattu Act 2009 (TNRJ) which prescribed elaborate rules for conduct of the event. This included mandatory presence of veternarians, videographing, requirements for barricades,. involvement of NGOs, permission from the collector, registration of the bulls, etc.
- The other act set up as a conflict is the PCA (Prevention of Cruelty to Animals Act 1982). The operative pieces are Sec 11 (1) (a) which proscribes such catch all things as “kicking, beating, ..” and Sec 11 (1) (m) which proscribes fighting for entertainment.
- The judgment essentially says – the PCA when it comes to Jallikattu is of such an absolute nature that no amount of regulation (TNRJ) can possibly assuage it. Therefore the state legislation, TNRJ, has to be killed and the widest possible reading of PCA must be applied to this particular event.
The most frustrating part of the argument is the incoherence and multiple lines of attack each unable to stand on its own. The two winners are
- CHARGE: Jallikattu has no cultural or historical significance to Tamils at all (AWBI pp4) BUT LOOK even if you prove otherwise it doesnt matter because PCA is a welfare legislation by parliament and can squish culture and religious traditions of this community.
- CHARGE: Jallikattu bulls are subjected to great torture and physical injury BUT LOOK dont bother proving this to be false. Our objection is now on the basis of “Speciesism” – Bulls cannot be humiliated and mentally tortured in this manner.
So these charges are just distractions. You can spend all your effort demolishing these strawmen, it is of no use to the final outcome. One of the critical points is the following – the duration of the event. One would expect that a searching scrutiny would necessarily take into account these facts.
- Whatever you think about the biting, pushing, kicking, punching of the bull. No one contests that the actual event lasts only a few minutes.
- The pre Jallikattu confinement of the bull could last a couple of hours as each bull takes its turn exiting the opening (Vadivaasal) The post Jallikattu harassment lasts a few minutes until the owner/trainer is able to lasso the bull and secure it.
- No one disputes that the rest of the year 364 days, the bulls lead a kings life.
- Here is the courts response to this. Look at the standard here – it is no longer about physical injury or even temporary mental stress due to fight/flight responses.
Physical abuse is not the only kind of injury that is illegal and hurtful. Mental abuse is also amongst the worst kind of abuse as it leaves a lifelong mark on the mind. It is a known fact that victims of accident, crime or disasters recover from their physical injuries in certain time but mental injuries remain etched for decades, play havoc in day to day life. Animals, irrespective of the fact whether they can express it or not, in this particular case were seen going through the same shock and terror as a person goes into in a hostage situation.
If you unravel the judgment for the most plausible standalone reason for the ban, it is found in PP 59 – It is called “Speciesism” – this elevates animals rights to that of humans.
Speciesism is also described as the widespread discrimination that is practised by man against the other species, that is a prejudice or attitude of bias towards the interest of members of one’s own species and against those of members of other species. peciesism as a concept used to be compared with Racism and Sexism on the ground that all those refer to discrimination that tend to promote or encourage domination and exploitation of members of one group by another.
In short, species-ism is like racism. Would you allow whites to chase blacks, or upper castes to chase tribals, in this manner for even a few minutes ? It is quite astounding that this extreme standard, is sought to be applied to Jallikattu. Even if you grant this to be the new judicial standard for animals, this is sought to be subjugated by the “Doctrine of Necessity”. I’ve been researching on animals rights for a few months now – one of the cornerstones of speciesism is non-slaughter and its main proponents are vegan activists. The only exception for killing an animal under the doctrine of necessity is in self defence. Exactly the same as the doctrine of necessity as applied to humans. So somewhere there is a misunderstanding of the core concept of species-ism.
It is no ones case that taking a bull to Kerala in a packed truck and slitting its throat and eating beef fry is necessary to live . So if you can work through the arguments, you will find an incoherent position that is at odds with other laws and practices. An anomalous situation has emerged where you have a mixture of standards – extreme cruelty tolerated under the same body of laws that trumpets “species-ism” as the standard for other kinds of activities.
Facts – just for the record
As I have stated above, there is little use debating the facts of PETA and AWBI because they are strawmen. Even if we demolish the misinformation campaign, which is childs play, we still cant get over the speciesism standard. But for completeness and to help in a review petition – let me address the facts.
Cruelty to animals
Man and beast have intricate and diverse relationships especially in India. There is no one correct way to connect with an animal. Dont ever, ever, ever, pretend that you even understand to 1% the emotional bond between a Jallikattu bull and its owner. Dont ever, ever consider your urban westernized boundaries are superior to his rural Hindu Tamil ones. Dont ever, ever, think that your bond to your dogs Tommy, Julie, or Bobby are more “proper” than his bonds with his bulls Mayandi, Karuppu, or Thalai.
Urban, recently westernized Indians, may never understand what it is to rub your face against the head of a bull, while you can feel its power rippling through its muscles. I certainly dont, but the difference is I acknowledge that the other people do. Pinching, poking, pulling the tail can appear to be offensive, and yes can cause pain. But that isnt the whole picture now is it? You have to consider the whole life of how the bull, from when it was a cute little bully calf has been treated and prepared for this day. So what should a court do when two parties have dramatically divergent views of acceptable conduct. There has to be a way to minimize the subjectivity of the situation. I suggest that we should use a black box approach for a more logical way to resolve the dispute.
Bulls In —-> [[ BLACK BOX W CHARGES]] —–> Bulls Out
You take the sum total of all the charges , twisting, pulling, biting, punching, shouting, putting liquour, smearing lemon, etc and put in in a black box. Then you observe the bulls that come out. If they come out tattered, covered in blood , missing a horn, broken hooves – you have a case to look deeper. In this case, the bulls come out shining ! A fair number of bulls, the most aggressive ones, literally have no hands laid on them. So the logical conclusion of such an empirical analysis is obvious – there is no evidence of physical harm – mental agony is hard to measure in humans, let alone bovines. So you err on the side of freedom and let the event pass.
Now lets turn to the facts presented by AWBI.
Incidents of biting tail, twisting, poking with stick, irritants. These are used to incite the bull and get it out into the arena. What % of bulls were bitten ? Were bulls bitten as a custom or only when they refused to enter the arena? How deep were the bites ? As a result of the twisting how many bulls had their tails broken? These are critical facts that havent been presented. They have just documented existence of these practices.
Roping, making bulls stand, move sideways, denial of shade. Once again go back to my points in the last section. Is this the judicial standard ? In slaughter shandies bulls stand in the sun for hours before being selected by an agent. Every single cow and bull is roped in India. Bovines graze in the sun and rain naturally too. This is just silly.
Death and injury to bulls Should be the clincher, yet stunningly little has been offered here. Two, I repeat just two bulls. out of 500+ participants were said to be injured by falling into a agricultural well. They have only documented ONE incident of a bull getting killed . But the details reveal that post the event in Alaganallur, the bull ran through the town and collided with a bus. This is in no way connected to the event itself.
The point is none of the offenses are integral to the event itself and are therefore open to regulation.
We can go further into the facts – but it is a futile exercise.
Slaughter vs Speciesism – is coherence possible ?
The judgment is incoherent because the speciesism standard will fail spectacularly in almost all other judicial cases involving interactions with animals. But nowhere is it starker than the issue of slaughter. The activists are nowhere to be found when it turns out that post banning of Jallikattu some bulls are loaded onto trucks to the kill floors of Kerala.
This is May 2014 – the next Jallikattu is seven months away. Even if you plead guilty to all of the charges brought forth by the activists and upheld by the court. Here is the truth. If this ban wasnt in force, some of these bulls would have lived a kings life for a full seven months before the “fateful day where they will be pulled and punched it for a few minutes“. Slaughter is also a game. The outcome is pre-determined. Once a bull gets on that truck to KL there is no escape from the blade. These activists are squarely responsible for the murder of these animals.
Animal activists in India, probably due to ignorance, young age, or imitation are misguided. They do not recognize the completely different connection between the Hindu and the animal kingdom. This is not America. We have much to be proud of in the way we treat our animals. Our livestock may roam the streets, perhaps in squalor in solidarity with their human counterparts, but we do not do feedlots and veal crates. A majority of our cows are still impregnated by sex with real bulls not by a long steel tube like in the west. Our milk procurement still depends on milking by hand, not in giant rotary parlours.
No cow or calf or bull, and I do mean not a single bovine in the USA will ever be touched by a human nor know a single moment of human kindness in its entire (but brief) life. Tell me, is this the case with Jallikattu? Every one of these bulls have names – they respond to their owners like your kids do. The owners give them the best food, take them running, give them swimming training, teach them to dig in their heels and work the ground with their horns. This pop activism has unfortunately taken advantage of a weak jurisprudence and caused tremendous damage.
Why is slaughter regulated ? Should we not ban it applying the speciesism test?
In the spirit of the judgment, has anyone talked to a bull in one of the trucks that go to the slaughterhouses in Kerala? There is a giant corpus of photo and video evidence about the most inhuman practice of cattle transport in India. To anyone with a few brain cells, it is obvious that the PCA Slaughter and Transportation Regulation is completely ignored and is a total failure . We mostly rely on private enforcement – where folks like the Superstar BJP MLA from Hyderabad Mr T Raja Singh and Dawn Williams team in Chennai chase and trap these trucks under great personal danger.
How come the TN Regulation of Jallikattu is struck down but it is considered to okay the PCA Slaughter rules ? This is what the judgment has to say :
P 31 : Clause
(e) to Section 11(3) permits killing of animals as food for mankind, of
course, without inflicting unnecessary pain or suffering, which clause is
also incorporated ‘out of necessity’. Experimenting on animals and eating
their flesh are stated to be two major forms of speciesism in our society.
Over and above, the Legislature, by virtue of Section 28, has favoured
killing of animals in a manner required by the religion of any community
There is a feeling that this talk of speciesism just applies to one type of cultural tradition. Other communities are simply allowed to tie the four legs of an animal and slit its throat while it twitches to death. This is certainly not the doctrine of necessity.
Finally the judgment quotes Ms Temple Grandin – the famous American factory farm slaughterhouse designer.
“The single worst thing you can do to an animal emotionally is
to make it feel afraid. Fear is so bad for animals I think it is
worse than pain. I always get surprised looks when I say this. If
you gave most people a choice between intense pain and intense fear,
they’d probably pick fear.”
Scroll to the top and look at the picture on the left of buffaloes jam packed enroute to crude slaughter in Kerala – then look at the bull on the right. Which has fear ? Which has majesty and honour intact ?
What next ?
A review petition can be filed stating these facts. The PCA Act can be amended to either specifically elevate and exempt Hindu traditions to the same level as minorities or to bring parity by extending the doctrine of necessity to ban all slaughter. Unlike the UPA the new Modi govt is supposed to be receptive to Hindu interests. We cant blame others anymore.
The vexed issue of Delhi toddlers has apparently been resolved. The Supreme Court has allowed the petitions of 24 Inter State Transferees thereby ending the quarrel in front of it. A few sample media reports sharing the relief of the majority lottery winners.
With the Supreme Court clearing the decks for nursery admissions in the Capital (India Today)
Schools and parents heaved a sigh of relief on Wednesday (Times)
In a big relief to hassled parents, the Supreme Court today cleared the decks (PTI)
You wont read this anywhere, but let me explain why you, even if you are not impacted by Delhi admissions, should sit up like you’ve been jolted by a 440V line. The case may be about pre-school toddlers but it exposes like few others the grand weaknesses of our institutions.
For those new to the issue, this is what happened. The Delhi Govt announced that starting from 2014, all private non-minority schools were to have no autonomy with regards to admissions. They had to follow a system of quotas and lotteries to select their intake. Now, this isnt just a fair sweepstakes like you would expect from a slot machine, rather this is like giving everyone a pair of loaded dice and letting it roll. The govt would assign weights to your kids “worth” depending on whether the child is 1st born, had either parent go to the same school, was a girl child. One of the weights was Inter State Transfer (IST) for kids coming in to Delhi from other states. As crudely intrusive and cringe worthy as this scheme is, the rules were nevertheless notified and lotteries held. After the results came out – they found a large number of IST kids who had won seats due to them being weighted above the general (zero weight, euphemistically called 70-pointers) category. Citing fraud, the Delhi Govt abolished this category and that was upheld by the Delhi High Court. The whole process was stayed pending a decision on what to do with the IST kids who secured seats. Of the 2925 students who won under the category, 24 IST kids appealed to the Supreme Court. This is the background story. Now lets get to what happened yesterday.
The order from the Supreme Court came down yesterday. The Honorable Justices ruled in favour of the 24 children and granted them relief. But -
P21 .. However, it is made clear that this order would only enure to the benefit of those who had approached the Court. It would certainly not extend the benefit to those who had not approached the Court or might have gone in slumber
Page 12 CIVIL APPEAL NO.5379-5380/2014
The Honorable judges had given a hint of this over the last weekend. There were several reports that they were going to cap the relief to this group. Here was some coverage of their thought process.
“You can’t be a fence sitter and wait what medicine was being prescribed and seek to avail it.” Justice Dattu said “relief will be confined to only those who have approached the court till yesterday (Thursday)”.
Source : NIE
From the procedural side, the supporters argue that since this was a private writ and not a Public Interest Litigation write, the SC was correct in restricting the order to those who approached it. That is well and good, but the same process must be made available to all.
When a single person or a group approaches the court with a private writ, it would make enormous sense for the court to immediately discover the following. Does this involve a question that is going to affect the public at large and not just the bunch in front of us ? In this case, that was done, the honorable justices even scolded the Delhi Govt for arbitrarily changing rules of the game after the game was played.
issued in the midstream. In our considered opinion, it was not permissible for the Administration to alter the basis of admission after the admission process had started and further having participated in the selection process the criteria for selection could not have been questioned by unsuccessful participants
Having identified that the source of the injury was arbitrary rule changing and recognizing that there are a thousand others with the exact same injury, it is stupefying that the court would only provide relief to this group. And ban others.
A question of equity
The funny thing is there are a million NGOs in India who talk non stop about equity. The worst form of equity is access to justice. One cannot assume that those who did not approach the Supreme Court were “idle, fence sitting, twiddling their thumbs, lazy, or otherwise deadbeat parents”. A more likely explanation is that they just did not have the awareness, the lawyer circuit connections, or the MONEY. You have to remember that all these people are new to Delhi who are just learning how to get home from work.
Needless to say, the hundreds who are now stranded are aggrieved and are mulling legal options now. A truly tragic situation.
- On review, If the Supreme Court or the lower court grants relief to all, even those without the means to hire expensive lawyers, then we are back to square one.
- If not, a grave injustice of selective relief will take hold as a judicial precedent. Choose your poison? What if a future arbitrary law impacted a million people and a small subset group got a private relief, can we pull the ladder ?
Real minority rights
It is distressing to see the impatient behaviour of the parents who won the lotteries and the sense of entitlement of those with equally dubious “alumni” and “2nd child” points. The hapless IST children who cant claim either of these two gold/silver/bronze govt weights, are seen as villians who are out to delay their own kids school year. This trampling of minority rights happens only because we have been trained to only identify “minority” with Christians and Muslims and not as other kinds of groups.
So whats the real problem ? I have overran the limit for this blog, but the Delhi Nursery situation alarms me to no end. What they are talking about is replacing natural endowments including differential wealth, education, and autonomy with govt assigned rigid weights. Why must all 2nd children be admitted before the first only child is even considered ? Why must this be such rule that if a school violates it they go to jail ? Why alumni points if you are talking socialism ?
The unelected Delhi Administration is driving the school system into a position of immorality. The net result will be philanthropists vacating this space and a drying up of whats left.
Filed under: Lost causes.
A quick blog about the anti Modi articles in The Economist, Guardian, and New Yorker.
The United States government does not run exclusive scholarship programs for blacks. Nor for Jews, or Hispanics. They do not have a separate ministry for Methodists. Polish Americans in Chicago can run schools, but not with any greater degree of autonomy than a German American from Indiana. There are no separate laws for Asian Americans or Blacks for freedom of speech. There are no benefits that ANY identity based group can bestow upon itself without it being frowned upon.
India, today is quite the opposite and is headed even further with great velocity.
On this blog, we have hit upon many of UPA’s flagship schemes such as Right to Education, Lokpal with quotas, IDMI scheme where private non-Hindu schools were given government aid, Minority only scholarships and exclusive universities, MSDP schemes where a 25% minority block get dramatically enhanced allocation than a 24% minority block, caste based loan waivers, caste and religion based loan programs, even outright allocation in all ministries pro-rated to the minority population, the list is endless. I will stop here.
These kinds of schemes are so egregious to the political economies of the home countries of these magazines that one would hope they would notice the paradigmatic difference in how India is organized. Has the Economist or New York India Ink even commented on this ?
Here are two questions. 1) Why is it that the West is so much against factions? and 2) Why do their analysts either not comment on or actively promote factionalism in India ?
West and Factionalism
What are factions ?
Factions are groups of citizens who unite under a common interest or goal, and James Madison argues in Federalist #10 that the formation of factions is the natural behavior of men. Whether the group is a majority or minority faction, the goals they pursue may be counter to the good of other factions, or society as a whole. Differences in political ideology and religious views can break people into factions. More..
The founding fathers of the USA figured it all out brilliantly. Madison put forth the dangers of factionalism in his paper Federalist 10 where he a) recognizes the damage that factions can cause if some of them come together to form a majority coalition b) correctly identifies the way to stop factionalism is to control its effects.
In short, the core of their society is to give you full freedom to form or join whatever group you want for any purpose including plotting domination over others, but the institutional structures prevent factions from putting their predatory plans into action. Put simply – Talk all you want but no special laws to any group. This is where they hold the line. Even today.
India is exactly the opposite. In the Indian situation operating under a shapeless ideology called the “Idea of India”, factions are not only encouraged but are always necessary. The unit of concern is not this or that particular faction, but a winning coalition of factions. Each with its own and often disjointed motivations. The real prize is the following : Once factions come together to form a winning coalition, they are allowed to self deal benefits like exclusive loans or enhanced quotas in various economic activities. The most outrageous being laws like CVB and RTE – where factions in the winning coalition exempt themselves from the very laws they pass for others.
Now, why is factionalism necessary in India? In this environment described above, if a group turns mutant and refuses to play along citing national interest, they will be decimated because other groups can get on the “inside track” and prey on them. If you let a negative system like this soak for a few decades – a completely new kind of political arrangement emerges. You are unable to see where you came from anymore, unsure of where you want to go. This third world gridlock becomes the norm and people like me are suddenly labeled bigots for being true to the original format. Controversial historians who are constantly pushing the envelope on sedition anoint themselves the new liberals.
So whats the problem with Modi
Lets go back to this in the Economist
By refusing to put Muslim fears to rest, Mr Modi feeds them. By clinging to the anti-Muslim vote, he nurtures it. India at its finest is a joyous cacophony of peoples and faiths, of holy men and rebels.
but joyous cacophony can also be confused with wailing in third world misery.
There are plenty of them and modernity is what Indian voters increasingly demand.
And if they still choose Mr Modi? We would wish him well, and we would be delighted for him to prove us wrong by governing India in a modern, honest and fair way. But for now he should be judged on his record—which is that of a man who is still associated with sectarian hatred. There is nothing modern, honest or fair about that. India deserves better.
Now, modernity is a loaded word. It actually refers to a post medieval period of transition. That magical moment when the west apparently outgrew tribalism and feudalism. If you look at Modi’s record he IS the modernizer. To give you one example he opposed the exclusive minority scholarship program. Yes, the same kind of sectarian program you westerners would never allow to take root in your own countries. Quite the opposite, the so called modernist Congress IS promising factional benefits and a massive expansion of the existing sectarian schemes including separate budgeting under the 5 year plan. Would you call a president who did to your country what Congress has done to ours a “modernizer”? Modi is not proposing a single law that is beneficial and exclusive to the Hindus, neither is he calling for new takings from non-Hindus. Call him what you want, but he is talking of an EVEN distribution of BURDENS and BENEFITS. The same fundamental stuff you people take for granted in your own countries for over 200 years.
What makes you think we cant do it ?
Those who have been following this blog and @realitycheckind on Twitter will be familiar with my strident opposition to the Right to Education Act. Getting your child into a school of your wish and means is about as basic a human need as food and water, yet our state has sunk us. This elementary need is defeated not in some remote jungle, but in the nations capital. I’ve blogged about the Delhi nursery admissions issue last year and this year too.
Continuing from where we left off in January, there was a flurry of litigation by Private Non-Minority schools, which did not move the Delhi High Court nor the Supreme Court. Following the legal cul-de-sac, private non-minority schools diligently conducted lotteries using the rules announced by the govt.
Schools conducted anywhere from 3 to 6 lotteries in the following manner.
- Lottery for 25% EWS (income based) + DG (SC/ST/OBC (non-creamy layer)
- Lottery for 5% Girls quota
- Lottery for those tied at 95 points (Alumni + Sibling)
- If left over seats, Lottery for those tied at 90 points (Sibling only)
- If left over seats, Lottery for those tied at 75 points (Transfers + Alumni)
- If left over seats, Lottery for those tied at 70 points (just neighborhood)
A quick refresher of the points system. If you are from the neighborhood defined by a 8kms radius, you get 70 points, 5 points for alumni, 20 pts for having a sibling in the same school, 5 points for out of state transfers.
Also note that EWS (income) / DG (caste) candidates can apply in the cross subsidized 25% quota as well as the open seats. In addition girls can apply in the 5% girls quota as well as the open seats.
On Feb 27, after the lotteries were conducted under mandated video surveillance, it turned out that a disproportionate number of winners had emerged from the transfer points category. This was challenged again, which led to the Delhi govt getting a notice from the Delhi HC. The Delhi Govt (Mr Najeeb Jung) promptly scrapped the admissions of those who won the lotteries by claiming the 5% inter-state transfer points.
This is where we are now.
A question of odds
Since private schools run by Hindus have completely lost their autonomy to select even a single student – the debate shifts to the mechanics of the lottery. This is not an obsession with detail, but rather the central issue. After all, if the system prescribed by law turns out to be arbitrary, the schools are forced to participate in an immoral scheme against their will. Not very far from tyranny.
Post cancellation of all winners with the 5% transfer points; the situation looks like this.
- Those schools who only conducted three lotteries. All seats are taken by EWS+DG/Siblings+Alumni – so there is no impact because the 75 transfer pointers never had a chance to begin with.
- Those schools only conducted four lotteries. Same thing, All open seats taken by Siblings at 90 points. So transfer pointers at 75 never had a chance.
- Those schools who conducted five and six lotteries – there is an impact. See below.
Schools which held five lotteries
The very fact that they held five lotteries means they had vacant seats for 75-pointers after ALL the siblings and the alumni+siblings were granted admission. Now if the 75-pointers with transfer points are ejected, what happens ?
- If there are enough alumni 75-pointers, they will simply occupy the seats vacated by the transfer pointers.
- If after all alumni are accommodated, there are seats left, the transferees join the general category (70 pointers) in a NEW 6th lottery.
In both these cases, there is no difference in the odds of the transfer pointees.
Schools which held six lotteries
This is where the tension is. If a school has already held the sixth lottery for 70-pointers, it follows that all seats are already taken. If you accept the principle that winners must not be stripped (except the transfer point winners) this leads to the following
- Only the vacated seats by transferees,are now subject to a fresh lottery for leftovers at 70-points.
- The transferees join the losers of the earlier lottery this time to bid for a much smaller fraction of seats.
- For the earlier losers at 70-points, this is the second lottery, but for the transferees this is the first. So the relative odds odds of transferees are 1:2 compared to a system where they didnt have transfer points at all.
- The use of waiting lists further complicates the matter. The waiting list from the previous lottery are also winners in the sense that any vacancy has to absorb them. Therefore cancelling the waiting list winners and forcing partial redraw is sure to send them to court next.
This per se is a highly immoral quota because it imposes by law a 52.5% 47.5% Girl:Boy ratio in RTE “enabled” schools while on the ground the demographics do not match.But lets set that aside for now. Now, if a transfer point girl has got admission in the general quota, then her admission now stands cancelled. It is not clear if the girls lottery included all girls, including winners. If not, the transfer girls who won in general 75-point draw have a very strong case to move court again.
This is what happens down the road when arbitrary laws are not judicially checked up front. It does the Honorable Delhi HC no good if, after approving the points system it turns around asks justifications on an ad-hoc basis for certain points.
An equally valid question is : What is the justification for alumni points? Why have 20 and not 5 points for siblings ? Why have 70 points for neighborhood? Why 70 ? why not 40, 50, 60. The truth is none of these are justified if the transfer points are not justified. The 5% alumni points is now snarkily called “dynasty points”? Two siblings today will spawn into four in one generation. You are locking down, by law, non-minority schools into families. I’d say the transfer points is a far more defensible scheme than this ludicrous system.
Those transferred to Delhi from other states rarely do it out of love for Lutyens. They are also unlikely to have the other points. In the new system, they have to pick their rental house first and then apply for schools. This is the reverse of what normally happens, they first get a school admission, then look for a rental place. Does that mean they should get a 5% head up over long time Delhi residents? Not at all. As I said, the whole system is arbitrary. How many of you even know what you need to know about the 25% quota. What if I told you 30-40% are taken by non -poor under the Disadvantaged Group category which includes SC/ST (no income limit) and OBC (non creamy layer 4.5Lakh)? If you are going to crucify hapless 5% transfer pointees, should you not subject all the rules to a sweeping scrutiny?
What we have on our hands is a group that is wronged. Based on a govt announced points program, one which they never asked for, they applied with 75 points. To now go back and strip the winners reeks of unconstitutionality. Was this category misused by Noida folks? The right way is to pin the blame on those who allowed such an invasive law to be passed without even this level of thought.
I have been saying this for a while on Twitter. A society based on Rule of Law is distinguished by the state exercising its coercion powers based on principles of generality, predictability, and non-retroactivity. All three are absent from the our recent education laws. In a society based on arbitrariness and adhocism the rulers private prejudices and preferences leak their way into rules for the general public.
What if the use of arbitrariness is itself not uniform? Carefully placed arbitrary laws in one domain and tight and very specific laws especially the punitive portions in another domain is one of the essential elements of tyranny. In an Idea of India state, where sectarian laws are used as a tool of accommodation, we have to be extra alert. We have to focus not just on how these laws are institutionalized but rather on whether the arbitrariness itself has a hidden form. What appears arbitrary on the surface, could serve to turn the exemption from these very laws into a private good to be distributed to certain inside groups.
The Supreme Court on Feb 18th 2014 finally put an end to the endless ping-pong between the judiciary and executive by commuting to life the capital sentence of three of the assassins convicted of killing former PM Rajiv Gandhi, 15 others, and injuring, some grievously 45 innocents. For high quality commentary on this topic head over to Centre Right India where Amar and Aravindan have written well informed and contrasting takes on the topic. I would like to add my bit to the discussion largely supplementing what these two commentators have written.
A most diabolical conspiracy brought to fruition
On a searing hot night of May 1991 a devilish conspiracy was brought to bear. The above picture is an especially poignant one which I found on Shri Ajay Makens twitter profile. Regardless of my political position, I recognize the emotional devastation of losing a father in his prime that has been endured by Rahul Gandhi. The reason I use this image is to show that exactly the same impact has also been felt by the children of 15 others who were killed that night. It is easy to get carried away by the medias constant one sided sob stories of the assassins about how Jail life has been so hard on them and families. It is essential you keep this balance in mind. Those who have brought into the idea that the whole case is fabricated and these people are innocent can stop reading now. Read about the case first and then come back and continue.
This post is also not about the desirability of the death penalty. We assume it is on the table, like it is, and the only issues are those surrounding the administration of it.
Mitigating factor of delay in mercy petition
Google tells us that the average time spent on death row by a criminal before being executed in the United States is 10-15 years with many going over 20 years. This includes the sensational case of Jack Alderman who was executed in 2008 after 33 years on death row. Whether this is desirable or not is a separate issue that ties into the larger abolitionist debate. Warts included we do have a grip on the vexed question of sentencing guidelines; of which murderers get picked for capital punishment and which ones get life terms. The issues surrounding the political mercy process is where the trouble lies.
The judgement of the 3-Judge bench led by Hon CJI Sathasivam quotes liberally from the criminal’s cry of anguish
Murugan: “it has been 5 years since I had sent my petition requesting Justice. I live like a moving dead body with the rope tangling in front of my eyes always in solitary confinement. I request justice but not mercy.”
Perarivalan: For about 8 years, I have been serving sentence as death sentence convict. So, the sufferings of my parents, brothers, wife and daughter can not be described in words. I ask God daily why they should suffer due to m..
They also highlighted sufferings on account of solitary confinement, mental agony, etc.
Remarkably the honorable court seems to be satisfied and moved by these letters about the mental state of the criminals. The lack of remorse and evidence of reformation in these convicts arent examined. No doubt, this is a complex issue and there are strong arguments for the so called “Death Row Phenomenon” that the court has accepted. However one wonders if a medical mental examination could prove that this state of limbo (but living) had a real medical impact on them.
The alternative opinion may be illustrated by the following game.
Say you grant a criminal on death row a choice between two processes for a mercy petition.
Choice 1: (Fast Track) – petition will be disposed off within 6 weeks, if delay is beyond that you live. But you die immediately if rejected within 6 weeks.
Choice 2: (Slow Track) – petition has no time limit, you live until it is decided, appealed, then decided again.
Which choice do you think the prisoner would take? I think most would instantly opt for the second choice. The second choice leaves wide open the possibility that the politics of the country could, in the interim, abolish capital punishment. So instead of the absolute mental state the relative choices have to be examined. After all, the very fact that you are in jail and not outside isnt particularly pleasant for the born free mental state either.
Accountability, or lack thereof
A shocking part of the judgment is the following submission by the govt
a note was prepared but thereafter the file was lying in the drawer of some officer of the Ministry of Home Affairs, and, hence, could not be processed. As regards delay of 5 years and 8 months, learned Attorney General fairly admitted that this delay couldn’t be explained in any way
There is no accountability for such sloth. Furthermore there is no check to ascertain that this sloth is only due to a general malaise of incompetence or something more sinister.
Now consider the following scenario if only delay can lead to commutation in the absence of accountability. A babu or a babu in collusion with a politician now possesses the power to commute by simply ignoring a petition. Armed with this power they can act maliciously by choosing to immediately forward petitions of persons belonging to rival tribes while holding back those from their own tribes. This leads to various anomalies and the storm being raised by Ms Mehbooba Mufti in Kashmir about the process for Afzal Guru is the best example of this. Of course the state will have no answer to Ms Mufti leading to erosion of trust in the residual elements of Rule of Law in India.
If these criminals are to go free due to executive delay, then those responsible for the delay must go to jail. There is no way around this.
Jayalalithaa in the centre of the storm
Within hours of the Supreme Court judgment there was a near unanimous clamor from the Tamil media and political outfits that all those prisoners must be released. Vaiko, Periyar Dravidar Kalagam, parents of the criminals pointed to the last paragraph in the judgment that hinted at Sec 432 of the IPC (the power of the state to release prisoners). There is no way Jayalalitha is going to agree to end up holding this boiling hot pot of overflowing goo – so she pro-actively announced intention to release all the 7 prisoners
Predictably the entire Delhi media and the Congress and BJP exploded at Jayalalithaa for her decision.
Folks seem to place a great emphasis on Jayalalithaa’s alleged papering over procedural checks in Sec 432 and 433 of the CrPC; but reality is that for a government it is not a huge ask to fulfil these checks. If you instead look at the substantive end of the case Jayalalithaas actions could be justified.
1. The intensity of activism in a model Idea of India state like Tamilnadu needs to be taken into account.
2. The court have not only commuted the sentence but also approved that the prisoners endured mental torture over 14 year delay.
3. The court did not expressly opine on the desirability of Sec 432/433 IPC ; quite the opposite hinted at the applicabilty of these provisions to the current case. This has been expertly picked up by Vaiko and a host of other parties.
4. Once there three major convicts (Murugan, Santhan, Perarivalan) are released, it makes little sense to hold the other 4 serving life terms (Nalini, Robert Pious, Jayakumar, and Ravichandran) – so she had to let go all seven.
5. Given the above facts; the Jayalalithaa govt would be seen as nursing a personal grudge based on you-know-what in Dravidian terminology.
6. Jaya would like to have the Central Govt to hold this pot by invoking & interpreting Sec 435 of CrPC appropriately.
The trajectory of this case over the years is alarming and exposes the chinks in the Rule of Law and its vulnerability to activism and sectarianism. I would go a step further and say this case lends further credence to my hypothesis that the Rule of Law cannot go along with the Idea of India. Under the guise of abolition of death penalty, a whole set of arguments are being made to let these convicts go. It is important to note that none of the convicts have demonstrated an iota of remorse or disowning of their ideology. Instead their capture, their trial, and incarceration are portrayed as further evidence of the oppression of Tamils in India and in Sri Lanka.
The restless eagerness of Murugan for a reunion with his daughter in London can only be understood by Rahul Gandhi who does not have that option any more.
UPDATE: See the part marked in red
Sushma Swaraj of the BJP is a Lokpal Selector Selector Selector.
So are Prime Minister Manmohan Singh, Speaker Meira Kumar, and Supreme Court Judge H.L Dattu. Together these four are going to first select an “eminent jurist” who will complete a 5 member committee whose only job to select another committee who will eventually select the inaugural 8-member Lokpal.
You may wonder what Justice Dattu is doing here, because as per the Lokpal Act the Chief Justice of India should join this panel. Actually as per the Lokpal Act, the CJI or anyone he nominates can be on the panel. The catch here is those on the selection panels cant aspire to be Lokpal. It would be tantamount to selecting yourself. So CJI Sathasivam has kept the doors open for himself to be a Lokpal.
This five-member selection committee will choose the Lokpal and other members.
Source: Indian Express
That a premier Indian newspaper like the Indian Express gets a crucial detail totally wrong is astounding. Lets clear it up. As per the Lokpal Act Sec 4 (3) The task of these 5 people (assuming they can select the eminent jurist) is to select a “search committee” consisting of seven eminent people of standing.
Search Committee consisting of at least seven persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management ..
Sec 4 (3) of Lokpal Act
The restriction is that the eminent people of standing in the search committee should have 50% quota for SC/ST/OBC/Minority/Women.
The search committee then selects the final Lokpal panel which consists of a Lokpal and Eight members. Five of the eight must be from SC/ST/OBC/Minority/Women and four from the legal field. UPDATE: Thanks to a commentor, this isnt correct. The search committee does not actually select the final panel but returns the names to the original selection committee which then adds its own names and selects the final panel. – EDIT – In my opinion this only makes it worse.
Is your head spinning yet? Is this feasible ? Today, we are at stage 0 – the discussion revolves around whether PP Rao is a more eminent jurist than Harish Salve or Fali Nariman. Tomorrow a dozen supreme court justices will compete for the judicial slots. A thousand NGOs and activists will compete the the “civil society” slots. The sheer energy spent by all those in the ecosystem will be astounding. Who do you leave out?
Packing Lokpal with Congress loyalists?
Sushma Swaraj is fighting all the way to the president while Manmohan Singh and others wont budge. This is an all too familiar sight and expected because of the high stakes involved. Simply put this is an institution that is begging to be captured.
The multi stage selection of Lokpal enhances the possibility of total capture – because if you capture a bare majority of selectors at Stage 0 – then ALL selectors at Stage 1 can be owned. This is perhaps the reason why Mrs Swaraj is so worried.
The caste and religious quotas for the search and final Lokpal will see extreme involvement from political outfits as they will veto candidates who are not seen to work for the benefit of these classes. The Lokpal also suffers from fatal flaws in paneling. It is too much to go into it in this post – but a quick point.
If the rationale was to ensure communal representation in a judicial/investigative body to protect the interests of those defendants – then paneling (selecting two/three member “benches”) defeats the purpose. Mark my words this will be an explosive issue in the future as both defendants and litigants will question the neutrality of any panel on grounds of religion, caste, or gender. What they are really expecting is like a representative jury system.
Modi should watch the developments carefully as a loaded Lokpal can dissipate any projects that he might embark on. There is enough ambiguity on the statute books and enough well paid activists to checkmate any discretion on the part of officials executing these projects.
Given the horrendous implications of this ill conceived piece of legislation on our economic well being – it is perhaps good that they are not able to start the engine.
Please lets not call the mechanic.