Sunday, May 25, 2008
A recent judgment of the Supreme Court begins with a statement in the first sentence that the petitioner is a ‘renowned and internationally famed’ person. Do you have any doubt that the judgment was entered in his favour, for, with such a beginning, can you afford to throw out his petition? The judgment is interesting, for it is out of ordinary. You will come across bias in administrative decisions as vitiating an order, or arbitrariness in executive fiat as cause for annulling it but how often would you have come across a one- man- legislation; a law that is brought for one individual, a law reminiscent of emergency days namely, of change of Representation of Peoples Act to perpetuate the continuation of office of one person? Quite interestingly, the judgment in P.Venugopal v UOI refers to three other instances when the Supreme Court has frowned upon one-man-legislation.
Firstly in the year 1953, in Ameerunissa Begum and others, a Constitution Bench of the Supreme Court affirmed the judgment of High Court of Hyderabad, and declared as unconstitutional a law passed to annul the claims to succession of certain persons as lawful wife and children to the estate of deceased Nawab Waliuddowla against the claims of another woman, who claimed to be the sole inheritor to the estate. Patanjali Sastri J said that ‘legislation such as we have now before us is calculated the draw the vitality from the Rules of Law which our Constitution so unmistakably proclaims, and it is hoped that the democratic process in the country will not function along these lines.’ Yet another judgment delivered by the same Bench in Ram Prasad Naryan Sahi was in the same year and the Supreme Court struck down a Bihar legislation brought to take possession of some settlement lands from a particular individual. Patanjali Sastri J again quoted his own dissenting view in Chiranjit lal where he had said, ‘Legislation based upon mismanagement or other misconduct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think receive judicial encouragement." In our State, TN Municipal Laws (Amendment) Act 2002 sought to strip the legislator of his right to continue in office as mayor by introducing a provision of a bar of ‘dual occupancy’. The amendment survived in the decision S.Udayakumar v State and others (2002) since the challenge was deflected to the State’s power to lay down qualifications for a Chairman by virtue of the provisions of Art 243 V(b)(1) of the Constitution.
One-man-legislation has not been uncommon in England and almost all of them have been to manipulate succession to the Monarchy. Act of Settlement of 1701 was passed to ensure that the line of succession would continue in the Protestant line and exclude any possible claims by the deposed James II or his son and daughter. The law made clear that only the descendants of Sophia who were Protestant, and had not married a Roman Catholic, could succeed to the throne. Roman Catholics and those who married Roman Catholics were barred from ascending the throne "for ever". His Majesty’s Abdication Act 1936 was the Act of the British Parliament that allowed King Edward VIII to abdicate the throne, and passed succession to Prince Albert, Duke of York. Edward VIII abdicated in order to marry his lover, Wallis Simpson, after facing opposition from the government of the United Kingdom and the British dominions. Although Edward VIII had signed a declaration of abdication the previous day, he was still King until he gave royal assent to this Act. The Act was passed through the Houses of Parliament in one day, with no amendments.
The All India Institute of Medical Sciences (Amendment) Act 2007 was perhaps passed on one day, without much of opposition but when it is now struck down, there is no scope for a discussion of the supremacy of one constitutional institution over another. The judgment has a predictable beginning to what the last sentence states. The judgment takes off without a jolt announcing how it is going to fly, cruises through the best pronouncements of our courts and lands to a just conclusion. No individual has won or lost; it is the majesty of sweep of Article 14 that triumphs in situations like this!
Monday, May 19, 2008
The California Supreme Court ruled on May 15th that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory. The California ruling is considered monumental by virtue of the state's size — 38 million out of a U.S. population of 302 million — and its historic role in the vanguard of the many social and cultural changes that have swept the country since World War II. In San Francisco, the reaction was reported to be jubilant. On 18th May, a popular newspaper daily reports that two women in Tiruvottiyur, Chennai who were very ‘intimate’ had set themselves ablaze, clasped to each other, unable to cope with their relatives’ opposition to their intimacy. There is still a sense of revulsion among the Indian community about accepting several ‘other’ types of human relationships which are gaining legitimacy across the globe. The California judgment was not a one-off dispensation but a culmination of widely held public debates, Supreme Court judgments of various States and of USA and legislative interventions.
The Congress at first took a conservative role. In 1996 it enacted the Defense of Marriage Act ("DOMA") to empower the States to deny the legitimacy of same sex marriages. But the constitutionality of measures denying recognition of same-sex marriage was suspect, especially in light of the U.S. Supreme Court's apparent shift in its consideration of gay and lesbian rights. The Court had earlier found that a state sodomy statute enforced only against homosexuals violated no constitutionally protected rights (Bowers v. Hardwick, 478 U.S. 186, 191 (1986). In contrast, in 1996 in Romer v. Evans, 517 U.S. 620, 623 (1996), the Court found that a state constitutional amendment that barred anti-discrimination measures that protected lesbians and gay men violated the U.S. Constitution's Equal Protection Clause by subjecting one group to a disadvantage that no other group had to suffer. In so doing, the Court took the remarkable step of invoking the landmark dissent in Plessy v. Ferguson (163 U.S. 537, 559 (1896) (Harlan, J., dissenting), in the opening paragraph of its decision: The Constitution "neither knows nor tolerates classes among its citizens." Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Court made clear that it would not countenance a legal distinction that raised the "inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."
These laws have immediate relevance to maintenance rights, claims to custody of children born through donors and surrogates outside the bonds of marriage, rights to succession and all property rights connected with them. We have not had any public debate of any serious nature in this area. Not merely this, another boundary untouched by legislation or public concern has been the rights of transsexuals. A NGO having close links to the ruling establishment appears to have prevailed on the state government to undertake a census of the numbers and needs of the transgender community in Tamil Nadu, The government is also reported to have started work through the Welfare Board for the Transgender community to address the problems of AIDS prevalence among the community and the problems caused by Section 377 (the antisodomy law), IPC. Another problem intimately connected is recognizing their gender status for employment.
There has been no legislative initiative and NGOs have done little to espouse their cause. It is surprising that the affected persons have not complained about the discriminatory practices in the job market through litigation route. The problem lies just here. They have not worked for their rights within the legal system but look for avenues to indulge in humiliating practices. The gender stereotypes are almost accepted as the only communities that deserve social concern, and by our apathy we are derailing large sections of ‘other people’ to take to degrading life styles. There are discriminatory practices employed against so many other people living along the fringes. A private airline company advertising for jobs in India bars entry to persons who have tattoos on any visible part of the body. Any number of advertisements could be shown to make explicit statements of preferences to physical appearances for prospective employees. Perhaps, we need legislation like the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or expand the definition of disability to include persons who belong to the above categories as well.
In Part 6 of the ‘Voice Divine’ (Deivathin Kural), Kanchi Paramaacharya, while explaining the subtle meanings of Adi Sankara’s Soundarya Lahari extols the beauty of the Divine Mother, who has profusion of love for all Her children. He recalls at the same breath the example of Ashtavakrar who was ugly but even the Gnanis looked only to him for spiritual guidance for the depth of his learning and felt attracted to him by his beauty of erudition. The ability to love fellow beings brings an intense quality of beauty to the person who can practice it in all forms of interactions. What is love in the context of human relationships is societal concern through legislation in the legal context. The Law Commission of India is recommending a change of law for deleting attempt to suicide as an offence. Will the Law Commission also look into the human rights angle and the need for assimilating people in the fringes into the vortex of legislative concern through non-discriminatory laws?
Monday, May 12, 2008
The epics of Ramayana and Mahabharata are forever a fascination, when stories are told and repeated. You laugh and cry with the characters; you experience the warmth of friendship and pangs of separation as the persons in the stories go through with others, share the ecstasy of love and suffer agony of hatred along with them, celebrate the victory and grieve over the defeats. It is the ability of the story to evoke the experience all shades of emotions that defines its epic value. It is just not with stories; the same applies to good poetry. Hear Morocco say in Merchant of Venice (Act 2, Scene VII),
“Portia, adieu. I have too grieved a heart
To take a tedious leave: thus losers part. “
Alfred Tennyson captures the shearing of emotion of a person who is gone, in his poem ‘The Window;or, the Song of the Wrens’
“Gone, and the light gone with her, and left me in shadow here!
Gone - flitted away,Taken the stars from the night and the sun
From the day!Gone, and a cloud in my heart”
The word of parting itself is sweet for Lord Byron ( Childe Harold’s Pilgrimage):
Farewell! a word that must be, and hath been -
A sound which makes us linger; - yet - farewell!
Do the words deliberately veil the hidden emotion that throbs for a different meaning? William Shenstone says of what will remind you of a popular Tamil song that lilts ‘Po endra varthayil, vaa engirai!
So sweetly she bade me adieu,
I thought that she bade me return.
The world of prose has never been any poorer for portraying the emotions of separation. Henry David Thoreau says, ‘Nothing makes the earth seem so spacious as to have friends at a distance; they make the latitudes and longitudes’. See here, Thoreau does not have to sound maudlin at a parting. He sees the worth of bridging gaps from a distance, instead of being struck with sadness. Just as cheerful is Seuss Geisel George Elliot when he says, ‘Don't cry because it's over. Smile because it happened’.
On occasions when you experience the higher emotions of living, it is the face that carries to the outside world what you experience. There need not be any attempt at hampering the flow of emotion by boulders. Your hair stands on end; your eyes glisten. The lips quiver. Make no attempt to hide the tear. It is not un-manly. It is the same thing as when you stand at the height of a mountain and revel at the spectacle of the world beneath your feet or the stillness of what lies above your head.
Sunday, May 04, 2008
May 21, 1991. A dark spectacled woman garlands the leader and seems to lower herself to touch his feet offering obeisance to him. The modesty in the man stops the woman by holding her at the shoulder by his firm, but kind hands. The woman pulls the contrivance strapped around her waist. She blows herself to smithereens and the blast tosses up the leader to land on his now decimated face. 16 others in the immediate vicinity are felled simultaneously with the assassin and the slain leader. A lanky woman at a distance watches the gory spectacle, first hand. The crowd is confused; she is not. She was perhaps the only one alive out there who knew what really had happened and who was the prime target of attack.
The death of the leader changed the course of nation’s history. But the nation is big; its history is long and the resources of the country prodigious to throw up successive leaders who have given direction to the country’s destiny. A lot of things have also happened to that woman. She married the co-conspirator. She had a child while still in prison. She lost the child’s custody to her sister to be brought up outside the prison walls. The mother bore the separation from her daughter. Perhaps, the child has grown up without feeling the warmth of a parental hug or a protected home, when she could come back from her school and dine with her parents. There is infinite sadness in the homes of both the victim and the person in the killer team. The leader’s daughter still cannot believe that there could be a person in the world who could have had hated her adorable father. She meets with the convict to sit by her side to ask her why she did it. The newspapers report that both them wept silently.
The responses to this meeting have been diverse. Some say that the daughter of the victim is matured and a person who carries only love in her bosom is a noble soul; her brother says that he understands her feelings but he could not have done that act himself like his sister; some say that she is paving way for the safety of her family from the terrorist outfit by holding out the olive branch. The surviving victims and the next kin of other persons who died in the same incident have no residual sympathy for the mercenary group. They are maimed and in too much pain to experience the lofty emotions of mercy. Instead, they ask why she did not meet them and console them; what consolation is required for the person who was part of a team that spilt terror and blood, inflicted suffering and privations to innocent persons? They are too difficult to answer. It is all the more difficult to apply any objective standards. For instance, take the case of another person, another family. Sarabjit Singh was caught in the territory of Pakistan. After his arrest, Singh was accused of carrying out bomb blasts in Lahore, Kasur and Faisalabad and reported to have also "admitted" before the court that he had been "involved" in bomb blasts and terrorist activities in Pakistan. He was provided legal assistance to fight his case in the courts of law. He is now sentenced to death. The noose has been readied, but thank the providence, his head has not been shoved inside the ring. His sister, wife and two daughters have been praying, petitioning, beseeching, weeping, all to get their dear Sarabjit back. Now which side are you? Does not your heart pulsate for Sarabjit? Do you feel for the victims of blasts at Lahore and the other places? When the killings have been of innocent persons, is there any such category as friends or enemies? Do you still not love Sarabjit to come back to India and want the victims, their next of kin and the Pakistan establishment to show mercy?
There is no greater transcendent emotion than a willingness to pardon. Here lies the irony. In India, the victim’s heir may show mercy. It is meaningful to the convict only if the State also shows mercy. In Sarabjit’s case, it would seem that the State might show mercy, but will the victims’ heirs also show mercy?