Justice Markandey Katju: Opinion or Impropriety?

Justice Katju has been in the news of late for various reasons. He sometimes feels the urge to comment on the credentials of a prospective prime-ministerial candidate, or the compulsion to ask for clemency for a person convicted in a terror case. He also does not, by any measure, refrain from commenting on the true nature of the ‘culture’ that is originally north-indian.

The war of words between Retd. Justice Markandey Katju, Chairman of Press Council of India and Arun Jaitley, Leader of Opposition in the Rajya Sabha, recently dominated the news channels. The issue was over Justice Katju expressing his concern over Narendra Modi being projected as a harbinger of development, and Arun Jaitley retaliating, saying Justice Katju must resign as Chairman of PCI, as it is totally unbecoming of a former Judge of the Supreme Court to air his views political views so publicly. The issue Mr. Jaitley raised was one of ‘propriety’.

This brings my attention to another event that happened, about a year ago.

The Jaipur Lit Fest being organised last year, was in the news for all the wrong reasons. Mr. Salman Rushdie was one of the writers invited to speak at the festival. However, due to his controversial book ‘The Satanic Verses’, some conservative groups were against his arrival in India-more so, they did not want him to address the Lit Fest at all, and even issued threats against him.

What followed was a national uproar. How could an author be prevented from entering a country which claims to uphold the fundamental right to freedom of free speech and expression? Is this how strong our constitutional values are, that they give into the demands of conservative groups? What sort of a democratically-elected government, claiming to uphold and abide by the Constitution of India was running the administration in Rajasthan and at the Centre, which gave into these demands and did nothing? If one thought that matters could not get worse than this, they were sadly wrong. Not only did the State government just give into their demand, it also facilitated in creating a situation which would prevent Salman Rushdie from entering the country. All this over a book which was banned well over two decades ago, and the author of the book has, infact, entered the country after that.

However, Justice Markandey Katju, at that time, in an article went on to say that Salman Rushdie is a sub-standard writer and the Jaipur Lit Fest is not focussing on great literature. Undoubtedly, he is entitled to his own views on Mr. Rushdie as well as on the credentials of the Jaipur Lit Fest. But at a time when the freedom of free speech and expression was being stifled in the country, and there was nation-wide anger at the way the whole affair of Salman Rushdie was handled, Justice Katju chose to diverge from the issue at hand, and went on to express his views  on the credentials of Mr. Rushdie and the Jaipur Lit Fest.

 Was it really a burning need of the hour, to read an article on what Justice Katju thinks of Salman Rushdie? At a time when conservative groups were having their way in preventing an author from even entering the country, was it really necessary for him to raise criticisms on Mr Rushdie’s style of writing? At a time when the State and Central governments were giving into such irrational demands, was it warranted for a retired Supreme Court judge to doubt the credentials of an author? At a time when the freedom of speech and expression was being pitted against intolerant elements in society, was such an observation by the Chairman of the Press Council of India really even needed in the first place? What was it that he thought he was doing? Enriching the quality of public discourse?

Then came the conviction of Sanjay Dutt in the 1993 Mumbai Blasts case. Justice Katju, who had previously criticized the media for focussing on the lives of bollywood celebrities instead of focussing on the real, burning problems of the nation, this time chose to appeal to the Governor to grant clemency to Sanjay Dutt. The grounds on which clemency was sought were even more outrageous- the fact that Sanjay Dutt has starred in movies spreading the message of Mahatma Gandhi.

Then there are occasional utterances by Justice Katju about how Urdu is just as important and essential a language in north India as Sanskrit. He also affirms how inclusive development of all castes and communities is ‘real’ development. At the time of becoming PCI chairman, he had said he would work for media regulation and try to ensure that there is responsible, clear and precise reportage of events by the print and electronic media. Absolutely nothing concrete seems to have happened in that regard.

Today, the country is a year away from General Elections. It is obvious that public discourse will be sprinkled with names of likely PM candidates. Neither Mr. Arun Jaitley nor Justice Markandey Katju will alone decide the next PM of the country. The cases involving the role of all accused in the Gujarat Riots are still sub judice. Justice Katju will understand the baneful effects of commenting on sub judice matters  better than anyone else. Narendra Modi is being hailed for his development of Gujarat in recent years, and the people appreciating him also have an equal right to voice their opinions in a free country like ours. They do not need to be told that they are wrong, least of all by a retired Supreme Court judge, who holds an important office even after his retirement.

Though the allegations of impropriety against Justice Katju really do not seem very misplaced.

Digital Rape

The recent spate of rape incidents in the capital and the NCR region have brought to the fore glaring  deficiencies,  in our legal system to deal with such incidents as well as in our social system, which still largely continues to deny women their rightful place in society.

Section 375 in the Indian Penal Code (hereinafter, the ‘IPC’), which deals with the offence of rape, now seems to be running out of its feasibility to adequately address the offence of rape. The section lays down, inter alia, that to constitute the offence of rape; firstly, the victim must be a woman, and secondly, ‘penile penetration’ is necessary to constitute the offence of rape.

Following the first condition, it automatically rules out boys who are raped. They do not get relief under Section 375. Rather, their offence comes under the ambit of Section 377 of the IPC.

The second condition, that of ‘penile penetration’ being a necessary element of rape, is also now starting to bring several impediments in the process of administration of justice to women whose bodies are violated by sexual offenders.

In a case of an 80-year old destitute woman who had a 19-year old boy put a stick into her private parts, finally dumping her in a park, bleeding. The woman was rushed to the hospital for treatment, after which in her trial, the judges were left helpless, being bound by the wording of the legislation. They could not frame charges of Rape under Section 375 of the IPC as no penile penetration had taken place. Instead, a case of Abduction and Grievous Hurt was made out.

Offences of ‘Digital Rape’ , such as the one elicited above, point to the growing inability of our laws in dealing with such offences and the subsequent helplessness of the judiciary in serving justice to the victims. Digital Rape in India is defined as the penetration of any external object into the private parts of a woman with the intent to rape her. Along with the narrow definition of ‘rape’ in our legal system, there are also insensate practices followed, such as the ‘two-finger test’. In the ‘two-finger test’, once a woman has complained of being raped, in the medical examination she is subjected to a finger test. If her vagina allows the entry of two fingers, an inference is drawn that she is ‘habituated’ to sex. As if there is any relation between being habituated to sex and being raped! One act of forced sexual intercourse is in and by itself enough to constitute rape. It is immaterial if the woman has had sexual intercourse on previous occasions. There is currently a high-level government committee working on abolishing the two-finger test.

Then there is the labelling of the woman as being ‘unchaste/promiscuous’ etc. The way the rape case in Bengal has been treated, with Mamata Banerjee terming it an ‘attempt to malign’ her government to a Minister in her government questioning the character of the woman raped, goes to show the insensitivities with regard to rape victims that is being harboured by the law-enforcing agencies. The West Bengal case was only seriously taken up on the initiative of an IPS officer(who has now been transferred, following some arrests that have been made in connection with the incident). There have been numerous other incidents, where the police has not filed an FIR, or where the rape victim has been meted out step-motherly treatment at the hands of the authorities. This is happening despite a Supreme Court verdict holding that a woman’s complaint of rape should not be doubted, as no woman would lie about her being raped, seeing the stigma attached in our society to women who are raped.

Recently, the US amended the definition of Rape in their laws, making it “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Such a definition is broad not only because it takes into account victims of rape, regardless of their gender but is also adequate to deal with offences of digital rape.

It is true that the source, as well as the solution of this inhuman crime, lie in the social matrix of our country. However, change must be initiated from the legal system, and a comprehensive definition of the offence to begin with is indispensable.

It is high time we press for amendments to our rape laws to keep them in sync with the changing ground-realities, as well as to empower the judiciary to justly frame charges and hand out convictions, if we are to see a reduction in the occurrence of this heinous crime.

Coincidences...really???

So now a shoe has been hurled at Arvind Kejriwal in Uttar Pradesh, where he has gone to strengthen the anti-corruption movement. Just a few days back, Prashant Bhushan-another member of Team Anna was attacked by goons, allegedly for supporting a plebiscite in Kashmir. 

 

All this happens at a time when Anna has openly declared to denounce the Congress for not passing the Jan Lokpal Bill, and the Congress itself has received a major blow by the electorate in the Hisar Loksabha byelection.

What really intrigues me is that how come, a group of individuals (Team Anna), who had become countrywide heroes for starting a nationwide campaign against corruption, and had also successfully brought the government to its knees in their demand to get it to pass the legislation of the Lokpal Bill, are suddenly becoming the target of physical attacks.

In Prashant Bhushan’s case, for example, a group of goons beat him up for publicly sharing his support for a plebiscite in Kashmir, to resolve the conflict there.

Firstly, such a view (of a plebiscite in Kashmir) is not such an out-of-the-blue, scandalous proposition. It has been shared before. It has been heard by people before. There is nothing surprising about it, that it should warrant such a radical response.            

Secondly, the group that attacked him seemed to consist of Ram Sena Activists and another group, hitherto unknown, called Bhagat Singh Kranti Sena. Any organisation which has ‘rashtriya’, ‘kranti’, ‘sena’ etc will automatically attract attention of the people to the BJP or the RSS. So these groups are immediately given a saffron tinge and they seem backed by the BJP or the RSS.

The Congress has been pushed into a corner, with hardly any alternatives left. It cannot attack the members of Team Anna openly for their support of the Jan Lokpal bill because public support is still hugely in favour of Team Anna.

So the recent attacks on Mr. Bhushan and Mr. Kejriwal seem to me to be the handiwork of the Congress, rather than the work of thugs. Or wait, it could be a nexus of both.

When the Congress cannot attack Mr. Bhushan for his role in the anti-corruption movement, why not target him for his views on Kashmir? The aim here is to basically create a deficit in his credibility in the eyes of the people so that they lose their public support-little by little, and the anti-corruption movement receives a setback.

The political inclinations of Arvind Kejriwal’s attacker remain unknown. One does not know which organisation he is affiliated to. But I have a gut feeling that when the attacker is interrogated, he would claim his motive to be anything other than being against the anti-corruption movement.

Just a gut feeling, that’s all.