📰 Women’s panel seeks fair probe into stalking case
Victim’s father seeks ‘maximum punishment’ for the accused, says will move court if charges against the duo are ‘diluted’
•The National Commission for Women (NCW) has sought a free and fair investigation into the alleged stalking of a woman in Chandigarh by Vikas Barala, son of Subhash Barala, president of the Haryana State unit, while the victim’s father sought “maximum punishment” for the accused.
•The commission has asked for regular updates, NCW chairperson Lalitha Kumaramangalam said. “In the letter [to the police], we have asked them to conduct a quick, immediate, fair and free investigation in the case and let us know what is happening in every stage,” she said.
•Vikas, 23, and his friend, Ashish Kumar, 27, were arrested and released on bail. The two were charged with bailable sections of the Indian Penal Code and the Motor Vehicles Act.
Cong. charges
•Ms. Kumaramangalam’s comments came amid allegations by the Congress that the Union government and the BJP were conspiring to hush up the case.
•“I have always said that who these people are should not matter ... they could be rich, poor, political, religious, doesn’t matter. Crime against women is crime against women,” she said.
•“Unfortunately, the police and the judicial system come under a lot of pressure from the so-called VVIPs and that is not correct.”
•Ms. Kumaramangalam also described as “regrettable and unfortunate” the reported remarks by Chandigarh BJP vice-president Ramveer Bhatti that girls and women should not be going out alone during midnight. Denying making such comments, Mr. Bhatti said, “What I meant to convey is that it is the responsibility of parents to watch over their children and their activities. It is a general statement and not one directed at the victim.”
Father’s stand
•In a Facebook post, the woman’s father, an IAS officer, said that he would move court if charges against the duo were “diluted”.
•He, however, asserted that the family would not interfere with the investigation.
•“We will not interfere with the investigation or the prosecution, just as we do not want the accused to influence the investigation in any way. The police and prosecution should be allowed to do their job. We will join the investigation whenever required by the police. We will contest in the court if we feel the charges are diluted or inadequately framed,” he said.
Not to back out
•He promised the people who were supporting his family that, “We shall not, ever, back out or stand out, irrespective of hardships or pressures.”
•He said the accused were law students and hence fully aware of the consequences of their action. “Our target is to ensure that the guilty are brought to book,” he said.
📰 States cold to stricter anti-racism law
•The Home Ministry’s proposal to amend the law to insert two stricter anti-racial discrimination provisions in the Indian Penal Code has got a lukewarm response from the States.
•Only four of them — Uttar Pradesh, apart from Manipur, Meghalaya and Mizoram in the northeast — have given their assent to the proposed law. Three Union Territories — Andaman and Nicobar Islands, Dadra and Nagar Haveli, and Lakshwadeep — have also agreed to the Centre’s proposal.
•On July 26, Minister of State for Home Kiren Rijiju informed the Rajya Sabha that the Ministry proposed to amend the IPC “to deal with the racially motivated crimes.”
•“The Home Ministry has proposed to amend two provisions in the IPC, that is, Section 153A and Section 509A. These are proposed to be inserted into the IPC sections... Since this matter comes under the Concurrent List, we have to obtain the opinion of the State governments,” Mr. Rijiju had said.
•A senior Home Ministry official said the first letters to the States were sent out in February this year.
📰 SC to hear appeals in Ayodhya case
Court had suggested out-of-court rapprochement among rival parties
•A Supreme Court Bench led by Justice Dipak Misra is scheduled to hear on August 11 a batch of appeals in the volatile Babri Masjid-Ramjanmabhoomi title dispute.
•The Special Bench will include Justices Ashok Bhushan and S. Abdul Nazeer.
•The court recently indicated that it would start hearing the long-pending appeals shortly.
•On March 21, Chief Justice of India J.S. Khehar, had on an oral mentioning by BJP leader Subramanian Swamy, suggested an out-of-court rapprochement among rival parties in the 68-year-old dispute. The Chief Justice had advocated peace negotiations.
•On March 22, 2016, a Bench led by then Chief Justice of India T.S. Thakur said that Dr. Swamy’s plea to “rebuild” the Ram temple would be sent to the appropriate Bench dealing with the Ramjanmabhoomi title dispute appeals. At that time, the Supreme Court had said that the case would be tagged with the appeals and heard in due course.
Tension, violence
•The dispute, which has seen much tension and violence over the past decades, debuted in courts since the 1950s. On September 2010, a three-judge Lucknow Bench of the Allahabad High Court held that Hindus have the right to the makeshift temple under the central dome of the Babri Masjid. The High Court ruled in favour of a three-part division of the disputed 2.77 acre area among Sunni Waqf Board, Nirmohi Akhara and the Ram Lalla at the disputed site. The Bench had relied on Hindu faith, belief and folklore.
•The Sunni Waqf Board and other parties filed their appeals in the Supreme Court against the 2010 judgment. The appeals have been pending in the Supreme Court for over six years. The litigation has records dating back to the 16th Century and written in several languages, including Arabic and Persian. The Allahabad High Court judgment which is under challenge is itself about 8,000 pages.
📰 Planes missing, fruits to India rot in Kabul
Though air corridor takes wing, problems arise as there is no secured provider for chartered flights
•Weeks after the India-Afghanistan air corridor trade project was launched, the project has run into rough weather, with fruit exporters complaining that procedural delays, particularly a shortage of cargo planes, are causing them major losses.
•Matters came to a head last week, when tonnes of fresh fruits, including apricots and melons, were left rotting at the Kabul airport. The flight chartered by Afghanistan’s national carrier, Ariana airlines, on July 20 failed to arrive on time, and the fruits were not moved to cold storage. Much of the load went only on July 29, officials say. Angered by the losses, traders, who say as much as 120 tonnes of fruits are still waiting to be transported from the airport, demanded that the government take swift action or they would find it hard to continue exporting perishable produce to India.
‘Inaccurate reports’
•Calling the reports of more than 100 tonnes of rotting fruits “inaccurate and misleading”, India’s Ambassador to Afghanistan Manpreet Vohra, however, admitted that the lack of a secured provider for chartered flights had caused some disruptions.
•“Some fruit did go bad, but the exporters also cut corners by not using cold storages sufficiently,” he said, adding that the the Afghan government was sorting out issues in chartering aircraft.
•Among the issues, say exporters, is the lack of “cargo screening machines” that necessitates packaging and repackaging, and the lack of adequate cold storage facilities at the airport. On the Indian side, traders say they worry about clearing the perishable goods quickly through Indian customs, and the process is yet to be streamlined.
Procedural delays
•“We were told that all these procedural delays would be sorted out within a month of the corridor starting, but there are yet to be resolved,” Sayam Pasarlay, the spokesperson for the Afghan Chamber of Commerce and Industry (ACCI), told The Hindu over the phone from Kabul.
•As a result, according to figures from both the ACCI and the Indian Embassy in Kabul, only four cargo flights have flown between Afghanistan and India under the scheme, carrying about 160 tonne in all.
•Officials in both Delhi and Kabul said the problems were “teething troubles”, and would be sorted out with the inclusion of the private Kam Airlines to carry some of the load. “Naturally the pilot air corridor project will go through some bumps before it becomes fully smooth. Currently, it is our fruits season and apart from some technical issues, there is a high demand for cargo (to other countries) and the Afghan government has been trying to catch up and added a private airline Kam Air to meet the demand together with Ariana airlines,” Afghanistan’s Ambassador in Delhi Shaida Abdali told The Hindu .
📰 GST ties Bengal’s traditional weavers in knots
Livelihood of four lakh householdsacross State jeopardised
•There was barely any space for more than one person in the cramped mud-walled room as two handlooms occupied most of it. Basudeb Das, 76, whose family is engaged in weaving traditional cotton saris — known as taant in Bengal — was staring blankly at the wall on a Saturday afternoon. Before the Goods and Services Tax (GST) was introduced in July 1, the room witnessed hectic activities of weaving saris and was filled with the clattering sound of handlooms.
•But with the confusion on whether GST would be levied on taant saris, business for these weavers has almost stopped over the past month. However, five per cent GST has been imposed on cotton and yarn, raw materials for taant saris. Mr. Das is one of at least 8,000 weavers in the Rajbalhat area in Hooghly district’s Jangipara block whose livelihood has been jeopardised due to the confusion regarding GST.
•Weavers in other districts such as Nadia, Bankura and Purba Bardhaman are facing a similar crisis. According to the Handloom Census of India (2009-10) there are 4.07 lakh households in Bengal involved in the sector.
•“The producers (sari merchants) — who provide the weavers with cotton yarn and other raw materials for the sari and then sell the finished product — have nearly stopped giving us any work due to the confusion over GST,” Mr. Das told The Hindu. Earlier Mr. Das used earn about Rs. 600 a week but after the introduction of GST, it has come down to Rs. 200 a week. He along with his ailing wife and a daughter are now struggling to make both ends meet.
•According to the producers they are yet to get any idea on whether there is any GST imposed on taant saris. Moreover, they do not have the required infrastructure for the billing process under GST norms.
•“We are totally clueless whether there is any GST on taant saris as well as the process of billing under GST,” one of the producers of taant saris in Rajbalhat Susanta Sil said. He also said as a result it had become “extremely difficult” for them to sell the saris at wholesale markets in Kolkata’s Burrabazar as well as to buyers from Bihar and Odisha as they were asking for “bills prepared as per GST norms.”
•For the weavers in Nadia district the situation is equally grim. The district is known for the famous variant of taant sari namely ‘Jamdani’ and ‘Tangail’. While the name ‘Jamdani’ is derived from Persian word ‘Jam’ meaning a cup and ‘dani’ meaning ‘container’, ‘Tangail’ originates from a district of the same name in Bangladesh. “We can’t even buy yarn without going through the complicated billing process under GST. If such a situation continues I will have no option but to shut down my business,” said Asit Das, a weaver from district’s Shantipur town.
•When contacted Bengal’s Minister of State for the Micro, Small, Medium Enterprises and Textile Swapan Debnth only said: “The weavers in Bengal are facing severe inconveniences due to the confusion surrounding GST.”
📰 Cess limit on motor vehicles raised to 25%
‘Strong deterrent to growth’, says Mercedes-Benz India MD & CEO
•The Goods and Services Tax Council (GST Council), during its 20th meeting on Saturday, recommended that the Centre increase the maximum limit for the cess that can be levied on most motor vehicles from 15% to 25%, the government announced on Monday. The reason for this, according to the GST Council’s Fitment Committee, was that the post-GST tax incidence on motor vehicles across most categories was significantly lower than the pre-GST tax.
•“The GST Council...recommended that the Central Government may move legislative amendments required for increase in the maximum ceiling of cess leviable on motor vehicles falling under headings 8702 and 8703, including SUVs, to 25% instead of the present 15%,” the government said in a release. “However, the decision on when to raise the actual cess leviable on the same will be taken by the GST Council in due course.”
•Category 8702 comprises “motor vehicles for the transport of 10 or more persons, including the driver”, while Category 8703 comprises “motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702) including station wagons and racing cars (other than cars for physically handicapped persons)”.
‘Highly disappointed’
•“We are highly disappointed with the decision,” Roland Folger, MD & CEO, Mercedes-Benz India, said in a statement. “
•We believe this will be a strong deterrent to the growth of luxury cars in this country. As a leading luxury car maker, this will also affect our future plans of expansion under the ‘Make in India’ initiative.”
•“With this hike in cess, we expect the volumes of the luxury industry to decelerate, thus offsetting any growth in the potential revenue generation that could have come with the estimated volume growth,” Mr. Folger added.
•The GST Council, however, argued that the hike in the cess was justified as it only brought the current tax incidence in line with what existed before GST.
•“The difference in tax incidence calculated earlier and now is primarily on account of the fact that earlier the value based on which the tax incidence was estimated was inclusive of excise duty, while it should have been value net of VAT as well as excise duties,” a GST Council document reviewed by The Hindusaid.
•“Net of 28% GST, to maintain the pre-GST tax incidence, the highest compensation cess rate required will be 26.5%, based on tax incidence estimated with reference to assessable value for excise duty and dealer’s margin,” the document added. “Further, if the tax incidence is estimated on value not including dealer’s margin, the maximum rate for compensation cess will increase accordingly.”
States’ compensation
•“The purpose of the cess is to compensate the States for any loss,” Pratik Jain, Partner and Leader of Indirect Tax at PwC India said. “It might have been better to first see how much loss, if any, is being incurred by the States, before deciding to change the rates of the compensation cess.”
📰 Number of income tax returns filed goes up 24.7%
Centre attributes better compliance to demonetisation
•The number of income tax returns filed this financial year up to August 5 increased by almost 25% and the advance tax collections during that period has risen 41.8% over the year-earlier period, according to the Centre.
•“As a result of demonetisation and ‘Operation Clean Money,’ there is a substantial increase in the number of Income Tax Returns (ITRs) filed,” the Centre said in a statement.
•“The number of returns filed as on August 5 stands at 2,82,92,955 as against 2,26,97,843 filed during the corresponding period of ficsal year 2016-2017, registering an increase of 24.7% compared to growth rate of 9.9% in the previous year.”
Advance tax
•“Advance tax collections of personal income tax (i.e. other than corporate tax) as on August 5, 2017 showed a growth of about 41.79% over the corresponding period in FY 2016-2017,” the statement said. “Personal income tax under self assessment tax (SAT) grew at 34.25% over the corresponding period in FY 2016-2017.”
📰 Food security: SC raps Centre, States
What use is a law passed by Parliament if States do not implement it, asks court
•“We can only feel sorry for the people of Haryana,” the Supreme Court noted in a judgment on how the State Food Commission, set up under the National Food Security Act in Haryana, sits jobless and without proper infrastructure owing to the State government's lacklustre response to the four-year-old welfare legislation.
•The judgment by a Bench of Justices Madan B. Lokur and N.V. Ramana listed nine other States —Madhya Pradesh, Karnataka, Andhra Pradesh, Telangana, Maharashtra, Gujarat, Jharkhand, Bihar and Chhattisgarh — who came under its scanner for their damp response to the food security law meant to quell the hunger pangs of millions of poor families, women and children living below the poverty line.
•The Supreme Court said the Centre cannot look the other way, passing the buck on to the States for not implementing the law. Referring to Article 256 of the Constitution, the judgment said the “Government of India cannot plead helplessness in requiring State Governments to implement parliamentary laws”.
•In his separate view, Justice Ramana focused on the spirit of co-operative federalism unique to the Indian democracy. Stating that here, the “Union and the States are co-equals”, Justice Ramana exhorted the executive powers to bridge the growing gap between the Centre and State governments.
No recourse for citizens
•He wrote that States cannot ignore the “plight of the common man”. It was time to start a “meaningful dialogue” between the Centre and the State governments to save people, especially living in the drought-affected areas from abject poverty.
•But in the course of the judgment, Justice Lokur expressed skepticism about the motivation of the Centre and the States to implement the much-needed law, which has now been lying in the back burner for years. At one point, the judgment asks itself an open-ended question: “What remedy does a citizen of India have if the Government of India does not issue a direction and the State Government or the Union Territory does not implement a law passed by Parliament?"
•“Mere schemes without any implementation are of no use. Similarly, one may ask what use is a law passed by Parliament if State Governments and Union Territories do not implement it at all, let alone implement it in letter and spirit,” Justice Lokur wrote.
•In a series of directions, the court ordered the Secretary in the Union Ministry of Consumer Affairs, Food and Public Distribution to meet with State Chief Secretaries by August 31 and brainstorm ways and means to implement the food security law.
Frame rules
•The court directed the government to frame rules and designate independent officials for a grievance redressal mechanism under the Act within a year. It directed the States to set up State Food Commissions and vigilance committees in every state by the end of the year and set up a social audit machinery.
•The National Food Security Bill was passed by both Houses of Parliament and received the assent of the President on September 10, 2013. Almost four years have gone by but the authorities and bodies mandated to be set up under the National Food Security Act, 2013 have not yet been made functional in some States.
•The court expresses it its disappointment when the Haryana government blatantly said there is “hardly any work for the State Food Commission”.
📰 New mobile data plan for Naxal areas
Home Ministry analysing security implications
•The Union Home Ministry is examining the proposed specifications for providing data connectivity services through mobile towers installed in the Left Wing Extremism-affected areas across 10 States, in view of the possible security implications.
•In coordination with the Ministry of Home Affairs (MHA), the Department of Telecommunications has already got towers installed in over 2,000 sites during Phase-I of the mobile connectivity scheme in Naxal-affected districts.
•Issues related to installation of towers and improved road and air connectivity were taken up during a review meeting chaired by Home Minister Rajnath Singh on May 8. It was attended by the Chief Ministers of six States, apart from Intelligence and security officials.
•The government, at the meeting, said Phase-II of installation of mobile towers would soon be initiated. States such as Jharkhand and Chhattisgarh have also sought an upgrade of mobile communications
📰 A gathering crisis
A new regulatory regime for groundwater, that provides for equitable use, is urgently needed
•The water crisis India faces is of such a magnitude that urgent measures are necessary to address it. Yet, while the crisis is often discussed, law and policy measures to address it remain insufficient. This is partly due to the fact that the primary source of domestic water and irrigation is groundwater but the media and policymakers still and often focus on surface water. This needs to change as water tables have been falling rapidly in many parts of the country, indicating that use generally exceeds replenishment.
•One of the underlying reasons for excessive use of groundwater is the legal framework governing access to the resource. This was first introduced in the mid-19th century when judges decided that the easiest way to regulate this ‘invisible’ substance was to give landowners what amounts to a right to access groundwater found under their land, even if in the process they also used water found under their neighbours’ land. Over the following decades, this led to a framework whereby landowners see groundwater as their own and as a resource they can exploit without considering the need to protect and replenish it since there are no immediate consequences for over-exploiting it. Access to a source of groundwater has progressively become a source of power and economic gain. The latter has become increasingly visible in recent decades with the propagation of mechanical pumps, which allows big landowners to sell water to others.
An inadequate framework
•The Union government recognised the need to modernise the regulatory framework for accessing groundwater soon after massive expansion in mechanical pumping led to the realisation that recharge could not keep pace with use. The measures proposed were in keeping with the policy paradigm of the early 1970s when a model Bill was first introduced. It focussed on adding some State-level control over new, additional uses of groundwater but did not address the iniquitous regime giving landowners unlimited control over groundwater. This was only taken up by around a dozen States from the late 1990s onwards. The States that now have groundwater legislation based on the model Bill conceptualised in 1970 have on the whole failed to manage to address the problem of falling water tables due to increasing use. In addition, there is no provision in the existing legal regime to protect and conserve groundwater at the aquifer level. Further, since the legal regime fails to give gram sabhas and panchayats a prevailing say in the regulation of what is essentially a local resource, the present framework remains mostly top-down and is incapable of addressing local situations adequately.
•Over the past decade, the situation has become increasingly dire not only in States where water tables are falling but also in those that are less affected by quantity concerns. Indeed, the quality of the water pumped is increasingly becoming cause for concern; thus the worry is about accessing a sufficient amount of groundwater that is not harmful to health. The present legal regime has clearly failed to address the growing multiple crises of groundwater. This has been officially recognised since at least the beginning of this decade, first in the Planning Commission and more recently by the Ministry of Water Resources, River Development & Ganga Rejuvenation. The result is the Groundwater (Sustainable Management) Bill, 2017, which is based on current understandings of groundwater and its links with surface water and on the legal framework as it has evolved since the 19th century.
Based on decentralisation
•The Groundwater Bill, 2017 consequently proposes a different regulatory framework from the century-old, outdated, inequitable and environmentally unfriendly legal regime in place. It is based on the recognition of the unitary nature of water, the need for decentralised control over groundwater and the necessity to protect it at aquifer level. The Bill is also based on legal developments that have taken place in the past few decades. This includes the recognition that water is a public trust (in line with the oft-quoted statement that groundwater is a common pool resource), the recognition of the fundamental right to water and the introduction of protection principles, including the precautionary principle, that are currently absent from water legislation. The Bill also builds on the decentralisation mandate that is already enshrined in general legislation but has not been implemented effectively as far as groundwater is concerned and seeks to give regulatory control over groundwater to local users.
•A new regulatory regime for the source of water that provides domestic water to around four-fifths of the population and the overwhelming majority of irrigation is urgently needed. For decades, policymakers behaved like the proverbial ostrich because the ‘invisibility’ of falling groundwater tables made it possible not to address the problem immediately. In many places, the situation is now so grave that regulatory action is unavoidable. The proposed new regime will benefit the resource, for instance through the introduction of groundwater security plans, and will benefit the overwhelming majority of people through local decision-making. Overall, the increasing crisis of groundwater and the failure of the existing legal regime make it imperative to entrust people directly dependent on the source of water the mandate to use it wisely and to protect it for their own benefit, as well as for future generations.
📰 Privacy in the digital age
It is troubling that for many, the right to privacy is against the state and not so much the digital corporations
•The current focus on the right to privacy is based on some new realities of the digital age. Personal spaces and safeties that were previously granted simply by physical separation are no longer protected. The digital network enters the most proximate spaces and challenges the normally accepted notions of the private. It brings into focus new means of exercising social, economic, and political power, and reducing of autonomies.
•Like in the physical space, the private and the public must be separated in the digital realm as well. We need a constitutional definition and guarantee of the right to individuality, personal autonomy and privacy in the digital age. It must be provided in the clearest terms by the Supreme Court, which is currently considering this issue.
A positive right
•Some arguments advanced by those seeking the right to privacy, however, are troubling. It seems that for many, the right is basically against the state, and not so much the digital corporations. One hears propositions such as: unlike corporations the state is a monopoly, corporations rely on private contracts for data access, providing data to them is voluntary, and so on.
•A right is a substantive right only if it works in all situations, and for everyone. A right to free expression for an individual about her exploitation, for instance, is meaningless without actual availability of security that guarantees that private force cannot be used to thwart this right. The role of the state therefore is not just to abstain from preventing rightful free expression but also to actively ensure that private parties are not able to block it.
•In the same manner, the role of the state in terms of the right to privacy in the digital age is not just to abstain from its violation. It is equally to ensure that private parties are not able to violate such a right. The court must specifically direct the state to ensure this imperative.
•The elephant in the room in current privacy discussions is the status of data as the central social and economic resource in the digital age. Excluding the state from any substantial role with regard to society’s data resources without similarly constraining private corporations will lead to a future where corporations become the key organising actors for society, relegating the state to an extremely truncated role. Such a situation is especially threatening to the interests of weaker sections of society that depend on the state for justice and redistribution.
•The state must retain an important part in the organisation of new social and economic structures, which requires it to play a significant role in the data ecosystem. The public sector will, for instance, need to manage some infrastructural social and economic databases above which the private sector can run a competitive economy. Some of these will be in the form of “data commons”, which will require a properly institutionalised stewardship of the state. Citizens will also require the assistance of a public interest agency to enable management of their personal data in a manner that they can obtain the best benefit of a data economy/society and its personalised services.
The role of the state
•All such roles of the state must be constitutionally circumscribed, with strict laws. While establishing a right to privacy, the Supreme Court must also direct the state to develop appropriate institutions for shaping the state’s role in a digital society/economy. This may require, at some stage, an independent branch of the state exclusively dealing with data issues and management.
•Framing of a right to privacy must not curtail the state’s due role in our collective digital futures. This will only ensure that global digital corporations become all-powerful economic, social and political actors. They already provide most of the digital services that appear to be of a public good nature, and in turn control and shape entire sectors.
•The state must be directed by the Supreme Court to ensure that people’s right to privacy is actually available against these corporations as well. In most contexts, there is nothing voluntary in checking an online box giving away one’s privacy. A citizen must have options to undertake basic digital functions like emailing, information search, social networking, etc. without sacrificing her privacy rights. This too is the state’s responsibility.
📰 ASEAN, 50 years on
Its integration necessarily depends on deepening its democratic institutions
•On the 50th anniversary of its founding today, the Association of Southeast Asian Nations (ASEAN) can look back with optimism on its incremental record on regional integration. Noteworthy is the realistic move away from the original policy of non-interference in the internal affairs of member states. Such caution may have been the pragmatic course to adopt during the 1960s, with a view to advance the larger common interest. After all, founder members Singapore and Malaysia had just concluded the former’s independence agreement. Similarly, the conflict between Thailand and the Philippines had been barely resolved. But over the years, there has been growing appreciation that non-interference, if perceived as indifference, entails political cost, impeding more substantial engagement.
•The assertion of the democratic will on the common institutional framework was in stark evidence in relation to developments in Myanmar. Opposition from the other ASEAN members against the country’s oppressive military dictatorship forced Rangoon to forgo the body’s annual chair in 2006. This move could prove critical, given the continued pre-eminence of the army elsewhere in the region. Moreover, there has been recognition that the bloc’s expansion to cover ten countries, with highly diverse economic, political and cultural moorings, calls for a greater convergence of policies and more coordinated action. China and India’s emergence as major economic powers has lent greater urgency to trade liberalisation.
The EU versus ASEAN
•Thus in 2007, ASEAN adopted a legal charter with a mandate to establish free movement of goods, services, capital and skilled personnel. With the 2015 launch of the ASEAN Economic Community, the bloc is on the threshold of realising its ambition of emerging as an integrated single market and to engage the rest of the world with a unified voice. A familiar refrain among commentators is that for all the lofty declarations issued during ASEAN annual summits, there is little tangible action on the ground in relation to reduction of tariffs, and intra-regional trade. Implicit in this narrative is impatience with the relatively slow pace of economic integration in the group, compared to the European Union. But then, to equate the trajectory of their respective evolution betrays a lack of a sense of history and context. Underpinning the European project was the post-World War II imperative of securing peace, prosperity and unity. There was a clear understanding that these objectives could only be accomplished through concrete mechanisms that rendered another war between France and Germany materially impossible. The result was the establishment of transnational bodies, with definite powers of oversight, by pooling sovereignty among nations.
•Conversely, except Thailand, the other original constituents of ASEAN had just emerged from colonialism as newly independent nation states. Defending their sovereignty was bound to be a high priority for them during the Cold War, while their leaders were alive to the need to promote their collective security through a common framework. ASEAN’s integration depends on deepening its democratic institutions.
📰 Letting go of instant triple talaq
There are enough legal devices within India’s dominant Hanafi school jurisprudence to invalidate it
•About two months ago, the All India Muslim Personal Law Board (AIMPLB), through its counsel Kapil Sibal, informed the Supreme Court that it was considering reforms and the gradual giving up of instant talaq but wanted time for it. One of the “reforms” mentioned was a circular from the board asking all qazis to advise the husbands, while finalising the marriage contract, not to resort to instant divorce (talaq-e-bid’a) unless under compelling circumstances. The “compelling circumstances”, however, were not defined.
•This is not the first time the AIMPLB has tried to illude Muslim women with the talk of reforms. In July 2004, in its executive committee meeting in Kanpur, the board was widely expected to outlaw instant talaq. But nothing came of it. Muslim women were let down once again in May 2005 when the board’s much-hyped ‘model nikahnama’ released in Bhopal turned out to be a damp squib. All that it contained against talaq-e-bid’a was a casual, non-binding advice to the groom in Section 5 (vii) saying: “ Jahan tak mumkin ho ek waqt mein teen talaq dene se bachna (to the extent possible, avoid pronouncing three divorces in one sitting).”
Reasons for rigidity
•This sort of dilly-dallying on reforms renders the assurances given by the AIMPLB to the Constitution Bench unreliable. But what makes the board so unyielding? The rigidity stems from two concepts namely taqleed (uncritical acceptance of a school) and tamazzhub (idealisation of a school) wherein precedence is given to one legal school ( mazhab ) over the rest.
•The four major schools of Sunni law — Hanafi, Maliki, Shafi’i and Hanbali — differ from one another on the basis of the interpretive methodology they adopt to derive law from the Koran and the Prophet’s sayings. And the belief that only the interpretation of their school is correct makes followers exalt the totality of juristic pronouncements of the school (the doctrine of tamazzhub ). In taqleed , the adherents just follow their school uncritically even if they don’t elevate it above others.
•A subdued emphasis on tamazzhub , and an overt expression of taqleed , is clearly visible in the 30-page “Note on arguments of Mr. Kapil Sibal” submitted to the Supreme Court wherein the issue of instant talaq is reduced to a question of whether or not it is a part of the Hanafi faith because more than 90% of Indian Muslims are Hanafis.
•Such an argument is unacceptable as it is based on the presumption that by mere accident of birth, Indian Muslims are forever obliged to follow the Hanafi mazhab . Nevertheless, the AIMPLB seems to have overlooked the fact that tamazzhub or taqleed cannot be easily invoked in the case of talaq-e-bid’a. In the aforementioned “Note”, the board admits that Imam Abu Hanifa (d.767) “did not record his own understanding of what the Prophet said in writing”; however, his two disciples — Imam Abu Yusuf (d. 798) and Imam Muhammad (d. 805) — immediately upon his death recorded in writing what Imam Abu Hanifa had said about triple talaq.
•In other words, Hanafi theologians do not possess any direct statement from the founder-jurist of the Hanafi school that upholds the validity of talaq-e-bid’a.
Case for invalidation
•If the definition of tamazzhub were to be stretched to also include the statements of Imam Abu Hanifa’s students, as is being done now by the AIMPLB, would it indicate the inconceivability of reforming the Muslim personal law in India? Certainly not. There are enough reasons and legal devices within Hanafi jurisprudence to outlaw instant talaq.
•It can be shown that Imam Abu Hanifa’s own students did not indulge in blind taqleed or tamazzhub . They boldly differed with him on several issues. Imam Abu Yusuf’s Kitab al kharaj , that records the fatwas of Imam Abu Hanifa on financial matters, also contains Abu Yusuf’s opinions that are at odds with his teacher’s. In his research paper, “The Authenticity of Two 2nd /8th Century Hanafi Legal Texts: the Kitāb al-āthār and al-Muwatta' of Muhammad b. al-Hasan al-Shaybāni” , scholar Behnam Sadeghi states that he counted 27 cases in Kitāb al-āthār in which Imam Muhammad disagreed with Imam Abu Hanifa.
•The ulama within the AIMPLB will only be following this liberal Hanafi tradition if they abandon, in the interest of Muslim women, juristic opinions that justify the validity of talaq-e-bid’a. After all, the “Note” admits that the nomenclature talaq-e-bid’a is not referred to in the Koran or the Hadees. It is “categorised and interpreted by Islamic scholars”.
•It should not be difficult for the AIMPLB to give up anachronistic interpretations of earlier scholars especially when they contradict the Koran. Indeed, Hanafi jurists in the 10th century had abandoned, using exegetic rationales, even authoritative Prophetic hadeeses such as those that allowed women to join congregational prayers in mosques. The reasons cited were taghayyur al-zamaan (change of times) and fasaad al-zamaan (corruption of the times).
•Hanafi jurists also resorted to legal stratagems called hiyal (sing. heela) to circumvent or overcome the rigidity of law. Heela is based on a doctrine called tahayyul under which a jurist, if circumstances so warrant, finds a way to legalise what is otherwise prohibited by law. Jurists also had recourse to takhayyur (selecting the most suitable among available legal opinions in a given school of law) and talfiq al mazaahib (derivation of rules from material of various schools of Islamic law).
•These instruments were utilised to give effect to the Islamic legal maxim “ laa yunkar taghayyur al-ahkaam bi taghayyur al-zamaan wa al-ahwaal ”, which means “there is no denying that laws will change with the change of time and circumstances”.
•Therefore, if the AIMPLB is really serious about reforms, there are enough legal devices within the Hanafi denominational faith system to invalidate instant triple talaq.
The way forward
•For this to happen, the AIMPLB must be willing to reassess its raison d’être and model itself on Koranic universalism rather than legal conformism. It must be open to the idea of its certitudes being challenged, especially in the light of the fact that the founder of the Hanafi school, Imam Abu Hanifa, was himself a model of independent reasoning ( ijtihad ) and flexibility. He introduced the concept ofistihsan, which helps jurists depart from the existing precedent by taking decisions different from those of similar cases, for reasons stronger than those obtained in the past cases.
•Applying istihsan , and devices mentioned above, the AIMPLB can easily overhaul the legal methodology that validates talaq-e-bid’a and harmonise it with the intent of the Koran and Prophetic teachings. In pursuance of this, the board may immediately declare talaq-e-bid’a invalid as the first step towards reform. This, of course, entails a difficult shift from rigid tamazzhub and taqleedto adaptable ijtihad . But the benefits are huge.
•It would open up Islam to modern interpretations within the framework of its original sources, and in the long run inculcate a sense of tolerance among Muslims for different points of view and equip them to respond positively to the requirements of a multicultural society like India. The question is: does AIMPLB realise the momentousness of giving up its obsessive denominationalism?
📰 Pursued by danger
Stalking is not a mere annoyance — it isa crime that requires swift punishment
•The issue of women’s safety comes under the national limelight with shameful regularity. The recent incident of a woman being pursued at night by men in a car in Chandigarh is a reminder that neither law nor public odium is a sufficient deterrent to such crimes. Two men, one of them the son of the Bharatiya Janata Party’s Haryana State unit chief, have been booked for stalking the woman. They have been released on bail; Section 354D of the Indian Penal Code, which pertains to stalking, is a bailable offence. This has attracted the criticism that the police did not invoke more stringent provisions. It is believed that the police had originally sought to include sections relating to an attempt to kidnap the woman, but dropped the idea. The use of a particular section depends on whether the ingredients of the offence are present in the actions of the accused. The onus is on the Chandigarh police to show that available evidence is limited to the offence of stalking. The claim that there is no closed-circuit television footage from anywhere along the entire route needs investigating. The victim’s presence of mind to call the police in time foiled her pursuers’ designs, but not every woman may survive such an ordeal in the same manner. This is one reason why the police, as well as family and friends of the victim, ought to take complaints of stalking seriously, and act at an early stage.
•As crimes against women go, stalking is far too often dismissed as harmless. However, it is important to understand how traumatic and inhibiting it is for a woman to be pursued with unsolicited interest, and for such stalking to be considered ‘normal’. There are times when stalking contains the seed for a bigger, often violent crime. It should not be forgotten that murders and acid attacks have had their origins in stalking. It became an independent offence in 2013, when the country’s criminal law was amended in the wake of the horrific gang rape of a woman in Delhi in December 2012. The hope that expanding the rigour and scope of penal laws would bring down crimes against women has, unfortunately, been belied often since then. The Chandigarh incident reveals that a sense of privilege, flowing as much from gender as political influence, permeates the offenders’ actions. The victim’s father is a senior civil servant, and it may not be easy to give this case a quiet burial. However, there is another, in fact quite familiar, element: the attempt by quarters close to the accused to cast aspersions on the victim. One can only hope that society has advanced sufficiently to call out such victim-shaming. Stalking tends to dominate the public discourse only when it relates to well-known people or results in violence — this episode should compel a deeper understanding of how widespread this offence is, and how rarely offenders are brought to justice.
