Musings

A Rape, A Murder, and An Execution

2019-12-06T01:46:00.000-08:00

Brutal gangrape and murder in Hyderabad on November 26,2019 have led to major protests in Telangana and other parts of the country. The protestors raised issues including an end to violence against women, utilization of Nirbhaya fund, need for structural changes in the society, and justice for the victim. Any attempt by the government at meeting most of these demands would cost money.

The four accused in the case of rape and murder of the female veterinarian were killed by the Telangana police on the early morning of December 6, 2019, at Chatanpally of Shadnagar, 50 km from Hyderabad.

The fact that the culprits were not provided with a fair trial is a matter of concern for certain sections of the population. On the other hand, the arbitrariness with which such execution of culprits was carried out is striking. A concept of justice demand equality before the law. The worthy question is will the police execute all the rape accused in such a manner, will the police execute rape and murder accused who possess the money and political power to resist such actions? The answer is no. Does police execute all the rape and murder accused who do not possess money and political power? The answer again is no. When an action is evidently arbitrary it cannot claim to be justice, but then again features that the culprits and victim must exhibit for police to take such drastic measures is worthy of investigation.

The best way to comprehend any police action is through the perspective of maintenance of order. The protests and demands that emerged due to the gangrape and murder were threatening the mandate of maintaining order, the demands raised by different protesting groups to address the issues of violence against women including structural changes would have been a charge on the State finances. Even if the police do arrest the culprits, protests can carry on for a longer period under the banner of justice while also raising the demand for the structural changes to end the violence against women. Such acts would have put pressure both on the police force and the state treasury. Irrespective of whether it will reduce the crime against women or not, summary execution of the culprits was indeed the cheap and quick measure that the administration could have taken, to end the protests and to weaken the demand for widespread structural changes.

On Lack Feminism In 'Islamic Feminism'

2014-05-16T21:35:00.001-07:00

The use of the term Islamic feminism is understood to be being emerged in Iran among the women writing in the Teheran women's journal Zanan that Shahla Sherkat founded in 1992. Islamic feminism can be defined as "a feminist discourse and practice articulated within an Islamic paradigm." This understanding of the term excludes those feminists who happens to be born in Muslims families but formulate their arguments out the framework of Islam. It also does not include feminist who might use certain instances or events from Islamic works to present their argument but does not articulate themselves within Islamic paradigm. Margot Badran (2002) presents the position of Islamic feminism in the following words:

The basic argument of Islamic feminism is that the Qur'an affirms the principle of equality of all human beings but that the practice of equality of women and men (and other categories of people) has been impeded or subverted by patriarchal ideas (ideology) and practices.

This is reitarated in the words of Fatemah Fakhraie, founder of Muslimah Media Watch, where she states “I see the justification [for feminism] in my faith. In the Qur’an it says that we’re all equal in the eyes of God. It means that the dignity of every person is important.”

When one takes up a position from an Islamic perspective, it's imperative to concede to certain belief without which one could not refer to his/her position as 'islamic'. These are, among others, belief in a perfect book (Qur'an) which is perfect and belief in a person who led the perfect life (Prophet Muhammad). Qura'an itself asserts this status of Muhammad.

Verily in the messenger of Allah ye have a good example for him who looketh unto Allah and the Last Day, and remembereth Allah much. (Al-Ahzab, 21)

Therefore it is no surprise that Islamic laws and rules refers to these elements to legitimize themselves. If a particular aspect is adequately proved to be in conflict with the Qur'an or with the teachings and practices of Islamic prophet Muhammad (Sunnah) that could be declared as un-Islamic and banned from practice. The project of Islamic feminism aims at establishing that equality of women and men in no contradiction with Qur'an atleast. It does not explicitly aim at advancing the cause of Islam Per Se but that of the women within Islamic framework.

The position that can be adequately extracted from the above quoted statement from Margot Badran and Fatemah Fakhraie would be, for Islamic feminists validity of feminism emerges out of their belief in Qur’an, which is assumed to be constant factor and immutable word of the god. This leads to a situation in which those aspects which are explicitly expressed by Qur’an cannot be denied or disowned even if it come in conflict with ideals to which other strands of feminism would pledge loyalty. Two of such ideals would be the denial inherent authority of men over women and legal equality of men and women. In its oft quoted verses Qur'an denies both of these claims.

Qur'an says:

Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband's] absence what Allah would have them guard. But those [wives] from whom you fear arrogance - [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand. (An-Nisa, 34)

So the logical conclusion would be that at some level or under certain condition women can be beaten by their husband, if they perform certain activities which are considered by the Quranic injunction as wrong. Thus explicitly going against the tenets of feminism accepted by feminist around the world that a woman’s body is not accessible to a man just by virtue of being husband for any activity that he view as appropriate. While those women who believe in Qur’an have to accept the contrasting held by Qur'an as it is the word of god.

In the first sentence from An-Nisa 34 quoted above Qur'an explicitly declares the authority of men over women. To add to this in Al-Baqara, Quran states;

And let two men from among you bear witness to all such documents [contracts of loans without interest]. But if two men be not available, there should be one man and two women to bear witness so that if one of the women forgets (anything), the other may remind her. (Al-Baqara 282)

This verse posses a greater challenge as even legal equality between men and women is challenged and declared as wrong by divine almighty Allah through Qur'an, making even the acceptance of nominal legal equality problematic for Islamists as this would contradict the Al-Baqara (282).

Equality is accepted only in the realm of spirituality, the arena in which the individual commune with the god. At this level both men and women will be judged by the god based on there adherence to the Qur’an and righteous life that they led based on it. Conception of men and women revealed by Allah through Qur'an, as elucidated above, is highly gendered.

While arriving at such conclusions it is imperative to provide due attention to the proposal for reinterpretation of Qur'an in a manner which could make it more egalitarian. Even this endeavour runs into difficulties as it is faced with explicit verses such as An-Nisa 34 and Al-Baqara 282. If one tries to place it in the historical context in which Qur'an emerged it would undeniably refute the divine nature of Qur'an as being word of Allah. Thus essentially pulling Islam apart.

An attempt to save Islam from the onslaught of western ideals using relativist argument does not hold good as Islam in itself is an ideology which has a universal message and presents a truth claim before the world. This truth claim is universal not particular, thus any statement in Qur'an is aim at all of human beings irrespetcive of whether you are European, Arab, Persian or any other ethic group. Quran is revealed to humans so that they act according to it. The assumption is any righteous person with right knowledge will became a Muslim and follow Qur'an. It is Qur'an which provides the right knowledge. So any righteous women with right knowledge will undeniable accept the above mentioned verses. Thus from the point of view of Islam, a woman who does not accept these are those who not righteous but possess right knowledge, who are righteous but does not possess right knowledge and those who are neither rightness nor do they possess right knowledge. Last two groups should be made aware of Qur'an embodiment of right knowledge and those who still does not follow Islamic injunction will obviously suffer after their death (!)

Samira shackle in her article 'Can you be a Muslim and a feminist?' rightly points out the that the view such as “Islam and feminism cannot co-exist”, would be handing a victory to conservative faction within Islam. This might be true. It is definitively possible that those who argues for irreconcilability between Islam and feminism would harm the budding women’s movements in countries which follow Islamic laws. As these arguments could be used by the conservative Islamic groups to suppress such movements. This is not a matter of principle but that of the strategy. Women who are in situation in which Islam is taken as a constant in their life have to engage with the conservative factions to ensure that they get certain rights within the framework. It might also be true that 'Islamic feminist' has taken up issues related to class and other. Unfortunately this cannot be taken as an adequate reason to ignore the irreconcilability of feminism and Islam.

On A Well Educated, Well Informed Man Blinded By Religion.

2014-02-28T23:29:00.003-08:00

Our man Mehdi Hasan came up with an article in 'New Statesman'. Like a good journalist he tried to ensure that the title gives an adequate single line summary of the article generating enough curiosity to read further. This brings us to one of those instances when titles says all, here it is “As a Muslim, I struggle with the idea ofhomosexuality – but I oppose homophobia”. Now, does he attempt to say that homophobia is bad but as a muslim he is not comfortable with the idea of homosexuality. To clarify, Mehdi hasan is a practising Muslim, who believes that (historically & factually speaking) Prophet Muhammad went to heaven on a flying horse because its is written in Qu'ran. Thus he can be taken as an example of a person, who is a real believer that is a person who believe Qu'ran and Prophet to be perfect and transcendental.

The edifice of Islam depends upon the believe that the Qur'an is god given. To judge the validity of Qur'ans claims we have to resort to some other moral/ ethical structure (other than Qur'ans). If even a single verse in Qur'an is accepted to be wrong in this manner, it evidently means that Qur'an is not perfect. Thus a muslim can never accept homosexuality as a valid position. Once one verse in Qur'an is accepted to be invalid then whole text looses divinity and all the verses can be taken up analyzed and discards, if found to be wrong. The nature of Qur'an as a valid source of knowledge and proof if challenged. Ultimately it challenges the validity of islam itself. Let us see some of the verses from Qur'an which are explicitly against homosexuality.

"...For ye practice your lusts on men in preference to women, ye are indeed a people transgressing beyond bounds And we rained down on them a shower (of brimstone). See now the nature of the consequence of evil-doers! " (Qur'an 7:81 & 84)

"What! Of all creatures do ye come unto the males, And leave the wives your Lord created for you? Nay, but ye are forward folk. They said: If thou cease not, O Lot, thou wilt soon be of the outcast." (Qur'an 26:165-167)

"Would ye really approach men in your lusts rather than women? Nay, ye are a people (grossly) ignorant!" (Qur'an 27:55)

"And Lot! (Remember) when he said unto his folk: Lo! ye commit lewdness such as no creature did before you. For come ye not in unto males, and cut ye not the road (for travellers)" (Qur'an 29:28-29)

Islam just does not say that "homosexuals can live their lives freely outside the fold of Islam." Islam in itself is an ideology which has a universal message and presents a truth/moral claim before the world. This truth/moral claim is universal not particular, thus any statement in Qur'an is aimed at all of human beings irrespective of whether you are European, Arab, Persian or any other ethic group. Quran is revealed to humans so that they act according to it. The assumption is any righteous person with right knowledge will became a Muslim and follow Qur'an. It is Qur'an which provides the right knowledge. So any righteous person with right knowledge will undeniable accept the above mentioned verses. Thus from the point of view of Islam, a person who does not accept these are those who are:

Not righteous but possess right knowledge,
Righteous but does not possess right knowledge and
Neither rightness nor do they possess right knowledge.

Last two groups should be made aware of Qur'an, the embodiment of right knowledge, and those who still does not follow Islamic injunction will obviously suffer after their death(!). Our dear Hasan rightly ask us to not worry as "out of the 114 chapters of the Quran, 113 begin by introducing the God of Islam as a God of mercy and compassion". So if Homosexuals stop being homosexuals they will be forgiven by the God.

Therefore its impossible for a muslim to accept homosexuality as a valid position, rather they could only view it as an immoral action. Thus Homosexuality is an act which is against the will of the god, but under the overarching power of certain liberal democratic states (which allows for gay rights), all muslims are forced to tolerate. Hasan goes on and on about secularism and tolerance, fact of the matter is he could never give up secularism. There exists no reasonable person who would talk against secularism and religious tolerance in a society where his/her religion is a minority. Probably its the only perspective from which Hasan is able to accept the idea of homosexuality, a sin according to the book he consider as god given and unchallengeable.

We should look at factors that makes a person like Mehdi Hasan, well educated journalist exposed to all world views struggle with the idea of homosexuality. It because of his believe in Islam. If he leave the religious believes then the issue will become much more clear to him.

On The Precarious Foundations Of Khilafat Movement

2013-12-14T10:13:00.001-08:00

Every child in India learns about the Caliphate from the Khilafat movement which undeniably is an integral part of freedom struggles in subcontinent. Mr. Gandhi's decision to undertake and to integrate both non-cooperation movement and Khilafat movement in the 1920, had enemies and friends from the day one onwards. Khilafat movement was essentially a political protest campaign launched with the aim of influencing the British government to protect the Caliphate of Istanbul from the repercussions of World War I.

Caliphate as an institution began with Muhammad’s disciple Abu Bakr. Khalifa was supposed to be the head of the entire community of Muslim faithful (the ummah). Over the centuries, from Abu Bakr till 20th century, the title of Caliph passed through different head, empires and dynasties. The Ottoman rulers began to claim Caliphal authority only after the Ottoman Empire defeated the Mamluk Sultanate in 1517 and took control of most Arab lands, during the reign of Selim I.[1] The last Abbasid Caliph at Cairo, al-Mutawakkil III, was taken into custody and was transported to Constantinople, where he reportedly delivered the symbols of Caliphate to Selim I.[2] A brief overview of historical caliphal authority asserts the fact that it remained with those who had courage and capability to claim it. Ottoman caliphate was one in this list.

It was to protect this Ottoman caliphate that Mohammad Ali and Maulana Shaukat Ali (Known as Ali brothers) with other prominent Muslim league leader joined together to form the All India Khilafat Committee. They aimed to build political unity amongst Muslims and use their influence to protect the caliphate. In 1920, they published the Khilafat Manifesto, which called upon the British to protect the caliphate and for Indian Muslims to unite and hold the British accountable for this purpose.[3] While this endeavour is justified as a genuine attempt to protect the head of the Ummah by the members of it. It chooses to ignore a unique position of Muslims in India, to be accurate, those who were the subjects of erstwhile Mughal empire. To understand this unique position one should start from an important document formulated during the reign of Mughal emperor Akbar The Great.

In 1579 under Akbar's rule, Abul Fazal engineered a document called theologians declaration (mazhar) which declared 'Abu'l – Fath Jalal Al-Din Muhammad Akbar' as Padshah-i-Islam and Sultan-i-Adil, providing him authority over Mujtahid (person qualified to exercise Ijtihad) and over Ijtihad (providing legal interpretation on Islam). This unique endeavour made Akbar theologically capable of selecting among the ijtihad, one which benefits the world (essentially one which benefits him) and make decisions and interpretations based on his rational thought without coming in conflict with scripture. It was interesting at the moment, as this went against some of the prominent systems of thoughts in Islam (such as that of Al-Ghazali) which understood 'gates of ijtihad' as being closed, i.e. no one could engage in this act any more. Thus Akbar placed himself as Khalifa and above even Khalifa in certain aspects.

While these are theological, the practical implications were, it made Akbar and his subjects free from the theological authority of the Khalifa. making the Mughal emperors Khalifas for their Muslim subjects. Thus the identification of Ottoman Caliphate as the head of Muslims community in subcontinent would be theoretically wrong position to take up. If Muslims in India had to protect their caliphate (one they belonged to) they should have had a Khilafat movement when last Mughal emperor Bahadur Shah II was exiled to Burma by the British. Khilafat movement obviously did not take into account these issue while making an attempt to unite the Muslims in the name of ummah. Most probably they were unaware of this position established by Akbar and held by Mughal emperors. Looking back guided with these documents, Khilafat Movement, in it's theoretical base, appears to be shaky and misguided.

References

[1] Thompson, J (2008) A History of Egypt, AUC Press.

[2] M. Pitman, Paul (1987). The Rise of the Turks and the Ottoman Empire (Excerpted from Turkey: A Country Study). Sam Houston State University. Retrieved 14 December 2013.

[3] Minault, Gail (1982) The Khilafat Movement: Religious Symbolism and Political Mobilization in India. Columbia University Press.

Right To Information Act: A Case for amendment

2013-08-05T10:18:00.000-07:00

It was on June 3rd that Central Information Commission (CIC) has ruled that political parties should be brought within the ambit of the Right to Information Act. In the rationale that CIC provided for this peculiar ruling it argued that political parties "have been substantially financed by the Central government and, therefore, they are held to be public authorities under Section 2(h) of the RTI Act.”

It continues to argue that “The criticality of the role being played by these political parties in our democratic set-up and the nature of duties performed by them also point towards their public character, bringing them in the ambit of Section 2(h). The constitutional and legal provisions discussed herein above also point towards their character as public authorities.’’

It seems that two major points that are being raised by CIC in order to bring political parties under the purview of RTI can be enumerated as "substantially financed by the Central government" and their role in political structure of this country, which according to CIC makes political parties "public authorities".

To reach any conclusion of our own, one has to dwell into these claims. Let us be clear that political parties are not government department or part of it. In legal term they are completely separate from the state structure.

The financial support that CIC refers to mostly come as the ad spaces that government provides to different parties in order to ensure that electorate get to know the policies proposed by each parties. A noble attempt indeed in a country where government machinery still remains much more widespread than other private actors.

Now coming to the transparency part, as per the existing legal structure it is mandatory for all political parties to open up their accounts before Income Tax department and the Election Commission. No one can deny the fact that any citizen of this country can avail these information from the said organisation through RTI. If these organisation feel that it requires more information regarding financial situation from political parties it can call upon them to provide such information. Political parties are legally bound to produce such information before Income Tax Department or Election Commission.

Another point that CIC raises is the nature of political parties as 'public authority'. Public authority can be identified as "Any authority which has a legal mandate to govern, administrate a part or aspect of public life, such as all branches of the executive power of a state, province, municipality etc." As per this it is difficult to identify the political parties as public authority. Political parties does not govern any aspect of public life, they can never impose their will upon the public or are legally not part of any executive. There is wall between an individual working as a part of public authority (such as CM, PM etc) or as the member of a political party. A political party is a voluntary association of citizens who joined together based on certain ideology and works within a particular structure. Therefore undeniably all political parties are accountable to its members. This does not mean that any independent individual with no affiliation can be allowed to access such information.

All political parties have their own strategies, criteria to decide in times of disagreement and organisational policies, which are their own internal matters. In any game situation it would be folly to let the opposition know your strategy. A system based on party politics can be seen as a situation of continues game where one should allow parties to have their privacy. At this point it can be conceded that CIC is within its legal rights to include political parties into public authority as the definition of public authority in RTI act allows for using the campaign spaces provide by government to make this declaration. If CIC tries to interfere in the internal matters using such excuses there is a chance that political parties might disavow the ad spaces provided by the government with citizens of this country ending up in the loosing side.

On Human Rights & Capital Punishment

2013-08-03T06:32:00.000-07:00

Substantial number of countries all over the world as of now does not have capital punishment as part of their legal system, the highest punishment for any crimes committed in these countries is determined to be life imprisonment. A fact that was able to provide different movements and organisation all around the world confidence to demand the cessation of capital punishment at a global level. Such movements at international and national levels were able to gather popularity and support enough to make themselves heard in the political sphere of the countries which still uphold capital punishment. India is one such country that still maintains capital punishment as part of its legal system, even though courts are being directed by the supreme court to pronounce such punishment in 'rarest of the rare' case. To the surprise of many, the phrase 'rarest of the rare' which can take a human life is not defined adequately. Debates and deliberation in-order to bring forward an adequate understanding of 'rarest of the rare' are raging in India along with the movements which ask for the total ban on capital punishment. Arguments are being formulated and presented in the public sphere by different actors both for and against these positions.

One of the oft used argument in support of 'right to life' points towards the possibility of fault with the evidence available with the courts of law while passing judgements and emergence of certain unknown aspects later, which might prove the convict to be innocent or to a realization that his/her part in the incident is not as large as believed to be earlier. When such a scenario emerges if the court wants to rethink its judgement it would not be possible if the death penalty has been implemented. Even though this position does require adequate consideration this particular note does not attempt to engage with it. Rather attempt here is to enunciate the relationship between the concept of human rights and capital punishment.

Human rights can be understood as those inalienable rights which every human individual possess by the virtue of being a member of human species. As human rights are inalienable, under no circumstance can it be violated. It stands different in nature from privileged rights (such as the rights emerging from citizenship) which requires the individuals to perform certain function or to occupy certain status in order to be able to avail them. Right to life and individual sovereignty over one's own life stand at the centre of liberal values. Right to life finds itself as most prominent among human rights. Article 3 of 1948 Universal Declaration of Human Rights, adopted by the United Nations General Assembly declares that everyone has the 'right to life'. If we subscribe to the conception of human rights which include 'right to life' then we have to encounter an obvious contradiction that stares at us, the fact of existence of the death penalty in a number of countries in the world (including India).

These being said it becomes imperative to make an attempt to understand the principle on which a justification for capital punishment is made possible. One way to conceptualize it is through an understanding of retributive justice system. In a retributive justice system, those who commit a certain set of crimes can be given capital punishment. Such a framework takes away from the 'right to life' the status of being a human right and reduces it to a privilege. The merit of this principle rest with the relief that it provides. It is capable of satisfying those who want certain rights to be recognized as a human right but still want to maintain capital punishment. It leads to the establishment a conception of human right without 'right to life' being part of it.

Another possibility would be to bring in a socially constructed definition of human being, that is, to deny and de-legitimize the identification of a human being as such just by the virtue of belonging to the human species but to bring in other considerations (such as not committing certain actions which society see as inhuman). Unlike the former position where social understanding of the human being is same as the biological one, here the very idea of being human stripped off its biological notion. Thus it makes it impossible to have any human rights as defined at the beginning of this note.

The conclusion that can be derived from the discussion above would be that at a conceptual level those countries which still maintain capital punishment as a part of their justice system does not conceptually recognize 'right to life' as human right. At this juncture, doubt can be raised about the existence of the human rights itself but let us not forget there is one right which even the most cruel tyrant of our time will claim to have provided to even his most hated enemy, that is, the right to fair trial. There is not even a single country in this world that would not argue that it provided everyone within its jurisdiction with a fair trail. Thus even though there is no consensus among the countries of the world with respect to the 'right to life' as a human right, the fair trail as an ideal concept which requires to be implemented globally is accepted. Making it probably the only human right that no one dares to question.

On The Limits Of Liberal Democracy

2013-07-31T05:06:00.002-07:00

Liberal democracy can be identified as a form of government which is characterized by fair, free, and competitive elections between multiple political organization, a separation of powers into different branches of government with checks and balances put into place, the existence and implementation of rule of law in everyday life and the protection of human rights and civil liberties for all people.

The end of cold war and demise of communist governments through out the world has made liberal democracy capable to dominate the arena of political formation. It has been presented as the only alternative available in the present time with Fukuyama coming forward with grand declaration like that of the ‘end of history’. Even though we find liberal democracy to be the natural order of the day it is not without certain inherent tensions. These tensions can be found in the very formulation of liberal democracy.

Chantal Mouffe identifies liberal democracy as composed of or the result of the uneasy compromise among the two major traditions, that of, the liberal tradition constituted by the rule of law, the defence of human rights and the respect of individual liberty and the democratic tradition whose main ideas are those of equality, identity between governing and governed and popular sovereignty. It is possible to identify the issues faced by liberal democracy as those presented by tension inherent in the formulation of its framework.

Authors such as Benjamin Constant has noted the tension that existed between the tradition associated with Locke, which gives greater weight to "the liberties of the moderns",which includes, freedom of thought and conscience, certain basic rights of the person and of property and the rule of law and the tradition associated with Rousseau, which gives greater weight to the "liberties of the ancients", which includes, the equal political liberties and the values of public life. This tension has been carried over through out the discussions and deliberation on the issues regarding the liberal democratic regimes with some liberals such as F.A Hayek arguing that democracy is an instrument, a means for safeguarding internal peace and individual freedom.

This being the first and foremost role of the democracy, liberals asserts that it can and should be discarded if it endangers the liberal institutions. On a different note but still insisting upon the supremacy of the liberal institution other liberals have undertook a line of argument that people deciding in a rational manner, could not go against rights and liberties and, if they happened to do so, their verdict should not be accepted as legitimate. We find from the other side, staunch democrats has been keen to dismiss liberal institutions as ‘bourgeois formal liberties’ and to fight for their replacement by direct forms of democracy in which the will of the people could be expressed without hindrances. Democratic regimes establishes itself on the base of a ‘demos’ the people who form the polity. This ‘demos’ formed not on the basis of humanity but on the idea of commonality among the people who comes to form the polity. Therefore a certain conception of justice common to all the member is an imperative in the formulation and maintenance of democratic institutions. Thus dichotomy between the liberal emphasis on individual rights and liberties and democratic emphasis on collective formation and will-formation underlies the institution of liberal democracy.

Even though it has been accepted both in theory and practice that in a liberal democratic structure that it is legitimate to establish limits to popular sovereignty in the name of liberty. These limits are usually engraved to ensure that the established structures respects and protects the human rights. These human rights are defined and articulated on the basis of the existing dominant ideology therefore are subjected to change. Thus a clear case has been made for ensuring the existence of the limits to popular sovereignty but the nature and scope of these limits are flexible. On one side this structure serves to protect individual rights, on the other side, those rights provide the necessary conditions for the exercise of popular sovereignty. These can be understood as the paradox presented by the liberal democracies.

Freedom of Speech: Indian and US Constitutional Law

2013-07-30T10:00:00.003-07:00

The debate over the freedom of speech and expression has become almost a daily incident in the popular media, academic circles or general conversation of citizens all over the world. India is no exception to this trend, rather it is exhorted here with unparalleled vigour among the general public. In such conversations in India, at least, United States of America is enthralled as the land of absolute free speech where the restriction such as we see in India does not come into picture.

These being said one must indulge in identifying certain important fact and concepts before embarking on an attempt to write about freedom of speech and expression as they presents themselves in Indian and US constitutional law.

It should be remembered that fundamental rights are different from the concept of human rights. Human rights are those inalienable right which every individual possess by the virtue of being a member of human species. As human rights are inalienable under no circumstance can it be violated. On the other hand fundamental rights are the gift of the state to its citizens. They cease to exists with the termination of citizenship of an individual by the state. Being a gift of the state to its citizens the constitution of a state is well within its rights to impose restriction on it. Like in Indian constitution the article regarding “freedom of speech and expression” finds its place among the fundamental rights as article 19(1)A along with certain restrictions on the said fundamental right.

If such restrictions are not placed in the constitution itself, it remains under the authority of the courts (guardians of constitution) which are equipped with the ability to interpret the constitution to impose such restrictions on the fundamental rights as and when it seems to be in need of restrictions after due consideration. In US constitutional law the authority to impose restrictions on fundamental rights rests with the US congress.

In Gitlow v. New York, (268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925) Supreme Court upholding the constitutionality of criminal anarchy statutes, it advocated that:

"It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom"

Court continues:

"That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question."

Even when subsequently it tone down its position on restrictions placed on free speech, US court maintained that states may prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action.

The conclusion that emerged out of this was that the legislature may decide that certain speech can be prohibited. Those legislative decisions will be upheld if not unreasonable and will be enforceable rule punishable under law. Thus the state is provided with the authority to restrict the rights through evoking the concept of police power. This leads to a precarious situation where legislature can make laws to restrict rights but court can accept or struck in down if it identifies it to be reasonable or unreasonable respectively.

On the other hand in Indian by inscribing the list of reasonable restrictions in the constitution itself. Constitution limits the power that can be exerted by all three wings of government (Executive, Legislature and Judiciary). The legislature can only make laws in so far as it comes under the provisions provided in the constitution and supreme court does not have to be too creative as in US rather it should only consider whether the law passed by the legislature are in line with articles in Indian constitution.

Just Another "abc" Story

2010-10-21T04:53:00.000-07:00

Mr. A

Why would a being powerful enough to satisfy its wishes with the sheer act of conceiving one ever wish for anything? Why would a being that requires no other being as a prerequisite for it origin and everlasting existence like to exist? Perhaps to assume the existence of such a being itself is fallacious?

These weird thoughts that mind produces may be the effect of joblessness, as this body lay on a bed covered with white sheet and eyes staring at the rotating fan, a black spot on the unbearable whiteness of this room. I have nothing to fear than this mind and the game it plays with me, no mortal could penetrate the human fort created by my men around this building, two men at my door whom I can see from this bed do convey that message. I have nothing to fear; land is three floors below me and sky two floors above. But this heartless mind, even when I try to train my left arm for all that remains ahead of it, won’t let me forget the absence of once prominent right hand.

What did I do to lose it? Is it a sin to send one van and four men with the goal to obtain ‘it’ for me? ‘It’ is what he desired most in this world? He yes “He”… He can be called my enemy. Don’t ask me when we started being enemies, I don’t know. It is not an issue of concern for us now. It is this hatred, developed into an urge to see his destruction that had been guiding this life for long period. For year all his challenges were answered with the vigor which flows from the heavens into me when his name is uttered. But today I will be calm, it’s not the time to cry or for an emotional outburst. Even humiliation of this magnitude cannot make me commit an act of blunder to slip into one more defeat. I will wait and will never forget that last scene in which he walked out with ‘it’ with winner written all over his face. But next time it will be me… it should be me.

Mr. B

“To not answer a ringing phone is nothing but foolishness, it’s the bearer of information and information decides the outcome of all conflicts. This was his fault; he earned it the moment he failed to attend to the desperate call of his spy before that little creature went into the earth with a brain filled with all the information that could have provided him with the ultimate victory.”
Contemplating on the series of events that occurred last day over a tea and a paper is a habit which is not going to detach itself from me for the years to come, but thoughts being something that would not take the linear path wander around the arena of mind touching upon all that is even remotely related them. ‘He’ was the main food of this troubled mind of mine for many years, even today, but today to think of him is to think of the victory. To take away from your enemy that which he consider as precious provides one with incomparable pleasure. For both of us most precious in this world is the suffering of the other, an instant in which we could feel it through all senses available to the human race. He thought something could be more precious for me than this…fool. I never desired ‘it’ but ‘it’ became important to me when he took ‘it’, that’s when I decided to acquire it.

Thousand forbidden fruits cannot provide this pleasure, but just one added with his humiliation did the work.

“Sir”
Yes this is the voice, the one which I waited to hear.

“It’s in the river”

“Hmm” I look at him to get more from that mouth.

“Hospital is surrounded by his men. It’s impossible to get in.”

“I will meet you in the office.” While getting up from the chair this is the only word that I could utter.

Miss. C

“Agony….”

When a large body of water pulls one, with the heavy iron running over the body joining hands to legs, into its depth there is no time to think. What is left is, to feel the weight of humiliation injected into the body for the last time and to accept death.

Commandments of God The Great

2009-11-09T05:23:00.000-08:00

To all those who are created by me.

Today after long long years of silence I have decided to send you a message. Oh hear me.
You all are created by me,
Some ignorant people may deny this fact, don't give you ears to them
They ask ,"what was before me? Who Created me?
Ignorant fool they don't know that I was always here
And I will always be here
You cannot talk about thing before me
As I created time
"Before and after" comes only when there is time
Always believe in me
I have already created hell for sinners asking these questions

All those clerics who serves me should be taken care of by you
As they are my dearest of dearest people
Seeing them in poverty don't make the mistake of underestimating my ability
They will be given all they want after their death
Greatest of all food
Greatest of all cloth
Greatest of all house
Greatest of all pleasure ( Woh !)
They will be given all that they had forgone in the dusty earth
Remember that soul is made up of gold (?)

You can also come to me and be my nearest and dearest
And enjoy this heaven
But for that do what my clergy tells you
Obey the words of prophets
live as they instructs
(They might have informed you about hell and heaven)

If you are in poverty still follow the words of prophets
In heaven I will make you rich ( after your death obviously)
If you are humiliated and suppressed by someone, Don't worry
If you happens to see him suffer, then know that it's my work
If you never see him suffer don't worry.
After his death I will cut his head (in short he will suffer)
You may still doubt me
If want proof, read the holy text
There are innumerable examples inscribed there.
If still you are not happy, come to me
I will show you
For that first go and die.