New Delhi: The central government on Monday told the Supreme Court that it was the will of the people to have transparent, accountable and criteria-based appointment of judges through the National Judicial Appointment Commission (NJAC) instead of the collegium system whose working was shrouded in mystery.
Contending parliament and the 20 state assemblies, which have backed the NJAC, represented the people, Attorney General Mukul Rohatgi told the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel that it was the people who wanted the change in the method of judges’ appointment.
Describing the junked collegium system akin to “you scratch my back, I will scratch yours”, he sought to thrash the challenge to NJAC on the grounds that it compromised the independence of judiciary as judicial members of the commission were not in majority and did not have the “right to insistence” in the appointments.
Asserting that there was no primacy of judiciary in the constitution, Rohatgi told the court that the right to insist upon an appointment is not available to the judicial members of the NJAC comprising chief justice of India and two seniormost judges after him.
The court was told this in the course of the hearing of a batch of petitions including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others challenging the constitutional validity of the constitution’s Ninety Nine Amendment Act, 2014 and NJAC Act, 2014.
Assailing the petitioners’ position that the NJAC is an assault on the independence of judiciary – described as the basic structure of the constitution, Rohatgi told the court that appointment of judges was not a part of such independence which only starts with after appointment in terms of their conditions of service and working.
However, on being questioned by the court, he conceded that even appointment of judges formed a part of independence of judiciary but a “very small” part.
Telling the court that it could not adjudicate on the “wisdom of the parliament” in choosing one model over another in appointment of judges, Rohatgi said that 1993 second judges verdict of judges appointing judges was “coloured by the expediency of the time then and the court should have changed it itself with things getting normal”, referring to the mid-1970s which saw the supercession and mass transfers of judges.
He said if the court had not corrected the position on its own then there were “no fetters on parliament to restore the original provision of article 124 of the constitution which gave government primacy in the judicial appointments”.
Defending NJAC, Rohatgi contended that under the new system, the government’s powers in the appointment of judges had been diluted, as it was one of the six members of the NJAC.
Scoffing at the suggestion that two eminent people on the NJAC will collude with the law minister to render judicial component ineffective, he said there was no reason why these two representing the diversity of society would not hold the CJI and two other judges in reverence.
Describing the resistance to NJAC as an “argument of psychosis” based on “surmises” and “possibility of abuse of the process”, he said a possibility can’t be a basis of challenge while any “actual abuse” can be addressed by the court.
Rohatgi, asserting that nine out of 10 names for the appointment of judges would get cleared without any dissent, argued: “If CVC (central vigilance commissioner) can be appointed by people at loggerheads (prime minister, home minister and leader of opposition) it is absurd to have a proposition that two eminent people on the NJAC will have a jaundiced or evil eye.” (IANS)
Madrid, October 22, 2017 : Spanish Prime Minister Mariano Rajoy has outlined plans to remove Catalonia’s leaders and take control of the separatist region.
Speaking after an emergency cabinet meeting on Saturday, Rajoy stopped short of dissolving the region’s parliament but put forward plans for elections, BBC reported.
The measures must now be approved by Spain’s Senate in the next few days.
Large crowds have gathered in Barcelona to protest against direct rule from Madrid. It comes almost three weeks after Catalonia held a disputed independence referendum.
Spain’s Supreme Court had declared the vote illegal and said it violated the constitution, which describes the country as indivisible.
Catalan leader Carles Puigdemont has ignored pleas from the national government to abandon moves towards independence.
Rajoy said the the Catalan government’s actions were “contrary to the law and seeking confrontation”. He said it was “not our wish, it was not our intention” to impose direct rule.
This will be via Article 155 of Spain’s constitution, which allows it to impose direct rule in a crisis on any of the country’s semi-autonomous regions.
Spanish law dictates that elections must be held within six months of Article 155 being triggered, but Rajoy said it was imperative that the vote be held much sooner.
Reports say that Spain’s interior ministry is preparing take control of Catalonia’s Mossos police force and remove its commander Josep Lluís Trapero, who is already facing sedition charges.
The government is also considering taking control of Catalonia’s public broadcaster TV3, El País newspaper reported.
Catalan Vice-President Oriol Junqueras said Rajoy and his allies had “not just suspended autonomy. They have suspended democracy”.
Barcelona Mayor Ada Colau said it was a “serious attack on the rights and freedoms of all, both here and elsewhere” and called for demonstrations.
The president of Barcelona football club, Josep Maria Bartomeu, said the club gave its “absolute support for the democratic institutions of Catalonia chosen by its people”.
But he called for any reaction to be “civil and peaceful” and said dialogue was the only way to a solution.
Eduard Rivas Mateo, spokesman for the Catalan Socialist party — which supports the Spanish government’s stance but also wants constitutional reform — said he could not accept a “harsh application” of Article 155.
But Ines Arrimadas, head of the centrist Ciudadanos party in Catalonia, which is against independence, said holding fresh elections would “restore goodwill and democracy” in the region.
Rajoy’s use of Article 155 had been widely anticipated, but his announcement when it came still had a huge impact. The article has never been invoked before, so there was a certain amount of mystery surrounding its potential reach and meaning.
Although Rajoy insisted that Catalonia’s self-government is not being suspended, many will disagree. The removal from office of Carles Puigdemont and all the members of his cabinet, to allow ministers in Madrid to take on their duties, amounts to a major reining in of Catalonia’s devolved powers.
The Spanish Prime Minister said one of his aims is to restore peaceful co-existence to Catalonia with these measures.
Many Catalans who want to remain in Spain will approve of this strident action. But those who want independence for their region are likely to see this as a provocation rather than a solution. (IANS)
No country has declared Hinduism as its official state religion – despite India being an influential Hindu political party
Hinduism is not an official or preferred religion in any country of the world, according to a Pew Research Center report.
53% of 199 nations considered in the study don’t have an official religion
80 countries are assigned either an “official religion” or “preferred religion”
Nevada, USA, October 16: Hinduism is the primeval and third largest religion of the world with about 1.1 billion followers of moksh (liberation) being its utmost desire of life. India is among the category of nations where the government do not have an official or preferred religion.
Pew Research Center is a nonpartisan fact tank headquartered in Washington DC that aims to inform the public about the issues, attitudes and trends shaping America and the world.
The report states that a country’s official religion is regarded as a legacy of its past and present privileges granted by the state. And a few other countries fall on the other side of the gamut, and propagate their religion as the ‘official religion’, making it a compulsion for all citizens.
It adds up on the context of allocation that more than eight-in-ten countries (86%) provide financial support or resources for religious education programs and religious schools that tend to benefit the official religion.
Commenting on Hinduism, the report states:
In 2015, Nepal came close to enshrining Hinduism, but got rejected of a constitutional amendment due to a conflict between pro-Hindu protesters and state police.
Although India has no official or preferred religion as mentioned in the Constitution,it was found by PEW that in India the intensity of government constraints and social antagonism involving religion was at a peak. “Nigeria, India, Russia, Pakistan and Egypt had the highest levels of social hostilities involving religion among the 25 most populous countries in 2015. All fell into the “very high” hostilities category,” the report added.
As per the 2011 census, it was found that 79.8% of the Indian population idealizes Hinduism and 14.2% practices to Islam, while the rest 6% pursuit other religions.
While Hinduism stands up with the majority, Article 25 of the Constitution of India contributes secularism allowing for religious freedom and allows every Indian to practice his/her religion, without any intervention by the community or the government.
Distinguished Hindu statesman Rajan Zed, President of Universal Society of Hinduism, applauded the Hindu community for their benefaction to the society and advised Hindus to concentrate on inner purity, attract spirituality towards youth and children, stay far from the greed, and always keep God in the life.
According to Pew, these are “places where government officials seek to control worship practices, public expressions of religion and political activity by religious groups”.
Cases of sexual violence, including rape, fall within the larger realm of domestic violence
Marital rape is yet to be categorized as a criminal offence in India
According to the central government, criminalizing marital rape “may destabilize the institution of marriage”
New Delhi, September 2, 2017 : Baby works as a domestic help; she says she cannot recall her age when her parents married her off to a man who was much older to her; a man she barely knew. She didn’t anticipate her husband would demand to have intercourse on their wedding night. She was still young and not ready, but that didn’t stop him. Baby was raped by her husband on her wedding night. But marital rape means nothing to her.
Sunita irons clothes for a living. She says has been married for more years than she can remember. The duo has four kids together, but that doesn’t stop her husband from raising a hand or two on her, every once in a while. Every night, her husband would get drunk, hit her and forcefully demand to have sex, paying no heed to her resistance. Sunita has three daughters, and a son, and the husband still wants to have progenies. “I told my mother that this man has raped me multiple times. She protested, arguing that he is ‘your husband’ after all,” she said.
But did she never decide to approach the authorities?
To this, Sunita promptly replied, “I once had a sore eye after he (the husband) hit me with his shoe when I refused to have sex. I went to the local hospital and then the police. I narrated the entire scene; they were very considerate, offered me water and then asked me to go home and ‘adjust’.”
Sunita is unaware of a term called ‘marital rape’.
This is the reality of a huge part of the society in real India.
Like Baby and Sunita, women who suffer such indignities are often asked to “adjust” with perpetrators of violence because of a deep –embedded fear of what the society would say. This notion of an ‘ideal woman’ impedes women to object to illicit treatment meted out by their ‘better halves’.
The debate around the issue has become ripe once again with the Central Government stating that what “may appear to be marital rape” to a wife “may not appear so to others”. In an affidavit to the Delhi High Court, the central government took a stand against criminalizing marital rape saying that it “may destabilize the institution of marriage” and also become easy tool for harass the husbands and the in-laws.
Rape is defined in Section 375 of the Indian Penal Code, but with an irregularity: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
While rape is addressed as perforation without a woman’s accord in its main clause, the only remedy to forced intercourse provided to ‘married’ woman is specified under Section 498-A of the IPC and the civil provisions of the Protection of Women from Domestiic Violence Act.
Following the horrific 2012 Nirbhaya rape case that brought the entire world to a standstill, the Indian media has given paramount coverage to instances of rape across the country. But even after 5 years of the gut-wrenching incident, there seems no end to this crime.
Cases of sexual violence, including rape, fall within the larger realm of domestic violence. However, rape by husbands within holy matrimony continues to remain an obscure subject in India and the exact number of cases is hard to gauge.
According to a 2015 report by National Crime Record Bureau (NCRB) tracing the proximity of offenders to the victims of sexual violence, it was revealed that in 95 per cent of all rapes, the offenders were familiar to the survivors. These, presumably include acquaintances, friends, relatives and colleagues.
And what about rape committed by husbands?
In light of the debate over marital rape, a reminder: if you actually ask women, almost all the sexual violence they face is from husbands pic.twitter.com/BRVXk0cbbJ
These cases continue to be an under-reported crime in India. This can be attributed to two major reasons,
Because of the stigma associated with it
Because of the presence of a defunct justice system
Furthermore, more often than not, these cases go missing because of several additional (and unnecessary) barriers stemming from a combination of familial and/or social power structures, shame and dependency.
Marital Rape In India
While most of the developed world has penalized marital rape, surprisingly it is yet to be categorized as an offence in India.
A United Nations’ report titled ‘Why do some men use violence against women and how can we prevent it?’ published in 2013 disclosed that nearly a quarter of 10,000 men in Asia-Pacific region, including India, admitted to have indulged in the rape of a female partner. The report traced their rationale to a deep-embedded belief that they are entitled to sex despite the consent of their partners.
The study also revealed that the majority of these instances were not reported and the perpetrators faced no legal consequences.
In 2014, United Nations Population Fund (UNFPA), in association with International Centre for Research on Women (ICRW) brought out a report titled ‘Masculinity, Intimate Partner Violence and Son Preference in India’. Among other things, the report analyzed the average Indian male’s understanding and interpretation of the idea of ‘masculinity’ and how that molds their interactions with women.
Not surprisingly, the study revealed that a typical man in the Indian society associated the attributes ‘tough’, and ‘controlling’ with masculinity.
Segments of the present day Indian society continue to look at men as tough forces, who can (must) freely exercise their privilege to establish rule in personal relationships and above all, continue to control women.
Additionally, the study also revealed that 60 per cent of the Indian men disclosed the use of physical violence to establish authority.
In India, stiff patriarchal norms continue to tilt the gender balance firmly in the favor of men, as a result of which, women are forced to internalize male dominance in their lives.
Marital Rape in India : A Legal Perspective
Section 375 essentially distinguishes between two categories of women
Much to the Indian society’s disappointment, the Indian legal system denies protection from rape to the married woman. This creates discrimination as the women belonging to one section are denied justice merely by virtue of being married.
But can there be two different definitions of rape? Can there be a differentiation between the rape of a married woman and the rape of an unmarried woman? Is it justified to discriminate a woman just because she is married to the man who has raped her?
The Debate Around Marital Rape In India
Despite the piquant situation, the issue raised furor when Minister of State for Home, Haribhai Parathibhai Chaudhary told the Parliament that the question of criminalizing marital rape in India has no relevance “as marriage is treated as sacred here.”
Does marriage being a sacrament provide one with the legal right to rape a woman?
South Asia director at Human Rights Watch Meenakshi Ganguly had retaliated saying that it is particularly concerning when a government that claims to secure the safety of women inside and outside national territory shamelessly turn to justify a crime in the name of culture and tradition.
India can learn something from its neighbours. Nepal has laws against marital rape, so does Bhutan
Group director of social and economic development at the International Centre for Research on Women (ICRW) Priya Nanda asserted in an interview with a leading portal that “the reason men don’t want to criminalize marital rape is because they don’t want to give a woman the power to say no.”
In 2013, a three-member commission headed by Justice J.S. Verma suggested remedial measures to combat sexual violence in India, following the 2012 Nirbhaya rape case. One of its recommendations was the criminalization of marital rape.
The recommendation was ignored by the government as a large amount of people questioned its efficiency saying if made a crime,
It might be misused by people
It will be difficult to prove
It might break up marriages
But, how fair is it to not have a law against marital rape, only because of the reason that it is ‘difficult to prove’?
In a broader understanding, it needs to be understood that the criminalization of marital rape must not be viewed as a step against men or the institution of matrimony, but as an attempt to demolish the patriarchal system that continues to clutch the Indian society.
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