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Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Wednesday 30 October 2019
Friday 26 April 2019
Why the Indian Supreme Court Has Found Itself in an Embarrassing Controversy
There is an important question before the judiciary: Who will be the custodian of the custodians? Rajeev Dhavan in The Wire
Chief Justice of India Ranjan Gogoi (centre). Credit: PTI
Between December 2018 and April 2019, certain controversies concerning the Supreme Court of India have surfaced:
The first concerns the dismissal of an employee for taking casual leave and protesting against her transfer.
The second surrounds the scandalising of the chief justice of India by the said employee.
Third, the remedial action taken by the Supreme Court suo motu (on its own) under the writ jurisdiction of the court with the chief justice on the bench but not passing the order signed by Justices Mishra and Khanna.
Fourth, involving the exclusive in-house procedure for high court and Supreme Court judges.
These controversies are ongoing and may in, as much as they can, put the very notion of justice on trial. Our Supreme Court has often quoted Lord Atkin’s observations in a contempt case of 1936:
“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
This article is not intended to obstruct justice or bring into disrepute our justice system – with the Supreme Court at its apex – or the high office of the chief justice of India. It examines issues of due process and procedure.
Dismissal of an employee
An unprecedented controversy has arisen concerning an employee, who was transferred from the CJI’s ‘home’ or residence office, was suspended and later dismissed from the Supreme Court’s service. The charges against her included questioning her transfer, bringing/soliciting undue influence from the president of the Supreme Court Employees Welfare Association on her transfers and taking leave without approval.
Her response was that she had been transferred three times, she had gotten leave for her daughter’s function and was asked to attend office for a little while but couldn’t and the branch officer was informed, and she had spoken to the president of the employees association to find out what was happening but not to influence outcomes. After her suspension order on November 27, 2018, she was asked to appear before a departmental committee hearing on December 17, 2018, but collapsed outside the door due to anxiety and was told on December 19, 2018, that the charges against her had been proven.
The next day her husband wrote to the officer concerned to present her defence statement. However, on December 21, 2018, she was dismissed from service. In another part of the story, with which may not directly be concerned, her husband and brother-in-law were dismissed from the Delhi police on a basis unconnected with the Supreme Court; namely a prior incident of 2012 which had been mutually settled and for links with undesirables.
Also read: Why the Panel to Investigate Sexual Harassment Allegations Against CJI Is Problematic
Far from being a drop in the ocean, or a storm in a teacup concerning an employee, it concerns the administration of justice by the Supreme Court’s administration. I assume that the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules 1961 apply. Dismissal from service is a major penalty, though it is not clear from the information available whether her dismissal would disqualify her for future employment (under Rule 11).
It is arguable that such a major penalty should not have been imposed; and although formal procedures were followed, they may have been insufficient and hurried. That can only be found when we examine the record of the inquiry which statutorily would include the charges, a written defence, oral and documentary evidence, orders of the Disciplinary Authority and a report.
Thereafter, due process would have dictate whether a major penalty must be imposed – which would normally follow if there is conviction on a criminal charge or “where the Disciplinary Authority is satisfied for some reason to be recorded in writing it is not reasonably practicable to give to the Court an opportunity of showing cause before (awarding) any of the (major)… penalties…” (Rule 13).
Until we have the full record, we shall not know of the details of the rigour of the due process that were followed or the reasons for not doing so, bearing in mind that the woman had the same protection that civil servants under Article 311 of the constitution possess. For the present, the internal justice meted out to the employee seems in violation of due process and prima facie excessive. This is becoming more and more evident as information is coming out that she was not given a proper hearing and crucial witnesses were not examined at the inquiry. At the age of 35, her chances of further employment have been diminished.
Though not part of the charges, in the Supreme Court, it transpired that an FIR was filed against her on March 3, 2019, allegedly for taking a bribe from the informant (NK) who gave her a part payment of Rs 50,000 (part of Rs 10 lakh to be paid) to secure a job in the Supreme Court. She was granted bail on March 12, 2019, but the case was transferred to the Crime Branch which moved for the cancellation of her bail. In turn, she complained, later in March, of harassment by the police, writing letters to the prime minister, National Human Rights Commission and others. If this is a case of victimisation, it would raise more issues.
It could be argued that a little injustice here or there will not dent the majesty of the law. But surely the motto of any court action in its administrative or judicial side must be: “We, who fight for justice must ourselves be just.”
Scandalising the court justice
According to the law of contempt, if a person or media makes any allegation against judges or justice system which brings them in disrepute can be punished for scandalising the judiciary. This offence was invented by Justice Wilmot in 1765 in a draft order never delivered in the John Wilkes affair, but published in 1802 by his son.
Since it covers the media, it is a species of constructive contempt. It is included in the definition of criminal contempt under India’s Contempt of Courts Act 1971 (Section 2 (c)(iii)), and in any case also draws from the high court and Supreme Court power as a court of record with the specific power to punish for contempt (constitution Articles 129 and 215) and any other power in addition to the powers under the Act of 1971.
In a 1899 Privy Council case, English judges said this offence was “obsolete” for England, but may be relevant in “small colonies consisting principally of the coloured population”. This redemption for English justice was short lived and scandalising the judges was revived, but used sparingly in recent years. In India, the scandalising jurisdiction is used more frequently, despite the caution of Justice Krishna Iyer in the Mulgaonkar case (1978).
With this introduction, let us turn to our case. On April 19, 2019, the woman who was dismissed wrote to 22 judges of the Supreme Court detailing sexual harassment and sexual advances by the CJI in October 2018, giving explicit details of events when advances were made. She claimed further humiliation by being forced into apology under pressure for her insolence and that her dismissal was a case of victimisation, since the alleged major embarrassing incident took place on October 11, 2018. For our present purposes, we need not elaborate on the details.
Also read: Why CJI Gogoi Should Step Away From Judicial Work Till In-House Inquiry is Complete
What is important for our purpose is that when the media sought clarification from the CJI, the relevant response of Secretary General Sanjeev S. Kalgaonkar (apart from denying victimisation, and asserting that her family had criminal antecedents and treating the allegations against the CJI as an after thought to her dismissal) categorically stated:
“The allegations regarding 11th October 2018, as well as other allegations as can be discerned from your emails are completely and absolutely false and scurrilous and totally denied… the motive behind these false and scurrilous allegations is obviously mischievous.”
Whether this response was shared with the CJI before or after it was made is not clear, though no Secretary General would normally make such a public reply without consultation. One must, therefore, take this statement as the official response of the Supreme Court in consultation with the CJI. Hence it was the CJI’s response as well.
It is necessary to add that after the Vishakha case (1997), cases of sexual harassment are to be dealt with by a special procedure. But the Supreme Court’s Gender Sensitisation and Sexual Harassment of Women Regulations 2013 exclude complaints by employees in that Regulation 2 (a) defines an aggrieved person to exclude “a female already governed by the Supreme Court Service regulations”. This is a significant exclusion, denying the rigour of sexual harassment procedures which are applicable to non-employees within the precincts of the court but not the employees.
Be that as it may, the #MeToo movement has advanced the presumption that the complainant’s version be treated as prima facie bonafide. A sexual harassment case against CJI Gogoi needs to be moved forward.
Procedure for scandalising
We must pause here for a moment because the Secretary General clearly felt that a case of scurrilous scandalising is made out, the procedure ahead is clear. Under the Contempt of Courts Act 1971, a case of criminal contempt can only commence if the Attorney General or Solicitor General permit or if the Supreme Court does so on its own motion (Section 15 of the Act 1971). The way forward was simple. Issue notice of contempt to the woman and anyone else who repeated the alleged scandalising comments including the media. But the court did not initiate a notice of contempt nor did the Solicitor General present such a motion to the court.
Therein lies the problem. If such a notice was issued, the contempt proceedings would normally be in open hearings. Both the Mulgaonkar case concerning the Indian Express (1978) and Shamlal concerning the Times of India (1978) were about exposing the pusillanimity of Supreme Court judges during the Emergency. Except Chief Justice Beg, no one wanted this. Two of the judges (Justices Chandrachud and Bhagwati) were in line to become CJIs. Justice Krishna Iyer, behind the scenes, and in his judgment counselled restraint to avoid further publicity, which is inevitably one of the consequences of contempt hearings in open hearings. No less, the views aired at the time were that even though truth was not specifically a defence, it would be invoked against the justices.
Justice Krishna Iyer told me he was well aware of this consequence. His judgment constitutes what have come to be called the Mulgaonkar guidelines. No contempt – no controversy. After the amendment of the Contempt of Court Act 1971, in 2006, Section 13 of the Act specifically allows truth as a defence. The relevant portion reads:
“13. Contempts not punishable in certain cases – Notwithstanding anything contained in any law for the time being in force … (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”
This would create awkwardness in the proceedings, to say the least. ‘Truth’ as a defence is available “in any proceeding for contempt”. In our present context, it would mean that the woman would present all the detailed evidence in her favour for invoking truth as defence, even thought the proceeding would be to protect the judge, not the complainant.
This was the only remedy by and through which the Supreme Court could have proceeded, but it chose not to do so. Treating this case as a purely contempt case would have proved hazardous for the CJI.
The Supreme Court’s suo motu action
Instead of a case in contempt for scandalising, the Supreme Court processed a writ petition as a “Matter of Great Importance touching upon the Independence of the Judiciary – mentioned by Tushar Mehta: Secretary General of India”. No petition was filed. It is clear that even if the CJI was the master of roster, he could not have handpicked judges and certainly not sat on the bench.
It cannot be overlooked that Justice Gogoi was part of the four judges who protested in public then Chief Justice Deepak Misra’s abuse of his power over the roster. Chief Justice Misra had also handpicked Justice Arun Mishra, who appears to have been picked in the present case in the special Saturday hearing on April 20. The less said, the better.
For the moment, let us assume that the petition was maintainable and that either (a) someone’s fundamental right was infringed upon, or (b) that this writ was part of the undefined power of the Supreme Court as a Court of Record, which specifically includes the power to punish for contempt. But since these proceedings were in lieu of contempt for scandalising, a new procedure was evolved at the instance of the CJI, albeit on the mentioning of Solicitor General Mehta.
In the hearings of the suo motu case, the Supreme Court did not caution a censorship of details which were in the public domain but invited the cooperation of the media by stating in its order of April 20:
“Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.”
This is not a gag order, but a request to be respectfully treated as a gag: In the Sahara case (2012), the Supreme Court assumed a power to postpone reportage where criminal proceedings were pending, under the court’s inherent power as a Court of Record. The inherent power seems to be increasing by leaps and bounds. This invisible reservoir of power is slowly becoming visible and subject to diverse uses.
What needs elucidation is that the court’s proceedings of April 20 were specially held on a Saturday morning with the Attorney General K.K. Venugopal, Solicitor General Tushar Mehta and president of the Supreme Court Bar Association, Rakesh Khanna being present. What seems astonishing is that CJI Gogoi was also part of the bench, but not a signatory to the order. No person can be a judge in their own cause or hand pick a bench. At best, it could have gone to some other bench without the urgency of a Saturday hearing. Master of the roster or not, I think the proceedings in this writ petition are sufficiently tainted and should be closed.
Instead of closing this suo motu writ petition, whose sole purpose was to quiet the storm of protest arising out of the CJI controversy, on April 23-24 the Court issued notice to advocate Utsav Bains who filed an affidavit in which he asserts that there was a wider conspiracy involving a corporate figure who, along with an alleged fixer Romesh Sharma, tried to “frame the Hon’ble Chief Justice of India in a false case of sexual harassment to pressurize him to resign” and that Bains was privy to documents under sealed cover to prove this. On April 24, the bench consisting of Justices Arun Mishra, Nariman and Gupta summoned the highest officers of the CBI and police. The simplest solution would be to ask the CBI to investigate and file an information to this effect without the ensuing drama which has now become a part of the crisis.
The in-house procedure
Since the judges did not want complaints to be aired ad lib against them short of impeachment, an in-house procedure was created as a result of the agitation of the Bombay bar concerning the chief justice of Bombay in the Ravichandran Iyer case (1995). This in-house procedure was to protect public faith in high court judges. The question posed by the judgment was:
“When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public confidence in the efficacy of judicial process.”
The purpose was to prevent public discussion by the media or agitation by the Bar and to protect judges by harmonising free speech rights. The judgment, therefore, explores self regulation: “It seems to us self regulation by the judiciary is the only method which can be tried and adopted.” The trajectory was an in-house inquiry following which matters could eventually be acted upon by the CJI until when the Bar was to “suspend all action”. The court said,
“The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned.”
Of course, in our case, it is the CJI who is involved. In a better-late-than-never initiative, the CJI passed the controversy to Justice S.A. Bobde (senior-most judge after the CJI), who will now assume the role assigned to the CJI in the Iyer case. Since Justice N.V. Ramana said he will not be a part of the panel, its constitution remains in question. Who will the panel report to? Surely not to CJI Gogoi? We are compelled to raise the further question as to whether CJI Gogoi was fully involved in the creation of procedure in this case.
Also read: Charge Against CJI Gogoi Should Be Handled Correctly If SC Wants to Keep People’s Faith
This procedure was also used in the Bangalore crisis and Justice Gupta (then chief justice of Kerala who inquired into it) told me that nobody wanted to depose against the judges. In the Madhya Pradesh case, such a committee was appointed against high court Judge ‘X’ who was later absolved. How would the woman complainant fare in a committee examining the case against a CJI noting that (a) the Supreme Court’s Secretary General has already taken a view that the allegations are scurrilous and (b) truth in its totality would not be a defence. I really think this in-house procedure was directed against the Bar in Iyer’s case in a particular situation and its extension is dangerous and undesirable as a clandestine in camera process.
No in-house procedure can be a substitute for a sexual harassment case.
Reviewing the controversy
This controversy is embarrassing in many respects:
I believe the dismissal proceedings against the woman employee were unfair.
The Supreme Court through its Secretary General had already taken a view that her comments were scurrilous presumably with the CJI’s knowledge since it aired his defence.
The procedure adopted on the Saturday hearing was unfair and tainted and must be closed.
If the Supreme Court felt the court was scandalised, the court should have issued contempt proceedings giving the accused woman the right to invoke truth as a defence.
The in-house procedure under the Iyer case is clumsy and unfair.
No in-house procedure can be a substitute for a sexual harassment case. The woman would have little chance and it is a moot question who would depose against the CJI under these circumstances.
There remains the question of whether during his investigation, the CJI should continue to sit in his judicial or administrative capacity. I am strongly of the view that we should continue to discharge both these functions in the confidence that he will not interfere with any procedure further. We have yet to learn the manner in which the in-house procedure will proceed.
We have seen that the CJI is likely to have known of the dismissal proceedings. He was certainly instrumental in constituting the suo motu bench. He is likely to have known of the Secretary General’s statement in his defence that the allegations were scurrilous. He had a choice to proceed in contempt as he did in the Justice Katju case, but may have felt that this might be perilous in the present case. He may have been right to pass on the controversy to an in-house, procedure, as an alternative because after the hearing on April 23, the judges of the first five courts appear to have met in conclave while hearings in those courts were suspended. The CJI seems to be in the know of the choices of procedures to deal with the crisis – each more inventive than the other.
In any case, this is a no-win situation. If the in-house procedure results in his favour, it will be sought to be questioned – but there is no forum for doing so. If it goes against him, the embarrassment will be greater, leading to resignation or impeachment.
Looking to the future
Having said this, there is a need for a judicial accountability mechanism for the high courts and Supreme Court through a constitutional amendment, as in so many countries. There must be a procedure to answer the adage Quis custodiet ipsos custodes: Who will be the custodian of the custodians.
Chief Justice of India Ranjan Gogoi (centre). Credit: PTI
Between December 2018 and April 2019, certain controversies concerning the Supreme Court of India have surfaced:
The first concerns the dismissal of an employee for taking casual leave and protesting against her transfer.
The second surrounds the scandalising of the chief justice of India by the said employee.
Third, the remedial action taken by the Supreme Court suo motu (on its own) under the writ jurisdiction of the court with the chief justice on the bench but not passing the order signed by Justices Mishra and Khanna.
Fourth, involving the exclusive in-house procedure for high court and Supreme Court judges.
These controversies are ongoing and may in, as much as they can, put the very notion of justice on trial. Our Supreme Court has often quoted Lord Atkin’s observations in a contempt case of 1936:
“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
This article is not intended to obstruct justice or bring into disrepute our justice system – with the Supreme Court at its apex – or the high office of the chief justice of India. It examines issues of due process and procedure.
Dismissal of an employee
An unprecedented controversy has arisen concerning an employee, who was transferred from the CJI’s ‘home’ or residence office, was suspended and later dismissed from the Supreme Court’s service. The charges against her included questioning her transfer, bringing/soliciting undue influence from the president of the Supreme Court Employees Welfare Association on her transfers and taking leave without approval.
Her response was that she had been transferred three times, she had gotten leave for her daughter’s function and was asked to attend office for a little while but couldn’t and the branch officer was informed, and she had spoken to the president of the employees association to find out what was happening but not to influence outcomes. After her suspension order on November 27, 2018, she was asked to appear before a departmental committee hearing on December 17, 2018, but collapsed outside the door due to anxiety and was told on December 19, 2018, that the charges against her had been proven.
The next day her husband wrote to the officer concerned to present her defence statement. However, on December 21, 2018, she was dismissed from service. In another part of the story, with which may not directly be concerned, her husband and brother-in-law were dismissed from the Delhi police on a basis unconnected with the Supreme Court; namely a prior incident of 2012 which had been mutually settled and for links with undesirables.
Also read: Why the Panel to Investigate Sexual Harassment Allegations Against CJI Is Problematic
Far from being a drop in the ocean, or a storm in a teacup concerning an employee, it concerns the administration of justice by the Supreme Court’s administration. I assume that the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules 1961 apply. Dismissal from service is a major penalty, though it is not clear from the information available whether her dismissal would disqualify her for future employment (under Rule 11).
It is arguable that such a major penalty should not have been imposed; and although formal procedures were followed, they may have been insufficient and hurried. That can only be found when we examine the record of the inquiry which statutorily would include the charges, a written defence, oral and documentary evidence, orders of the Disciplinary Authority and a report.
Thereafter, due process would have dictate whether a major penalty must be imposed – which would normally follow if there is conviction on a criminal charge or “where the Disciplinary Authority is satisfied for some reason to be recorded in writing it is not reasonably practicable to give to the Court an opportunity of showing cause before (awarding) any of the (major)… penalties…” (Rule 13).
Until we have the full record, we shall not know of the details of the rigour of the due process that were followed or the reasons for not doing so, bearing in mind that the woman had the same protection that civil servants under Article 311 of the constitution possess. For the present, the internal justice meted out to the employee seems in violation of due process and prima facie excessive. This is becoming more and more evident as information is coming out that she was not given a proper hearing and crucial witnesses were not examined at the inquiry. At the age of 35, her chances of further employment have been diminished.
Though not part of the charges, in the Supreme Court, it transpired that an FIR was filed against her on March 3, 2019, allegedly for taking a bribe from the informant (NK) who gave her a part payment of Rs 50,000 (part of Rs 10 lakh to be paid) to secure a job in the Supreme Court. She was granted bail on March 12, 2019, but the case was transferred to the Crime Branch which moved for the cancellation of her bail. In turn, she complained, later in March, of harassment by the police, writing letters to the prime minister, National Human Rights Commission and others. If this is a case of victimisation, it would raise more issues.
It could be argued that a little injustice here or there will not dent the majesty of the law. But surely the motto of any court action in its administrative or judicial side must be: “We, who fight for justice must ourselves be just.”
Scandalising the court justice
According to the law of contempt, if a person or media makes any allegation against judges or justice system which brings them in disrepute can be punished for scandalising the judiciary. This offence was invented by Justice Wilmot in 1765 in a draft order never delivered in the John Wilkes affair, but published in 1802 by his son.
Since it covers the media, it is a species of constructive contempt. It is included in the definition of criminal contempt under India’s Contempt of Courts Act 1971 (Section 2 (c)(iii)), and in any case also draws from the high court and Supreme Court power as a court of record with the specific power to punish for contempt (constitution Articles 129 and 215) and any other power in addition to the powers under the Act of 1971.
In a 1899 Privy Council case, English judges said this offence was “obsolete” for England, but may be relevant in “small colonies consisting principally of the coloured population”. This redemption for English justice was short lived and scandalising the judges was revived, but used sparingly in recent years. In India, the scandalising jurisdiction is used more frequently, despite the caution of Justice Krishna Iyer in the Mulgaonkar case (1978).
With this introduction, let us turn to our case. On April 19, 2019, the woman who was dismissed wrote to 22 judges of the Supreme Court detailing sexual harassment and sexual advances by the CJI in October 2018, giving explicit details of events when advances were made. She claimed further humiliation by being forced into apology under pressure for her insolence and that her dismissal was a case of victimisation, since the alleged major embarrassing incident took place on October 11, 2018. For our present purposes, we need not elaborate on the details.
Also read: Why CJI Gogoi Should Step Away From Judicial Work Till In-House Inquiry is Complete
What is important for our purpose is that when the media sought clarification from the CJI, the relevant response of Secretary General Sanjeev S. Kalgaonkar (apart from denying victimisation, and asserting that her family had criminal antecedents and treating the allegations against the CJI as an after thought to her dismissal) categorically stated:
“The allegations regarding 11th October 2018, as well as other allegations as can be discerned from your emails are completely and absolutely false and scurrilous and totally denied… the motive behind these false and scurrilous allegations is obviously mischievous.”
Whether this response was shared with the CJI before or after it was made is not clear, though no Secretary General would normally make such a public reply without consultation. One must, therefore, take this statement as the official response of the Supreme Court in consultation with the CJI. Hence it was the CJI’s response as well.
It is necessary to add that after the Vishakha case (1997), cases of sexual harassment are to be dealt with by a special procedure. But the Supreme Court’s Gender Sensitisation and Sexual Harassment of Women Regulations 2013 exclude complaints by employees in that Regulation 2 (a) defines an aggrieved person to exclude “a female already governed by the Supreme Court Service regulations”. This is a significant exclusion, denying the rigour of sexual harassment procedures which are applicable to non-employees within the precincts of the court but not the employees.
Be that as it may, the #MeToo movement has advanced the presumption that the complainant’s version be treated as prima facie bonafide. A sexual harassment case against CJI Gogoi needs to be moved forward.
Procedure for scandalising
We must pause here for a moment because the Secretary General clearly felt that a case of scurrilous scandalising is made out, the procedure ahead is clear. Under the Contempt of Courts Act 1971, a case of criminal contempt can only commence if the Attorney General or Solicitor General permit or if the Supreme Court does so on its own motion (Section 15 of the Act 1971). The way forward was simple. Issue notice of contempt to the woman and anyone else who repeated the alleged scandalising comments including the media. But the court did not initiate a notice of contempt nor did the Solicitor General present such a motion to the court.
Therein lies the problem. If such a notice was issued, the contempt proceedings would normally be in open hearings. Both the Mulgaonkar case concerning the Indian Express (1978) and Shamlal concerning the Times of India (1978) were about exposing the pusillanimity of Supreme Court judges during the Emergency. Except Chief Justice Beg, no one wanted this. Two of the judges (Justices Chandrachud and Bhagwati) were in line to become CJIs. Justice Krishna Iyer, behind the scenes, and in his judgment counselled restraint to avoid further publicity, which is inevitably one of the consequences of contempt hearings in open hearings. No less, the views aired at the time were that even though truth was not specifically a defence, it would be invoked against the justices.
Justice Krishna Iyer told me he was well aware of this consequence. His judgment constitutes what have come to be called the Mulgaonkar guidelines. No contempt – no controversy. After the amendment of the Contempt of Court Act 1971, in 2006, Section 13 of the Act specifically allows truth as a defence. The relevant portion reads:
“13. Contempts not punishable in certain cases – Notwithstanding anything contained in any law for the time being in force … (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”
This would create awkwardness in the proceedings, to say the least. ‘Truth’ as a defence is available “in any proceeding for contempt”. In our present context, it would mean that the woman would present all the detailed evidence in her favour for invoking truth as defence, even thought the proceeding would be to protect the judge, not the complainant.
This was the only remedy by and through which the Supreme Court could have proceeded, but it chose not to do so. Treating this case as a purely contempt case would have proved hazardous for the CJI.
The Supreme Court’s suo motu action
Instead of a case in contempt for scandalising, the Supreme Court processed a writ petition as a “Matter of Great Importance touching upon the Independence of the Judiciary – mentioned by Tushar Mehta: Secretary General of India”. No petition was filed. It is clear that even if the CJI was the master of roster, he could not have handpicked judges and certainly not sat on the bench.
It cannot be overlooked that Justice Gogoi was part of the four judges who protested in public then Chief Justice Deepak Misra’s abuse of his power over the roster. Chief Justice Misra had also handpicked Justice Arun Mishra, who appears to have been picked in the present case in the special Saturday hearing on April 20. The less said, the better.
For the moment, let us assume that the petition was maintainable and that either (a) someone’s fundamental right was infringed upon, or (b) that this writ was part of the undefined power of the Supreme Court as a Court of Record, which specifically includes the power to punish for contempt. But since these proceedings were in lieu of contempt for scandalising, a new procedure was evolved at the instance of the CJI, albeit on the mentioning of Solicitor General Mehta.
In the hearings of the suo motu case, the Supreme Court did not caution a censorship of details which were in the public domain but invited the cooperation of the media by stating in its order of April 20:
“Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.”
This is not a gag order, but a request to be respectfully treated as a gag: In the Sahara case (2012), the Supreme Court assumed a power to postpone reportage where criminal proceedings were pending, under the court’s inherent power as a Court of Record. The inherent power seems to be increasing by leaps and bounds. This invisible reservoir of power is slowly becoming visible and subject to diverse uses.
What needs elucidation is that the court’s proceedings of April 20 were specially held on a Saturday morning with the Attorney General K.K. Venugopal, Solicitor General Tushar Mehta and president of the Supreme Court Bar Association, Rakesh Khanna being present. What seems astonishing is that CJI Gogoi was also part of the bench, but not a signatory to the order. No person can be a judge in their own cause or hand pick a bench. At best, it could have gone to some other bench without the urgency of a Saturday hearing. Master of the roster or not, I think the proceedings in this writ petition are sufficiently tainted and should be closed.
Instead of closing this suo motu writ petition, whose sole purpose was to quiet the storm of protest arising out of the CJI controversy, on April 23-24 the Court issued notice to advocate Utsav Bains who filed an affidavit in which he asserts that there was a wider conspiracy involving a corporate figure who, along with an alleged fixer Romesh Sharma, tried to “frame the Hon’ble Chief Justice of India in a false case of sexual harassment to pressurize him to resign” and that Bains was privy to documents under sealed cover to prove this. On April 24, the bench consisting of Justices Arun Mishra, Nariman and Gupta summoned the highest officers of the CBI and police. The simplest solution would be to ask the CBI to investigate and file an information to this effect without the ensuing drama which has now become a part of the crisis.
The in-house procedure
Since the judges did not want complaints to be aired ad lib against them short of impeachment, an in-house procedure was created as a result of the agitation of the Bombay bar concerning the chief justice of Bombay in the Ravichandran Iyer case (1995). This in-house procedure was to protect public faith in high court judges. The question posed by the judgment was:
“When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public confidence in the efficacy of judicial process.”
The purpose was to prevent public discussion by the media or agitation by the Bar and to protect judges by harmonising free speech rights. The judgment, therefore, explores self regulation: “It seems to us self regulation by the judiciary is the only method which can be tried and adopted.” The trajectory was an in-house inquiry following which matters could eventually be acted upon by the CJI until when the Bar was to “suspend all action”. The court said,
“The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned.”
Of course, in our case, it is the CJI who is involved. In a better-late-than-never initiative, the CJI passed the controversy to Justice S.A. Bobde (senior-most judge after the CJI), who will now assume the role assigned to the CJI in the Iyer case. Since Justice N.V. Ramana said he will not be a part of the panel, its constitution remains in question. Who will the panel report to? Surely not to CJI Gogoi? We are compelled to raise the further question as to whether CJI Gogoi was fully involved in the creation of procedure in this case.
Also read: Charge Against CJI Gogoi Should Be Handled Correctly If SC Wants to Keep People’s Faith
This procedure was also used in the Bangalore crisis and Justice Gupta (then chief justice of Kerala who inquired into it) told me that nobody wanted to depose against the judges. In the Madhya Pradesh case, such a committee was appointed against high court Judge ‘X’ who was later absolved. How would the woman complainant fare in a committee examining the case against a CJI noting that (a) the Supreme Court’s Secretary General has already taken a view that the allegations are scurrilous and (b) truth in its totality would not be a defence. I really think this in-house procedure was directed against the Bar in Iyer’s case in a particular situation and its extension is dangerous and undesirable as a clandestine in camera process.
No in-house procedure can be a substitute for a sexual harassment case.
Reviewing the controversy
This controversy is embarrassing in many respects:
I believe the dismissal proceedings against the woman employee were unfair.
The Supreme Court through its Secretary General had already taken a view that her comments were scurrilous presumably with the CJI’s knowledge since it aired his defence.
The procedure adopted on the Saturday hearing was unfair and tainted and must be closed.
If the Supreme Court felt the court was scandalised, the court should have issued contempt proceedings giving the accused woman the right to invoke truth as a defence.
The in-house procedure under the Iyer case is clumsy and unfair.
No in-house procedure can be a substitute for a sexual harassment case. The woman would have little chance and it is a moot question who would depose against the CJI under these circumstances.
There remains the question of whether during his investigation, the CJI should continue to sit in his judicial or administrative capacity. I am strongly of the view that we should continue to discharge both these functions in the confidence that he will not interfere with any procedure further. We have yet to learn the manner in which the in-house procedure will proceed.
We have seen that the CJI is likely to have known of the dismissal proceedings. He was certainly instrumental in constituting the suo motu bench. He is likely to have known of the Secretary General’s statement in his defence that the allegations were scurrilous. He had a choice to proceed in contempt as he did in the Justice Katju case, but may have felt that this might be perilous in the present case. He may have been right to pass on the controversy to an in-house, procedure, as an alternative because after the hearing on April 23, the judges of the first five courts appear to have met in conclave while hearings in those courts were suspended. The CJI seems to be in the know of the choices of procedures to deal with the crisis – each more inventive than the other.
In any case, this is a no-win situation. If the in-house procedure results in his favour, it will be sought to be questioned – but there is no forum for doing so. If it goes against him, the embarrassment will be greater, leading to resignation or impeachment.
Looking to the future
Having said this, there is a need for a judicial accountability mechanism for the high courts and Supreme Court through a constitutional amendment, as in so many countries. There must be a procedure to answer the adage Quis custodiet ipsos custodes: Who will be the custodian of the custodians.
Thursday 24 August 2017
Two cheers for the Supreme Court
Gautam Bhatia in The Hindu
On the 4th of November, 1948, Dr. B.R. Ambedkar rose to address the Constituent Assembly, and proudly stated that “the... Constitution has adopted the individual as its unit”. On Tuesday, this constitutional vision, under siege for much of India’s journey as a democratic republic, came within a whisker of destruction at the hands of the Supreme Court. But when all the dust had cleared in Courtroom No. 1, it finally became evident that Chief Justice J.S. Khehar had been able to enlist only one other judge, out of a Bench of five, to support his novel proposition that the religious freedom under the Indian Constitution protected not just individual faith, but whole systems of “personal law”, spanning marriage, succession, and so on. This view would not only have immunised instantaneous triple talaq (talaq-e-biddat) from constitutional scrutiny, but would also — in the Chief Justice’s own words — have ensured that “it is not open for a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”.
Had the Chief Justice managed to persuade one other judge to sign on to his judgment, we would have found ourselves living under a Constitution that sanctions the complete submergence of the individual to the claims of her religious community. A reminder, perhaps, of how even the most basic constitutional values, often taken for granted, hang by nothing more than the most fragile of threads. But if the relegation of the Chief Justice’s argument to a legally irrelevant dissenting opinion narrowly averted disaster, the separate opinions of three judges invalidating the practice of talaq-e-biddat gave us something to cheer about — but not much. By a majority decision, instantaneous triple talaq is now invalid, a significant victory that is the result of many decades of struggle by the Muslim women’s movement for gender justice. That is something that must be welcomed. However, the value of a Supreme Court judgment lies not only in what it decides, but also in the possibilities and avenues that it opens for the future, for further progressive-oriented litigation. In that sense, the triple talaq verdict is a disappointment, because even the majority opinions proceeded along narrow pathways, and avoided addressing some crucial constitutional questions.
The majority
Justice Rohinton F. Nariman, writing for himself and Justice U.U. Lalit, held that the 1937 Muslim Personal Law (Shariat) Application Act had codified all Muslim personal law, including the practice of triple talaq. This brought it within the bounds of the Constitution. He then held that because talaq-e-biddat allowed unchecked power to Muslim husbands to divorce their wives, without any scope for reconciliation, it was “arbitrary”, and failed the test of Article 14 (equality before law) of the Constitution. The practice, therefore, was unconstitutional.
Justice Nariman’s reasoning, while technically faultless, avoided the elephant in the room that had been ever-present since the hearing began. Under our constitutional jurisprudence, codified personal law — that is, personal law that has been given a statutory form, such as the Hindu Marriage Act — is subject to the Constitution. However, uncodified personal law is exempted from constitutional scrutiny. In other words, the moment the state legislates on personal law practices, its actions can be tested under the Constitution, but if the state fails to act, then those very practices — which, for all relevant purposes, are recognised and enforced by courts as law — need not conform to the Constitution. This anomalous position, which had first been advanced by the Bombay High Court in a 1952 decision called Narasu Appa Mali, and has never seriously been challenged after that, has the effect of creating islands of “personal law” free from constitutional norms of equality, non-discrimination, and liberty.
By holding that the 1937 Act codified all Muslim personal law, Justice Nariman obviated the need for reconsidering this longstanding position, even as he doubted its correctness in a brief, illuminating paragraph. As a matter of constitutional adjudication and judicial discipline, he was undoubtedly right to do so. However, it is impossible to shake off the feeling that the court missed an excellent opportunity to review, and correct, one of its longstanding judicial errors. It seems trite to say that in our polity, there should not exist any constitutional black holes. The basic unit of the Constitution, as Ambedkar said, is the individual, and to privilege state-sanctioned community norms over individual rights negates that vision entirely.
In a separate opinion — which turned out to be the “swing vote” in this case — Justice Kurian Joseph did not go even that far. He simply held that talaq-e-biddat found no mention in the Koran, and was no part of Muslim personal law. Effectively, he decided the case on the ground that talaq-e-biddat was un-Islamic, instead of unconstitutional — begging the question whether secular courts should be adjudicating such questions in the first place. If Justice Nariman’s opinion was narrow and technical, Justice Joseph’s was narrow and theological. Therefore, in a case that involved, at its heart, issues of the intersection between personal law, the Constitution, and gender discrimination, there is no majority view on any of these topics.
The dissent
This brings us back to the dissent. Not only did the dissenting opinion privilege community claims over individual constitutional rights, it also conflated the freedom of religion with personal law, thereby advancing a position where religion could become the arbiter of individuals’ civil status and civil rights. Here again, it had been Ambedkar, extraordinarily prescient, who had warned the Constituent Assembly on the 2nd of December, 1948: “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death... if personal law is to be saved, I am sure... that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extent beyond beliefs and rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”
Ultimately, what separates religious norms and personal law systems — and this includes all religions — from the laws of a democratic republic is the simple issue of consent. This is why the Chief Justice’s conflation of religious freedom and personal law was so profoundly misguided: because, in essence, he took a constitutional provision that had been designed to protect an individual, in her faith, from state interference, and extended it to protect a personal law system that claims authority from scriptures — scriptures whose norms are applied to individuals who had no say in creating them, and who have no say in modifying or rejecting them. The Muslim women challenging triple talaq invoked the Constitution because there was no equivalent within their personal law system; the Chief Justice would have denied not only them that possibility, but would have denied to every other individual, who felt oppressed and unequally treated by her religious community, for all time — and told them, as he did in this case: “Go to Parliament, but the Constitution has nothing for you.”
At the very least, the Majority judgments did not close that window. For that, we must say: two cheers to the Supreme Court.
On the 4th of November, 1948, Dr. B.R. Ambedkar rose to address the Constituent Assembly, and proudly stated that “the... Constitution has adopted the individual as its unit”. On Tuesday, this constitutional vision, under siege for much of India’s journey as a democratic republic, came within a whisker of destruction at the hands of the Supreme Court. But when all the dust had cleared in Courtroom No. 1, it finally became evident that Chief Justice J.S. Khehar had been able to enlist only one other judge, out of a Bench of five, to support his novel proposition that the religious freedom under the Indian Constitution protected not just individual faith, but whole systems of “personal law”, spanning marriage, succession, and so on. This view would not only have immunised instantaneous triple talaq (talaq-e-biddat) from constitutional scrutiny, but would also — in the Chief Justice’s own words — have ensured that “it is not open for a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”.
Had the Chief Justice managed to persuade one other judge to sign on to his judgment, we would have found ourselves living under a Constitution that sanctions the complete submergence of the individual to the claims of her religious community. A reminder, perhaps, of how even the most basic constitutional values, often taken for granted, hang by nothing more than the most fragile of threads. But if the relegation of the Chief Justice’s argument to a legally irrelevant dissenting opinion narrowly averted disaster, the separate opinions of three judges invalidating the practice of talaq-e-biddat gave us something to cheer about — but not much. By a majority decision, instantaneous triple talaq is now invalid, a significant victory that is the result of many decades of struggle by the Muslim women’s movement for gender justice. That is something that must be welcomed. However, the value of a Supreme Court judgment lies not only in what it decides, but also in the possibilities and avenues that it opens for the future, for further progressive-oriented litigation. In that sense, the triple talaq verdict is a disappointment, because even the majority opinions proceeded along narrow pathways, and avoided addressing some crucial constitutional questions.
The majority
Justice Rohinton F. Nariman, writing for himself and Justice U.U. Lalit, held that the 1937 Muslim Personal Law (Shariat) Application Act had codified all Muslim personal law, including the practice of triple talaq. This brought it within the bounds of the Constitution. He then held that because talaq-e-biddat allowed unchecked power to Muslim husbands to divorce their wives, without any scope for reconciliation, it was “arbitrary”, and failed the test of Article 14 (equality before law) of the Constitution. The practice, therefore, was unconstitutional.
Justice Nariman’s reasoning, while technically faultless, avoided the elephant in the room that had been ever-present since the hearing began. Under our constitutional jurisprudence, codified personal law — that is, personal law that has been given a statutory form, such as the Hindu Marriage Act — is subject to the Constitution. However, uncodified personal law is exempted from constitutional scrutiny. In other words, the moment the state legislates on personal law practices, its actions can be tested under the Constitution, but if the state fails to act, then those very practices — which, for all relevant purposes, are recognised and enforced by courts as law — need not conform to the Constitution. This anomalous position, which had first been advanced by the Bombay High Court in a 1952 decision called Narasu Appa Mali, and has never seriously been challenged after that, has the effect of creating islands of “personal law” free from constitutional norms of equality, non-discrimination, and liberty.
By holding that the 1937 Act codified all Muslim personal law, Justice Nariman obviated the need for reconsidering this longstanding position, even as he doubted its correctness in a brief, illuminating paragraph. As a matter of constitutional adjudication and judicial discipline, he was undoubtedly right to do so. However, it is impossible to shake off the feeling that the court missed an excellent opportunity to review, and correct, one of its longstanding judicial errors. It seems trite to say that in our polity, there should not exist any constitutional black holes. The basic unit of the Constitution, as Ambedkar said, is the individual, and to privilege state-sanctioned community norms over individual rights negates that vision entirely.
In a separate opinion — which turned out to be the “swing vote” in this case — Justice Kurian Joseph did not go even that far. He simply held that talaq-e-biddat found no mention in the Koran, and was no part of Muslim personal law. Effectively, he decided the case on the ground that talaq-e-biddat was un-Islamic, instead of unconstitutional — begging the question whether secular courts should be adjudicating such questions in the first place. If Justice Nariman’s opinion was narrow and technical, Justice Joseph’s was narrow and theological. Therefore, in a case that involved, at its heart, issues of the intersection between personal law, the Constitution, and gender discrimination, there is no majority view on any of these topics.
The dissent
This brings us back to the dissent. Not only did the dissenting opinion privilege community claims over individual constitutional rights, it also conflated the freedom of religion with personal law, thereby advancing a position where religion could become the arbiter of individuals’ civil status and civil rights. Here again, it had been Ambedkar, extraordinarily prescient, who had warned the Constituent Assembly on the 2nd of December, 1948: “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death... if personal law is to be saved, I am sure... that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extent beyond beliefs and rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”
Ultimately, what separates religious norms and personal law systems — and this includes all religions — from the laws of a democratic republic is the simple issue of consent. This is why the Chief Justice’s conflation of religious freedom and personal law was so profoundly misguided: because, in essence, he took a constitutional provision that had been designed to protect an individual, in her faith, from state interference, and extended it to protect a personal law system that claims authority from scriptures — scriptures whose norms are applied to individuals who had no say in creating them, and who have no say in modifying or rejecting them. The Muslim women challenging triple talaq invoked the Constitution because there was no equivalent within their personal law system; the Chief Justice would have denied not only them that possibility, but would have denied to every other individual, who felt oppressed and unequally treated by her religious community, for all time — and told them, as he did in this case: “Go to Parliament, but the Constitution has nothing for you.”
At the very least, the Majority judgments did not close that window. For that, we must say: two cheers to the Supreme Court.
Friday 19 May 2017
The courts and matters of faith
Peter Ronald deSouza in The Hindu
We need to make a distinction between matters of conscience and matters of faith
There is an uncanny similarity of argument between the Rashtriya Swayamsevak Sangh (RSS) and the All India Muslim Personal Law Board (AIMPLB) on controversies that have to do with belief. This is illustrated best in their respective positions on the Ram Setu and the triple talaq debates.
In 2005, on the Ram Setu issue, the RSS stated that their opposition to the UPA government’s plan to dredge a canal between Rameswaram, off the coast of Tamil Nadu, and the islands of Mannar, near Sri Lanka, was a “matter of faith and hence required no substantiation”.
Twelve years later the counsel for the AIMPLB has offered a similar argument in the Supreme Court when making his client’s case on the practice of triple talaq. A Constitution Bench of five justices is to decide on whether the practice of divorce by triple talaq is consistent with the protections guaranteed to individuals by the Indian Constitution. In opposition to pleas that the practice be considered unconstitutional, the AIMPLB counsel stated that triple talaq “is a matter of faith. Hence there is no question of constitutional morality and equity”.
This argument that matters of faith be given special status needs to be assessed. Why should matters of faith be given immunity from scrutiny?
Three responses can be offered to this question. Let me, on grounds of brevity, refer to them as (i) the special status of faith, (ii) the issue of validity, and (iii) ethical codes in modern democracies.
Special status of faith
At the outset we must acknowledge that faith, as religious belief, must have special status in any constitutional order. It constitutes the core of an individual’s sense of self and is the basis of a believer’s conscience.
Belief is a matter of personal choice and no external authority, whether state, cultural community, or religious congregation, can tell an individual what her beliefs should be. To do so is to violate the individual’s freedom of conscience guaranteed by most constitutional systems and human rights covenants. But on matters of faith, an important distinction has to be made.
All ‘matters of conscience’ are ‘matters of faith’, but not all ‘matters of faith’ are ‘matters of conscience’. It is only matters of conscience that are protected by the freedom-granting provisions of the Constitution. Matters of conscience are individual-centric. They have an ethical core that guides the choices that an individual makes.
They endow the world with meaning and give the individual purpose. In contrast, the ‘matters of faith’ which the RSS and the AIMPLB are referring to — while they may look similar to ‘matters of conscience’ — are not so for they are group, not individual, centric. They have a component that is based on evidence, whether this is textual, historical, or empirical. In other words, the belief is contingent on the evidence. For example it would take the following form: ‘we believe X because it is said so in our holy book’.
It is the ‘because of’ component that demands analytical and scientific scrutiny of the matters of faith. Does the holy book actually say so? Did Lord Ram really build the Setu?
Further, when matters of faith have harmful social consequences, they must be subject to scrutiny since the Constitution guarantees the individual protection from harm.
This is the basis of all social reform in our history.
When the AIMPLB says that triple talaq has evolved in the last 1400 years, it has inadvertently conceded that the practice is not cast in stone. Let the court’s intervention be part of that evolution.
The issue of validity
The many advances in linguistics, cultural anthropology, gender studies and, of course, the natural sciences can make the probing of the ‘because of’ component of the belief very exciting. For example, a textual analysis of a holy book using a study of old and new grammar, or the etymology of the word, or its placement in a sentence are all ways of arriving at the meaning of the statement.
Textual analysis has advanced considerably and hence is available to determine the validity of the interpretation being offered by scriptural authority. The many schools of Islamic jurisprudence are testimony to this plurality of interpretations.
To that can be added the modern tools of linguistic analysis, gender studies, human rights jurisprudence, and cultural anthropology. The validity of triple talaq must be subject to textual interpretation. Similarly with the Ram Setu claim. It too must be scrutinised by modern science.
Ethical codes in democracies
The most difficult issue in this debate is how to respond to the situation where, after scrutiny, the matter of faith is found to be valid but considered by many in need of change such that it conforms to the contemporary ethics of human rights.
When the counsel for the AIMPLB says that there is “no question of constitutional morality and equity” in matters of faith, he is building a wall, a fashion these days, behind which the orthodox will police their community. Such a wall must not be built. It has no place in a constitutional democracy.
We need to make a distinction between matters of conscience and matters of faith
There is an uncanny similarity of argument between the Rashtriya Swayamsevak Sangh (RSS) and the All India Muslim Personal Law Board (AIMPLB) on controversies that have to do with belief. This is illustrated best in their respective positions on the Ram Setu and the triple talaq debates.
In 2005, on the Ram Setu issue, the RSS stated that their opposition to the UPA government’s plan to dredge a canal between Rameswaram, off the coast of Tamil Nadu, and the islands of Mannar, near Sri Lanka, was a “matter of faith and hence required no substantiation”.
Twelve years later the counsel for the AIMPLB has offered a similar argument in the Supreme Court when making his client’s case on the practice of triple talaq. A Constitution Bench of five justices is to decide on whether the practice of divorce by triple talaq is consistent with the protections guaranteed to individuals by the Indian Constitution. In opposition to pleas that the practice be considered unconstitutional, the AIMPLB counsel stated that triple talaq “is a matter of faith. Hence there is no question of constitutional morality and equity”.
This argument that matters of faith be given special status needs to be assessed. Why should matters of faith be given immunity from scrutiny?
Three responses can be offered to this question. Let me, on grounds of brevity, refer to them as (i) the special status of faith, (ii) the issue of validity, and (iii) ethical codes in modern democracies.
Special status of faith
At the outset we must acknowledge that faith, as religious belief, must have special status in any constitutional order. It constitutes the core of an individual’s sense of self and is the basis of a believer’s conscience.
Belief is a matter of personal choice and no external authority, whether state, cultural community, or religious congregation, can tell an individual what her beliefs should be. To do so is to violate the individual’s freedom of conscience guaranteed by most constitutional systems and human rights covenants. But on matters of faith, an important distinction has to be made.
All ‘matters of conscience’ are ‘matters of faith’, but not all ‘matters of faith’ are ‘matters of conscience’. It is only matters of conscience that are protected by the freedom-granting provisions of the Constitution. Matters of conscience are individual-centric. They have an ethical core that guides the choices that an individual makes.
They endow the world with meaning and give the individual purpose. In contrast, the ‘matters of faith’ which the RSS and the AIMPLB are referring to — while they may look similar to ‘matters of conscience’ — are not so for they are group, not individual, centric. They have a component that is based on evidence, whether this is textual, historical, or empirical. In other words, the belief is contingent on the evidence. For example it would take the following form: ‘we believe X because it is said so in our holy book’.
It is the ‘because of’ component that demands analytical and scientific scrutiny of the matters of faith. Does the holy book actually say so? Did Lord Ram really build the Setu?
Further, when matters of faith have harmful social consequences, they must be subject to scrutiny since the Constitution guarantees the individual protection from harm.
This is the basis of all social reform in our history.
When the AIMPLB says that triple talaq has evolved in the last 1400 years, it has inadvertently conceded that the practice is not cast in stone. Let the court’s intervention be part of that evolution.
The issue of validity
The many advances in linguistics, cultural anthropology, gender studies and, of course, the natural sciences can make the probing of the ‘because of’ component of the belief very exciting. For example, a textual analysis of a holy book using a study of old and new grammar, or the etymology of the word, or its placement in a sentence are all ways of arriving at the meaning of the statement.
Textual analysis has advanced considerably and hence is available to determine the validity of the interpretation being offered by scriptural authority. The many schools of Islamic jurisprudence are testimony to this plurality of interpretations.
To that can be added the modern tools of linguistic analysis, gender studies, human rights jurisprudence, and cultural anthropology. The validity of triple talaq must be subject to textual interpretation. Similarly with the Ram Setu claim. It too must be scrutinised by modern science.
Ethical codes in democracies
The most difficult issue in this debate is how to respond to the situation where, after scrutiny, the matter of faith is found to be valid but considered by many in need of change such that it conforms to the contemporary ethics of human rights.
When the counsel for the AIMPLB says that there is “no question of constitutional morality and equity” in matters of faith, he is building a wall, a fashion these days, behind which the orthodox will police their community. Such a wall must not be built. It has no place in a constitutional democracy.
Wednesday 3 May 2017
You can’t just cut and run from Europe, Theresa May – it’s illegal
Helena Kennedy in The Guardian
Leaders of Britain’s 27 EU partner countries have now thrown down the gauntlet: no discussions on a trade deal will take place until there’s progress on the UK’s divorce bill, the Ireland-UK border and the rights of EU citizens.
We are told there is a document on the table relating to UK citizens living in Europe and those of citizens from other EU countries who live in Britain, but the UK is not prepared to sign. No reason has been given as to why.
The problem for our prime minister is that at every turn her head hits the hard wall of law and the role of the European court of justice (ECJ). Theresa May has cornered herself by insisting that the UK withdraw totally from the court and its decisions. Nobody explained to her that if you have cross-border rights and contracts you have to have cross-border law and regulations. And if you have cross-border law you have to have supranational courts to deal with disputes.
Call it what you like, but in the end you need rules as to conduct, and arbiters for disagreement. Even the World Trade Organisation has a disputes court.
But May has had a bellyful of European courts after her run-in with the totally separate European court of human rights when, as home secretary, she was trying to deport the fundamentalist preacher Abu Qatada to Jordan. Jordan’s use of torture on political opponents proved a handicap to his expulsion. However, although all this related to a quite separate legal regime, the words Europe and court in the same sentence still invite obstinate opposition from May.
This is now a problem in the Brexit negotiations, because all the preliminary matters raised by EU leaders involve legal commitments from which we cannot walk away. Calls to cut and run without paying a penny in the Brexit settlement are unlawful and unethical. It is not surprising that the other 27 want to see the colour of our money up front.
There is talk of a special deal to be negotiated for Northern Ireland, whatever the rest of the UK does, by possibly joining the European Economic Area (EEA) with some additional border arrangements between Northern Ireland and the rest of the UK. EEA membership is a semidetached position that Norway, Iceland and Liechtenstein have signed up to, whereby they have the benefits of the EU single market but not the full obligations. However, it also has legal implications. You cannot trade without the protection of law because things can go wrong. EEA members have to sign up to the European Free Trade Association court, a special supranational judicial body which deals with EEA disputes; it sits in Luxembourg, and is run largely according to EU law and ECJ judgments. Of course, such law is made without the input of EEA states, which makes it a solution that would be hard for many Brexiteers to swallow.
In preparation for the negotiations, EU representatives have been appearing before Lords and Commons committees and meeting Brexit ministers. They are invariably bemused. They say they keep being told the UK wants to continue to be part of various arrangements, including the European arrest warrant and Europol – yet nobody in London seems to understand that such collaboration requires the ECJ to have ultimate jurisdiction and for EU law to apply.
It seems obvious to them that cross-border collaboration requires supranational legal arrangements covering everything from financial services, trade, farming, fishing, security, environment, employment and maternity rights to industry standards and consumer rights. Intellectual property law, for instance, covers a huge array of research, entrepreneurship, invention and creativity; the European patent court has only recently been built here in London and was due to be opened. What happens to it now, they ask.
For years the British public have been subjected to a barrage of tabloid mendacity suggesting that we are victims of an onslaught of foreign-invented law and interference by foreign courts. In fact, a vast amount of incredibly advantageous law has been created in the EU in the past 40 years. And here’s the rub: we have been major contributors to that law. The British are good at law. We have had a strong hand in the creation of EU law.
The committee I chair in the House of Lords has heard overwhelming evidence about the benefits to business of being able, for instance, to secure a judgment in a British court against a recalcitrant debtor in Poland and know it will be enforced anywhere in the EU.
A mother can secure a maintenance order against her children’s renegade father who has sloped off to continental Europe, and have the order enforced. A holiday accident in Spain can lead to swifter resolution and compensation by virtue of EU law. A British father can get access to his kids by order of a court in Munich. Cross-border relationships require cross-border law, and agreements on mutual enforcement are fundamental.
No wonder the European commission president, Jean-Claude Juncker, is reported to have said Theresa May is on another galaxy in imagining she can retain the best bits of Europe without its institutions or legal underpinnings. Her fantasy that the “great repeal bill” will fix the problem by bringing EU law home, or that a deal can be done without the need for any European court, is unravelling. These legal arrangements require reciprocity. The courts of EU countries do things for us because we do likewise for them. A piece of unilateral legislation on our part does not secure that mutuality which is embodied in many regulations.
Harmonising law across Europe has raised standards – to our advantage. Europe-wide law is integrated into our lives. In the “new order” of trade agreements with China and others, none of these safeguards will exist. My guess is that if May does secure a deal with the EU, we will find ourselves quietly signing up to a newly created court or tribunal, a lesser ECJ.
The law, judges and courts are under attack in many democracies – from Trump’s America to Poland, Hungary and Turkey. It is the currency of our dangerous times. Be warned: good law is a protection we have to preserve. The price of its loss will be very high indeed.
Leaders of Britain’s 27 EU partner countries have now thrown down the gauntlet: no discussions on a trade deal will take place until there’s progress on the UK’s divorce bill, the Ireland-UK border and the rights of EU citizens.
We are told there is a document on the table relating to UK citizens living in Europe and those of citizens from other EU countries who live in Britain, but the UK is not prepared to sign. No reason has been given as to why.
The problem for our prime minister is that at every turn her head hits the hard wall of law and the role of the European court of justice (ECJ). Theresa May has cornered herself by insisting that the UK withdraw totally from the court and its decisions. Nobody explained to her that if you have cross-border rights and contracts you have to have cross-border law and regulations. And if you have cross-border law you have to have supranational courts to deal with disputes.
Call it what you like, but in the end you need rules as to conduct, and arbiters for disagreement. Even the World Trade Organisation has a disputes court.
But May has had a bellyful of European courts after her run-in with the totally separate European court of human rights when, as home secretary, she was trying to deport the fundamentalist preacher Abu Qatada to Jordan. Jordan’s use of torture on political opponents proved a handicap to his expulsion. However, although all this related to a quite separate legal regime, the words Europe and court in the same sentence still invite obstinate opposition from May.
This is now a problem in the Brexit negotiations, because all the preliminary matters raised by EU leaders involve legal commitments from which we cannot walk away. Calls to cut and run without paying a penny in the Brexit settlement are unlawful and unethical. It is not surprising that the other 27 want to see the colour of our money up front.
There is talk of a special deal to be negotiated for Northern Ireland, whatever the rest of the UK does, by possibly joining the European Economic Area (EEA) with some additional border arrangements between Northern Ireland and the rest of the UK. EEA membership is a semidetached position that Norway, Iceland and Liechtenstein have signed up to, whereby they have the benefits of the EU single market but not the full obligations. However, it also has legal implications. You cannot trade without the protection of law because things can go wrong. EEA members have to sign up to the European Free Trade Association court, a special supranational judicial body which deals with EEA disputes; it sits in Luxembourg, and is run largely according to EU law and ECJ judgments. Of course, such law is made without the input of EEA states, which makes it a solution that would be hard for many Brexiteers to swallow.
In preparation for the negotiations, EU representatives have been appearing before Lords and Commons committees and meeting Brexit ministers. They are invariably bemused. They say they keep being told the UK wants to continue to be part of various arrangements, including the European arrest warrant and Europol – yet nobody in London seems to understand that such collaboration requires the ECJ to have ultimate jurisdiction and for EU law to apply.
It seems obvious to them that cross-border collaboration requires supranational legal arrangements covering everything from financial services, trade, farming, fishing, security, environment, employment and maternity rights to industry standards and consumer rights. Intellectual property law, for instance, covers a huge array of research, entrepreneurship, invention and creativity; the European patent court has only recently been built here in London and was due to be opened. What happens to it now, they ask.
For years the British public have been subjected to a barrage of tabloid mendacity suggesting that we are victims of an onslaught of foreign-invented law and interference by foreign courts. In fact, a vast amount of incredibly advantageous law has been created in the EU in the past 40 years. And here’s the rub: we have been major contributors to that law. The British are good at law. We have had a strong hand in the creation of EU law.
The committee I chair in the House of Lords has heard overwhelming evidence about the benefits to business of being able, for instance, to secure a judgment in a British court against a recalcitrant debtor in Poland and know it will be enforced anywhere in the EU.
A mother can secure a maintenance order against her children’s renegade father who has sloped off to continental Europe, and have the order enforced. A holiday accident in Spain can lead to swifter resolution and compensation by virtue of EU law. A British father can get access to his kids by order of a court in Munich. Cross-border relationships require cross-border law, and agreements on mutual enforcement are fundamental.
No wonder the European commission president, Jean-Claude Juncker, is reported to have said Theresa May is on another galaxy in imagining she can retain the best bits of Europe without its institutions or legal underpinnings. Her fantasy that the “great repeal bill” will fix the problem by bringing EU law home, or that a deal can be done without the need for any European court, is unravelling. These legal arrangements require reciprocity. The courts of EU countries do things for us because we do likewise for them. A piece of unilateral legislation on our part does not secure that mutuality which is embodied in many regulations.
Harmonising law across Europe has raised standards – to our advantage. Europe-wide law is integrated into our lives. In the “new order” of trade agreements with China and others, none of these safeguards will exist. My guess is that if May does secure a deal with the EU, we will find ourselves quietly signing up to a newly created court or tribunal, a lesser ECJ.
The law, judges and courts are under attack in many democracies – from Trump’s America to Poland, Hungary and Turkey. It is the currency of our dangerous times. Be warned: good law is a protection we have to preserve. The price of its loss will be very high indeed.
Thursday 27 October 2016
Assumptions of Modern Science
by Girish Menon
Modern science is founded on the belief in the Genesis, that nature was created by a law-giving God and so we must be governed by "laws of nature".
Equally important was the belief that human beings are made in the image of God and, as a consequence, can understand these "laws of nature".
What do scientists have to say to that?
I say all scientists are therefore Judeo-Christian in their beliefs.
Modern science is founded on the belief in the Genesis, that nature was created by a law-giving God and so we must be governed by "laws of nature".
Equally important was the belief that human beings are made in the image of God and, as a consequence, can understand these "laws of nature".
What do scientists have to say to that?
I say all scientists are therefore Judeo-Christian in their beliefs.
Tuesday 21 June 2016
Jeremy Corbyn says he 'won't take the blame' if UK votes to leave
Oliver Wright in The Independent
The Labour leader Jeremy Corbyn last night warned he would not take the “blame” if Labour supporters tipped the balance in favour of Brexit.
In an interview on Sky News Mr Corbyn, who has been accused of running a lackluster remain campaign, admitted he was “not a lover of the European Union”.
But he insisted he wanted Labour supporters to vote to stay – although if they didn’t it was not the fault of his party.
“I am not going to take blame for people’s decision,” he said.
“There will be a decision made on Thursday. I am hoping there is going to be a remain vote. There may well be a remain vote. But there may well be a leave vote. Whatever the result – that will be the result of the referendum. We have got to work with it.”
Mr Corbyn also warned that the EU must change "dramatically" even if Britain remains a member.
Facing questions from a studio audience Mr Corbyn admitted that most people “do not understand” all of the implications of this Thursday’s vote.
But despite having voted against European treaties in the past Mr Corbyn insisted that Britain was better off in the EU than outside.
"It's a big decision,” he said. If we stay in Europe there are implications, if we leave Europe there are massive implications.
"But, it is also a turning point because if we leave I don't think there is an easy way back. If we remain, I believe Europe has got to change quite dramatically to something much more democratic, much more accountable and share our wealth and improve our living standards and our working conditions all across the whole continent."
Mr Corbyn said his support for a Remain vote was "not unconditional by any means" and set out a list of problems with the EU.
He said: "I'm opposed to the Transatlantic Trade and Investment Partnership, which is being negotiated largely in secret between the European Union and the US because it would import the worst working conditions and standards from the US into Europe.
"I'm also opposed to the way in which Europe shields tax havens - this country as well shields tax havens.
"And the way in which systematically big companies are exploiting loopholes in employment laws.
"So I'm calling for a Europe in solidarity.
"But I would also say that if we are to deal with issues like climate change, like environmental issues, you cannot do it within national borders, you can only do it across national borders."The refugee crisis has to be dealt with internationally, not just nationally."
The Labour leader Jeremy Corbyn last night warned he would not take the “blame” if Labour supporters tipped the balance in favour of Brexit.
In an interview on Sky News Mr Corbyn, who has been accused of running a lackluster remain campaign, admitted he was “not a lover of the European Union”.
But he insisted he wanted Labour supporters to vote to stay – although if they didn’t it was not the fault of his party.
“I am not going to take blame for people’s decision,” he said.
“There will be a decision made on Thursday. I am hoping there is going to be a remain vote. There may well be a remain vote. But there may well be a leave vote. Whatever the result – that will be the result of the referendum. We have got to work with it.”
Mr Corbyn also warned that the EU must change "dramatically" even if Britain remains a member.
Facing questions from a studio audience Mr Corbyn admitted that most people “do not understand” all of the implications of this Thursday’s vote.
But despite having voted against European treaties in the past Mr Corbyn insisted that Britain was better off in the EU than outside.
"It's a big decision,” he said. If we stay in Europe there are implications, if we leave Europe there are massive implications.
"But, it is also a turning point because if we leave I don't think there is an easy way back. If we remain, I believe Europe has got to change quite dramatically to something much more democratic, much more accountable and share our wealth and improve our living standards and our working conditions all across the whole continent."
Mr Corbyn said his support for a Remain vote was "not unconditional by any means" and set out a list of problems with the EU.
He said: "I'm opposed to the Transatlantic Trade and Investment Partnership, which is being negotiated largely in secret between the European Union and the US because it would import the worst working conditions and standards from the US into Europe.
"I'm also opposed to the way in which Europe shields tax havens - this country as well shields tax havens.
"And the way in which systematically big companies are exploiting loopholes in employment laws.
"So I'm calling for a Europe in solidarity.
"But I would also say that if we are to deal with issues like climate change, like environmental issues, you cannot do it within national borders, you can only do it across national borders."The refugee crisis has to be dealt with internationally, not just nationally."
He added: "I want to remain in Europe in order to work with others to change it."
Tuesday 24 May 2016
Abolish personal laws: Patriarchy remains deaf to the Quran’s call for justice, equality and compassion
Sadia Dehlvi in Times Of India
Whenever Muslim women approach the judiciary in a quest for justice, Muslim orthodoxy rallies against the abolition of Personal Laws. Their rhetoric of ‘identity under attack’ resumes. Clearly, Indian Muslims have moved beyond the politics of identity; choosing to express themselves through contributions to science, architecture, law, medicine, film, theatre, music, literature and other fields.
Debates over the validity of pronouncing talaq, divorce, three times in one go or over three months offer no solutions. Both methods find permissibility in schools of Islamic fiqh, jurisprudence. Unilateral divorce allows men to commit grave injustices by stripping women of honour and dignity, inalienable rights both in Islam and the Indian Constitution. It is unwise to expect reform from the community whose religious leaders have historically treated women as subjects and not equals.
Islamic law is a human endeavour that evolved over centuries with multiple schools holding diverse opinion. The principles of Islamic jurisprudence are weighing the benefit and harm of legal rulings in societies that jurists live in. Barring the foundational five pillars of Islam, nothing in Islamic law is definitive. Salafis and Wahhabis reject classical Islamic jurisprudence and philosophy. Their myopic literalist interpretations of Islam cause gross violations of human rights.
Sharia has always been flexible in adapting to changing times and situations. Umar, the second Caliph of Islam and companion of Prophet Muhammad, dropped sharia punishments for theft when famine struck Arabia. He realised people were stealing to survive. The eighth century Imam Shafie, founder of Shafie jurisprudence, changed many of his fatwas on migrating from Iraq to Egypt. Had sharia lacked movement, Islam would not thrive in India.
Islam is dynamic, understood and practised in a variety of ways in different cultures. Patriarchy remains deaf to the Quran’s call for equality, justice and compassion that extends to all humanity. Excluding women from leadership, patriarchy is blind to the Quran celebrating the wise consultative rule of Queen Sheba and her diplomatic engagement with Solomon.
Patriarchy fails to recognise the Quran honouring women as recipients of wahy, Divine Revelation; as experienced by Moses’s mother and Mariam, or Mary. Some famous early and medieval commentators of the Quran, such as Imam Hajar Asqalani and Imam Qurtubi, include Mary amongst the prophets.
The Islam of Prophet Muhammad disappeared within 40 years of his death with powerful and oppressive patriarchal tribes regaining power. The poor, women and slaves embraced by Islam were again marginalised. Islam’s paradigm shift in empowering women and slaves had created great difficulties for the Prophet. He sought political counsel from women, welcomed them in his mosque; encouraged women like Haqibatul Arab to deliver khutbahs, sermons. He appointed Umm Waraqa the Imam of her mosque, and sent a muezzin, one calling to prayer, from Medina to her village.
Some Islamic scholars, including the famous 9th century Imam Tabari, drew upon this precedent to proclaim it lawful for women to lead mixed gender prayers. American Muslim feminists are reclaiming this tradition despite the controversies it evokes.
Islam abrogated the concept of God as Father, saying, ‘Nothing is like Allah’. God transcends gender and is best understood as Noor, Compassionating and Illuminating Guidance. ‘He’, is used in the Quran and its translations because Arabic grammar is gender specific with no pronoun for the neuter gender. In most languages including Arabic, Persian and Urdu, the feminine is applied for ‘Zaat e Elahiya’, Divine Essence.
The word rahm, womb, is derived from God’s primary attributes Rahman and Rahim, Mercy and Compassion. Prophet Muhammad often likened God to a Mother who forgives her children. Traditional Arab poets addressed God in the feminine, literature that would probably be termed blasphemous today.
The Quran advocates equitable treatment of slaves and encourages freeing them, but does not specifically ban slavery. Responding to prevailing 7th century Arabian evils, Quran forbade the inheriting of women, female infanticide and abuse of slaves. Muslims across the world welcomed the abolition of slavery, believing it to be in accordance with Quranic guidance.
Islamic scholars have responded creatively with Quranic verses sanctioning armed struggles. Invoking the principle of ‘asbab e nuzul’, cause of revelation, they rightly limit this relevance to ‘just wars’ against oppression fought by the first Muslims. Instead of similar creative engagement with regard to oppressive canonised laws for women, patriarchy maintains the status quo. Women’s rights can no longer be defined by political Islam or Arab culture and histories.
In matters of inheritance and nafaqa, maintenance, Quran guarantees a minimum financial protection for women but does not cap the maximum. Offering more financial and emotional security to women can never conflict with Islam. Prophet Muhammad famously said, ‘None of you believes till you love for the other what you love for yourselves.’
Sharia law denies the right of punishment to individuals, leaving this responsibility to the state. Sharia endorses responsible citizenry, making it mandatory for Muslims to comply with laws of the lands they inhabit.
Traditionally, women pilgrims travelling to Mecca required to be accompanied by a mahram, husband or other male relatives with whom marriage is forbidden. Negotiating modern challenges, many Islamic scholars have ruled it permissible for women to travel alone. They declare the state as mahram, for in ensuring security, the laws of the state replace the role of the ‘protective bodies’. This principle should extend to the Indian state.
Monday 11 April 2016
The 1% hide their money offshore – then use it to corrupt our democracy
Aditya Chakrabortty in The Guardian
‘The past few days have confirmed that David Cameron is effectively in the Downing Street branch of the super-rich.’ Photograph: Neil Hall/Reuters
Over the past 72 hours, you have seen our political establishment operating at a level of panic rarely equalled in postwar history. Britain’s prime minister has had yanked out of him some of his most intimate financial details. Complete strangers now know how much he’s inherited so far from his mum and dad, and the offshore investments from which he’s profited. Yesterday he even took the unprecedented step of revealing the taxes he’d paid over the past six years. Leaders of other parties have responded by summarily publishing their own HMRC returns. In contemporary Britain, where one’s extramarital affairs are more readily discussed in public than one’s tax affairs, this is jaw-dropping stuff.
And it will not stop here. Whatever the lazy shorthand being used by some commentators, David Cameron has not released his tax returns, but merely a summary certified by an accountants’ firm. That halfway house will hardly be enough. If Jeremy Corbyn, other senior politicians and the press keep up this level of attack, then within days more details of the prime minister’s finances will emerge. Nor will the flacks of Downing Street be able to maintain their lockdown on disclosing how many cabinet members have offshore interests: the ministers themselves will break ranks. Indeed, a few are already beginning to do so.
But the risk is that all this will descend into a morass of semi-titillating detail: a string of revelations about who gave what to whom, and whether he or she then declared it to the Revenue. The story will become about “handling” and “narrative” and individual culpability. That will be entertaining for those who like to point fingers, perplexing for those too busy to engage in the detail – and miss the wider truth revealed by the leak which forced all this into public discussion.
Because at root, the Panama Papers are not about tax. They’re not even about money. What the Panama Papers really depict is the corruption of our democracy.
Following on from LuxLeaks, the Panama Papers confirm that the super-rich have effectively exited the economic system the rest of us have to live in. Thirty years of runaway incomes for those at the top, and the full armoury of expensive financial sophistication, mean they no longer play by the same rules the rest of us have to follow. Tax havens are simply one reflection of that reality. Discussion of offshore centres can get bogged down in technicalities, but the best definition I’ve found comes from expert Nicholas Shaxson who sums them up as: “You take your money elsewhere, to another country, in order to escape the rules and laws of the society in which you operate.” In so doing, you rob your own society of cash for hospitals, schools, roads…
But those who exited our societies are now also exercising their voice to set the rules by which the rest of us live. The 1% are buying political influence as never before. Think of the billionaire Koch brothers, whose fortunes will shape this year’s US presidential elections. In Britain, remember the hedge fund and private equity barons, who in 2010 contributed half of all the Conservative party’s election funds – and so effectively bought the Tories their first taste of government in 18 years.
To flesh out the corrosion of democracy that is happening, you need to go to a Berlin-born economist called Albert Hirschman, a giant in modern economic thinking. Hirschman died in 2012 at the age of 97, but it’s his concepts that really set in context what’s so disturbing about the Panama Papers.
Hirschman argued that citizens could protest against a system in one of two ways: voice or exit. Fed up with your local school? Then you can exercise your voice and take it up with the headteacher. Alternatively, you can exit and take your child to a private school.
In Britain and in America, the super-rich have broken Hirschman’s law – they are at one and the same time exercising economic exit and political voice. They can have their tax-free cake and eat it.
What the past few days have confirmed is that David Cameron is effectively in the Downing Street branch of the super-rich. That he himself is part of the 1% is beyond dispute. His father was a senior stockbroker who was worth an estimated £10m. Newspapers so often bandy about the million unit that readers can get inured to its true significance. But if at the stroke of midnight on New Year’s Day you were lucky enough to get one pound coin every single second, it would still take 114 days to amass £10m. You would even now be waiting till Sunday week to collect the whole amount.
What have the super-rich got for their investment in British politics since 2010? Cuts in personal taxes, invitations from George Osborne to advise on overhauling corporation taxes, the security of knowing that their tax havens will be treated with due leniency.
In my politics lessons, we were taught that Britain was a representative democracy. But what 30 years of plutocracy have brought is an era of un-representative democracy. With a few exceptions, our politicians no longer resemble, nor do they work for us. Amid a crisis in the rental market, you have a housing minister, Brandon Lewis, who runs a private rental portfolio. You have a former investment banker, Sajid Javid, now claiming to do his best by the steel industry. And you have a super-rich prime minister who vows he’ll take on tax havens, all the while blocking any serious attempt to do so.
Over the past 72 hours, you have seen our political establishment operating at a level of panic rarely equalled in postwar history. Britain’s prime minister has had yanked out of him some of his most intimate financial details. Complete strangers now know how much he’s inherited so far from his mum and dad, and the offshore investments from which he’s profited. Yesterday he even took the unprecedented step of revealing the taxes he’d paid over the past six years. Leaders of other parties have responded by summarily publishing their own HMRC returns. In contemporary Britain, where one’s extramarital affairs are more readily discussed in public than one’s tax affairs, this is jaw-dropping stuff.
And it will not stop here. Whatever the lazy shorthand being used by some commentators, David Cameron has not released his tax returns, but merely a summary certified by an accountants’ firm. That halfway house will hardly be enough. If Jeremy Corbyn, other senior politicians and the press keep up this level of attack, then within days more details of the prime minister’s finances will emerge. Nor will the flacks of Downing Street be able to maintain their lockdown on disclosing how many cabinet members have offshore interests: the ministers themselves will break ranks. Indeed, a few are already beginning to do so.
But the risk is that all this will descend into a morass of semi-titillating detail: a string of revelations about who gave what to whom, and whether he or she then declared it to the Revenue. The story will become about “handling” and “narrative” and individual culpability. That will be entertaining for those who like to point fingers, perplexing for those too busy to engage in the detail – and miss the wider truth revealed by the leak which forced all this into public discussion.
Because at root, the Panama Papers are not about tax. They’re not even about money. What the Panama Papers really depict is the corruption of our democracy.
Following on from LuxLeaks, the Panama Papers confirm that the super-rich have effectively exited the economic system the rest of us have to live in. Thirty years of runaway incomes for those at the top, and the full armoury of expensive financial sophistication, mean they no longer play by the same rules the rest of us have to follow. Tax havens are simply one reflection of that reality. Discussion of offshore centres can get bogged down in technicalities, but the best definition I’ve found comes from expert Nicholas Shaxson who sums them up as: “You take your money elsewhere, to another country, in order to escape the rules and laws of the society in which you operate.” In so doing, you rob your own society of cash for hospitals, schools, roads…
But those who exited our societies are now also exercising their voice to set the rules by which the rest of us live. The 1% are buying political influence as never before. Think of the billionaire Koch brothers, whose fortunes will shape this year’s US presidential elections. In Britain, remember the hedge fund and private equity barons, who in 2010 contributed half of all the Conservative party’s election funds – and so effectively bought the Tories their first taste of government in 18 years.
To flesh out the corrosion of democracy that is happening, you need to go to a Berlin-born economist called Albert Hirschman, a giant in modern economic thinking. Hirschman died in 2012 at the age of 97, but it’s his concepts that really set in context what’s so disturbing about the Panama Papers.
Hirschman argued that citizens could protest against a system in one of two ways: voice or exit. Fed up with your local school? Then you can exercise your voice and take it up with the headteacher. Alternatively, you can exit and take your child to a private school.
In Britain and in America, the super-rich have broken Hirschman’s law – they are at one and the same time exercising economic exit and political voice. They can have their tax-free cake and eat it.
What the past few days have confirmed is that David Cameron is effectively in the Downing Street branch of the super-rich. That he himself is part of the 1% is beyond dispute. His father was a senior stockbroker who was worth an estimated £10m. Newspapers so often bandy about the million unit that readers can get inured to its true significance. But if at the stroke of midnight on New Year’s Day you were lucky enough to get one pound coin every single second, it would still take 114 days to amass £10m. You would even now be waiting till Sunday week to collect the whole amount.
What have the super-rich got for their investment in British politics since 2010? Cuts in personal taxes, invitations from George Osborne to advise on overhauling corporation taxes, the security of knowing that their tax havens will be treated with due leniency.
In my politics lessons, we were taught that Britain was a representative democracy. But what 30 years of plutocracy have brought is an era of un-representative democracy. With a few exceptions, our politicians no longer resemble, nor do they work for us. Amid a crisis in the rental market, you have a housing minister, Brandon Lewis, who runs a private rental portfolio. You have a former investment banker, Sajid Javid, now claiming to do his best by the steel industry. And you have a super-rich prime minister who vows he’ll take on tax havens, all the while blocking any serious attempt to do so.
Tuesday 9 February 2016
Declare a No Ball when a batsman attempts an early run
Girish Menon from CamKerala CC
David Hopps in his
piece, 'Is
the game going to the dogs' suggests that Stuart Broad in the forthcoming
World T20 should without warning 'mankad' Kohli and Raina off successive balls.
This is his way of reminding us of the role of convention and civilised
behaviour in cricket and he implies that in its absence anarchy would prevail.
So, I decided to
look up the meaning of convention on the omniscient Google and found that one
of the meanings of convention is 'a way in which something is done'. I think it
is this definition of convention that Hopps uses to criticise Keemo Paul for
mankading Richard Ngarava in the U19 World Cup.
----Other pieces by the author
----Other pieces by the author
Sreesanth - Another modern day Valmiki?
----
I then asked myself
what would be at the other end of the spectrum of convention and I felt the
term 'creativity' would fit the bill. Google defines creativity as ' the use of imagination or original ideas to create something'. When Keemo's act is examined from this
perspective it is a creative act, not illegal, and an imaginative way to reach
the objectives of his task.
In the history of the world, not just
cricket, whenever any creative solution is implemented, affected governments
would debate and proscribe such activity if it was not in the 'public'
interest. In the case of 'mankading' such an inquiry has been conducted by the
ICC and the act has still been deemed legal, hence the furore baffles me.
Hopps felt that it was newcomers who
failed fail to honour cricket's conventions. So I asked myself, two questions:
'Is it newcomers to cricket who
disrespect its conventions'?
and
'Are conventions in the best interests of all
participants?'
In the case of Keemo Paul, yes he is
definitely a newcomer to cricket, so probably was the original sinner Vinoo
Mankad and the other mankaders in between. I suppose these guys may have read
about the laws of cricket and how the umpire's decision should not be
questioned. As they plotted to get the opposing batsmen out, a difficult task
at the best of times, they may have noticed this anomaly between the law and
its actual practice. Being young and innocent they may have focussed on their
objectives and failed to realise the opprobrium that will befall them if they
challenged cricket's archaic anomalies.
So who makes conventions? A historical
examination of societies will reveal that conventions and practices evolve out
of the systems devised by the powerful. A history of cricket also reveals that
it's rules and conventions were determined by upper class batsmen epitomised by
the roguish W G Grace. The bowlers were the proverbial servants meant to exist
for the pleasure of batsmen. It is these servants, like the erstwhile British
colonies, who now challenge the prevalent conventions albeit legally in the
case of the mankaders.
Hopps then gives an example of queue
jumping to illustrate the catastrophe that will befall mankind if any
convention is broken. Yes, the effects of queue jumping has created havoc in India
© PA Photos
© PA Photos
Returning to mankading, I believe that cricket's
current convention enable non striking batsmen to cheat wilfully throughout an
innings and it is time for conventions keep in tandem with the laws of the
game? I actually even have a solution for the mankading problem. Declare a no
ball* and penalise the batting side every time a non striker steps out of the crease illegally. This could be
done by the third umpire while the on field umpire focuses on the bowler's
actions.
* This no ball means a one run penalty and a ball reduced from the batting side's quota.
* This no ball means a one run penalty and a ball reduced from the batting side's quota.
Tuesday 15 September 2015
The spirit's in the laws
Joe Yates in Cricinfo
Spirit of Cricket? - Laws be damned!
Once again, following Ben Stokes' obstructing-the-field dismissal in an ODI at Lord's, the spirit of cricket debate reared its ugly and pretentious head. Ugly because there is a general lack of consensus on what the spirit of cricket actually is and pretentious because of what certain players, past and present, contributed to the discussion. One player said, 'I would have withdrawn the appeal.' Another said, 'we wouldn't have appealed in the first place.'
Really? The self-righteousness is nauseating!
First, let's deal with the basics. Ben Stokes intercepted a ball with his hand that was seemingly headed for the stumps with him well out of his ground. Under the laws, this action was grounds for an appeal, which the Australians rightfully did. The only question now was intent, which was for the umpires to decide. Upon consideration of the available evidence, the umpires concluded that, under law 37, Stokes had indeed obstructed the field and gave him out.
Spirit of Cricket? - Laws be damned!
Once again, following Ben Stokes' obstructing-the-field dismissal in an ODI at Lord's, the spirit of cricket debate reared its ugly and pretentious head. Ugly because there is a general lack of consensus on what the spirit of cricket actually is and pretentious because of what certain players, past and present, contributed to the discussion. One player said, 'I would have withdrawn the appeal.' Another said, 'we wouldn't have appealed in the first place.'
Really? The self-righteousness is nauseating!
First, let's deal with the basics. Ben Stokes intercepted a ball with his hand that was seemingly headed for the stumps with him well out of his ground. Under the laws, this action was grounds for an appeal, which the Australians rightfully did. The only question now was intent, which was for the umpires to decide. Upon consideration of the available evidence, the umpires concluded that, under law 37, Stokes had indeed obstructed the field and gave him out.
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So where exactly does the spirit of cricket come into this?
The only real way to settle this tediously endless debate on the spirit of cricket is to fall back to the MCC's preamble to the laws of cricket. The essence of this preamble is thus: The captain is responsible for the conduct of his players; all players must play fair; the umpires are the sole arbiters of what is fair; you must respect the opposition, your captain, the umpires, and the game's traditional values (whatever they are in this rapidly evolving age of protective equipment, cameras, microphones and DRS).
The problem comes when someone says something like this: "That may have been within the laws of the game, but it wasn't within its spirit."
Come again? How is that possible? Is this to suggest that the spirit of cricket is independent of, or even contrary to, its laws? Never may that happen!
The spirit of cricket is guided by principles - principles of fair play and honourable conduct. It has much less to do with how a batsman is dismissed. Violations of the spirit of cricket, such as ball-tampering, time-wasting, aggressive or dishonest appealing, and dissent are not dealt with by the umpires on the field as much as they are by the match referee after the game. Although even these offences can be handled on field by the umpires under Law 42, which legislates specifically for fair or unfair play.
So the only way to invoke the spirit of cricket in Ben Stokes' dismissal is in the validity of the appeal. Since there was deemed sufficient evidence to give him out, there was clearly enough evidence for an appeal. Ergo, spirit of cricket intact.
The spirit of cricket debate invariably surfaces when there is an unusual or rare dismissal, such as obstructing the field or running out the non-striker, a.k.a. mankading. Strong opinions were voiced when Ravi Ashwin mankaded Lahiru Thirimanne but the appeal was withdrawn 'in the interests of the spirit of cricket.'
Many believe that when a batsman backs up too far, he is gaining an unfair advantage. An advantage, certainly, but why is it unfair? It would only be unfair if the fielding side could do nothing about it. There is absolutely nothing in the laws of cricket stating that a batsman cannot leave his crease before the bowler bowls. There is a law (Law 38), however, that states that if a batsman is out of his crease when the ball is in play, which it is when the bowler starts his run-up (Law 22), he can be run out. Simple. Elegant. Balanced.
It is the same with obstructing the field. There is nothing in the laws of cricket stating that a batsman cannot interfere with the fielding side. However, there is a law that states that if he does, he can be given out. Where the most harm comes to the game of cricket is when the laws are flouted or ignored in favour of this intangible and mysterious spirit. The spirit of cricket is harmed when fielding teams are forced to think twice before raising a legitimate appeal or running out a batsman who is out of his crease when the ball is live.
The spirit of cricket was damaged far more when Steven Smith's integrity and maturity were called into question by not withdrawing the appeal than by the appeal itself. Where was the respect for the opponents or the umpires there?
Cricket is an invented sport. Like all sports, cricket has rules, or in cricket's case, Laws. If there is a law whose existence or application is widely seen to be against the interests, or spirit, of the game, then change or abolish that law. But we all know that is not going to happen. The laws of cricket have been developed and refined over many decades across three centuries - and are very clear.
The spirit of cricket should not and cannot exist separately from the laws of cricket. It is contained within its laws. Anyone who feels differently should either start a rigorous campaign to get the laws changed, or rethink what they consider to be in the game's spirit. And it most certainly should not be considered against the spirit of the game if the laws are correctly applied.
Knowing, accepting and playing within these Laws IS the Spirit of Cricket.
So where exactly does the spirit of cricket come into this?
The only real way to settle this tediously endless debate on the spirit of cricket is to fall back to the MCC's preamble to the laws of cricket. The essence of this preamble is thus: The captain is responsible for the conduct of his players; all players must play fair; the umpires are the sole arbiters of what is fair; you must respect the opposition, your captain, the umpires, and the game's traditional values (whatever they are in this rapidly evolving age of protective equipment, cameras, microphones and DRS).
The problem comes when someone says something like this: "That may have been within the laws of the game, but it wasn't within its spirit."
Come again? How is that possible? Is this to suggest that the spirit of cricket is independent of, or even contrary to, its laws? Never may that happen!
The spirit of cricket is guided by principles - principles of fair play and honourable conduct. It has much less to do with how a batsman is dismissed. Violations of the spirit of cricket, such as ball-tampering, time-wasting, aggressive or dishonest appealing, and dissent are not dealt with by the umpires on the field as much as they are by the match referee after the game. Although even these offences can be handled on field by the umpires under Law 42, which legislates specifically for fair or unfair play.
So the only way to invoke the spirit of cricket in Ben Stokes' dismissal is in the validity of the appeal. Since there was deemed sufficient evidence to give him out, there was clearly enough evidence for an appeal. Ergo, spirit of cricket intact.
The spirit of cricket debate invariably surfaces when there is an unusual or rare dismissal, such as obstructing the field or running out the non-striker, a.k.a. mankading. Strong opinions were voiced when Ravi Ashwin mankaded Lahiru Thirimanne but the appeal was withdrawn 'in the interests of the spirit of cricket.'
Many believe that when a batsman backs up too far, he is gaining an unfair advantage. An advantage, certainly, but why is it unfair? It would only be unfair if the fielding side could do nothing about it. There is absolutely nothing in the laws of cricket stating that a batsman cannot leave his crease before the bowler bowls. There is a law (Law 38), however, that states that if a batsman is out of his crease when the ball is in play, which it is when the bowler starts his run-up (Law 22), he can be run out. Simple. Elegant. Balanced.
It is the same with obstructing the field. There is nothing in the laws of cricket stating that a batsman cannot interfere with the fielding side. However, there is a law that states that if he does, he can be given out. Where the most harm comes to the game of cricket is when the laws are flouted or ignored in favour of this intangible and mysterious spirit. The spirit of cricket is harmed when fielding teams are forced to think twice before raising a legitimate appeal or running out a batsman who is out of his crease when the ball is live.
The spirit of cricket was damaged far more when Steven Smith's integrity and maturity were called into question by not withdrawing the appeal than by the appeal itself. Where was the respect for the opponents or the umpires there?
Cricket is an invented sport. Like all sports, cricket has rules, or in cricket's case, Laws. If there is a law whose existence or application is widely seen to be against the interests, or spirit, of the game, then change or abolish that law. But we all know that is not going to happen. The laws of cricket have been developed and refined over many decades across three centuries - and are very clear.
The spirit of cricket should not and cannot exist separately from the laws of cricket. It is contained within its laws. Anyone who feels differently should either start a rigorous campaign to get the laws changed, or rethink what they consider to be in the game's spirit. And it most certainly should not be considered against the spirit of the game if the laws are correctly applied.
Knowing, accepting and playing within these Laws IS the Spirit of Cricket.
Friday 6 March 2015
Chapter 11 comes to India
Pritish Nandy in the Times of India
One of the best things in last week’s Union Budget, which has gone largely unnoticed, is the finance minister’s pledge to bring in a comprehensive Bankruptcy Code. Bankruptcy law reform is now a priority for improving the ease of doing business, said Arun Jaitley, thus telling us for the first time that the government has finally come to accept the fact that shit happens. And it’s time that we, as a nation, realized this and found ways and means to deal with it.
Till now, every failure was chased by a lynch mob hardwired to believe that failure is deliberate and must be punished. Not only countless lives and careers have been destroyed by this attitude but it has also fostered a business climate where people either stay away from taking the kind of crucial risks businessmen ought to take or, worse, it has brought risk taking and failure (which are at the heart of all serious entrepreneurship) into unnecessary disrepute. We, as a people, actually believe that every business that fails is a deliberate deep-rooted conspiracy, a plan to loot others. In this perverse worldview, we ignore the simple fact that most bankruptcies owe their origins to Black Swan events that have become increasingly commonplace. Not the greed and wickedness of businessmen.
History shows that the best businessmen go through many failures. They may not always talk about them but these failures teach them the lessons that eventually make them successful. The very failures we despise are the bedrock on which shining empires are built. Bankruptcy, or Chapter 11 as the Americans love to call it, is hardly a dirty word in today’s business scenario, where everything changes all the time, abruptly and without any notice. In fact, failure is a badge of honour that many successful entrepreneurs openly wear. For who will ever risk investing in a business where the promoter claims he has never known failure?
Hiding failure, in fact, is the worst thing one can do. It causes all round damage. Acknowledging it and then finding ways and means to mitigate it and move on is the way all civilised societies deal with failure. As Nassim Nicholas Taleb, my favourite economist recently said, failure is the only real asset of a nation and knowing how to fail is its biggest talent. Taleb also added that failure may be the best mantra for India’s success. For a nation that has not experienced failure and learnt from it is hugely handicapped in today’s world where everything changes at short notice, including the nature of risks. A nation that turns away from risk is not a nation yet ready for success.
He cites the examples of France and Japan. Their economies are doing poorly, Taleb argues, because the failure rate is so low. In the US, on the other hand, the highest fail rate is in California which also has the most inspiring success stories. Walt Disney is an example. He was fired by his editor because he “lacked imagination and had no good ideas”. He went bankrupt several times before he built Disneyland. In fact, even the proposal for Disneyland was rejected by the city of Anaheim on the ground that it would attract only riffraff. Henry Ford went bankrupt before he could steer Ford Motors to its huge success. So did HJ Heinz, founder of Heinz. And William Durant who created General Motors. And Milton Hershey, founder of Hershey Chocolates. The day Trump Towers was being announced with huge fanfare in Mumbai I read that Trump Taj Mahal in Atlantic City had gone belly up.
Business is not about not taking risks. It’s about riding the right risks to build institutions and create wealth. Sports, media, entertainment have had its share of bankrupts. From Larry King to Francis Ford Coppola to rapper MC Hammer to Stan Lee, founder of Marvel Comics, to blogger Perez Hilton to Mick Fleetwood, and Bob Guccione, founder of Penthouse, all have faced bankruptcy. Even famous US Presidents have. Abraham Lincoln, Ulysses S Grant, William McKinley, Thomas Jefferson. In recent years, Steve Jobs went almost bankrupt. So did Apple. Today it’s the world’s richest, strongest brand, seemingly indestructible.
Restaurants improve every time they fail. So do cars, trains, planes. They become safer because we always over-compensate after a disaster. Every shock strengthens us, readies us better for the future. Businesses too are like that and I am glad the Finance Minister has realised it and removed the stigma.
Have I ever gone bankrupt? No, but I have teetered on the edge often enough and never been embarrassed to admit it.
Funnily, as Taleb points out, the only business that never learns from failure is banks. When a bank crashes today, the probability of a bank crashing tomorrow actually increases. Banking is clearly not a business that learns from its mistakes. History proves that too.
Monday 5 January 2015
It’s divorce day – let’s bust some marriage myths
The conservative narrative baffles: how can tying the knot be both a moral choice and an insurance policy?
It’s “divorce day”, the first working Monday after Christmas, customarily the busiest time of the year for family lawyers. In this age of constant contact, there’s been a modest surge in people seeking advice between Christmas and New Year, but for most, Twelfth Nisi is today (a half-pun for those who have already begun their divorce). If you’re married, there is a one in five chance you’re considering a split (according to a survey by legal firm Irwin Mitchell); it sounds improbably large, but there it is. If it’s not you, it’s probably him; check his phone, that’s how all the best divorces start.
Sir Paul Coleridge, a former high court judge, runs the Marriage Foundation, a charity that encourages getting and staying married. He told the Sunday Times, as part of a marriage-promotion drive in the lead-up to D-Day, of a case he’d seen: “She was the long-term girlfriend of a very high-profile celebrity person by whom she had had no fewer than four children. It was looking as if it was going to come unstuck, and she wanted to talk to me informally about what her position was. She said, ‘We’ll no doubt need an hour or two.’ I said, ‘We’ll need a minute or two because the answer is very simple: you have no rights.’”
Many people – in the 18-34 age group, almost half – believe that “common law” marriage actually comes with rights attached; that cohabiting couples with children have the same access to each other’s incomes, in the event of a split, as married ones do. This is untrue, though the “no ring, no rights” rallying cry of the marriage lobby is a bit of an overstatement (maintenance obligations obviously exist for the non-resident parent, whether previously married or not). This can prove disastrous for the main carer, who is unlikely to be the higher earner and, labouring under an illusion of legal protection, may have made no attempt to shield their finances from the hit of parenthood.
Family lawyers are divided on the answer – some would like to see new legislation that brings the common law into the purview of the actual law. Others, like Coleridge, see this as totally illogical; marriage, being limitless in both time and liability, is about the most profound contract a person can enter into. You can’t just slide into it, via cohabitation and parenthood; you have to enter into it willingly. His view is that marriage must be taught in schools (as a good idea, that is; I believe children already broadly know that it exists), and he’s supported in this by the Centre for Social Justice (CSJ), among others. There is something touchingly absurd about the amount of store people set by telling children things in schools – as if, when you want to alter behaviour, you simply insert a lesson and make it so. It doesn’t even work with oral hygiene.
Conservative belief in the institution of marriage runs like this: making a commitment to one another is what moral people do, and this makes marriage the most stable of all known relationships. Since stability is good for children, marriage is good for children (this mantra is given by the CSJ, especially, as something akin to gravity in its self-evidence).
Then, finally, if it all goes Pete Tong, you have the protection of the law, without which the weaker party may well end up dependent on the state. (The Sunday Times article was illustrated rather vividly by the story of a woman who, while waiting two and a half years for her husband to pay maintenance, said: “I’m pretty sure I cost the government around £400,000.”)
Few of these suppositions make much sense. There’s nothing moral about making a promise, the moral part is in keeping it, which 42% of married people don’t. Arguably, cohabiting couples are more moral than married ones, never making the promise in the first place that, most people agree and 42% prove, is rather unrealistic. In many cases, the so-called stability conferred by marriage is indistinguishable from that bestowed by wealth, which has itself become a major determinant of people’s decision to get married. But the critical contradiction, the bit I really cannot compute, is the idea of marriage as at once a moral choice and an insurance policy. It’s one or the other, surely? The abnegation of the self in the search for true togetherness, or a bid for your spouse’s income: how can it be both?
A conservative would see no contradiction, here: to have taken out the insurance policy of marriage is to have assured one’s self-sufficiency, thus protecting the state from its otherwise 400k liability (that figure does seem improbably high, but let’s go with it). Self-sufficiency is a moral act, to a conservative. In practical terms, this is nonsense; you may have left a copper-bottomed marriage, but if you weren’t rich to begin with, it is highly unlikely that your family earnings will expand to cover two households. Forty-two per cent of single parents live in poverty, 63% have no savings, 71% of all those renting are on housing benefit; so “self-sufficiency” is a byword for affluence, which then has moral superiority conferred upon it.
This is a recurring motif in the political mood music, cropping up in discussions from marriage to poverty to growth. The view from the right is that the ultimate in respectability is to need nothing from anyone: to which the left generally answers, self-sufficiency is about systems, and in the current system, it is very hard to be self-sufficient, however hard you work. But perhaps the question should be: what’s so wrong with needing one another in the first place?
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