Category Archives: Commentary

Swarna Bharat Party calls for a national emergency to stop 5 lakh Indians dying from TB each year


National Press Release – to be released across India

28 May 2017 – for immediate release

Swarna Bharat Party calls for a national emergency to stop 5 lakh Indians dying from TB each year

Mr Rahul Pandit, President of Swarna Bharat Party, India’s only liberal party, said that tuberculosis is a totally preventable Third World disease. It is basically a disease of acute misgovernance. It is a great shame that five lakh Indians die from this preventable disease each year. And yet the government is doing nothing to eradicate TB. Its “targets” do not even talk about eradication.

SBP believes that government has a significant role in preventing infectious diseases. India needs an intense and ceaseless public awareness campaign against TB. We need active monitoring of everyone who has the disease, we need people to put masks over their face while travelling in public transport. We need a dramatic increase in the resources allocated to this fight. This needs to be declared a national emergency.

The government rightly cares for the life of every soldier but why is the preventable loss of life of nearly five lakh Indians each met with indifference?

India’s TB rate is 180 times that of the USA (noting that the overwhelming majority of American TB cases arise from foreign-born patients). Our multi-drug resistant TB rate is 500 times that of the USA. We get 28 lakh new cases of TB each year compared with around 10,000 in the USA. Even if foreign born Americans are included in the American statistics, India should get at most 40,000 cases of TB each year. The suffering of over 27 lakh Indians is entirely preventable.

The most problematic situation relates to multi-drug resistant TB (MDR-TB) which is caused when people stop taking medicines for normal TB when they feel a little better. At that stage their TB morphs into a drug resistant form and requires hundreds of injections and 15,000 pills to even attempt a cure. In this regard the USA gets less than 100 new cases each year of MDR-TB (with over 85 per cent of these being foreign born), compared with at least 80,000 in India. These 80,000 Indians undergo extreme suffering, and almost half die despite the treatment. We cannot allow MDR-TB to develop in the first place

Mr Rahul Pandit said that the Modi government needs to stop its idle boasts and start performing. There was time for boasting but three years after coming to power, the incompetence that was the hallmark of the UPA has now become the hallmark of the Modi government.

Mr Pandit said that the only way to ensure competent basic governance in India is for the Modi government to implement all aspects of the SBP manifesto. Else India will continue to remain a Third World country with a totally broken system of governance.

Notes for Editors

SBP is India’s only liberal party, committed to defending liberty and promoting prosperity.

Contact:

Rahul Pandit (Hyderabad) National President, +91 9703425422

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Swarna Bharat Party is deeply concerned about India’s defence, says its President, Sanjay Sonawani


National Press Release – to be released across India [Word version]

24 September 2016 

Mr Sanjay Sonawani, President of Swarna Bharat Party mourned the loss of 18 soldiers in Uri to terrorists from Pakistan. The party salutes all India’s soldiers, who do a great job in the face of enormous challenges.

India wants peace with its neighbours but we must remain vigilant to persistent threats, ranging from state-sponsored terrorism to nuclear warheads. The defence of the nation remains the most important function of a government. Without secure borders, a nation cannot exist, leave alone prosper. SBP will, therefore support any well-considered response by the Modi Government to intrusions from Pakistan.

However, SBP believes that the Modi government needs to do far more for the defence of India. There are too many failures of intelligence, instances of outdated war equipment and reports of inadequate ammunition and supplies. Yet the Modi government continues to run duty-free shops, hotels, airlines and banks. It is reluctant to perform its core functions. This tendency of the Modi government must stop.

Mr Sonawani said that our service personnel and intelligence agencies must have state of the art defence equipment, surveillance and intelligence systems including unmanned aircraft, satellites and robotic systems, and adequate ammunition and supporting supplies, to defend Indian territory.

There is also a vital issue of the morale of our defence forces. SBP wants the status of defence forces to be significantly raised. Those who choose the profession of defence take on high risks, forego many fundamental rights as citizens, and perform their work round the clock in harsh and difficult environments. SBP’s manifesto has a detailed plan of action for to raise the stature of our defence forces.

A Chief of Defence Staff (CDS) in the rank of a Minister of State must be given charge of an integrated Military Command on the lines of Pentagon. The CDS should report directly to the Defence Minister. The Army, Navy and Air Force Chief’s order of precedence must equal that of the Cabinet Secretary.

SBP wants a separate Pay Commission for the defence forces, OROP for those under the pension scheme, and government contribution towards life insurance premiums of armed force personnel to the extent their premiums exceed the average market rate. For new hires, alternate systems of pensions/re-employment need to be considered.

Funds for such essential defence reforms can be raised if the government stops running businesses. Also, cantonments can be moved outside cities and towns, releasing land for sale. Cantonments can also be more effective outside the cities. Mr Sonawani said that the government should follow SBP’s manifesto to make India strong and prosperous.

End

Notes for Editors

SBP is India’s only liberal party, committed to defending liberty and promoting prosperity.

Contacts:

Sanjay Sonawani (Pune), National President, +91 9860991205

Cdr Bhirappa Bhimappa Khilari (retd.) (Bangalore), President Karnataka State Unit, +919342689574 &  +917760023956

The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012- An exploration of Untouchability as a social practice.


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 The constitution of India, when adopted was very clear on the need to abolish the practice of untouchability, which has been prevalent in India since the ancient times, by making it a fundamental right, it sought to eliminate the derogatory practice once and for all, enshrining it in article 17 of chapter 3 of the Constitution of India. It reads as follows:

Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law.[1]

Through this article it was thought, going with buoyant mood of possibilities at that time that the problem of Untouchability as a social practice would cease in all its forms. What however was left out of its preview were those economic dimensions and the hygienic practices of the Indian people at large which made the practice acceptable, necessary and even demanded throughout society. What the article tried to do was give political rights to be free from untouchability, and free from any form of discrimination arising from the practice of untouchability, but left the economic right to be emancipated from the necessity which leads them towards the practicing of manual scavenging. The economic practices, which are primarily based on caste hierarchies prevalent within the India society, such as manual scavenging, the people practicing them come to be the untouchables. The problem then is that this special group of citizens is created by the play of economics and social politics, into the marginalised and the most downtrodden, their identity is based on the profession they are engaged in, which in turn is based on their birth.

In order to fully appreciate the process and the social dynamics involved in the creation of this set of people, who are engaged in the depraved practice of manual scavenging, the caste system as it operates through these dynamics must be understood. The caste system in India historically functioned as an organising principle for the society.it was a hierarchy based on the economic professions of the people. The system was divided primarily into four castes, on the top of the hierarchy being the Brahmins followed by the Kshatriyas, the vaishyas, and the Sudra as the lowest in the caste order. Further within these castes are many sub-hierarchies in operation, making the logic of its dynamics extremely complex and circular. When the basis for this hierarchy is the profession one is born into, thereby birth, the logic of its functioning makes it extremely difficult to move up the ladder without also leaving the ones caste behind. This logic in operation within these caste hierarchies, then makes the Sudra condemned to the lowest form of life within the social order.

Having detailed the caste hierarchy, it is important now to turn to the working of this dynamic with the Sudra caste, which is the space for the marginalised citizens being subject to further hierarchies and caste dynamics. It is within this space where the location of the oppressed is most depraved and humiliating, subject to the lowest of the lowest economic work and social standing, amounting to social invisibility. This is the space where the operation of the logic of caste creates the ‘Dalit’. The nearest sense that the word ‘Dalit’ can convey in the English language is ‘the oppressed’. In India, they are the outcasts or the untouchables. Within this logic of this kind of structural oppression, the paper aims to study the most marginalised within this space the’ Manual Scavenger’ in the light of the proposed Bill called ‘The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012’ or PMRB 2012.

The adjective “manual scavengers’ is used to describe the people from the lowest of the caste bearers, who are engaged in the profession of cleaning human excreta from dry latrines and operating through the municipal disposal services and for private households. This practice of manual scavenging based on caste hereditary is something very peculiar to India. The caste system runs through all the religions, though it is of Hindu origins. The reason for this is that the people of other religions are converts from Hindu or at least most of them converted at some point in history. Even, after they converted they retained their caste only religion was different. We, therefore, find Dalits engaged in manual scavengers from all the religious groups and is not strictly confined to Hinduism. Though religious in origin it has acquired a social legitimacy due to the economic necessity and more importantly through the strict caste barriers, which act repressively not allowing any vertical social movement through its structure, without also losing the caste identity.

The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012  prohibits employing a person as a manual scavenger and provides for the rehabilitation of people and their families currently engaged in the profession of Manual Scavenging. The bill seeks to curb the employment of these people as scavengers for the cleaning of the Human excreta in any form and from any place and by anyone or any organisation, government or private. The Bill seeks a blanket ban on the employment of Manual scavengers and also seeks to rehabilitate them. It goes on to set up various nodes to monitor and check the enactment of this Bill. The Bill defines Manual scavengers as:

A “manual scavenger” is defined as a person engaged or employed, at the commencement of this act or anytime thereafter, by an individual or a local authority or an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or into an open drain or pit into which the human excreta from the insanitary latrine is disposed of, or on a railway track or any such spaces or premises as may be notified by the central government, before the excreta fully decomposes..[2]

And an insanitary latrine is defined as

A latrine which requires human excreta to be cleaned or otherwise handled manually either in situ or in an open drain or pit into which the excreta is discharged or flushed out.[3]

The definitions as per the Bill has been widened to include any form of the practice of scavenging human excreta from unsanitary latrines, the definition of which has also been comprehensive. The Bill, however, fails to delineate a workable plan for the rehabilitation of the people engaged in manual scavenging. It only states a cash assistance, giving off a plot of land and vocational training. It also puts the onus of rehabilitation on the employers to retain the employee by assigning them to other work at the same emolument as was being paid. It prohibits the construction of new insanitary latrines and the conversion of the existing dry latrines into sanitary latrines. There have been provisions made for a penal action of imprisonment and monetary fines of 1 Lakh and subsequent contravention of 5 lakhs. And, finally, the implementation and monitoring of the act has been givenNational Commission for Safai Karamcharis Act, 1993.

Having highlighted the main provisions of the Bill it will be fruitful to engage with it in the social space of caste dynamics. The parliament had enacted the Employment of Manual Scavengers and Construction of Dry Latrines (prohibition) Act, 1993, to check this increasingly dehumanising practice. However, the Act proved to be inefficient in dealing with this depravity. While the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012, seems adequate in respect of identifying the problem and its operational space, it doesn’t spell out in clear terms how the rehabilitation will be carried out. Most of the provisions with regard to habitation are monetary and vocational training. The implementation of the Bill has been left to the arbitrariness of the state machinery, which was charged with the implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (prohibition) Act, 1993. The results for which are far from satisfactory.

What the bill fails to acknowledge is the economic dimension of the Manual Scavenging which has in the first place made this practice rampant. The second fact that the bill fails to acknowledge is that of the rehabilitation of women and children and how the process for their employment will be enforced. The bill sees the primary member of the family be rehabilitated as male, while in reality about 95% of the Manual Scavengers are women and men mostly do the supervisory work. The most important part of the practice is the hereditary nature of the profession amounting to slavery. The issue is not the profession that the Manual Scavengers are engaged in, the issue is about the discrimination they face because of the profession while they have little opportunity of shifting to an alternative profession, because of rigid caste barriers. The issue, therefore, is about their right to live with self-respect, and a socially dignified life as full members of an equal society. This circular prison has to be broken which the Bill miserably fails to acknowledge. The logic of caste dynamics which imprisons Dalits to hereditary Scavenging has to be broken. The viciousness of this logic is the most powerful and self-sustaining social practice in India, which is not even remotely addressed by the Bill. The biggest challenge that the bill fails to recognise is the curse of untouchability, which flows from this rounded logic of traditional caste ‘Duty”, towards the upper castes.

It is a special kind of depravity that India engages in as a society where it chooses to repress the most vulnerable members of the society in the complex web of religion-social-political subtleties. This is the depravity that the Bill ought to attack, the Bill needs to do more to implement the fundamental right which abolished untouchability sixty-four years ago when the constitution makers penned article 17 and article 23 the right against exploitation of any form. Attacking only the economic relationship between the employer and the employee while leaving the social complexities untouched, the bill may end up creating more poor and vulnerable members of the society. While in Europe the practice of manual scavenging was killed with the advent of better flush systems and toilet technology in the early fifties, this result which the bills seeks to replicate will not be successful in India because it is embedded in the social dynamics of the caste system. There is little hope till such time as this dynamics of the caste system are left intact, which dehumanise the people of this nation, who incidentally are also the most vulnerable.

Employment of Manual Scavengers and Construction of Dry Latrines (prohibition) Act, 1993, failed to stop this scourge because of faulty implementation and general governance apathy. And, if the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012 is pursued with the same kind of lethargy and apathy will do little to uplift and rehabilitate the manual scavengers. It may end up creating a contraband and rent-seeking officials, which in any case will harm the Dalits the most. The bill is also silent on the state of the health due to manual scavenging and the rehabilitation and medical treatment for those who are already affected with various virulent forms of viral and bacterial infections which affect their skin, eyes, and limbs, respiratory and gastrointestinal systems. Tuberculosis is very prevalent among these caste group who are engaged in Manual Scavenging.

The Scavenging people in effect are victims of bondage slavery which has not been addressed by the bill either. Their debt seem to go on forever because they receive a pittance of less than about Rupees 22 a day for their work (and even this payment can be irregular if they are employed as casual workers, as is the case with most municipalities, or their wages are not paid on time), manual scavengers are forced to borrow from upper-caste neighbours for whom they work, and end up in debt bondage. The rate of interest on their loans is usually 10 per cent, and few can afford to pay off the loan. Thus, the wages they would otherwise receive go towards the repayment of the loan, and they become totally reliant on the few pieces of bread they receive on a daily basis. Their poverty is so acute that, in desperation, some Manual Scavengers resort to separating out the non-digested wheat from buffalo dung.[4]

Without addressing the issue of debt, gender sensitisation, and community assimilation the bill is unlikely to have the desired effect on the lives of the rehabilitated Manual scavengers. Since the problem is just not of the humiliating employment conditions they are forced to work in, but also of the attached social stigma they have to bear because of the profession they engage in. By simply banning the whole profession without the foresight for the assimilation of the retrieved scavengers into the society, the condition of the Dalits will only worsen. Though the penal provisions in the Bill seem adequate to check the violation of the provisions of the bill, the mechanism for enforcement remain the same – lengthy, unresponsive and as is the case with the current governance structures and an incompetent grievance redress processes.

The Bill makes the employing of people for the purpose for manual scavenging a crime but does not explicitly outlaw the practice itself. To be able to outlaw this inhumane practice of Manual Scavenging, the bill must first suggest an alternative to the economics of the profession. By simply declaring it as a criminal offence it does not serve the purpose to curb the practice. There have been many laws that have been passed by the parliament to protect the rights of the Dalits like the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, which have not been able to make much impact. The various acts dealing with Dalits have to be synchronised to speak the same language, and follow an aim of their rehabilitation to actually translate it on the ground within the social space. The redundancy of having multiple laws dealing with different aspects of the discrimination against them, only make the access to justice harder for the Dalits. It would do the government some good to simplify the legislation and create one umbrella bill including all aspects of the discrimination against them and also provisions for their rehabilitation into the mainstream of the society.

It would be ideal for the Bill to be looking into the assimilation of the Dalits into the mainstream of the India society by ways of community leadership. The practices which are discriminatory occurs with this social space. The reformation of this space needs to be looked into along with strong legal provisions for the protections of the Dalits. The patronising attitude of the government and the society at large has to be overcome. Though the legal enactments do make a difference in the societal perception of discriminatory practices, like it did in the case of the Abolition of the slavery Bill in England. However, they are often not enough. The government along with the society must do more to foster harmony and assimilatory attitudes between individuals. The practice of manual scavenging can be eradicated faster and more efficiently if the communities are held responsible for the practice occurring within their spaces of inhabitation. Community participation by the community members will serve well to sensitise the individuals towards a reconciliatory attitude to enable smooth rehabilitation of the Manual scavengers.

The Panchayats should also be involved actively in this process of social discontinuation of this heinous crime against humanity. The Panchayats being the first order of governance structure in India, the leadership role it can play in eradicating this menace must not be discounted. The Panchayats act both in the role of social and political leadership in the villages. The social acceptability of the need for the discontinuance of this practice has to come from there. It is here that the major interactions between people take place which actually change societal attitudes significantly.

The most pervasive and repressive element that plays a very large role in the continuation of this and other discriminatory practices against the Dalits is the sanctity of the religious discourse. Though in a secular republican state religion should not be directed in any manner by the state, in this case, there should be an exception. The state should call the leaders of all religions to partner with it in changing the perception of the Dalits as being outcast and getting into a dialogue stressing the redundancy of the caste system in the modern era. The whole idea of caste-based discrimination flows through the religious discourse, it would, therefore, be fruitful to engage aggressively with all shades of it. The sanctity that religion confers upon this practice can be reversed more effectively by the leaders of those practicing these derogatory practices with the sanctity of religion.

With regard to rehabilitation, the Bill needs to spell out the specifics that will be awarded to the rehabilitated Manual Scavengers. Some of the things that may be considered are:

 

  1. The women who form the majority of those engaged in the profession should be made the primary beneficiary of the rehabilitation award.
  2. There need to be strong incentives put in place for the Employers to help rehabilitate the people engaged in the profession. The incentives can be tax breaks, one-time rebate for those rehabilitated and recognition by the government through active media participation.
  3. The children of those rehabilitated should be given generous scholarships to pursue an education at the best institutions in the country. This avenue should be exploited to the maximum, and the provisions for the same should be included in the Right to Education too.
  4. New technologies of sanitation should be implemented vigorously where the rehabilitation of the Manual Scavenging people takes place, in order to avoid and relapse to the same profession.
  5. The Panchayats should be held accountable for the dry latrines not being converted in water based flushes.
  6. The land that is allotted should be agricultural, and property rights should be clearly marked out. It has been observed that having clear-cut property rights does lift people out of their poor lifestyle and help them assimilate and improve their social standing.

Former Prime Minster Dr. Manmohan Singh has on several occasions termed Manual Scavenging as the shame of the nation. So have other political leaders, now there is the awareness that the practice is the most deleterious to human health and dignity. But, till such time as we as a nation are not able to convert these words into action much remains to be desired. The Bill though noble in intent and serious in thought will not achieve its desired result if it continues to focus on the penal provisions and vague rehabilitation programs. It needs to recognise the heart of the problem and locate it in the lived community spaces. The observations that have been outlined above in tandem with the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012, will be better suited to the social diaspora of India.

It is a time for reckoning for us as the citizen in a democracy, that even after 70 years of the enactment of the constitution of India we have been unable to wipe out discrimination and inequality from our society. In a liberal democracy, the true measure of its success flows from the equality before the law, freedom, prosperity and dignity it can afford to its most vulnerable A strong political leadership is required based on the principle of liberty, which can ensure the protection of rights of the most vulnerable, while also implementing a radical reform agenda. Till such time as that, we will have to work towards incremental reforms like the present Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012.

Works cited

[1] The constitution of India

[2] The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012, chapter 1 section 2 (g)

[3] Ibid, Chapter 1 Section 2 (e)

[4] United Nations Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Working Group on Contemporary Forms of Slavery,27th Session, Geneva, 27-31 May 2002

 

India must prepare for the rise of a liberal party. The Swarna Bharat Party.


We the people of India had been given a largely liberal Constitution at the birth of the Indian republic on 26 January 1950. Over the years, this Constitution has turned illiberal through many of the amendments it has been subjected to. One of first assaults came with the removal by the Nehru government of the fundamental right to property.

There followed a wave of nationalizations by the Indira Gandhi government in 1960s. The word “socialist” in the preamble of the Constitution was introduced by the 42nd amendment during the Indira Gandhi government. This amendment entrenched socialism into the fabric of India’s governance and polity.

Then in 1989, the Rajiv Gandhi government made it mandatory for all political parties to swear allegiance to socialism, by amending the Representation of People Act 1951. This meant that no political party could be registered with the Election Commission without committing to the ideology of socialism. This effectively barred any liberal party from ever contesting elections in India. With this, the state became above the citizen, his liberties entirely at the mercy of the state. The servant of the people in the 1950 Constitution now became our master.

The insertion of the word “socialist” has been challenged by various individual and organizations over the years. The Supreme Court however, interpreted the word “socialist” in the Preamble not as an ideology but as an idea that informs social welfare. This is a highly contestable view, distorting the original and meaning of the word socialism, and the intent of Indira Gandhi and her son, in mandating it.

Though the Constitution is still a broadly liberal document, the many encroachments against liberty have to be expunged. Today India is a half-hearted market economy and open society. We have a contradiction with a largely liberalized economy on one hand and a deeply illiberal regime of property rights and freedoms.

The arch of history has always tended towards man’s natural state, of being free. And so it has in India, too. Amidst the impositions of socialism, a light of liberty was lit in 1991, as socialism bankrupted the country.

Twenty-five years ago we started reluctantly with economic reforms. The results were as expected. Growth rates began to soar. Living conditions improved.

The reforms still continue but there is no underlying understanding of liberty. Such reforms are knee-jerk reactions, rather than a structured move towards freedom. The government retains vast control over the economy. The administrative structure is colonial and an unmitigated disaster.

In spite of calls for reforms, no political party during the reform period bothered to align the governance system with economic incentives and accountability.

The country has been moving incrementally in this direction. Modi’s campaign used liberal rhetoric, such as ‘minimum government, maximum governance’.  But this slogan was hollow; the size of the government has increased but core functions are not being delivered. Modi had a large cabinet and now it stands at 77. The central government employees are set to increase by another few lakhs.

The tenured bureaucracy is inefficient and unaccountable. The government owns a major portion of the economy through airlines, mines and various PSUs. Through the Life Insurance Corporation, it further owns equity in private companies. But the government can have no business doing business. Why is the government not disinvesting?

The trajectory of the Indian economy has been towards liberalism since the early ‘90s. Socially, however, the trajectory has moved towards conservatism and orthodoxy. This contradiction cannot be maintained if India is to progress. One cannot have a conservative society with a liberal economy. A liberal economic system must have an open society where the rights of the individual are upheld, freedom of speech respected and the state enforces laws that defend freedom.

Presently, the state remains weak and confused; it lacks the capacity to enforce laws – also given the broken police and justice system.

The liberalisation of India is unlikely to continue unless a clear distinction is made between classical liberalism and neo-liberalism. The IMF and the World Bank aimed at privatisation of PSUs, deregulation of markets and opening the economy to external trade. This is better known as the Washington consensus. This, however, is only a small part of the liberal state. This approach to liberalisation only considers a few economic aspects but leaves the basic facets of man’s activity untouched.

The classical liberal approach involves the defence of private property, a market economy subject to essential regulations, the rule of law, constitutional guarantees of civil liberties including of freedom of religion, and international peace promoted by free trade. Our governments have no regard to the rights of the citizen and govern through fear. There is no accountability, no commitment to the individual.

Second, all political parties in India are committed ideologically to socialism. They differ only in a marginal sense from each other. Therefore, reforms have hit an ideological ceiling. To make India the world freest country is not the objective of these parties. For that to happen requires the full force of an internally consistent liberal ideology.

The country has suffered enough. The aspirations of the youth have been shattered again, and yet again.

Is there any hope for India? For the second time our history a liberal party is coming into being. It is young but surefooted. It is idealistic but will act pragmatically where necessary. It is a party given birth to and nurtured by ordinary citizens, under the guiding light of liberty. The journey it proposes to take towards a better nation has just begun. It is the Swarna Bharat Party, India’s only classical liberal party.

Citizens must ask: what is it that our governments should do. Do we want our governments to rule us or do we want a government that respects and protects our rights?

It is time for us to bend the arch of history towards liberalism. We the people must restore the country to the idealism of our founding fathers and fulfil the gaps where they fell short. Let us join hands in this journey towards a great country. Let our rallying cry be “Liberty first”.

Law and Women: Religious personal Laws some thoughts with regard to the Uniform Civil Code


The contemporary Indian society is multicultural that is pluralistic with regard to religious laws. These are laws governing different religious groups according to their religious tenants. These laws sometime come in conflict with the common law laid down by the constitution with the promise of the fundamental rights and legal entitlements for every citizen of India, irrespective of their sex or gender. The constitution also has a provision for a uniform civil code under article 44, to be enacted by the state. Religious Personal laws are often do not treat women at par with men. Unlike the constitution, which treats every citizen equally before it, the personal laws discriminate between men and women regarding similar and some case same provision of the personal Laws. This has led to a stream of thinking that enacting a uniform civil code shall equalise the gender field with regards to these laws. However, would it actually make the personal laws more women friendly, is still very much in doubt, and more importantly whether the promise of equality by the constitution can be delivered through it.

With respect to gender we seem to have entered a life of contradiction, upon the enactment and adoption of the constitution. While the constitution give equality to all citizens unrestrained by any external consideration, the personal laws still operated which subdued the idea of equality. The legal system that is follows is the common law system. It is a relic of the British colonialism. While we in India continue to maintain the convention of the colonial laws. The same concepts have been modified and abandoned in England. Within this preview the personal Law system is one of them. It is time to look in to modification and if necessary desertion of these laws in the interest of gender equality.

The article 44 of the constitution says that;

The state shall endeavor to secure for the citizens a uniform Civil Code throughout the territory of India.[1]

The post-colonial sate in India has been the architect of the many social reforms in the country after independence yet, no government in power in the last 64 years, has been able to either bring a consensus on the issue nor has been able to enact it. However, it will be out of place to ask questions in the “what if” format? What, however is important, is whether the enactment of the Uniform civil Code (UCC) brings about any perceptible change in the position of equality with respect to women. If would be prudent to stop and ask as to what exactly is the UCC?

The UCC in the Indian context means that part of law which deals with personal & family affairs of an individual and denotes uniform law for all citizens, irrespective of his/her religion, caste or tribe or gender.

Laws relating to crime and punishment which is the criminal justice system is uniform for all citizens.  So are the laws relating to commerce, contracts and other economic affairs?   Procedural laws including laws relating evidence etc. are also uniform for everyone.  Laws of taxation are same for all except that it recognises certain religious customs prevalent in the society, like Hindu Undivided Family (HUF), for special treatment.

However, family affairs such as marriage, divorce, inheritance, guardianship and adoption are legally permitted to be governed by customs of their community. This has been a pre-colonial practise, where the British thought it wise not to meddle with these customary laws of the local population. One distinguishing feature of personal laws is that all of them are gender biased in which women have fewer rights when compared to men. So, keeping in view these infirmities in the personal laws, it is assumed that having a UCC would bring about gender equality.

However, this simplistic assumption misses out on the complexities involved in chalking out such a code. Personal laws are not just laws governing communities, the complexities flow from the fact that they have religious sanctity and further, the courts and the legislature acknowledge it. The woman as a subject of the state underwent a transformation from a gender-neutral with law to a well-defined gender within the social space. This perhaps is what needs remedying.

After independence the first Lokh Sabha to the parliament of India enacted the Hindu Code Bill. It reformed the Hindu personal laws with regard to monogamy, inheritance and succession among others. These provisions tried to rationalise the Hindu personal laws and make them gender neutral to some extent. However, they did not go the whole way. The same is true for the Muslim personal law, that the women are not treated at par with men. However, there has been no attempt made by the development state of India to remedy the same at all, which in the case of Hindu law has been done from time to time. The main contention within the underlying assumption of the UCC is that, having enacted the UCC these contours within the Personal laws in particular and civil law in general will be smoothened to effect gender equality. On the one hand the constitution gives every citizen a fundamental right to equality (Article 14) while on the other, it gives the benefit of non-interference to the minorities in the affairs and activities to protect their cultural identity.

The UCC enacted in any form will violate these two principle because the women in India who are from diverse sections, cultural divisions and religious fabric will have to be treated homogenously, which means the blurring of cultural boundaries thereby infringing on their rights to practice and protect their religion and cultural practices. So the whole process is circular within the logic of the UCC and therefore, should not be used as a tool for gender equality. What needs to be noted and appreciated is the context specific situation of women in India. It has to be seen as the site for politics with specific goals, while the whole leads t to it.

The dilemma faced by feminists asking for a common family law for all Indian women is that they must simultaneously answer the mainstream critics of feminism who challenge the demand for gender-sensitive laws and the men and women of minority communities who demand respect for cultural identity.[2] It must be remembered that the legal system imposed or created by the British in India was in response to a very different society, that of England and not India. The idea behind the legal system was also inspired by liberalism and positivism the new streams of thoughts which influenced the European Nations during the Enlightenment. However, these values and ideas were a farcy cry from those instilled in the Indian society. The infusion of these new ideas underlying the system of justice dispensation in colonial India, brought with them the requirement of homogeneity and rule of law where every person was one and equal before it. This is the where the dilemma of the Indians multiplied due the heterogeneity of the status of a person within their personal laws canons and without from the perspective of the other personal laws.

Archana Parashar put the point succinctly in her writing on gender and law;

Liberalism and positivism have joined to formulate a view of modern law as autono­mous of the economy and society, in contrast to earlier conceptions of law that relied on historical or theological explanations. In this widely accepted view, the legitimate authority of law is dependent upon universal, neutral, and abstract principles. The law defines who is a legal subject and everyone who meets these requirements is entitled to the same rights irrespective of their religion, wealth, gender, or any other characteristic. Liberal legalism in particular finds its legitimacy in this guarantee of non-arbitrariness, of fairness to everyone irrespective of their specific characteristics or differences.[3]

If we are to protect the constitutional promise of equality and the protection and flourishing of diversity we have to look beyond the enticement of homogeneity. India has to relook at the relationship between law and how it sees and places women in the context of conflict with equality. The constitution in effect has looked at women favourably including provision which were progressive and ahead of its time. Some of the articles which bring out the concern for a better status of women as equal citizens of this nation.

The Constitution of India assures equality for both sexes. Article 14 of the Constitution provides equality before law. Article 15 prohibits discrimination on the basis of sex, but permits discrimination in favour of women. Some Directive Principles of State Policy of the Constitution of India apply to women specifically. Article 39 states that the State shall direct its policy towards securing that men and women equally have the right to an adequate means of livelihood. That there is equal pay for equal work for both men and women and that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 42 makes provision for just and humane conditions of work and maternity relief. The tone here that can be noticed is one of neutrality. Making everyone equal before the highest law of the land.

The critique of this positivist liberal view of the neutrality and universality of laws flows from the fact that they assume the essential sameness of the male and the female gender. Which led the demand of recognition of this difference in the law and change the laws accordingly by legal feminist. However this went on to raise a debate whether this amounted to preferential treatment. But, the challenge was dissolved with the advent of the post structuralism critique of the unified category of women with differing race, ethnicity, sexuality etc. where every women was construed a different being without a unifying factor and distinct personality based on social and personal memberships.

In the Indian context it would be far better to reason out an approach based on different rights rather than a universalising feature of the UCC. This is also based on the fact, that while the Indian constitution allows for and informs the formal equality of sexes, it does also allow for minority freedoms and religious rights. Within this framework the women in India cannot gain the equality sought without also raising the discourse on secularism and larger concerns of freedom. The recognition of the differences need to be contextualised leading to a fair and just outcome for all the women concerned.

The enactment of the 2005 Domestic Violence [Prevention] Act (DVA) by the Indian Parliament raises a number of relevant issues for Indian women seeking to understand law as a site of struggle, a site where politics can be played out and reasonable outcome expected. The requirements of the women in the south and the north are different. Domestic violence takes place in a very specific and particular socio- economic context, which stems largely from the construction of the women as dependents within law, having no or little economic independence. The religious personal laws deny Indian women even formal legal equality in personal relations be it family or conjugal. In this context it is no surprise that domestic violence becomes a real problem for the Indian women with specific contexts.

This bill has re conceptualised and articulated the problem of domestic violence within the civil law to recognise and redress the problem for the Indian women. However, the redressed mechanisms contained within the laws leave much to be desired. This law empowers the woman to remain at her conjugal home, and make arrangements to come out of the violent marriage. This is made and constructed as a right. The social context of the premium seen on the place of women in her conjugal home serves to block her exit. Moreover, the situation of the women during the time does not change, she still remains a dependent without any actual change in her economic situation. This is where the problem lies, the realistic chance of getting a share in the property remain dull and distant. Till this bill is not placed in the socio-economic context, with regard to the economic situation and maintenance provisions, the act shall remain a chimera.

The religious autonomy that various communities claim in turn invokes a sim­plistic notion of choice. Invariably there is no discussion of who is making the choice and whether the structural nature of hurdles in exercising choice makes it a futile con­cept for most women. With regard to personal matters it could be imagined that law, rather than enforcing religious authority, can facilitate equality by making all family laws gender non-discriminatory. Such a family law would not interfere with anyone’s religious autonomy but neither will it enforce religiously sanctioned inequalities.[4]

Clearly, the promise of gender equality cannot be achieved with the current discourse of the proponents of the UCC. A radical rethinking of the idea of equality promised by the constitution is required and till such time that it is not recognised there can be little hope for the achievement of this promise.

 

Works Cited

[1] The constitution of India

[2] Parashar, Archana. Brown University; 2008. Gender inequality and religious personal laws in India.

[3] Parashar, Archana. Brown University; 2008. Gender inequality and religious personal laws in India.

[4] Ibid.

Letter to Indian citizens, 1 September 2016: Introducing India’s only liberal party and how it can fix India’s problems.


Dear fellow citizen of India,

Subject:  Inviting you to consider the vision and approach of India’s only liberal party

Our freedom fighters sacrificed their lives for India’s liberty. They would have been deeply disappointed with what India has become. Our governance is one of the world’s worst. Corruption, injustice, insecurity and filth stalks us at each step. Daily life has become very difficult.

The cause is clear to all those who understand: that all our political parties have taken the wrong path. They have broken all principles of good governance. They have created incentives for corruption. As a result, the system is corrupted from the top. It cannot deliver even basic services.

This state of affairs can only be fixed through a total overhaul of our governance system. Such an overhaul will require amendments to key laws. Essential changes needed include state funding of elections on per vote basis to allow honest people to contest elections and elimination of the guarantee of tenure for senior bureaucrats. The government must be held to account for results.  Further, the government must focus on core functions and get out of running businesses. Of course, things must be systematically changed, through a proper transition strategy.

The concerned citizens who created Swarna Bharat Party (SBP) asked other parties to deliver these reforms, but these parties refused. It is a fact that all other parties directly benefit from the corrupt system they have created. Why would they implement any reform?

As India’s only liberal party, SBP is committed to the ideology of liberty. Only this ideology can establish India as a land of opportunity, the world’s richest economy and open society.

SBP offers India three fundamental reform directions:

1.     Reforms of the electoral system and bureaucracy to ensure total integrity and accountability.

2.     A limited but strong government that performs its core functions well.

3.     Maximum liberty for all citizens, consistent with the liberty of others.

We have developed the world’s best manifesto (at http://swarnabharat.in/manifesto). Please read it to appreciate the party’s deep thinking about public policy. SBP is the only party with capability to deliver urgently needed reforms. This way India can become a sone ki chidiya again.

After years of preparation, this party is reaching out to the people. A strong start has been made in Maharashtra, Uttar Pradesh, Rajasthan and Telangana. Preliminary work is afoot in many other states. Our 2015-16 Annual Report (http://swarnabharat.in/annualreports) provides details of our recent activities, including numerous photographs and press cuttings.

This party can only go as far as you want to go. It is up to you to step forward to help make India the world’s richest nation. But first please satisfy yourself about the party’s credentials and capability. We have a Youtube channel in which you can listen to some of our initial party leaders.

Once convinced about our vision and approach, please become a member and help build a strong grassroots presence for SBP. You can become a member by visiting http://swarnabharat.in/register(lifetime membership fee is currently Rs.100) and volunteer by visiting http://swarnabharat.in/register-volunteer.

At a minimum, please donate generously (monthly instalments in smaller amounts are welcome). You can use our online payment gateway at http://swarnabharat.in/credit-cards-neft. Or you can write cheque/s payable to “Swarna Bharat Party” and mail them to the party’s registered office at G-249, Palam Vihar, Gurgaon – 122017.

Only Indian citizens, including those residing outside India, are eligible to donate. Donations are exempted from income tax u/s 80GGC of the Income Tax Act.

In conclusion, I once gain offer this party and its vision to you. I invite you to join or otherwise support this platform to make India great again. Together we can achieve our dream for India.

Please share this letter widely with your friends and community.

With regards

(Sanjay Sonawani)

President, Swarna Bharat Party

info@swarnabharat.in

State Autonomy and the Developmental State in India


Before we start to analyse the concept of state autonomy, it is imperative that we, first understand what the concept of a ‘ state’ means and its relevance. We also need to know the boundaries between the state and the major power groupings in the civil society. So, what is this thing called ‘a state’?

The task of defining a state is an untidy matter, mainly, because it can be looked at as having two dimensions, one is the institutional which is to say what it looks like as a structural entity and the other is the functional or what it does, the functions it executes. The institutional dimension of the state, as put, privileges the two-dimensional definition, forward by Max Weber. This then contains four elements, which are the following:

  1. A differentiated group of institutions and personnel, embodying,
  2. Centrality, in the sense that political relations radiate outwards from a center to cover,
  3. A territorially demarcated area, over which it exercises
  4. A monopoly of authoritative binding rule making, backed up by a monopoly of the means of physical violence.[1]

Now that we have the definition of a state the analysis of its autonomy can be put in proper perspective. The first thing to understand about the state after having defined it is the, question of, what is the power of the state? The power of the state is of two types, first being despotic power and the second infrastructural power.

While exercising the first dimension of the state power, the state has the ability to bypass established norms and the preceding negotiations with the civil society, while the second one is more subtle and also more pervasive, this refer to the capacity of the state to penetrate the civil society, to implement its political decisions throughout its territory, through the infrastructural institutions of the state. The first type was strong in the ancient and all monarchic states but weak in the modern states and the second type is just the opposite, it being stronger in the modern states.

The power of the state flows mainly but not only from three aspects of its situation, first, being the territorial centralisation of the state, secondly, the multiplicities of functions it performs for the civil society as the prerogative of the state and thirdly, the necessity of organizing the natural society into a formal state in the first place. While among these the first was very strong in the ancient and medieval societies and the second in the modern states. The autonomy of the state with regard to its functioning was clear and unchallenged with the use of despotic power over the sovereigns’ territory of the older sates and the feature can also be seen in the modern authoritarian sates like china and Saudi Arabia. However, the autonomy of the state has become a lot ambiguous when we see it in relation to the infrastructural power in the modern states and the multiplicities of function it performs within the civil society. It is here that the boundary of the state and the civil society become hazy and the clear-cut demarcation between two is difficult to perceive.

Therefore, the greater the capacity of the state to impose its political decision upon the civil society greater will be its autonomy and lesser the capacity lesser autonomy it will have. Further, the autonomy of the state will depend upon the degree of centralization of power it exercises upon its territory, the relation of the ruling government and the parliament and the influence of the various mediating interest groups from the civil society. The more the centralization of power the more autonomy it can exercise while implementing its developmental and other political agendas within its domain, like in the case of India after Independence. Since, the congress had the majority in most of the states, the consent required for the implementation of the center’s policy decision, was relatively easy to come by. But, today the case has been reversed and the implementation consent is very difficult to come to, because of many parties ruling the different states.

Moreover, the autonomy of the state is also dependent upon the legislature and the executive in a liberal democratic state. The more the balance between the two, more will be the autonomy of the state to implement the decisions, and less the balance less will be the autonomy of the state. In the modern liberal democratic state, it is often very difficult to form a majority government, whether we see that in India or the UK, the coalition government that is formed restricts the autonomy of the sate by limiting the decision making and implementation power of the state. With so many power centers being formed within and outside the state and with the help of non-state actors, the autonomy of the state has been severely compromised.

The modern state has not been able to form clear policies without being influence by the pressure from the civil society, and the state has also been finding it difficult to implement the policies due to opposition from other parties in the political sphere. The state today has low autonomy but a high capacity to implement the decision. Which in turn leads to the state being unable to develop new policies or respond to new challenges owing to the power of organized opposition[2], and from the civil society groups.

Though the state is able to fulfill basic tasks but public plays a direct role in determining policy and is able to limit state power and scope of activity[3]. This can clearly be seen in the case of the Jan Lokhpal movement where the civil society actors demanded a position in making the bill, while rejecting the sate’s version of it, which, thereby, compromised the autonomy of the state. It went further, and tried to usurp the legislative function of the state itself. In a liberal democracy this is the exclusive domain of the state, which was under direct attack on its autonomy to make and implement its legislation.

To conclude, it will be quite difficult to argue that the liberal democratic state has autonomy, when the practice and the working of it has shown that, the autonomy of the state is infringed on by the opposition as the sate actors and the civil society as the non sate actors, quite often. While in theory we may still maintain that the state has autonomy in practice it does not. The modern sate which has institutionalized the practice of interest mediation through the corporate and various civil society actors, who now have a stake in the policy making and its implementation. This kind of interference which is allowed by the state in the form of public private partnerships in economic development, and the non governmental organization to partner it in implementing some social sector schemes, has severely affect the capacity of the state to govern as an autonomous entity. Therefore, the liberal democratic state is today, not an autonomous state.


[1] Michael Mann (1984). The autonomous power of the state: its origins, mechanisms and results. European Journal of Sociology, 25, pp. 185-213, doi: 10.1017/S0003975600004239. Pg. 188

[3] ibid