Looking and watching are two different things. One is where you direct your eyes to have a glance. Watching means to look at someone, something or at an event and pay attention to what is going on, you notice and observe and try to analyze whatever you witness. This women’s day, like every other woman’s day, we looked, we did not watch, and we did not observe. The easiest thing one could have done is to look around and observe the female representation around ourselves, in leadership, in positions of power or authority, and make an opinion on our practices of tokenism in women’s day: perhaps it would have been a cake cutting ceremony preceded by some talk about how much progress we have made, feeling proud, and some music or dance celebrations. A real test of progress in any society is the growth of its women in positions of power, smashing patriarchy by contributing to the GDP of the country and at the workplaces, when there is gender parity. Think about it.
Dr. Bhimrao Ambedkar or Babasaheb as he is popularly known, was the chief architect of the Indian Constitution. To me, Babasaheb was a feminist before feminism’s first wave hit India. Sure, we had many women like Sarojini Naidu, Vijayalakshmi Pandit etc. in the Nationalist movement along other prominent male leaders with but the real progress of the society or the real mirror of the society can be seen only via how the lowest class of the society is progressing, which is in this case the women as a social group of the lowest caste. And to them, from day 1, Ambedkar’s constitution provided the right to vote and the universal adult suffrage to all the citizens of India, but more importantly, to all the women of the country irrespective of Caste, class, religion or any sort of discriminative factors. This was one of the factors what made India the world’s largest democracy. This was also a unique phenomenon as no modern democracy, had, till then, given the right to vote to the women as a social group from day one of their independence. In fact, until the time Civil Rights Act was passed in 1964, even United States of America did not have universal adult franchise and the laws regarding representation and democracy’s basic right was discriminatory to blacks and most importantly to the black women. I say this to highlight the fact that in our conversations, when we talk about feminism and patriarchy, rights of transgenders and the backward sex classes including that of sexual social orientations of LGBTQIA+, we talk about a lot of traditionalist feminists like Phoole and Malviya, a lot of new feminist icons from pop culture in the form of Jacinda Ardern, Indira Gandhi, Meghan Markle and other champions from first wave to third wave feminism spanning first world to third world countries, yet Ambedkar’s contribution to the development of women in modern India and their progress is missing from our conversations. As a student of law, I have read Ambedkar and I have read the preamble of the constitution. We have learnt that whenever there is an ambiguity in the laws and whenever there is a question of interpretation of the constitution, Ambedkar’s preamble is the guiding light. Extending this, I believe, if we were to measure the development of women in today’s political and social India, we should find Ambedkar himself as the guiding light in defining progress in the 21st century of half the population, especially in socio-political setups. Tokenism, then, would be defeated and we would not end the conversations only on the 8th of March or 14th of April like that. Caste, Class, Ambedkar and Women It is well known how Ambedkar thought and saw caste and class as the biggest contributing factor to Brahminic idea of discrimination in pre independence India. Babasaheb extended his argument to blame these two enemies of the country in the subjugation of Indian women as well. He highlighted the idea of caste being deeply patriarchal, especially the Arya samaj argument he poses in ‘Annihilation of Caste’ where the samajists talk about reconstruction of the chaturvarnya. Reading the specific paragraph would make sense here: “The protagonists of Chaturvarnya do not seem to have considered what is to happen to women in their system. Are they also to be divided into four classes, Brahmin, Kshatriya, Vaishya and Shudra? Or are they to be allowed to take the status of their husbands. If the status of the woman is to be the consequence of marriage what becomes of the underlying principle of Chaturvarnya, namely, that the status of a person should be based upon the worth of that person? If they are to be classified according to their worth is their classification to be nominal or real? If it is to be nominal, then it is useless and then the protagonists of Chaturvarnya must admit that their system does not apply to women. If it is real, are the protagonists of Chaturvarnya prepared to follow the logical consequences of applying it to women? They must be prepared to have women priests and women soldiers. Hindu society has grown accustomed to women teachers and women barristers. It may grow accustomed to women brewers and women butchers. But he would be a bold person, who would say that it will allow women priests and women soldiers. But that will be the logical outcome of applying Chaturvarnya to women. Given these difficulties, I think no one except a congenital idiot could hope and believe in a successful regeneration of the Chaturvarnya.” Now you may think that we DO have women soldiers and if you go to South India, which is fairly less casteist than the Northern Hindi belt, you may find even Hindu women priests. Credit goes to Article 14 and 15 of the constitution. Now, in popular culture, you may get reminded of two very beautiful movies dealing with caste issues in the form of Anubhav Sinha’s Article 15 which is fairly based on blended caste-based violence against women in Badaun[1], and Unnao[2] rape cases, of the state of Uttar Pradesh. Prima facie, these cases have been a conscious attack of patriarchy and casteism against people of lower caste and women. The other pop culture reference could be that of Jai Bhim, which too talked about how caste and violence against women are often bundled, which Ambedkar highlighted directly and indirectly in his book Annihilation of Caste. In the form of a biographical movie of Justice Chandru and his quest with Ambedkar’s constitution in delivering justice which the state failed to harmoniously construct clearly stating its willingness to not abide by principles a just and humane India. Thus, even the pop culture, just like Ambedkar’s texts highlight the fact that caste and gender are bundled together very often and sometimes very strategically to supress the right of the minorities. Brahminical idea of patriarchy, thus, inculcates several types of discrimination and injustice at once. Ambedkar has proven that the Hindu society as a whole and specifically Manu’s writings and preaching on Hindu religion are deeply problematic, patriarchal and treats women as second-class citizen from Pilot. Thus, the role of Dr Ambedkar cannot be confined to any single dimension. He not only gave an academic dimension to the interlinkage between Caste and Gender but also paved way for the rise of Dalit Feminism in the longer run. In his works, he showed how within the Hindu religion women have been systematically given secondary status.[3] Limiting and summing up Ambedkar as a Dalit icon, is, to say the list, an injustice not only to Ambedkar himself, but to the ages of feminist movements in India. Ambedkar is much more than what the naked eye can see. A microscopic touch to the Ambedkarite idea of academia and social service by his readings needs to be promoted. Endnotes: [1] 5 Yrs On, Case of Badaun Girls Found Hanging From Tree Still Murky,https://www.thequint.com/explainers/badaun-alleged-gang-rape-and-murder-case-explained [2] Read more here: https://www.livelaw.in/tags/unnao-rape-case [3] Revisiting the writings of Dr B.R. Ambedkar through the feminist discourse | Arpita Giri, http://mainstreamweekly.net/article10819.html
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In what has been a series of allegations and difference of opinions from the Law Minister Kiren Rijiju on the functioning of the Indian Judiciary, the past few days have touched a new low clearly outlining the frustration of the Indian executive and legislature against the Indian Judiciary. This series of events have been marked by scathing attacks against judges, more after the Hon’ble Chief Justice DY Chandrachud assumed office. The bones of contention are many but primarily from the legal point of view, it revolves around Independence of Judiciary from the judiciary’s side versus supposed overreaching of the constitutional mandate bestowed to the Indian judiciary in the view of the government of India. The law minister’s remarks that some judges are part of the anti-India gang is a clear representation of the faults in the relationship and what Justice Chandrachud calls the constitutional statesmanship. Faults from the Government Side The government of India is the biggest litigator, as remarked by Justice Chandrachud. It holds true under the present dispensation as well. However, while the government has had most of the cases decided on either its favor like the Rafael deal or somehow and almost always in the recent past the judgments of the Supreme Court have been electorally beneficial to this dispensation, like the Ayodhya judgment which addressed an issue which has always been the dearest to the ruling party and the party of the present Law Minister. Faults from the Judiciary Not only the judgments, it is also the judges who have been in tandem with the government and we have seen a surprising number of judges of the Supreme Court including a former Chief Justice of the apex court accepting post-retirement jobs. All these judges were visibly known to be favorable for the government and them accepting post-retirement jobs just proved the fact that Independence of Judiciary and Separation of powers, something that a law student hears from the first class in a law school till his dying breath, has been blown to smithereens. The Chief Justice Ranjan Gogoi visibly did not even avail a cool off period and was crowned with a Member of Parliament post in the Upper House of the central legislature as a nominated member. Notably, he was part of the Ayodhya judgment, a decision which electorally benefitted the current dispensation return back to power with an even bigger mandate. There have been other judges like Justices Abdul Nazeer, Arun Mishra et al. But the faults of the judiciary and that of the government is just the cause of the recently decided judgments and the approach of the current Chief Justice, as the dispensation was not always this much aggressive in dealing with the judiciary and its criticisms, the exception being the appointment of judges to the Supreme Court. While many things like the appointment of judges and their transfers, retired judges taking post-retirement jobs, other set of judges criticizing the government and the judges for this and claiming these incidents as an attack on the Indian Judiciary’s independence, which may have led the Law Minister to harshly and quiet aggressively call these judges part of the ‘anti-India gang’, a remark which was till previously reserved for almost the entire opposition and activist leaders, have been tarnished the relationship between the two arms of the country, what seems the most frustrating for the government triggering the unprovoked and fierce attack was the issue of appointment of the Election Commissioners to the Election Commission of India. In Anoop Baranwal v. Union of India case, the 5-judge constitution bench decided recently that Election Commissioners will be appointed by the President on the advice of a committee consisting of the Chief Justice of India, the Prime Minister and the leader of the opposition (or the single largest party in the opposition) in the Lok Sabha. The court obviously had in mind the principle of checks and balances, of non-biasedness and of more dialogue based system agreeable to all, which is in fact the essence of the democracy. Unfortunately, a decision which should have been celebrated by all was interpreted to be an attack on the elected representatives and their powers and was dubbed as judicial overreach. Contrary to this, the Supreme Court, while interpreting the constitution and Article 324 therein, filled the gap as to the appointing authority and its powers, which was in question after the recent controversial appointments and the apparent case of bias in which anyone could be appointed who was suitable to the ruling party and was appointed without proper consultation. The Supreme Court had taken object to this non-consultative process and went on to dilute the untethered powers of the executive and appointing a neutral body. The Law Minister’s Objections The Chief Justice Chandrachud rightly noted that there has to be a constitutional statesmanship which needs to be there for better functioning of the Indian democracy and republic. While the calm and composed CJ countered the fiery and aggressive Kiren Rijiju in a brief manner, we do need to address some of the Law Minister’s concerns, both logically and sometimes, for the sake of the argument, rhetorically as well. One of the concerns of the Minister was addressed by Justice Chandrachud himself wherein he had tried to address the popular criticism of Judges appointing Judges. It is to be noted that the structure of appointment of judges are far more transparent under Justice Chandrachud and has been reformed regularly over the years. Several judges and counsels for the government and parties to litigation in multiple judges as recently as that of the NJAC amendment bill which was struct down as unconstitutional, have been litigated and intellectually and logically derived at at the best practice of appointment of judges. Even in that case, the Supreme Court does take a second look at a recommendation sent back by the government, meaning that there is some level of consultation and say of the other arm of the government if it does have legitimate reservations against the candidate for appointment to the post of judge of a High Court or a Supreme Court. It is not the world’s best system as some partisan judges also have been elevated to the bench. Some have been partisan from before their appointment, some have been after retirement in the form of post-retirement jobs, which too, the ruling party have benefitted from on a number of occasions. The second criticism is a related matter of Judges not being Elected to Office and not being accountable to the public. This is the most interesting criticism in my opinion. Let me pose a question, does being an elected official automatically make you accountable? Had it been so, wouldn’t the citizens have had the right to recall (of elected leaders) put into law by the parliament? Why is it so that the governments fall and allegations of grafting and defection remain popular? How many governments have fallen recently and how much of the illegality has been addressed and held accountable? These questions leave us with more further questions than to lead us towards an answer. In contrast to their Parliament counterparts, the judges who are not appointed as I might add, have to give out reasons for their decisions in every case (ratio decidendi and obiter dicta) and are under constant scrutiny by media and often by courts themselves in forms of appeals, reviews and revisions of judgments by higher judiciary or division or constitutional benches. Sometimes, even the parliament has overridden court judgments by enacting the judge made law via lengthy and reasoned judgments. The third and the most astonishing and largely rhetorical argument of the Law minister is that of Judges Carrying out Administrative Work. This was in direct reference to the judges being part of the committee, now, to appoint election commissioners and to which the minister suggested that if judges carry out administrative work, who will carry out judicial work and provide justice? This argument coming from a member of parliament is rather unhealthy as the parliament sessions are themselves barely half an hour these days with continuous adjournments, Sansad TV being muted, bills being pushed either via the money bill route or exercising the power of brute majority and manipulation, basically and in short, surpassing the legislative process and the process of deliberation by not having discussions in parliament and neither sending the bills to select committees, non-constitution of JPCs etc, especially after the demands of opposition members to debate the Adani issue now or the Farm bills in 2020, which eventually the government had to withdraw after nationwide farmer protests. This absence of deliberation and consultation, which is the essence of any democracy, is what led to this mess and taking away and dilution of powers of the executive in appointment of Election Commissioners. Another aspect of this was unilateral appointments without a proper process of scrutiny in such appointments, showing clear partisanship and non-application of mind, which are the ethos of appointments in democracy. Unlike judicial appointments of judges, the election commissioners were not recommended by say a collegium like structure, there was no pushback by any stakeholder unlike in the case of appointment of judges where the government has, very often and especially of late, either withheld the recommendations for appointment or the names being sent back to the collegium for reconsideration. To fill this gap, the government themselves could have come up via a legislation a process which could have included a parliamentary process or a search committee process which is often used in universities for appointment of vice-chancellors, or any other way which would have had the confidence or even a pretense of being non-partisan or unbiased and where there would be an apparent application of mind by selecting from a pool of candidates, inviting suggestions from an all party meet, but all of which was neither done by the government, neither deliberated by the parliament. Thus, it can be said that this was a result of the government’s own doings and its own mistakes. At least now, we have a system where there are three stakeholders, who shall, even in the case of opposing views, deliberate and discuss from a pool of candidates. In conclusion, it would be more advisable for the minister of law to be more deliberative while asking his colleagues in the parliament to be exercising the same. What more could be done is the tone of the process of communication could be dialed down and exercise what Justice Chandrachud called an exercise of constitutional statesmanship. |
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