Thursday, April 14, 2016

Hindu Philosophy Interpreted by the Courts of India - DailyO

The Supreme Court seems to be reducing Hindu philosophy to a single absolute certainty. Something Hindu sages, the progenitors of the philosophy themselves, never did. There is, contrary to popular opinion, no arbitration on who a brahmin should be. Ram was a kshatriya, Krishna was a Yadava, Shiva a tribal, a kirata, none of them brahmins. Rishi Aiterya, Vishwamitra, VedaVyasa, Matanga, Nammalvar... Ravana. Many material states in Hinduism are mutable.

And just like that a constitutional body has, probably for the first time anywhere in the world, become the interpreter of religious texts. In this it is protected by Article 25 (2) that deals with the right to religious freedom but allows the courts to intervene on social welfare and reform, but only on Hinduism. This inability to separate faith and state is now the definition of Indian secularism.

Ayappa is the god of discipline. Mahishi symbolises the ego. It is in him that Hari and Hara, creation and destruction, come to harmony. The rigorous vows of celibacy, the 40 days penance, ironically, are a tribute to womanhood: they symbolise one day of penance for each week spent in a mother's womb. Woman, the symbolic Prakriti energy, or vehicle of creation is not available to man for these 40 days. Man must pull himself back from his function as procreator and the procreated. The black symbolises the nullifying of the colour spectrum, absorbing all differentiation into one.

Devotees do not even address each other by name during the pilgrimage. The physical state is forgotten, and the pilgrim must subsist on alms. The 18 steps symbolise 18 exercises to remind the student or the householder, of his need to transition to a state of detachment. Women may go up the hill all they want, Lord Ayyappa will survive the seduction of women pilgrims plenty. He is too advanced a master of the mind not to.

One may not be so sure of the men who make the climb though. The penance is for them. To remind themselves that they are one half of a whole, where they come from, who they depend on, and why balance is their function. That it is seen as rigorous penance, is indicative of why men need to probably do this more often, but once a year is enough.

Court Interpretation
No doubt, this entire body of knowledge and way of thinking is what the learned judge of the honorable Supreme Court was encapsulating and taking into account when he began to arbitrate what Hinduism says. He had clearly studied it, decoded all the caste links and structures, schools of knowledge, expounded it, and was only thus explaining it in open court. Which is an amazing feat, considering all commentaries and bhashyas on Hindu texts differ, even from sage to sage and commentator to commentator on the same line of Hindu text. Yajnavalkya warns Maitreyi: it is impossible to know the essence of finite beings.

The judicial arbitration of Hinduism's intrinsic principles reduces an entire religion to a monotheism and ignores the multiple layers of consciousness that form its spiritual temperament. The pantheon of Hindu gods exists so a devotee may adopt that which suits his form of bhakti, or adoration, which again is not the only path. Even wealth, duty, study take you there. One is not imposed on another. The myths and stories exist so Hindus lower down the plane of spiritual evolution may comprehend higher truths more easily, in the form of life lessons. The stories of avatars exist to exemplify ways of living and behaving. The Vedic texts exist for those who seek to question on higher planes. This ascent is not ordained by pundits but is open to each member of the faith as and when he or she finds himself seeking it. The multi-layered multi-faceted expansiveness of Hinduism is its fabric.

To force ascension is against the inbuilt progression of the religion itself. The Supreme Court, in adjudicating on matters it has no religious punditry over, and in doing so under the protection of the law, and the Constitution of India reduces Hinduism to a bunch of meaningless myths.

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Monday, April 11, 2016

New Cheque Dishonour Amendment Explained - Gujarat HC - Times of India

In an important order in a cheque bouncing case, Gujarat high court has explained and clarified the new law regarding jurisdiction of courts in such matters and where an aggrieved party can file a complaint.

In this case, the petition was filed by a resident of Uttar Pradesh after an Ahmedabad-based firm moved the Ahmedabad metropolitan court under Section 138 of the Negotiable Instruments Act against a dishonoured cheque. The cheque was issued in Badalpur, UP, and deposited in a bank in Gorakhpur, UP. When the cheque was dishonoured due to inadequate balance, the payee filed a complaint in Ahmedabad.

The UP resident questioned the jurisdiction of Ahmedabad court on the ground that the cheque was issued in UP and delivered in UP. No action in the matter had taken place in Ahmedabad. On the other hand, the Ahmedabad-based firm argued that the complaint was maintainable because the company had its bank account in Ahmedabad.

Justice J B Pardiwala rejected the UP resident's contention and gave a clarification on the amended law. The court made it clear that "when the cheque is delivered for collection through an account, the complaint is to be filed before the court where the branch of the bank is situated, where the payee or the holder in due course maintains his account and, secondly, when the cheque is presented for payment over the counter, the complaint is to be filed before the court where the drawer maintains his account."

The issue has a curious history. In 2014, the Supreme Court ruled that cheque return cases can be filed in a court where the issuer (drawer) maintains his account. This resulted in shifting of lakhs of cases from one town to the other and caused complainants difficulties.

To put an end to the payee's troubles, the President promulgated the Negotiable Instruments (Amendment) Ordinance in June 2015. This provided that the complaint can be filed in a court where the payee maintains his bank account. While the amended law takes care of interest of the payee of the cheque, it also tries to ensure that drawer of multiple chequess is not harassed by payees filing different complaints at different places. In such a case, all complaints should be filed in the court where the first case was lodged.

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Sunday, March 13, 2016

In defence of a revolutionary - Reopening the trial of Shaheed Bhagat Singh and his team - IndianExpress

Eighty-five years after the hanging of Bhagat Singh, lawyers from India and Pakistan have joined hands to re-open, and overturn, the sham trial that led to his death.

In a dark, poky room that constitutes his chamber in the new block of the Supreme Court, Delhi, Nafis Siddiqui, a 77-year-old criminal lawyer, has been preparing for a most unorthodox case for the last two years. 

As part of his research, he has been reading up on cases where verdicts have been upended after long periods of time. He cites the case of George Stinney, a young boy, exonerated 70 years after his death by a court in US (in 2014), that found he was denied due process. Siddiqui points out another relevant trial; the ongoing legal battle between the British government and victims of Kenya’s Mau Mau emergency, who are demanding compensation 50 years after the events. “When it comes to infringement of fundamental rights, a delay in the matter is of no consequence,” he says.

With loose-flowing white hair, thick-framed glasses and oversized black coat, Siddiqui is an idiosyncratic figure. He pulls out a thick brown folder marked “Bhagat Singh”, with whom he has grown to be familiar through history books and family lore — Siddiqui’s father-in-law, Hasrat Mohani, a freedom fighter, communist and poet, credited for coining the slogan, “Inquilab Zindabad!”, had a great influence on the revolutionary. “I mostly handle cases of murder, and this is clearly a case of political murder,” he says.

Eighty-five years after the hanging of Bhagat Singh, a lawyer from Pakistan is trying to pull off what is either an audacious attempt to change the course of history, or a fool’s errand. In 2014, Siddiqui was approached by Lahore-based Imtiaz Rashid Qureshi — who has been fighting a lone battle to prove the innocence of Bhagat Singh — to advise him on his case. Qureshi’s petition, which was filed at the Lahore High Court in 2013, seeks to reopen the case of the hanging of Singh and his compatriots, Sukhdev Thapar and Shivaram Rajguru, whose death anniversary will be celebrated on March 23 as Martyrs’ Day. In February this year, a two-member division bench in Lahore referred the case to a larger bench. For Qureshi, who argued that only a bench of three or more members could undo the decision of the three-member bench that awarded the death sentence in 1930, it was a moment of victory.

The first breakthrough came in 2014 when the court handed him a copy of the original FIR for the murder of British police officer John Saunders lodged at Lahore’s Anarkali police station in December 1928. The FIR does not name any of the three accused.

This is just one of the many discrepancies of the Lahore Conspiracy Case, which lasted for nearly two years and is universally recognised as a sham trial. As AG Noorani detailed in his book, The Trial of Bhagat Singh, from the lower court to the tribunal to the Privy Council, it was a judgment that represented a total compromise of the legal process.

The accused remained absent through the proceedings and remained unrepresented. Halfway through the trial, an Indian judge, deemed sympathetic to the accused, was removed from the tribunal. Many other rules of law were flouted. In a scathing editorial that appeared in April 1931, in the Marathi newspaper Janata, soon after the hanging, BR Ambedkar called out the hypocrisy of the British who manipulated the trial for political ends.

“We are demanding two things, that the British government, through the Queen, apologise to both our countries, and pay compensation to the families of Bhagat Singh, Rajguru and Sukhdev,” says Qureshi over the phone from Lahore. Loquacious and deeply committed to the cause, he calls himself a “lover of Bhagat Singh” and runs a memorial in his name, the Bhagat Singh Memorial Foundation. “This is a case that unites the two countries and it proves that Pakistan, an Islamic state, can also be liberal. Let’s not forget the Quaid-e-Azam was the only leader to have publicly defended him.” In a speech he gave in the Central Assembly in 1929, Mohammad Ali Jinnah had famously expressed his sympathy for the revolutionaries.

Qureshi’s pursuit has had a ripple effect in India. In Ludhiana, the descendants of Sukhdev Thapar have recently written to the Indian government, demanding a copy of the FIR and papers related to the judgment. Ashok Thapar, (a great-nephew, his grandfather was the younger brother of Sukhdev), who runs the Shaheed Sukhdev Thapar Memorial Trust, says, “We want government support to go to Lahore and pursue this case, or we will file an RTI. As his blood relations, we have a claim.”

More than perhaps the verdict, the reopening of the trial is crucial for another reason. There is renewed hope that the court will order the release of about 164 files related to the case, which are with the Punjab Archives in Lahore. They have been treated as “sensitive”, and no historian or researcher has ever been allowed to access them, says Ludhiana-based Jagmohan Singh, a researcher on Bhagat Singh. He also happens to be Bhagat Singh’s nephew, born to his sister Bibi Amar Kaur. But, unlike the sustained campaign around the declassification of the Netaji files, these files have been neglected. Yet, they are a crucial part of setting the record straight.

“The trial may or may not change history, but it’s the right of the people to know what happened, and those files will help us get there,” says Shantanu Rajguru, a great-grandnephew of Shivaram Rajguru. The family lives in Pune and is currently putting together a biography on the revolutionary. It was Rajguru, known as the marksman of the group, who fired the shot that killed Saunders. But Rajguru, like Sukhdev (who was in charge of coordinating the operation to avenge the death of Lala Lajpat Rai), has been reduced to a footnote in history, believes Shantanu. The descendants of Sukhdev believe that the retrial should not be held in the name of Singh alone.

Apart from the context of historicity, the trial is significant as a measure of the democratic struggle in Pakistan being led by the civil society. The effort to reinstate Bhagat Singh as an icon has gathered force in recent times, as he has emerged as a symbol for the secularists in their battle against illiberal forces. Singh belongs to the pantheon of heroes of the Indian subcontinent. He is venerated in Punjab where he was born. “The PIL is an important political and historical development in a country and a region where history is often distorted in textbooks, held hostage to nationalist expediencies and heroes like Bhagat Singh are simply whitewashed or relegated to a footnote,” says Raza Naeem, a social scientist and activist from Lahore, over an email interview.

While there is no official celebration of his martyrdom day in Pakistan, every year, on March 23, there is a gathering of activists at Shadman Chowk, next to Lahore Jail, where he was executed. Since 2001, there has been a movement demanding Shadman Chowk be renamed Bhagat Singh Chowk. The government agreed a few years ago, but capitulated when Islamist groups objected to the icon on grounds of his religious identity. In a conciliatory move last year, the government announced a package of Rs 8 crore, for the restoration of his ancestral house in Faisalabad district.

“I have attended the annual gathering at the chowk for a few years and every year, the movement has grown,” says Haroon Khalid, Pakistani author and journalist. “It is now part of the broader debate that seeks to widen the horizons of Pakistani nationalism by incorporating non-Muslim heroes as well. Another interesting dynamic of this movement is that it also comes at a time when the Pakistani state actively wants to re-project itself as a liberal secular state. There has been particular focus on the protection and promoting of Sikh heritage in the country. Bhagat Singh is seen in that broader framework of this Sikh heritage,” he says.


(The other aspects touched in the original article are not subscribed to or agreeable with me. It would be a narrow approach to stifle the Patriotic actions of the Revolutionaries under the Colonial Rule to a set of political isms. It is also equally wrong and disruptive to equate those Revolutionaries in the real sense to the present ongoing events involving a  few misguided, politically motivated individuals.)


Monday, February 29, 2016

India's Business set-up Bottlenecks

Building a factory in India is not for the faint hearted. 

Even if a company is fortunate and manages to buy land - which, by the way, is becoming more and more difficult, expensive and time-consuming due to complex laws, people's rising expectations and local politics - that is just a start. 

A manufacturing company in India, on average, has to comply with nearly 70 laws and regulations. Apart from the multiple inspections, it has to file around 100 returns in a year, according to a 2013 report by consultancy firm Deloitte. 

Then there is the double maze of tax and labour laws that can be a big pain even in the best of times. Poor infrastructure does not help either. 

Will the NDA government, whose economic programme hinges on boosting the manufacturing sector, be able to bring about the required change? 

Will it be able to debottleneck the process of setting up and running a factory in the country so that its plan to create millions of new jobs in manufacturing sees the light of day? 

Problems in acquisition of land, delays in environmental and other clearances and infrastructure bottlenecks have taken a toll. 

In the past five years (2011 to 2015), new projects have seen a marked reduction of 44 per cent from the period between 2006 and 2010. The value of stalled projects more than tripled during the period. 

Worse, straddled with huge distressed assets, core sector companies are more concerned about avoiding default rather than making fresh investments. 

As a result, India's investment-to-gross domestic product ratio has fallen for five straight financial years now. 

The NDA government has tried to correct this through a massive increase in investments to build infrastructure. It is likely to follow this policy in the coming Budget, too.

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