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Archives for : April2018

National Resistance Day’ Against the Supreme Court Judgment on SC-ST Act #DalitsAdivasisResist 

#DalitsAdivasisResist – 1st May to be Observed as “National Resistance Day’ Against the Supreme Court Judgment on SC-ST Act

#DalitsAdivasisResist – 1st May to be Observed as “National Resistance Day’ Against the Supreme Court Judgment on SC-ST Act


Dalits and Adivasi organisations from all over the country have planned to take to the streets on May 1st, which is also a Labour Day. Dalits and Adivasi organisations have decided to observe 1st May as ‘National Resistance Day’.

The call for holding the protest and observing 1st May as National Resistance Day has been given by a collective of more than 500 Dalit and Adivasi organisations which goes under the banner of ‘National Coalition for Strengthening POA Act and its Implementation’.

Dalit Atrocity

Protests on May 1st are expected to be bigger than what we have seen on 2nd April Bharat Bandh.

Organisations will be protesting against the Supreme Court’s order on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Last month on 20th March, Supreme Court had diluted the provisions of SC/ST Act in an attempt to save the perpetrators of atrocities on SC/ST.

Collective has issued 12 following demands –

Demand 1 – Government of India should ensure that either through Judicial or Parliamentary recourse the status quo of the SCs and STs (PoA) Act 1989 is restored to its original position as was before 20.03.2018 judgment.

National Resistance Day

Demand 2 – The SCs and STs (PoA) Act 1989 and the POA Amendment Act 2015 shall be included in the Ninth Schedule so that it may get some protection in the matter of judicial review.

National Resistance Day

Demand 3 – Release of all the Dalit and Human Rights Defenders, activists, leaders, community members and employees arrested on 2nd April, during the “Bharat Bandh”. Immediate action should be taken against the people who were indulged in firing against the community.

National Resistance Day

Demand 4 – Robustly, enforce and implement the amended SCs and STs (PoA) Act 1989 and Rules 1995 and in specific the rights of victims and witnesses as enshrined in the amended Act.

National Resistance Day

Demand 5 – Establish mandatory exclusive special courts as per the Section 14 of the SCs and STs (PoA) Act 1989 in each district. These courts shall not take cases of any other legislation.

National Resistance Day

Demand 6 – Take immediate measures to appoint Public Prosecutors of victim’s choice as per Rule 4 (5) of the SCs and STs (PoA) Rules 1995 for speedy trial of the cases.

National Resistance Day

Demand 7 – Conduct an open and transparent investigation under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and prosecute those Government and police officials under section 4 of the Act who are found to be aided and abetted criminals or found to have negligent in their responsibilities in implementing the provisions of the Act/plan and schemes.

National Resistance Day

Demand 8 – Immediate notification or G.O> to be issued to all the state governments to frame contingency plan in line with contingency plan framed by the Government of Tamil Nadu and simultaneous framing of guidelines and schemes under the plan if any for the purposes of rehabilitation, employment, pension, strengthening socio-economic conditions of the victims. Unless this is done the plan would be merely a piece paper.

National Resistance Day

Demand 9 – National Human Rights Commissions, Scheduled Castes and Scheduled Tribe Commissions shall conduct open hearing all over the country on cases of atrocities and on the implementation of SCs and STs (PoA) Act. The Commissions shall ask for the annual reports from the states and present the same before the Parliament.

National Resistance Day

Demand 10 – The Parliament shall also debate during the sessions on the effective implementation of the PoA Act 1989. The Parliament shall constitute a National, State and district level Enforcement Authority for the effective implementation of the PoA Act 1989.

National Resistance Day

Demand 11 – Ensure that the underdeveloped Dalit and Adivasi habitats, habitats prone to atrocities, and habitats which are arsoned or damaged are provided with land, adequate housing, clean water and sanitation facilities and infrastructure facilities from SCP/TSP from the provisions of Contingency Plan.

National Resistance Day

Demand 12 – Ensure externment of the persons likely to commit offence under the Act in any area included in ‘Scheduled Areas’ or ‘Tribal areas’ as referred to in Article 244 of the Constitution.

National Resistance Day

 

We urge everyone to stand up and resist, protect constitutional rights of Dalit-Adivasi and participate in the protests. Who says the act is misused? Let’s resist the regressive judgement of the Supreme Court.

Use the hashtag  #DalitsAdivasisResist while posting on social media!

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Bihar – In Video, Girl Attacked By 8 in Jehanabad, Clothes Ripped Off. No One Helped #Vaw #WTFnews

Police in Bihar’s Jehanabad have arrested four young men for molesting a girl. Most of the attackers are teenagers, the police say.

In Video, Girl Attacked By 8 In Bihar's Jehanabad, Clothes Ripped Off. No One Helped

Teenager molested in broad daylight in Bihar’s Jehanabad

JEHANABAD, BIHAR: 

HIGHLIGHTS

  1. Six out of 8 seen in video molesting teenager in Jehanabad, arrested
  2. Girl is seen in footage helplessly fighting her attackers
  3. Most of the attackers are teenagers, say police

Six young men seen molesting a girl and ripping her clothes off in a widely-shared video have been arrested by the police in Bihar’s Jehanabad. The police acted swiftly after the disturbing video, posted on social media by witnesses who apparently did nothing to help the teen, was received by a senior officer on Sunday. Two more attackers in the clip are still missing.

Senior IPS officer Nayyar Hasnain Khan has formed a special team to investigate the video, which has outraged thousands since it surfaced online.

The girl is seen in the footage helplessly fighting her attackers, who are heard laughing and jeering while dragging her clothes off. One of them can be seen lifting her off her feet as she tries to kick him and free herself. No one could be seen trying to stop the group, including the person who took the video.

Most of the attackers are teenagers, the police say. A motorcycle belonging to one of them, which was also seen in the video, was a vital clue for the police.

The mobile phone with which the video was shot has been recovered by the police.

The police are carrying out door to door searches in the neighbourhood and talking to villagers to identify the rest of the attackers. The girl and her family are also being counselled, say police sources.

A First Investigation Report has been registered against the accused under the stringent Protection of Children from Sexual Offences (POCSO) Act.

The incident comes in the middle of outrage and disgust across India over a series of child rapes.

Amid nationwide rage over the gang-rape and murder of an eight-year-old girl in Jammu and Kashmir’s Kathua, the centre recently brought in death penalty for child rape through a special order.

A six-year-old in Odisha who was raped by a neighbour, strangled and left to die eight days ago died in hospital on Sunday. She had deep wounds on her head, face, neck and in her private parts.

https://www.ndtv.com/india-news/in-bihars-jehanabad-girl-seen-fighting-off-molesters-in-disturbing-video-no-one-helped-1844715

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BJP Rewards Kathua MLA Who Attended Pro-Rapist Rally #WTFnews

In a disgraceful move, Bharatiya Janata Party (BJP) MLA from Kathua Rajeev Jasrotia has been given a ministerial berth in today’s cabinet reshuffle in the Jammu & Kashmir Government. This move from BJP is facing severe backlash on social media already. It was in Rajiv Jasrotia’s constituency that the horrific rape and murder of an 8-year-old girl took place, sending shockwaves across the nation. The BJP MLA had disappeared for two days at the time after he was questioned about the incident

Jammu and Kashmir Assembly speaker Kavinder Gupta and seven others were sworn in as ministers in the state’s PDP-BJP government led by Mehbooba Mufti.

Gupta will be the new deputy chief minister in place of Nirmal Singh, who submitted his resignation last night, officials said.

The new BJP faces sworn in as ministers were the party’s state unit chief Satpal Sharma and the MLAs from Kathua and adjoining Sambha, Rajiv Jasrotia and Devinder Kumar  Manyal, respectively.

Rajeev Jasrotia also evaded questions when asked by the news channel.

Omar Abdullah took to Twitter and expressed his dismay over the promoting of Kathua MLA who had earlier attended the pro-rapist rally organised by Hindu Ekta Munch in Kathua.

“2 BJP ministers removed in J&K for attending a pro-rapist rally & a MLA who is reported to have attended the same rally is promoted as a minister. Why are the BJP/ @MehboobaMufti  confused about where they stand on the #Kathua rape,?” Omar said in a tweet.

While the government had passed an ordinance to give death penalty for child rapists, this indifference in the treatment of their own party members and leaders shows how the party enables rogue behavior and rewards them.

BJP Rewards Kathua MLA Who Attended Pro-Rapist Rally With Ministerial Berth In Cabinet Reshuffle

The reshuffle is the result of BJP ministers Lal Singh and Chander Prakash Ganga resigning from the cabinet earlier this month after they were criticised for taking part in a rally in support of those accused in the rape and murder of an eight-year-old girl in Kathua.

Congress leader Priyanka Chaturvedi also took to Twitter and blasted BJP.

“As per news reports BJP MLA who attended the pro-rapist rally in Kathua, Rajeev Jasrotia, is now a minister in the cabinet reshuffle. BJP protects rapists and promotes rape apologists. Shame,” she said.

agencies

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PSEB removes 23 chapters on Sikh history, kicks up storm

Included in Class XI syllabus to realign with NCERT, says CM

PSEB removes 23 chapters on Sikh history, kicks up storm
The building of the Punjab School Education Board in Mohali. A Tribune photograph

Tribune News Service

Chandigarh/Patiala, April 28

The deletion of 23 chapters from the Class XII history book of the Punjab School Education Board (PSEB) —  pertaining to important aspects of the Sikh history— has raised a storm in the state.The PSEB, after reviewing the syllabus, has reportedly removed the chapters concerning the history of Sikh gurus and their teachings — Anglo-Sikh wars; the rule of Maharaja Ranjit Singh and annexation of Punjab among others, from the textbook. 

 

While newly inducted Education Minister OP Soni said he was not aware of this, PSEB officials admit that certain chapters from the last year’s syllabus have been deleted to “bring the syllabus on a par with the National Council of Educational Research and Training (NCERT)”.They added that these chapters would now be taught in Class XI, and the new textbooks were currently in print. However, the syllabus of class XI, circulated online to some schools, does not mention that the ancient Sikh history will be included in their textbooks. It is learnt that while a print order for 11,000 history books was made, 3,500 have already been printed.

 

The new syllabus of Class XII , without the above mentioned chapters, has also been shared online with the affiliated schools.Among other important aspects of Punjab history that are no longer part of the Class XII history book are chapters on Sikh struggle against Mughals and Ahmad Shah Abdali and the origin and growth of Sikh Misls and Banda Singh Bahadur. These have been replaced by chapters on modern history, early and medieval history and political and economic developments in these periods and the rise of nationalism and freedom struggle.

As the matter took political overtones with former Education Minister and SAD spokesperson Daljit Singh Cheema demanding a high-level probe and action against officials guilty of deleting chapters and wrote a letter to Chief Minister Amarinder Singh, the latter dismissed as malicious the SAD’s allegation of deletion of chapters on Sikh gurus.

Lambasting Akali Dal leaders for trying to spread “misinformation” on a sensitive religious issue, the CM said Akalis had shown gross irresponsibility by making a baseless public statement without bothering to check on the facts. “The fact is that the courses have merely been realigned with the NCERT syllabus to enable students from Punjab to compete at the national level,” said the Chief Minister, making it clear that not even a single word had been deleted by the board.

The history chapters had been now spread across classes XI and XII, on the recommendation of an expert committee, of which a SGPC representative was also a member, he said. He added that under his directive, a chapter on the lives of four Sahibzadas had been incorporated in the textbooks.Prof Gurmeet Singh Sidhu, head of the department of religious studies, Punjabi University, said the PSEB had omitted major parts of Punjab history from classes XI and XII syllabus. Moreover, the facts were wrong and history had been distorted.“Removing the Sikh history means we are depriving our students of knowing their past, which is highly damaging for any culture.

I have read Class XII and I am shocked to find so many factual errors in the book, which shows that the board was least concerned about Punjab history. We have constituted a three-member committee which will be presenting a report to the CM and the Education Minister, along with supporting documents highlighting all mistakes,” he said. 

Chapters were based on history of Sikh gurus, their teachings

  • The PSEB, after reviewing the syllabus, has reportedly removed the chapters concerning the history of Sikh gurus and their teachings — Anglo-Sikh wars; the rule of Maharaja Ranjit Singh and annexation of Punjab among others, from the Class XII history textbook.
  • PSEB officials admit that certain chapters from the last year’s syllabus have been deleted to “bring it on a par with the National Council of Educational Research and Training

 

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Kathua Rape Case: A Communal Crime, Now a Communal Trial? #Vaw

The Supreme Court, in its silence, is allowing for the issue to linger on, letting tensions in the area grow, and is also letting delivery of justice for the victim be delayed.
Kathua

Only three weeks ago, the Bar Association of Kathua and the Jammu High Court Bar Association had proudly and loudly protested against filing of a chargesheet by the Crime Branch in the case of the rape and murder of the eight-year-old girl in Kathua. Now, the Bar Association is denying it did any such thing when asked by the Supreme Court. Even more shockingly, the Bar Council of India (BCI), which was to investigate the misconduct of the lawyers, is supporting these claims despite all the evidence that exists to the contrary – including videos from media coverage of the protest. This also includes the admission of the Kathua Bar Association itself in this press release:

IMG-20180409-WA0011 (1)_0.jpg

J&K Police as well as the J&K state counsel have opposed the claims being made by the lawyer groups and the BCI report. S P Vaid, Director General of Police, J&K, said the five-member team of the BCI – led by former BCI chief Tarun Agarwal – never met the officials of Crime Branch or the J&K police. It is not possible for the BCI report to then present a balanced view of events, and the clean chit given to the lawyers of Kathua and Jammu High Court Bar Association cannot be accepted.

J&K government’s counsel Shoib Alam said, “This report is not reliable and should not be accepted because no officer of the J&K Police Crime Branch, who were actually prevented from discharging their official duty while presenting the chargesheet, has either been contacted or heard by the committee (of BCI). In the absence of the version of the officers, committee could not have concluded that the Bar didn’t interfere with the submission of the chargesheet.”

Prior to the BCI’s report, on Wednesday, the state of J&K had submitted an affidavit before the Supreme Court, drawing attention to the behaviour of the lawyers, who had protested before the Chief Judicial Magistrate on April 9, not allowing the Crime Branch to file the chargesheet in the case. Any delay in investigation of cases of such nature can prove to be a serious impediment to justice, as passage of time can affect analysis of evidence. This is a fact, which should be well-known to the lawyers. However, this did not stop them from hindering the process.

The Kathua Principal District and Sessions Judge has also submitted a report in the Supreme Court opposing the findings of the BCI. The report says, “As soon as Crime Branch team arrived in the premises of court, a group of lawyers resorted to massive and intense protest demonstrations.”

The BCI, in its report, has also endorsed the demand made by the lawyers to transfer the case to CBI. Yousuf Tarigami, CPI(M) leader and MLA from Kulgam, said in a statement: “The BCI panel has no authority to submit such a report. The Supreme Court has never directed them to file any such report as to their opinion on justifiability of a CBI investigation of the Kathua case. They were only directed to enquire and find out whether the local lawyers had obstructed the filing of the charge by the police/the trial proceedings.”

The SC bench consisting of CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, did not issue any proper response to these reports and statements, dismissing them, saying that they did not want the main issue of a fair trial to be missed. However, the communal nature of the crime cannot be ignored in any fair trial, neither can the communally charged demands by the lawyers and by the Hindu Ekta Manch (HEM). Hearing a separate plea, the SC bench has decided to stay the trial till May 7, to consider transfer of the trial to Chandigarh and handover of investigations to the CBI.

It is unclear what the transfer to CBI can achieve, when a thorough probe has already been carried out by the state authorities. Looking at the past record of the investigation agency in J&K, perhaps what can be expected, is bungled proceedings and no convictions. As pointed by Indira Jaising, legal representative of the victim’s father, this could be what the protesting lawyers and HEM want.

The Supreme Court, in its silence, is allowing for the issue to linger on, letting tensions in the area grow, and is also letting delivery of justice for the victim be delayed.

BJP too is unwilling to admit that its ministers – Lal Singh and Chander Prakash Ganga, who had been active participants in HEM’s rallies supporting the rape accused police officers, have caused any hindrance to the investigations. Amit Shah, national president, has come out in support of the two ministers, saying that they have retired on moral grounds.

To defend itself, the Kathua Bar Association is also saying that their protest was not against the filing of the chargesheet (the timing and location of their protest make that hard to believe), but to seek the deportation of Rohingya refugees, and against the attempts being made by the Jammu government to bring about a change in demographics of the area. This demographic change, according to the protesting groups, will be achieved by granting of rights to the Gujjar Bakarwals to not be forcibly evicted.

This forced vilification of the Bakarwal community, which is receiving state support, will only come back to bite this government. The Bakarwals are well-known amongst Army circles as providers of valuable intelligence of any suspicious movement along the Line-of-Control. As noted by retired Lt Gen Bhopinder Singh in his Asian Age column , during the wars of 1965, 1971, and the Kargil war, the Bakarwals were amongst the first to forewarn the Indian Army of any intrusion by Pakistan.

This community, like many others in India today, is at fault because of its religious beliefs. But in these attempts to artificially create communal tensions, what will be lost, is justice for an innocent girl, and the trust of a community in a state already fraught with animosity towards India.

https://newsclick.in

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Custodial death: FIR against UP cops who framed man in cow slaughter case

Piyush Rai| TNN | 

HIGHLIGHTS

  • Narendra Singh, 35, who was arrested on cow slaughter charges in Mawana, died in jail a few days later.
  • An inquiry by the MeerutSP has found the cow slaughter charges to be false.
  • An FIR for murder has now been lodged against the accused policemen.

Representative imageRepresentative image

MEERUT: Police had to finally give in to the demands of the agitating family of Narendra Singh (35) who was arrested on cow slaughter charges along with three others by Mawana police here on April 21. Singh died in jail on April 24 and his family had alleged torture by the police at the behest of a local gram pradhan. An FIR for murder has now been lodged against the accused policemen.

An inquiry by the Meerut superintendent of police (SP) found the cow slaughter charges to be false. The three accused policemen, including SHO of Mawana police station Brijesh Kushawaha have already been suspended pending a magisterial probe into the custodial death.

“We tried to pacify the agitating family to wait for findings of the magisterial probe but they were adamant that a case of murder be lodged against the policemen. I have ordered an FIR to be lodged based on the complaint of the family,” Rajesh Kumar, SP (rural areas), said.

The family alleged that Narendra was tortured so much that his nails had come off. Police however claimed that Narendra, an alcoholic and a drug addict, was mentally unstable when he was lodged in jail and in poor health. The post-mortem report had claimed asphyxia due to inhalation of fluids as the reason of death, with no fatal ante-mortem injuries.

Meanwhile, the indefinite hunger strike by Narendra’s family entered the fourth day on Sunday. A mahapanchayat by the Gujjar community led by Samajwadi Party leader Atul Pradhan was organised at Narendra’s residence in Pallavpuram here on Sunday. The mahapanchayat was a stormy affair with four BJP MLAs including senior party leader Avtar Singh Bhadana also present.

“An all-party delegation will meet chief minister Yogi Adityanath regarding the demands of Narendra’s family, including compensation and a government job to a member of the family,” Bhadana said.

Earlier, police had decided to drop cow slaughter charges against Rohit Rana, Arvind Kumar and Honey (who goes by his first name) who were arrested with Narendra after the carcasses of two cows were found in a mini-truck on April 21.

https://timesofindia.indiatimes.com/city/meerut/custodial-death-fir-against-cops-who-framed-man-in-cow-slaughter-case/articleshow/63964407.cms

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Landmark Verdict -Delhi HC Asks Parents To Compensate Daughter For Violating Her Right To Choice, Detaining Her In Mental Hospital

Delhi HC slams parents, cops, docs for trying to declare woman unstable

 HC says obligation to respect one‘s rights is placed both on state and non-state actors….

HC says obligation to respect one‘s rights is placed both on state and non-state actors.

In a rather unusual judgement coming on the heels of Supreme Court’s Hadiya verdict, the Delhi High Court has recognised that threat to the right of choice of a person and thereby right to life, liberty, privacy and dignity can very well come from the person‘s own parents and has directed the parents of a girl to pay her compensation of Rs 3 lakh for forcibly picking her up from the residence of her music teachers and detaining her in a mental institution where she was forced to spend one day and one night in “clear violation of Section 19 MHA read with Article 21 of the Constitution of India”.

A bench of Justices S Muralidhar and C Hari Shankar also directed the Cosmos Institute of Mental Health and Behavioural Sciences (CIMBS), the private mental health facility where the girl was detained illegally and the ambulance service named Almas Ambulance Service (Almas), which transported her to the hospital by administering her some medicine which caused her to faint, to also pay the girl a compensation of Rs 3 lakh and Rs 1 lakh respectively.

The compensation is to be deposited in the girl’s own account in  four weeks.

The Court concluded that the act of the parents in forcibly taking away of the girl from the residence of the Petitioners (her music teacher) on 11th June 2017 and her consequent detention at the private mental hospital till the morning hours of 13th June, 2017 was illegal and unconstitutional and violative of her fundamental rights to life, liberty, dignity and privacy under Article 21 of the Constitution of India and Section 19 of the MHA.

The parents have been told to not disturb her right to choice and privacy.

The verdict of the court comes in a writ of habeas corpus moved by the woman’s classical music teacher who is 69 years old and her wife.

Facts of the case:

In the instant case, the 23-year-old girl referred to as ‘Z’ in the judgement to maintain her privacy,  had been living with her classical music teacher and his wife since she turned 18. She had been taking lessons in music from them since the age of 11.

It all started with a criminal complaint filed by Z’s parents in 2014 in Saket court wherein they averred that there was a history of mental illness running in the family and that their daughter‘s behaviour had undergone a drastic change since 2011. They had alleged that Z had been enticed away by the Petitioners who had undue influence over her from the time when she was a minor.

The complaint was dismissed by the Magistrate on April, 2015 after she spoke with Z in chamber where she spoke about being harassed by her parents previously and how she had approached National Commission for Women for redress. Z informed the magistrate that she was a major; had never suffered from any mental ailment; had no intention of joining her parents and wanted to live separately.

The parents initiated second round of litigation in 2016 when they approached the Delhi High court pleading that they be appointed as guardians of Z.

The writ petition was heard by a learned Single Judge  and during the pendency of the petition, on the orders of the court, Z underwent a psychiatric evaluation at AIIMS over the course of 6-7 sessions. The doctors concluded there was no indication towards psychosis (schizophrenia) or any other psychopathology.

In the light of this report, the single judge dismissed the petition as withdrawn.

Z gets picked up by her parents

Less than a year after the single judge’s order, on 11th June 2017, a letter was addressed by Z‘s parents to the SHO of Police Station Malviya Nagar where they complained of their daughter having been enticed away by her music teacher.

In this letter, the parents neither mentioned that the girl was major nor did they reveal about their unsuccessful complaint before the magistrate. Rather, a bald assertion was made to the effect that doctor has advised for immediate medical attention and psychiatric treatment of Z.

At about 5 PM the same day, the parents and brother of Z accompanied by local police from Malviya Nagar police station and the officials of Almas  forcibly barged into the Petitioners‘ (music teacher) house. The teacher was allegedly beaten up while Z was forcibly administered intravenous substance which caused  her to faint.

Z’s father went on to state on affidavit that he decided on the said course of action on the advice of Dr Sunil Mittal, the officer-in-charge of CIMBS. The court also noted that, “Z‘s father goes on to state in his affidavit that CIMBS maintains an operational connection with an ambulance service provider, i.e. Almas whose contact details were provided to him by CIMBS authorities”.

Z was taken away to CIMBS and kept there without her consent till the morning of 13th June 2017 without the medical officer-in-charge Dr Sunil Mittal satisfying himself about the need for Z to be admitted as an in-patient as mandated by Section 19 of the Mental Health Act.

CIMBS had submitted that since 11th June 2017 was a Sunday, Dr. Mittal, was not available and in order to satisfy the requirement of Section 19 (1) MHA, he was contacted on the telephone by Dr. Sameer Kalani and, after being explained the diagnosis, conveyed his oral satisfaction that Z should be admitted as an in-patient at the hospital.

To this, the court said, “Since the responsibility of arriving at a satisfaction as to a patient‘s mental health under Section 19 (1) MHA is not meant to be delegated to anyone else, the satisfaction that had to be recorded had to be of Dr. Sunil Mittal himself and no one else. In the present case, the satisfaction for the purposes of Section 19(1) MHA was two-fold: that Z, being a mentally ill person, was unable to express her willingness to be admitted in the psychiatric hospital and further that her admission in the hospital would be in her best interest. This satisfaction could not have been arrived at by Dr. Sunil Mittal by just listening on the phone (or by a WhatsApp message) to the diagnosis of some other doctor, even though such doctor was a qualified mental health practitioner.”

 “If there is no code of ethics for psychiatrists in this country, it would be indeed a serious lacuna which ought to be remedied. An aspect of this matter which is disturbing is psychiatrists being able to talk to each other on the telephone or through WhatsApp messages to decide whether a patient requires treatment as envisaged. This again is totally unacceptable. It is illegal and has implications of unconstitutionality. A professional psychiatrist requires personal interaction with a person before making a diagnosis of such person‘s mental condition. It is inconceivable that a psychiatrist can determine the mental state of a person by merely discussing the symptoms and conditions with another fellow psychiatrist over the telephone. If this practice is being followed then it has to be stopped. A code of ethics must be formulated in this regard”.

The bench also noted that, “The two medical certificates issued on 11th June 2017 were in a pre-printed proforma. This cannot be accepted as a valid compliance with the requirement of Section 19 (2) MHA given the serious nature of the consequences that would ensue taking away the liberty of the person forcibly hospitalised in a mental health institution”.

 “On the contrary, CIMBS appears to be using a standard pre-printed form consisting of thirteen pages without bothering to find out whether Z was in a position to express her willingness. It was presumed that she was not in a position to give her consent and signatures were taken of her father on all thirteen pages. In fact, the application submitted by Z‘s father was not in accordance with Form-8 under Rule 25 of the SMH Rules. It was also not witnessed by two persons, as required by the Rule.”

 “Apart from dispensing with the requirement of the certificates, the CIMBS appears to have ignored the requirement of Section 19 (2) MHA whereby two certificates were required for having a patient admitted as an in-patient. In the present case, the certificates are all by the in-house doctors of CIMBS, not one of them was a practitioner in government service,” said the bench.

It is to be noted that Z’s music teacher lodged a complaint of abduction with local police but sub-inspector Yogesh Kumar and Head Constable Praveen failed to act promptly.

They then moved high court by way of the instant writ of habeas corpus and pursuant to the orders passed on 12th June 2017, Z was produced before the court on 13th June 2017 and returned to the Petitioners’ residence.

The final judgement has been pronounced in this writ petition in deciding which the court was assisted by advocate Raj Shekhar Rao as Amicus Curiae.

In delivering the verdict, the court interpreted relevant provisions of the Mental Health Act, 1987 in light of the right to life, liberty, dignity and in light of the right to privacy and autonomy of an adult female, as guaranteed in the Constitution of India.

Constitutional dimension of the right of choice.

Before arriving at a conclusion, the bench discussed the broad issue of Constitutional dimension of the right of choice.

It noted that on the date of the incident, i.e. 11th June 2017, Z was more than 23 years old.

Referring to Justice K.S. Puttaswamy (Retd.) v. Union of India (privacy judgement),  the bench noted the apex court’s views on decisional privacy‘ reflected by an ability to make decisions in respect of intimate relations which  would include the right to specify whom to include and whom to exclude from one’s circle.

Violation of one‘s rights could be by state or non-state actors.

The obligation to respect one‘s rights is placed both on state and non-state actors.

The high court noted that in Privacy judgement, Justice S.A. Bobde had noted that ―common law rights are horizontal in their operation when they are violated by one‘s fellow man and ―he can be named and proceeded against in an ordinary Court of law. The position is no different under the Constitution of India.

 “…Articles 15 (2), 17, 19, 21 and 23 acknowledge the horizontal nature of those fundamental rights. They can be enforced against not just the State but non-state actors as well. The mere fact that the enforcement of such rights might depend on State action or enforcement of judicial orders by the State will not detract from their horizontal nature. The horizontal dimension of these rights enables an aggrieved person to invoke constitutional remedies to seek the protection and enforcement of such rights against invasion by a non-state actor,” it said.

Scope of a habeas corpus petition

The bench held that the writ jurisdiction of a High Court under Article 226 of the Constitution is invoked not only for assertion of the rights to life, liberty and a variety of fundamental rights against invasive State action but also against invasive action by non-State actors, including individuals.

“Increasingly, in the habeas corpus jurisdiction, this Court is approached by a large number of individuals and married couples praying for protection against invasion of their rights to life and liberty and choice by close relatives and other non-State actors. Much of the exercise in the habeas corpus jurisdiction by a writ Court is to forge remedies and shape reliefs for which persons whose rights of choice and, therefore, of life, liberty, and dignity are under constant threat from their own family members.”

The bench referred to SC verdict in Hadiya’s case wherein it was observed that, “The (Kerala) High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal. The superior courts, when they exercise their jurisdiction parens patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves”.

It also referred to Gian Devi v Superintendent, Nari Niketan, Delhi (1976) where the Supreme Court held that once a woman was 18 years of age, no fetters could be placed on an individual‘s choice on where and with whom she wished to reside.

On role of Z’s parents, the high court concluded that they were not acting in their daughter’s best interest.

“In the Court‘s view, actions of Z‘s parents which were carried out with the aid of the local police, the staff of Almas, and the staff of CIMBS were in clear violation of Z‘s fundamental rights to life, liberty and the right to dignity enshrined in Article 21 of the Constitution. This violation of her rights was triggered by her exercising her freedom of choice as a female adult by choosing whom she wanted to stay with. The Court, therefore, rejects the plea of Z‘s parents that they acted in the larger interests of the daughter and in consideration of her well-being since their actions indicate the opposite,” said the bench.

Shockingly, the bench came across a two-decade old judgement of the Supreme Court wherein CIMBS incharge Dr Sunil Mittal had given a certificate for a woman’s admission to the mental hospital without even seeing the patient or examining her. The woman in that case was being harassed by her husband.

On role of the ambulance Almas, the court noted that its Dr. Israul Haque was not an allopath and held a degree in Ayurvedic medicine. The court was disturbed on learning that the ambulance run by Almas is registered in Haryana but does not satisfy the requirements of the guidelines for running such ambulance in Haryana and therefore, operates in Delhi.

“The manner in which the ambulance staff has been used to forcibly take Z away from the home of the Petitioners is illegal and unconstitutional. They have all been party to depriving Z of her liberty and virtually rendering her into the custody of the hospital without her consent. Almas has to be restrained from offering this type of ambulance services,” the court noted.

Summary of court’s conclusion and directions:

  1. Protection against an attack on the right of life, liberty, privacy and dignity can be sought not only against the State but also against non-State actors. Article 21 places an obligation both on state and non-state actors not to deprive a person of life, liberty, privacy and dignity except in accordance with the procedure established by law. In other words Articles 15 (2), 17, 19, 21 and 23 acknowledge the horizontal nature of those fundamental rights. They can be enforced against not just the State but non-state actors as well.
  2. In a habeas corpus petition when the plea before the Court is that a person should be protected against coercive retributive action of her parents, for making personal life choices, the Court shall not hesitate to exercise its jurisdiction to grant relief. In effect, the Court would be recognizing that the threat to the right of choice‘ of a person and thereby right to life, liberty, privacy and dignity can very well come from the person‘s own parents irrespective of the age and gender of such person.
  3. The actions of Z‘s parents in removing her forcibly from the Petitioners‘ residence and getting her admitted without her consent to the CIMBS on 11th June 2017, with the aid of the local police, the staff of Almas, and the staff of CIMBS, was in clear violation of Z‘s fundamental rights to life, liberty and the right to dignity enshrined in Article 21 of the Constitution. This violation of her rights was triggered by her exercising her freedom of choice as a female adult by choosing to leave her home, and deciding where she would like to reside. The Court rejects the plea of Z‘s parents that they acted in the larger interests of their daughter and in consideration of her well-being since their actions indicate the opposite.
  4. The procedure for involuntary admission under Section 19 MHA is only applicable when the person has been found to be mentally ill as required by law and a satisfaction has been reached to that end. Admitting a person under Section 19 MHA merely for observation cannot be countenanced as doing so would be in violation of a person‘s rights to life, liberty and dignity granted under Article 21 of the Constitution of India.
  5. Section 19 (1) read with Section 19 (2) of the MHA mandates that the medical officer in-charge has to record two kinds of satisfaction – first, in terms of Section 19 (1) of the MHA, the satisfaction that it is in the interest of the medically ill person that they necessarily be admitted to a mental health institution; and second, the satisfaction in terms of the proviso to Section 19 (2) of the MHA that it is proper to cause such mentally ill person to be examined by two medical practitioners working in the hospital itself instead of requiring the two certificates as provided under Section 19 (2) of the MHA. The medical officer in-charge cannot delegate this crucial function of the recording of the satisfaction of two separate kinds to some other person.
  6. In the present case, the satisfaction for the purposes of Section 19 (1) MHA could not have been arrived at by Dr. Sunil Mittal by just listening to his colleagues on the phone (or by a WhatsApp message). Such satisfaction could have been arrived at by Dr. Sunil Mittal only after interacting with Z. Clearly that interaction did not take place in the present case.
  7. A person cannot be admitted to a mental health institution in order to determine whether she requires such admission. The determination that she requires admission should be prior to her admission and not later. The involuntary admission of Z to the CIMBS at 7.55 pm on 11th June 2017 was, therefore, in clear violation of the requirement of Section 19 (1) MHA read with Section 19 (2) MHA
  8. A professional psychiatrist requires personal interaction with a person before making a diagnosis of such person‘s mental condition. A psychiatrist cannot determine a mental state of a person by merely discussing the symptoms and conditions with another fellow psychiatrist over the telephone. To do so is illegal and unconstitutional.
  9. The MCI should formulate a separate code of ethics for psychiatrists to follow, which will reinforce the law.
  10. The practice adopted in the present case by Dr. Sunil Mittal, Dr. Raj Mishra, and Dr. Sameer Kalani was in breach of the law, professional medical ethics and norms. The question as to what action is to be taken against them is left to the MCI to decide. MCI will take note of this being the second known instance in twenty years of violation of the law and ethics by Dr. Sunil Mittal and the Delhi Psychiatry Centre
  11. Z is permitted to file a formal complaint with the MCI relying upon the affidavits and records submitted by CIMBS in this matter. If such complaint is filed, it is expected that the MCI will deal with it promptly and render a decision not later than six months from the date of receiving such complaint.
  12. The Almas ambulance staff grossly neglected the duty of care owed to Z. They proceeded to abet the abduction of Z and administered drugs to her by injection in the absence of any medical records and on the mere say so of Z‘s family. This is a fit case for revocation of the registration of Almas as an ambulance company if it is so registered and stopping their further functions.
  13. Almas and its team have been party to depriving Z of her liberty and virtually rendering her into the custody of the hospital without her consent. Almas has to be restrained from offering any type of ambulance services. A peremptory direction is issued to the Government of NCT of Delhi to take action in regard to Almas and other ambulances, on being checked, which have been registered in states outside the NCT of Delhi but are operating in Delhi with impunity and in violation of the applicable guidelines.
  14. The police has abetted the flagrant violation of Z‘s fundamental rights to life, liberty, privacy and dignity under Article 21 of the Constitution. A full-fledged inquiry be conducted by the police into the roles of SI Yogesh Kumar and HC Praveen in this entire matter.
  15. Further, on the aspect of violations of the MHA, the Delhi Police appears to have left it to the Secretary (Health) GNCTD who is apparently enquiring into the matter. The Court directs the Secretary (Health) GNCTD to share with the Delhi Police within four weeks the report of such enquiry and for the Delhi Police to take further action in accordance with law in terms of such report.
  16. The Delhi Police shall prepare a manual detailing how to deal with cases under the MHA and, after 8th July 2018, the Mental Healthcare Act 2017. It must prepare a protocol in consultation with legal experts as well as experts in mental healthcare and spread awareness on the issue of mental health.
  17. The Central and State Mental Health Authorities must, in collaboration with the Delhi Judicial Academy, hold programmes on periodic basis with civil society groups, Resident‘s Welfare Associations, Police Officers, lawyers and Judges to sensitize them about the various compliances under the MHA and its successor the Mental Healthcare Act 2017 and how to treat persons who are sought to be governed by the said legislation.
  18. Z will be paid compensation as follows: Rs. 3 lakhs by CIMBS; Rs. 1 lakh each by Almas and the State and Rs. 3 lakhs by her parents. The compensation amounts will be paid by demand draft in Z‘s name (which has been withheld in this judgment for reasons of privacy) within four weeks from today and will be deposited by Z in her own account. Z will be free to utilize the amount in whichever way she deems fit. This will not preclude Z from seeking appropriate remedies in other proceedings in accordance with law.
  19. Z‘s parents and brother will be continued to be bound down by their affidavits of undertaking to this Court that they will not come in the way of Z‘s peaceful existence and choices

 

 

 

Read the Judgment Here http://www.livelaw.in/landmark-verdict-delhi-hc-asks-parents-compensate-daughter-violating-right-choice-detaining-mental-hospital-read-judgment/

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Confessions of an RSS Pracharak’: Why this Book is a #MustRead

Navin T

Confessions of an RSS Pracharak

Book: Cellars of the Inferno: Confessions of an RSS Pracharak
Publisher: Chintha Publications
Author: Sudheesh Minni
Pages: 122

RSS has been critiqued for long for its divisive and fascist ideology. Its role in spreading hatred, communal violence, killings – arson and loot, blasts has been pointed out by critics. However, the attempt of RSS to project itself as a cultural and nationalist organization working for the welfare of majority community, nation and practicing non-violent methods is still believed by many to be the truth. This is despite all the violence that is being instigated in the recent times.

The book by Sudheesh Minni titled ‘Cellars of the Inferno: Confessions of an RSS Pracharak’ breaks any doubts on RSS. Sudheesh was an RSS pracharak, who was inducted to its divisive ideology at a very early age of 5. He participated at different levels – both as a participant in shakhas as well as organizer of shakhas, both at the state level and the national level. He travelled across the country and spent about 25 years of his life with RSS. The initial conviction with RSS ideology later gave way to repentance for the activities carried. The book is a product of his repentance for his role as an RSS pracharak. The book provides an insider view of RSS, its activities, functioning’s, role in divisive activities.
Sudheesh was born in a small village in Kannur district of Kerala. His association with RSS started while he was 5 year old. He used to attend Balagokulam, which used to be organized on weekends. This was targeted at children. The natural curiosity of children to listen to stories of child Krishna was used as a means to instill hatred. Stories around Shivaji and Rana Pratap were also recited to children. Shivaji was depicted as a protector of Hindus from Muslim invasion. The facts of many Muslims being part of military machinery of Shivaji were never depicted. In the manipulated stories with ideological color, wars were never depicted as rivalries between kings for power and territorial expansion but as a war taking place between two different religions. The happenings of those times such as Mumbai bomb blasts were discussed in Balagokulams and were pointed as activities carried out by Muslims against Hindus.

The evening shakhas used to take place for an hour. Apart from yoga, nigooda (traditional war education), marching – what also used to take place was sports activities like kabaddi and khokho. In Kabaddi, children were instructed that on the other side of the line were enemies of the nation – who were Muslims, Christians and Communists. The children were instructed to touch as many enemies as possible during the game. This was followed by songs where they were made to feel proud of their Hindu identity. Inculcating superstitious thinking was common where in one instance it was pointed that a ‘political enemy would die out of snake bite, through god who would come in the form of a snake’.

The prathamik varg shikhak varg course used to be organized for a week during Christmas vacation. It used to be residential and go on for a week. It starts with morning prayers, followed by stick movement, discussions, speeches and evening sports. Each event has a strong anti-Muslim, anti Christian and anti Communist component. The content was primarily from Golwalkar’s ‘Bunch of Thoughts’ and ‘We and our Nationhood defined’. The last day was followed by lighting of lamp and a talk calling out the trainees to shoulder the responsibility of ‘protecting hindus’ who are in danger. With this they were prepared as primary instructors.

RSS has an organized structure. Based on duties, RSS has Khat Pramukh, Mukya Shikhshak, Shikshak, Shaka Karyavaha and Seva Pramukh. At the Mandal level are Mandal karyavaha, Saha karyavaha, Mandal sharirik pramuch, Mandal Boumik pramukh, Mandal Seva pramukh and Mandal sampark pramukh. Apart from this it has Taluk sangh chalak, Zilla pracharak and Zilla vyavastha pramukh. These were based on geography and functions such as sports, social activities and public relations. RSS had no economic agenda. It had its connection with more powerful sections such as large landholders. The concept of land belonging to the tiller was not a principle believed by them. These were seen in incidents where they stood by large landholders and against cultivating landless. This was seen as an arrangement through which they can get some land, monetary and political support for RSS activities.

The creation of rumors was a regular process. Rumors were manufactured to create the image of existence of threat to Hindu religious based activities and the community. An instance of Theyyam festival is pointed out where a rumor was spread of the festival going to be disturbed by the other party. Any suspicion of activities targeted against RSS was acted upon. Sathyan a famous athlete became a victim of such suspicion.

Sudheesh attended his first Sangh shiksha varg in Madurai for 25 days. Daily physical training, stick movement, speeches, discussions and exams were integral. The shibhir stressed that adoption of Christianity, Islam and Communist ideology had caused the destruction of Indian culture. It was emphasized that to protect Bharat Matha from becoming pieces and protecting its culture, they need to fight. The participants are made to draw map of Akhand Bharat which includes China, Afghanistan, Bhutan, Pakistan, Nepal, Bangladesh and Srilanka. It is emphasized that as sevaks, they should rest in peace only after getting back Akhand Bharat. Elimination of three enemies is projected as a way and means to attain Akhand Bharat. In the second Sangh shiksha varg attended by author, the points discussed also included strategies for Hindu revivalism, anti-hindu behavior of Gandhi, critics of hindutva ideology, pilgrimages, old temples, the need to protect hindu temples etc.

The author points that events, which otherwise are not religious have a hidden agenda when undertaken by Pracharaks. He cites his example whereby he tried to reach out to minority institutions to impart vedic maths to Hindu students. Once the students enrolled to the course beyond the school, they were slowly inducted with ideas of a Hindu nation. This happens even in Yoga classes run by pracharaks. Other activities include spiritual activities, yoga, social activities, tuitions, job trainings, coaching institutions for services by Pracharaks. During these events there was subtle introduction to aspects of RSS ideology. He feels that aspects such as vedic maths and yoga can be taught by completely eliminating it of its religious color. The pracharaks operated clandestinely.

The author points to the huge network of Sangh parivar. This includes Akhil Bhartiya Vidhyarthi Parishad (ABVP) targeting students, Bala Gokulam targeting small children, Yuva Morcha targeting youth, Mahila Morcha targeting youth, Bharatiya Mazdoor Sangh targeting workers etc. Other wings included Vignana Bharati (Swadeshi science), Vidya Bharati (Education), Vishwa Hindu Parishad, Hindu Aikya Vedika, Bharatiya Vichaar Kendra, Kshetra Sanrakshan Samithi, Seva Bharati (Social activities), Bhaskar Jyoti, Vanavasi Kalyana Ashram, Ekalavya Institutions and Vivekananda Kendra. It also includes Ayyapa seva samithi, Kannaki, Janmabhoomi, Kesari, Vrattantham, Kurukshetra prakasamm. It also started associations with fisher community. Besides large number of NGOs sponsored by RSS. Each of these works as part of the larger ‘Sangh Parivar’ to carry their agenda of Hindutva.

The author talks of his experience in organizing the shibirs with children in tribal areas. Ideas of Hindutva were introduced in a primitive community ignoring their identity. An anti-muslim and anti-chrisitan feelings was also propagated among them. This was in a community who never believed in Hindu identity and that by itself was alien.
Referring to his participation in Naipunya varg (secret summit) of RSS at
Nagpur, it also had famous industrialists including Adani attending during inaugural session. To inculcate the idea of Hindutva among sections, separate cells were proposed for Industrialists, Government officials, Hindu priests, Teachers, Doctors, Media and Cultural cell. Each cell was to identify loopholes in identified areas, review once in three months and attack the government in power. Internet was to be used as a means to propagate. The closing ceremony was ended with a speech of retired judge who called for accepting Hindutva as a way of life. It points at the level of penetration of RSS ideology among the elite.

The author observes that RSS owned infrastructure have been reduced to places for corruption, sexual activities and preserving weapons. The need to prepare and buy arms for eliminating enemies is emphasized in Sangh. In the name of fighting back the enemies in Kannur, Karyavahak suggested the usage of Rifles instead of Bombs and swords. The author quotes an instance where he expressed his frustration to another sevak stating that Swayamsevaks are groups which indulge in women harassment, lootings and drinking. All this happens in the name of protecting religion.

Sharing about his visits on RSS mission to Northern parts of the country, he points that Swayamsevaks here also consisted of professionals such as Doctors, Engineers, Scientists, Police officials. Each had a sacred thread. Rich landlords with large landholdings were also part of them. The responsibility for running panchayati or block level shibirs was largely in their hands. Dalits who were landless were exploited. An instance is quoted where a rich landlord (a swayam sevak) was approached by lease farmer requesting for delay in paying due to crop failure. Instead the lease farmer was asked to send his wife and daughters to the landlord. Another instance was seen where demands of a tribal leader to install Ganesh in a temple in a tribal dominant locality was requested from Sangh leaders. This was rejected on the premise that this is reserved only for upper castes. When finally this was installed, the temple was put on fire.
The author points that while sangh mobilizes Dalits for events such as Babri Masjid demolition, the ones who instigated from upper caste continue to be safe. The Dalits who were made to participate became victims. This was equally true of Gujarat.

The Sangh mobilizes about crores of rupees in the name of Guru Dakshina. From within Kerala, about Rs. 250 crores is mobilized. Big industrialists, business persons, contractors, government officials also donate the RSS. A huge amount is mobilized from across the country. This is used for creation of communal incidents, planning terror activities, ending peace and harmony among communities.

The author parts away from RSS to join an alternative. He points that corporatization and communalization have come together and posing threats to the security and democratic values and secular fabric of the nation. Hence he emphasizes on the need for alternative.

The book by Sudheesh Minni is a necessary reading for those who still have an illusion about the RSS and Sangh Parivar. It also provides an anatomy and the way the parivar functions. Most importantly it helps in breaking the myth of RSS being a mere cultural and social organization working for protection of Hindus. It convinces you that more than protecting one, its activities are centered on propagating the idea of eliminating the other. In the idea of building Hindu identity, its attempt in maintaining caste and class based dominance becomes clear. It is a welcome reading for those working to expose the activities of RSS.

Author: T Navin works with an NGO as a Researcher

https://indiaresists.com/

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Andhra Pradesh puts up Aadhaar data of 4.8L pregnant women on site #WTFnews

TNN |

Representative ImageRepresentative Image
HYDERABAD: In another data leak of sorts, the Andhra Pradesh woman and child welfare department put up the Aadhaar numbers of 4.8 lakh pregnant women enrolled by the department of nutrition and health tracking system on its dashboard. After STOI enquired about the issue, the department disabled the column showing the Aadhaar numbers on Sunday.

Cybersecurity researchers, who notified the Aadhaar leak to Computer Emergency Response Team of India (CERT-In) and the Unique Identification Authority of India(UIDAI), said that the Aadhaar details of around 20 lakh mothers and pregnant women, including the current 4.8 lakh, has been leaked since 2015.

The dashboard of the women and child welfare department is linked to the AP chief minister’s core dashboard. It made public details such as name, husband’s name, Aadhaar number, dare of enrolment with anganwadi centres, high-risk grading and status of follow-ups. Mandal-wise data of pregnant women in 13 districts up to Feb 2018 were displayed.

“I notified the CERT-In, UIDAI and the AP Core Digital Data Authority regarding the Aadhaar numbers put up openly on the website. There was no response. Perhaps, they are closed on Sunday. Collecting data of pregnant women is a good initiative so that the government can follow-up with them to decrease the maternal mortality and infant mortality rates, prevent anaemia in mothers and malnutrition in kids. But the problem is linking it with Aadhaar. The violation of rules is in making this data public,” Kodali Srinivas, cybersecurity researcher, told STOI.

“The e -commerce websites selling baby products and merchandise for new mothers may try to use this data as it is openly available on net,” he added.

When contacted, the women and child welfare department’s IT coordinator, Ratnakar, told STOI: “After the Supreme Court directions in 2017, we removed all Aadhaar details put up in the public domain. Even for intra-department purposes, we use only the last four digits to identify beneficiaries. But due to unknown reasons, the Aadhaar numbers were displayed openly on the dashboard. We are disabling it instantly.” Security researchers alleged, the government is not doing an audit. “AP has an Act which protects officials from prosecution for data revealed ‘in good faith,” Srinivas said.

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Romila Thapar- The Culture of Discrimination

Romila Thapar

 

Notions of the ritual purity of the Brahmana go back to the Brahmana as the Vedic ritual specialist. As I have mentioned earlier, Vedic Brahmanism had been less prominent with the rise of Puranic Hinduism. But there was a revival of Vedic rituals, legitimizing rulers in the multiple kingdoms that emerged in the post-Gupta period. This assertion of Vedic Brahmanism was initially limited to a small elite, but it grew both in numbers and in claims to extraordinary status..

The exclusion of the Avarna took the form of arguing that some communities were Asprishya, a term that came into use at this time. This dates to the early to mid centuries of the first millennium ad . But let me try and trace the evolution of what might have gone into the making of this idea, although the explanation remains historically incomplete. This is partly because social historians have not as yet focused on studying the Avarna in early Indian society. The ghettoized communities were not educated, so they have left no written records. They have to be studied by combing through the records of literate groups. If exclusion and discrimination is specifically explained and juxtaposed with whatever descriptions we have, then it might be possible to retrieve some idea of the functioning and values of this ghettoized Avarna society.

Another possible reason for the emphasis on purity and pollution at this point, could be that the requirement of legitimizing rulers in the multiple kingdoms that emerged in the post-Gupta period, may have revived to some extent, the ritual role of the Brahmana, required to perform rites of legitimation for the new royalty. Did this revival reinvigorate the theory of the maximum purity of the Brahmana, at least among the Brahmanas? Did this then require as a counterweight, the more extreme identity of the Asprishya? Exclusions of various kinds and degrees are not unknown to other societies in other parts of the world, but untouchability, as it came to be established in India, is virtually inhuman, and not resorted to by any other society. Not only is the touch of the person polluting and therefore physical contact with the person is forbidden, but what is even worse is that the pollution is inherent, is of genetic origin, since the kinsfolk are also polluted and the person is polluted from birth.

A number of communities are listed as being at the lowest levels of society and the lists differ. But the one that invariably figures is the Chandala. Vedic texts mention the Chandala as one of impure birth and a victim of a sacrificial ritual. He is not quite an untouchable since in this context he is linked to the ritual but becomes so in time. Some social codes describe him as being of mixed caste. Punishment for having sexual relations with such a one, or eating with a Chandala are severe, so apparently it was not entirely unthinkable. The Buddha had a far more humane and rational view and is reported to have said that one becomes a Chandala by one’s actions and by evil thoughts and not by birth. Buddhist narratives such as the Jataka however do reflect discrimination against Chandalas. There is also a linguistic barrier since mention is made of a Chandala-bhasha or language specific to the Chandalas and different from the generally spoken one. The Arthashastra sharpens the difference between Chandalas and other low castes and locates the habitat of the former as close to the cremation ground. The grammarians Panini and Patanjali differentiate between those Shudras that live in the settlement (anirvasita), and those that live outside (nirvasita), and the Chandala is among the latter.

Manu speaks of their descent from a mixed marriage between a Shudra father and a Brahmana mother — the worst form of hypogamy. It reads as if it was also intended as a putting down of women, in keeping with much else in Manu. It was said that the Chandala receives leftover food, wears clothes taken off corpses, and can only have iron ornaments. Only in dire hunger should food be accepted from a Chandala. This is precisely the discussion in a late chapter of the Mahabharata, which had an angular relationship with the Dharmashastras. In this episode the Sage Vishvamitra has a discussion with a Chandala during a severe famine, on the kind of meat permitted to a Brahmana, and whether it is legitimate to eat what is forbidden simply to keep the body alive. Although the Chandala tries to dissuade the sage from breaking the taboo (which Vishvamitra is about to do to assuage his hunger) he does not succeed. It is interesting that the Chandala seems to know so much about the Brahmana dharma and one wonders if this is meant as a sarcastic comment. The other explanation could be that this episode belongs to an earlier period when the social distancing between them was not so rigid and the taboos on eating forbidden food were not so severely maintained. By the mid-first millennium ad the exclusion of the Chandala and others that formed the lowest jatis was well established. Buddhist texts state that other communities generally listed as excluded tended to be Adivasis—such as Nishadas, Pukkasas, or in low occupations such as Venas and Rathakaras. Little is said about why they are low jatis. Forcing communities to live outsidethe settlement immediately marks them out as excluded. Had thisnot have been required they may over time have merged into the general population of not so low jatis.

Gradually two characteristics came to be embedded in the identity of those thought of as polluted. One was that of impurity. This increased when they were required to not only maintain the cremation grounds since a dead body was thought to bepolluting, but also do the scavenging in the settlement. Curiously, the cremation ground was also the location for certain Shaiva and Tantric rituals involving corpses, and in which the upper castes participated. Did people not think about the social implication of such rituals? As for scavenging, unfortunately, the excellent system of drains that was a striking feature of Harappan cities, is not found in later cities, so scavenging became a necessity. Scavenging would not have been required in rural areas but was necessary incities. The insistence on this category of people being polluted was partly tied into the work they were expected to do.

The inclusion of those of Adivasi origin in this group could suggest that when new areas were opened up the existing small communities from these areas were either left isolated or else were inducted as low jatis. Some recruitment would be required to maintain numbers. Because such communities were regarded as polluting they had to live outside the settlement hence their names have qualifiers such as antya and bahya and such like, meaning outside. Living outside the settlement further segregated them. The sense of there being two different societies took root—one which was regarded as polluted and therefore lived outside the settlement, and the other which lived in the settlement and was thought of as unpolluted. Some might have seen those living outside as the fifth varna but the Dharmashastras kept them distinctly separate from the categories of varnas. The society that claimed to be unpolluted and lived in the settlements has been studied in much depth but not so the other society that lives beyond the settlement. There were at least three pointed features of this definition of Otherness that differentiated the Asprishya from all the other categories of excluded groups. One was that this group had a distinct and separate physical location. As in many premodern cities the world over, there was a tendency for those in the same profession to cluster together and these came to be demarcated as the locations of those professions. But the Asprishya were not allowed to live in the city since they were regarded as polluted and because their profession was polluting. Their pollution was underlined repeatedly as their occupations were scavenging, carrying away dead animals, executing criminals and maintaining the cremation ground. This was a distinctly separate and physically segregated society associated with what were regarded as the impurities of death and dirt. According to some, it developed its own hierarchy of virtual jatis, as if it were an isolated clone of caste society. Why some other professions were also regarded as polluting is not explained in the texts. It is simply stated. A second feature was the constant underlining of their being permanently impure and polluted, since they had to handle what was regarded as polluting objects as viewed from the Brahmanical perspective. Pollution was not an issue with the other categories of exclusion. In this case it is not so evident in the early texts but gradually intensifies. Curiously the references to maximally polluted groups seem to coincide with the period of a revival of Brahmanical claims to being maximally pure. It is worth noting that when Megasthenes, the Greek visitor, writes about Mauryan India in the late fourth century bc , there is only a garbled description of what might have been a vague reference to caste, and no hint of anything like an untouchable category. As I have mentioned earlier, when Faxian visits in the fourth century ad , he describes how untouchables have to strike a clapper on entering the town, to indicate their presence so that the others can move away. This is in the so-called ‘golden age’ of the Guptas that the presence of the untouchable is heavily marked and emphatically defined. This was the age that has been taken for the last century, and still is, as the high point of Indian culture with a spectacular civilizational stamp. The achievements of the period especially pertaining to cultural items are frequently mentioned. But curiously the other side of the coin, the presence of the Asprishya, is ignored when describing the ‘golden age’.

The Avarnas were of mixed origin, spoke a different language in some places, and inevitably had different social customs and
belief systems. Given their large numbers it can be asked whether they developed their own hierarchy of virtual jatis and whether
this was a rigid or flexible structure. Was it a clone of caste society? Was it an inverted mirror image or was the inversion more important than the mirror? That the Avarna society has its own subdivisions and its own priests, perhaps from earlier times, suggests a possibly dissimilar society in earlier times..

The third feature is that the pollution is permanent. Virtually every society of the ancient world practised temporary periods of impurity especially in the context of performing rituals. Even ritual specialists could be impure for a specific time but this was not the same as being permanently untouchable. Purity was claimed by Brahmanas who were ritual specialists. But to commit people to a permanent state of pollution and impurity is unique to India and calls for far greater investigation than has been done so far. The Asprishya cannot change his jati or his varna status or work in professions other than those stipulated in the Dharmashastras. His is a distinctly separate society and he can only move along the hierarchy of his own society. This is again different from the other categories where, as we have seen, some concessions were made and varna status could be adjusted. Permanency also meant that the features of separation never changed nor were they reapplied as in the case of the Arya, the Mleccha, the Yavana and the varna. Pollution was not a temporary condition or one that could be shed by the next generation. It was permanent and was inherited because birth was from parents also regarded as polluted. This genetic factor makes it different from other categories of pollution.

Permanent pollution as a demarcation had not been linked with other excluded groups. Could the need for such permanency been a revival of claims to maximum purity by ritual specialists of a particular kind who were now figures of authority, as for example those performing legitimizing rituals for the new Kshatriyas, or were such activities too limited for such a major change? It has been pointed out that this was also the period when the demand for cow protection was more frequently mentioned in the texts and may have been linked to the enormous number of cows gifted to Brahmanas as listed in contemporary inscriptions. Together with this came a spurt in cattle raid hero stones dedicated to local heroes who had died defending the cattle of the village. Cattle breeding was clearly vital to the rural economy. But more numbers of cattle required more scavenging to clear the bovine carcasses. Prevention of the slaughter of cows, presumably addressed to the upper castes, finds more mention now. This would have affected the nutrition pattern of the lower castes and the outcastes. To ascribe genetic impurity to a set of communities calls for the investigation of this ascription. Why was the concept so widely accepted, questioned by only a handful of Bhakti sants and a few others? It reflects on the mores and values of the larger society that accepted and imposed this belief and practice. What was the ethical foundation of this thinking? If it is not apparent then it would be troubling since some other aspects of upper caste culture of these times are rightly regarded as deserving of admiration. How could such a contradiction of the ethical and the aesthetic with the unethical be acceptable to the same society? As we have seen, it has for long been held that the culture of the mid-first millennium ad and its continuation was the golden age of Indian civilization, the utopia of past times. This evaluation has been contested by historians who argue that the material culture of the Gupta age as available from excavations of settlements, was unimpressive. Nevertheless, this period saw the articulation of sophisticated philosophical schools, the high literary quality of Kalidasa and other poets, the aesthetic of Gupta sculpture and the Ajanta murals, the coming of temple architecture as well as the impressive advances in mathematics and astronomy made by Indian scholars. Some of this had started taking shape in earlier centuries and then grew to maturity when it crystallized into what is regarded as the Indian aesthetic as well as the growth of knowledge. It is worth reiterating the point I made earlier. How could this same society have internalized the idea of Asprishya and been so immune to its treatment of the men and women whom it categorized as Avarna? To declare such people to be physically so impure that they could not be touched, and not only them individually, but their entire community and its descendants, is a belief and practice that inheres to Indian society alone. One may well ask how such a severe degradation of the human person can be reconciled to such an impressive aesthetic and pursuit of thought? Surely at some point the aesthetic must touch the notion of the ethical? Are these the contradictions of a culture? Was the ethic so abstract that it did not connect with the human condition? The trite answer often heard is that it was tied into the theodicy of karma and samsara—as you act in this life so shall you reap in the next birth. This does not answer the question as it is limited to justifying the existing condition. Where did the idea of a genetically impure person come from and why did it take root? There were men and women in various traditions who rejected the segregation and did so quite forcefully in their teachings, but to little effect in terms of social regulations. Why were those who propagated an unethical discrimination in society permitted to control both religious and social functioning and that too for centuries? Is this a legitimate articulation of a utopia, the implications of which did not disturb the ethical conscience of our ancestors? Our descriptions of our golden ages of the past will have to be more realistic than they have been so far. Or, is this an example of early societies being unconcerned with questions of social equality, a concern that emerges as a feature of social thought only in modern times? That social segregation existed can be explained, but the particular justification for it is incomprehensible if not inexcusable.


Romila Thapar (born 30 November 1931) is an Indian historian whose principal area of study is ancient India. She is the author of several books, and is currently Professor Emerita at Jawaharlal Nehru University (JNU) in New Delhi.

The Culture of Discrimination

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