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A case to withdraw the triple talaq Bill

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The Prime Minister’s lament to the outgoing RajyaSabha MPs that they missed out on an opportunity to debate important issues such as the triple talaq Bill — the Muslim Women (Protection of Rights on Marriage) Bill, 2017 — due to disruptions is an indication that despite widespread public opinion against it, the Centre is inordinately keen on making it a law.
What defies comprehension is the refusal of the Central government to appreciate the legal point that no person can be jailed for an act that is not a crime. The Supreme Court, in ShayaraBano v. Union Of India (2017), had set aside the validity of instant talaq (talaq-e-biddat), thus rendering its pronouncement ineffective in dissolving a marriage. Yet this Bill makes the pronouncement punishable with a three-year imprisonment without realising that such an arbitrary exercise of legislative power is liable to be judicially reviewed and struck down for violating the principles of natural justice and rule of law.
Interest in the triple talaq Bill has also been sustained by the erroneous belief held by some women’s organisations that the pronouncement of talaq-e-biddat could be brought under the definition of emotional abuse mentioned in Section 3 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA).
This view is as legally untenable as the obsession to criminalise inconsequential words. The PWDVA brings “verbal and emotional abuse” under domestic violence and defines it as: “a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.”
After its invalidation by the apex court, instant talaq comes nowhere near this definition. It will constitute abuse only if it is accompanied by the forcible removal of the wife from the matrimonial home, or her abandonment. But the Bill criminalisestalaq-e-biddat even if it is not followed by eviction or desertion of the wife.
And as per Section 31 of the PWDVA, a person who indulges in domestic violence to the prima facie satisfaction of the magistrate can ultimately be punished with imprisonment which may extend to one year, or with a maximum fine of ?20,000, or with both if he violates the “protection order” issued by the magistrate under Section 18 of the Act.
A protection order is meant not only to prohibit the accused from committing any act of domestic violence, it can also stop him from entering the place of employment of the aggrieved person, or attempting to communicate with her in any form. In addition, the magistrate can also pass a “residence order” under Section 19 inter alia directing the accused to remove himself from the shared household and restraining him or any of his relatives from entering any portion of the shared household in which the aggrieved person resides.
Most importantly, Section 32 declares that a breach of the protection order is a cognisable and non-bailable offence which the magistrate may conclude to have been committed by the accused on the “sole testimony of the aggrieved person.”
Indeed as per Section 4, “any person” who has reason to believe that an act of domestic violence has been, or is likely to be, committed can give information about it to the Protection Officer concerned. No liability, civil or criminal, shall be incurred by that person for giving the information in good faith.
It is astonishing that those who want talaq-e-biddat, which can no longer be used to threaten a wife into submission, to be declared an act of “domestic violence” fail to realise that innocent men could be forced to undergo the aforementioned humiliating punishments reserved for cognisable and non-bailable offences. Can any recommendation be more unjust and anti-therapeutic in nature?
But the most significant ground on which the triple talaq Bill fails the test of constitutionality is found in Article 21 which states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”
In Maneka Gandhi v. Union of India (1978), a seven-judge Constitution Bench ruled that fairness is implicit in the phrase “procedure established by law” and therefore, the procedure should be “fair, just and reasonable, not fanciful, oppressive or arbitrary”; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. The court also clarified that “law” means reasonable law, not any enacted piece.
Endorsing this view, the Supreme Court, in Justice K.S. Puttaswamy v. Union of India (2017), said that “a law which provides for a deprivation of life or personal liberty under Article 21 must lay down not just any procedure but a procedure which is fair, just and reasonable” and that “the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom.”
Earlier, the same was emphasised in stronger words by Justice V. Krishna Iyer in Sunil Batra v. Delhi Administration (1978): “True our Constitution has no ‘due process’ clause or the VIII Amendment; but, in this branch of law, after Cooper and Maneka Gandhi the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Art. 14 and 19, and if inflicted with procedural unfairness, falls foul of Art. 21.”
Seen in the light of these categorical pronouncements, the procedure imposing penal imprisonment for talaq-e-biddat in the proposed Bill is not just unfair and unreasonable but is also, to paraphrase a view of the U.S. Supreme Court (quoted in Law, Hermeneutics and Rhetoric by Francis J. Mootz III), so totally without penological justification that it would result in the gratuitous infliction of suffering on a person for doing nothing more than utter words rendered harmless by the Supreme Court.
This unwarranted punitive deprivation of personal liberty also runs afoul of Article 19, especially clauses 19(1)d and 19(1)g which allow all citizens “to move freely throughout the territory of India” and “practise any profession, or to carry on any occupation, trade or business.” Thus, if a man is unjustifiably jailed under the proposed law even for a few weeks, he will be denied of these rights for that period, to say nothing about the dim prospects of securing a job after the stigmatising confinement.
Given these procedural and legal infirmities, the chances of the triple talaq Bill being judicially challenged when it becomes law are high. This apart, the Centre has completely ignored the fact that the passage of the Bill in the LokSabha has unwittingly pushed Muslim women towards the All India Muslim Personal Law Board if one were to go by the recent massive demonstrations against it across India.
The only way to remedy the situation is for the government to withdraw the Bill.
(The Hindu)

 

 
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Opinion

INDESCRIBABLE JOHN ELI

The Kashmir Monitor

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By Shabbir Aariz

This indeed is proverbially a herculean task to describe or define John Elia in any particular frame. Whosoever while mentioning him, is either trapped in contradictions of one’s own opinion or is able to confine to a few verses of John Elia to judge him. But the more one tries to understand John, the more confused one is and I believe that you need another John Elia to explain him. He is a phenomenon, a thing like a live fish to hold in your hand or an elephant amongst blinds to be described. Wusatullah Khan, a noted broadcaster, holds that knowing John is as good as dating with a liberated lady. And it is quite obvious that a man who in him is a philosopher, a scholar, a biographer, a linguist with command over Urdu, Arabic, English, Persian, Sanskrit and Hebrew and needless to say that the Ismaili sect of the subcontinent could not find anyone other than John to translate Ismaili treatises from Hebrew, it becomes a tedious affair to be conclusive about John. Common perception though with an element of truth is that John is a progressive Marxist, an unconventional poet and always in denial of everything including himself while himself saying in three line verse,

“KISKO FUSAT K MUJSAY BAHAS KARAY…..

 

OOR SABIT KARAY K MERA WAJOOD….

ZINDZGI K LIYAY ZARORI HAY

(Anyone prepared to argue and prove that my existence is imperative for life). His poetry is admittedly very close to life and his verses in the words of a legendry poet, Majrooh Sultanpuri, are like a dialogue which no other poet has the distinction to be capable of. John has an extra-ordinary craft of connecting with his audience that has created an unprecedented fan following which no other contemporary poet can claim to have. So magical is his poetry and its rendition that it has created a cult of his admirers with such an obsession and longing for the life of melancholy lead by John Elia himself. It is no secret that he was never a happy man with defiance and protest against everything and anything around. Loudly a nonconformist when he says
“unjaman main mayri khamooshi…..

burdabari nahin hay wehshat hay”.

His style made him famous and popular. He appears to be disgusted even with creation when he says … “HASILE KUN HAY YEH JAHANE KHARAAB….

YAHI MUMKIN THA AYSI UJLAT MAIN”.

His admirers strangely wish to pass through the same pain and despair that is hallmark of John’s poetry besides satire and the disdain for the system which contributed to his sadness in life. He has so glorified and romanticized the pain and sadness that it leaves his audience in frenzied ecstasy.

John Elia was born in the year 1931 and died in 2002. He originally belonged to Amroha in the state of Uttar Pradesh, younger brother of Rayees Amrohi, a known journalist and writer. John migrated to Pakistan in the year 1957 and settled in Karachi where he is buried now. But Amroha never left his heart and mind. He never felt comfortable after leaving Amroha partly because his stay in Karachi brought him in conflict with the system too. Many other things have also contributed to his sadness in life. He was married to a well-known writer of Pakistan, Zahida Hina but in mid-80’s , the relation between the two became bumpy and ended up in divorce which left John devastated and for ten long years thereafter went in depression without writing a word.

As is true about many in the history of literature, John earned his name and fame more after his death than in his life time while he was not received well and felt a strange type of suffocation when he says,

“AAP APNAY SAY HUMSUKHAN REHNA…..

HUMNISHEEN SAANS PHOOL JATI HAY”.

Thanks to the electronic boom and You Tube that brought him to the lime light and enabled audience to reach him and his works. As if this was not enough that his first poetic collection only came to be published when he reached the age of 60. It is worthwhile mention that he has as many as seven poetic collections to his credit namely SHAYAD, YANI, LEKIN, GUMAAN, GOYA, FARMOD and RAMOOZ. Except one, all other are published posthumously. This is besides his scholarly works in prose which may require greater insight to go into.

John all his life remained honest, direct and straightforward in expressing his views on matters of public interest. He also never demonstrated any pretentions or reservations while expressing the truth of his personal life. He never made any secret of his fantasies, love affairs or drinking habits. Yet he was never at peace either with the times or with himself. John Elia, in my humble opinion lived ahead of times and even the desire of dying young without being bed ridden was not granted to him except that he strangely enough wanted to die of tuberculosis and which he did.

(The author, a senior lawyers, is a well known poet and writer. Feedback at: [email protected])

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Opinion

Manto: Why I wanted to read a ‘lewd’ writer

The Kashmir Monitor

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By Naveed Hussain

I first read Saadat Hasan Manto as a teenager and the spirit of what I’m writing now was etched on my memory in those years.

I was too young to understand the intricacies of his stories but I enjoyed what I read and craved for more. Back then, Manto wasn’t available in the small town of Haripur where I lived. A friend introduced me to a schoolteacher, a bibliophile who had a modest collection of Manto in his personal library.

 

“Why do you want to read Manto, he’s a ribald, lewd writer,” he quipped. “This is exactly why I want to read him,” I replied, almost impulsively. He smiled and agreed to lend me Manto’s books. Thus began my journey to explore Manto. The more I read, the deeper my love for him became.

Manto was a nonconformist, an unorthodox and ruthlessly bold writer. He didn’t believe in the so-called literary norms of ‘decency’ and ‘civility’ set by didactic writers of his time. For him, truth is truth. No matter how bitter and despicable the reality, Manto never dilutes the truth. Like a muckraker, he pokes his nose into the muck, rakes it, and then holds it up to the reader – in all its profound ugliness and twisted beauty. “If you don’t know your society, read my stories. If you find a defect, it’s the defect of your society, not my stories,” he says.

Manto wrote on socially taboo topics like sex, incest and prostitution, which earned him the wrath of contemporary traditionalists, conservatives and even progressives. For some of his ‘lewd’ and ‘obscene’ stories he had to face lawsuits – among them were great stories such as Thanda Gosht, Bu, Khol Do, Dhuan and Kali Shalwar.

But it is to miss the point to simply say that Manto wrote about sex. He wrote about the sexual debauchery of men and the sexual exploitation of women; about our patriarchal society where women are often treated as a ‘sex toy’, not a human being. Unlike many, I don’t compare Manto with DH Lawrence, because Manto is not lustful, even though he explicitly writes about the female anatomy. He’s more like Guy de Maupassant, who sees the throbbing heart, not the sensuous body, of the prostitute.

Manto blames the ‘diseased mind’ for reading ‘ribaldry’ into his stories. If a sex maniac derives morbid gratification from Venus De Milo, should we blame Alexandros of Antioch for chiselling such a ‘graphic’ sculpture? No, certainly not.

For contemporary literary pundits, Manto was also unacceptable because he wrote ‘indecent’ language. “They [the critics] criticise me when my characters verbally abuse one another – but why don’t they criticise their society instead where hundreds of thousands of profanities are hurled on the streets, every day,” he wonders.

I also love Manto because he was honest. He was an unflinchingly true writer who believed in calling a spade a spade. Sketch-writing was introduced as a genre in Urdu literature much earlier, but Manto created his own peculiar tell-all style. He didn’t write only the good qualities of his characters. “In my bathroom, everyone is naked. I don’t clothe them because it’s the tailor’s job,” he writes.

Manto’s sketches, which he initially wrote for the Lahore-based Daily Afaq newspaper, were later collected and published as Ganjay Farishtay. Manto wasn’t a hypocrite. He minced no words while writing about his dead friends. “I curse a thousand times a so-called civilised society where a man’s character is cleansed of all its ills and tagged as ‘May-God-Bless Him’,” Manto wrote in Ganjay Farishtay. Manto wrote sketches of filmstars Ashok Kumar, Shyam, Noor Jahan, literary figures such as Meera Ji, Agha Hashar and Ismat Chughtai and some politicians. “I have no camera that could have washed smallpox marks off the face of Agha Hashar or change obscenities uttered by him in his flowery style.”

Before embarking on his literary career, Manto had read Russian, French and English masters like Chekhov, Gorky, Victor Hugo, de Maupassant and Oscar Wilde and translated some of their works into Urdu. Surprisingly enough, despite his love for revolutionaries, Manto was not a Marxist ideologue. He was a humanist who was pained to see social injustices, economic disparities and exploitation of the underprivileged. He hated the obscurantist clergy and parasitic elites alike.

Although Manto had migrated to Pakistan after 1947, he couldn’t understand the rationale of partitioning a land along religious lines. His stories of bloodshed and cross-border migration, such as Teetwaal Ka Kutta and Toba Tek Singh, made him unpopular with ‘patriotic’ Pakistanis. To this day he remains a shadowy figure on the official literary lists of Pakistan: our school curricula, our national awards, our drawing room conversations.

Manto was acknowledged as a creative genius even by his detractors. And he knew this, which is perhaps why he wanted these words to mark his grave: “Here lies Saadat Hasan Manto and with him lie all the secrets and mysteries of the art of short story writing. Under tons of earth he lies, still wondering who among the two is the greater short story writer: he or God.”

Manto’s family feared his self-written epitaph would attract the unwanted attention of the ignorantly religious, so on his grave one finds a Ghalib couplet. He faced censorship all his life and even now has chunks of his stories taken out by the authorities. But as we mark his centenary year, I can say this with the instant certainty I felt as a young man in Haripur: the words and stories of Saadat Hasan Manto will outlive us all.

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Opinion

Gauhar Raza: Giving Poetry the Power to Protest

The Kashmir Monitor

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By Asheesh Mamgain

If things were different his poems would have been different, or maybe he would not have been a poet at all. But things are what they are. And that is why Gauhar Raza, the poet is writing, and it is why he writes his poetry of protest.

“Maybe I would have written about love, the beauty of nature and science. But as things stand my poetry is predominantly about resistance and protest,” said Raza, who is faithful to the tradition of resistance poetry to the extent that he has throttled, without much difficulty, the romantic and the scientist in him. “The need to write poetry always arose when something happened around me which affected me, to the core. I have never written and will never write poetry just for the sake of it.”

 

“The murder of Safdar Hashmi, the breaking up of the Soviet Union, the demolition of the Babri Masjid, the killing of an activist in Afghanistan, the death of Rohith Vemula are some of those things,” he said.

Raza’s second published collection of ghazals and nazms (71 in all) came out in November 2017 and is titled Khamoshi, or Silence.

Is there a lot of anger in his poems? Yes, there is definitely a lot of anger. But then there is also hope. That is where Raza becomes special.

“For me, a poem that merely complains or rants about the injustice, violence and persecution happening all around is not enough. A poet has to go beyond this; he has to give a vision. The vision of an alternative world, of a better world. Only then will his poetry be successful and meaningful. A poet has to show the consciousness he wants to bring into society.”

So how does he define good poetry? “Well, a good poem should be able to raise the level of the reader at least one notch higher, and also give him a fresh perspective about the aspect being dealt in the poem. Something new to dwell upon,” said Raza.

The influences that shaped his poetic thought came pretty early, at home and at the Aligarh Muslim University where he studied. Raza’s father, Wizarat Hussain, worked in the education department there and was a second-generation Leftist.

“The question about the existence of God came up very early in my life and soon I became an atheist for life,” said Raza. Literature was read with passion at home and by the time he was 15 he had read all the Urdu literature available at the AMU library as well as a solid portion of Russian literature.

“During my growing years, Leftist thought had a major presence in the university. On the other hand, the fundamental forces were also steadily getting stronger. I was smitten by the leftist idea. I was part of a literary study circle, we served tea at the secret meetings of leftist groups and listened to discussions at home between my father and other intellectuals such as Irfan Habib and Iqtidar Alam Khan.”

There was a lot of churning in his mind and soon he started pouring the remnants of all that into his poems. When it comes to poetry some of Raza’s major influences have been Ghalib, Faiz Ahmad Faiz and Sahir Ludhianvi. He is often seen reciting their work at length during his various lectures, with Sahir Ludhianvi’s long poem ‘Parchhaiyan’ or Shadows one of his favourites.

“Writing the kind of poetry I do is not easy. Each time a write a poem I must relive all the pain and emotion I went through when the particular incident happened that forced me to write. All those disturbing images come rushing back to me. It is a difficult thing to undergo.”

Nor is poetry Raza’s only means of reaching the people. He recently retired as chief scientist from the Council of Scientific and Industrial Research. He is also into documentary filmmaking, his documentaries on Bhagat Singh and the 2002 Gujarat genocide being very well known.

Where does poetry stand today, as a means of communication with the reader? According to Raza, “for one, social media has helped. It has helped poets reach a wider audience. Also, the tradition of musharias and kavi sammelans (poetry meets) is still very strong in India. So even if a poet is competing with the multimedia world, it is easy to reach one’s audience with one’s poetry, provided you have something pertinent to say.”

More broadly speaking, however, “I have to say that things have progressed in a disturbing direction. A poem I wrote 20 years ago, I could rededicate it to Rohith Vemula and then to Gauri Lankesh. This disturbing trend is seen all over the world. I believe that the fall of the USSR has been a major turning point in the way our World has evolved.”

A few lines from one of his poems brings out his concern and struggle.

Mein phool khilata hoon jab bhi,
Woh baad e khizan le aate hain,
Mein geet sunata hoon jab bhi,
Yeh aag se ji bahlate hain.

Whenever I make a flower blossom
They bring the autumn wind
Whenever I sing a song
They give the soul succour with flame.

But Raza is still hopeful. “There has been a resurgence of resistance poetry in Urdu in the recent past. The trend of religious poetry in Urdu has also reduced in recent times. The youth today has become more involved in this attempt to bring a positive change. I have seen young people reading protest poetry and reacting to it. Once again universities have become a place of resistance and struggle for change.”

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