Reactionary law reform has always been an easy way for governments to appear tough on crime, and the Criminal Law (Amendment) Ordinance, 2018 is no different. It betrays a lack of thought on the likely impact, and only serves to endanger the lives of future victims.
The five state reports of the Centre for Child and the Law, National Law School of India University, Bangalore (CCL-NLSIU), on the functioning of special courts under the Protection of Children from Sexual Offences (POCSO) Act, 2012 have demonstrated that one of the main causes for the low rate of conviction under the Act is the appalling lack of infrastructure and manpower in the criminal justice system. Most districts continue to try cases of child sexual abuse in regular sessions courts, designated as “special courts” for the sake of compliance, and most such cases are tried by “special” public prosecutors who are simultaneously trying cases under the NDPS Act, or, in some cases, anti-terror legislation. Investigations are regularly botched up by an understaffed, poorly trained, overburdened police force which has little to no forensic support, and is often sympathetic towards the accused. Instead of addressing these issues which prevent the proper implementation of the law, as it exists, on the ground, the ordinance has, instead, added to the burden of a dysfunctional system.
CCL-NLSIU’s reports have demonstrated that the timelines for completion of the investigation, for recording of evidence, and for completion of trial are never adhered to because functionaries in the system (police, prosecutors and judges) find them impractical given their case load and the facilities they have to work with. In fact, these timelines were found to have been adhered to only in cases where the accused was acquitted because the victim and other witnesses turned hostile. The rate of conviction was highest in cases which took over two years to complete, because, practically, it takes that much time to record the evidence of all the witnesses. In light of this, the fact that the ordinance reduces the time given to the police to file a chargesheet, and to the court to decide appeals against sentencing, displays a complete lack of understanding about the issues on the ground and a disturbing disregard for whether a law is implementable.
The POCSO and the Criminal Law (Amendment) Act, 2013 (CLAA) changed the sentencing regime for sexual offences by introducing mandatory minimum sentences, thresholds a judge did not have discretion to breach even if she felt there were mitigating circumstances that warranted it. As a result, an “anchoring effect” is seen, whereby even if there are aggravating circumstances, judges award only the mandatory minimum sentence. For instance, minimum sentences were awarded in 54.94 per cent cases in Delhi, in 75 per cent cases in Assam, 72.05 per cent in Maharashtra, and 39.39 per cent in Andhra Pradesh. Another effect of high mandatory minimum sentences is that judges, in order to avoid awarding what they view to be a disproportionate sentence, prefer to acquit the accused. Therefore, enhanced mandatory minimum punishments in the ordinance are likely to be counterproductive.
Along the same lines, the ordinance has anchored its enhanced mandatory minimum sentences and death penalty on age, without considering the issues that arise with age determination. The reports of CCL-NLSIU have shown that given the unavailability or unreliability of age-related documents in most parts of the country, reliance is placed on ossification tests to prove the age of the victim in cases under the POCSO. Since an ossification test cannot pinpoint an exact age, and operates with a margin of plus/minus two years, a majority of judges add two years to the upper age limit to conclude that the victim is not a minor. For instance, if the ossification test states that the victim was 14-16 years old, judges ordinarily add 2 years to 16, and conclude that the victim was 18 years old at the time of the incident, and therefore acquit the accused. The same issue is likely to arise when considering whether the victim was below the age of 16 or 12, especially if the judge does not believe the enhanced sentence (or the death penalty) is warranted.
But most importantly, the introduction of the death penalty for the rape of children under the age of 12 is likely to put future victims (and there will be future victims because the death penalty has been shown to be no more a deterrent than a life sentence) at grave risk. Since the punishment for rape and the punishment for murder are now the same, a rapist will have no incentive to spare his victim’s life, especially since her testimony would be the most important piece of evidence against him.
The government needs to invest in combating the rape culture that condones and encourages rape — by age-appropriate sex education at all levels, by aggressive advertisement campaigns to increase awareness and stimulate conversations about gender bias, everyday sexism, misogyny, stereotypes, consent and equality, and by making concerted efforts to change the way society raises its sons and daughters. Unless we, as citizens, can tie these issues to the goals and gains of electoral politics, no political party will invest in these long term, and potentially expensive, efforts.
Epistemology as Enigma
By Amir Suhail Wani
What is knowledge and what are the sources of acquiring it. What’s our relationship to knowledge? Is it a sort of “I – that ” or “I – it” relationship to use Buberian terminology. What is reality? What’s being and what’s reality of being. If being is becoming, what’s becoming itself. If being is a compound of attributes, what are attributes on their own? What’s the final world stuff or the ultimate fabric of cosmos? These have been questions of perennial importance in human intellect. They have engaged and engrossed an array of scientists, philosophers, theologians and mystics in their solution. Einstein thus said that “I want to know the mind of God – rest are details”. In knowing mind of God Einstein and for that matter all great minds pursuing this question actually want to understand their own position in the spectrum of existence. From Milesains right down to contemporary existentialists the quest of human mind in the final analysis has been uniform. This is the quest for meaning – meaning of self and the “other”. In other words man has been in constant quest to properly contextualize his position vis a vis his encounter with his own self and with the universe.
Man has thus tried to understand himself with reference to within and without. This quest for meaning primarily sets apart man from other biological species. Tukkaram said man is excessively anthropomorphic, but there are reasons and genuine reasons for this anthropomorphic attitude. Many thinkers in contemporary times have contested the fact that animals too have a world view, philosophical systems, beliefs and other things that were for long time deemed as human prerogatives. But this line of thinking awaits lot of scientific research. Till that point one may say, though with the note of caution that animals live mainly by instinct. But man, in addition to his instincts possess higher privilege of rationality, cognition and spirituality. Man possesses the instruments of understanding, discrimination and subsequently volition. Man is not content with what he is; instead he exploits the natural “cause-effect” axiom to its full utility. Stability, in the sense of pure vegetative euphoria has nothing to do with human self. Man can’t be content, with what he is. He strives towards “what he can be” too. That’s why humans are few of those species that have an exceptionally high [average] life span.
This human restlessness that’s absolutely absent in other creatures in this magnitude manifests itself both at material and abstract plane of existential hierarchy. Thus human civilization is a story of intellectual and material progress. Our journey from primordial caves to modern skyscrapers on one hand and from to Derrida mirrors this very material and intellectual journey. Though, much can be said, both positive and negative about this sequence of events. It truly remains an unsolved question that has is it a real progress or a mere change. Has there been really any paradigm shift in our approach to comprehend the basic epistemological questions or we have just been going through what Michael Focault identified as “Episteme” .
But for now let’s skip this skewed issue, for it has been much deliberated upon by social theorists, philosopher and others without reaching any unanimous conclusion, for it is a question of multivariate nature. Let’s agree that we have not merely changed but progressed too, at least materially, if not ideologically and spiritually. But have we not simultaneously ended up in an ideological plethora, chaos, and loss of meaning, where everything is simultaneously proved and disproved by same tricks of rhetoric. Have we not entered a phase of human evolution whereby “sab takht uchalay jaye ge” remains applicable not only to political authority but to religion, social institutions and cultural heritage. In this ideological juncture, at this crossroad of confusion where to look for and what to hold onto, to arrive at a holistic understanding of life and universe. Epistemology which forms the bedrock of our understanding with its modern day variants of positivism, scepticism, deconstruction, scientism, postmodernism has in a sense not only opened vistas to multiplicity but simultaneously opened floodgates of chaos.
To borrow Derrida’s word it appears as if modern world like any text is revolving around an “eccentric centre”. Multitude of orbits has led to loss of centre. The phenomenological and existential expanse as was envisioned in traditional setting seems to have been reduced psychological phenomenon and manifestations of psyche in the wake of eccentric modernism. Consequently, modern epistemology by an explicit self-annihilation attempt seems to scaffold and constrain our understanding instead of spreading it out. By making reality subservient to mental categories and “arsenals of specific definition” modern epistemology seems to not only abhor but annihilate all forms and modes of learning and experience that transcend its specific moulds of understanding. We have landed into time where essence of meaning is lost to the definitions of meaning. Reality is defined and consequently devoured by theory, map is taken as territory and ‘attribute’ is substituted for ‘being’.
At this turn of events first thing that we need to pay heed to is that nature in its entirety is a symbol. Every object that sings the songs of existence is actually a participant to the larger song of cosmic theophany. Every being signifies meta-being and every epiphenomenon happening in the membrane of space time reminds us of transcendental noumenon that escapes all categories of human mind. This brings us in terms with symbolism – metaphysical symbolism to be precise and to distinguish it from literary symbolism.
Symbolism is to be taken as the master key in any endeavour that aims at unlocking the locks of cosmos. This universe and every object thereof is a symbol – symbol of sacred and divine. Creation is constant epiphany and each phenomenon brings us to the presence of theophany. Sacred texts which are themselves symbolic have often referred to this aspect of “nature as symbol”. Quran asserts that there are symbols of God within and outside of human self. It asks its readers to contemplate the verses which it calls “signs of nature (aayaat ullah)”. Most of religious phenomenology is couched in the language of symbolism. This symbolist approach is highly pertinent and rewarding in any attempt aimed at understanding any religious text with all its contours.
The dancing image of Shiva, the celestial patterns, ying yang, the image of lotus and many other symbols as they appear associated with various religions demand an in depth understanding. Rumi, an iconic mystical poet noted that Quran has a face value and underneath it has a latent meaning and then meaning within meaning.
The understanding and appreciation of these meanings is possible only if we accept and come in terms with the symbolism that’s at the heart of religious texts. Nature, history, human self and revelation, the four principle sources of understanding and guidance as they are must be reconciled with the symbols that’s characteristic to each of them. We may recall that this symbolism is not an external superimposition that is pasted on any text but it is a phenomenon evolving and emerging from the text itself. But this theory of symbolism isn’t amenable to those who are used to literalist textual approach and go to the extent of reading religious texts (which have a heavy symbolic import in their text) in literalist manner.
This class of people is responsible for much of misunderstanding that exists among different schools of metaphysics and religion. Their absolute loyalty to the Manifest and absolute negligence of essence has deprived the religion of its aesthetic and spiritual aspect. But, if manifest was really real and visible was actually actual, then nobody would have believed that log of wood is a storehouse of fire and energy. Iblees, focusing his sight on form refused to prostrate before Adam. On the contrary angels envisaged the essence of Adam and went ahead of his material temporality. Thus blind obedience to external form and absolute negation of “beyond the Manifest” is a negative characteristic. Thus, there are infinite illustrations within our immediacy that bring home the fact of symbolism. Ghazali, in his “Mishkat Ul Anwar” has aptly dealt with this symbolism – Quranic symbolism at least. God speaking to Moses behind burning bush, the vacation of Adam from paradise, the ascension of night, the heifer of Clan of Israel has as much symbolic and allegoric importance as much they hold true in their literal and historical sense.
To mystics we must turn to understand this symbolic theophany of nature in essence and to properly appreciate its all implications. The mystic tradition is common to all traditions in one form or the other, one way or the other has been loyal to this doctrine of symbolic interpretation throughout history. A typical example of this loyalty is plenitude of mystical poetry that has not only spoken of symbolism but based its superstructure on the very notion of symbolism. It is only in the appreciation of this symbolic attitude that we realise that the apparent ritualistic clash of religions melts down in their higher esoteric dimension. Thus the he mystics of every age and religion have spoken the same fact –the fact that creation is a symbol symbolizing the divine, eternal and absolute. But they haven’t stopped here, but rather worked upon “symbol-symbolized” relation with reference to absolute and relative, temporal and eternal. This has lend us beautiful doctrines like Wahdatul Ul Wajood, Wahdatus Shahood and their Western equivalents. It may be noted here with reference to symbolism vis a vis its treatment in mysticism that mysticism is not an imaginary digression, an abstract picnic in vacuous space.
Its much concrete in its foundations that our contemporary positivist science. The laboratory of science is external to man out there and every time you perform an experiment you will get the same results. Likewise, again invoking symbolism the laboratory of mysticism is here right within the man – wherever you go , this laboratory is with you and like scientific experiments, you can repeat your mystic experiences and get same results every time. Mystic thought is not merely confluence of philosophical question and metaphysical answers; it is much more than this. It not only integrates man, universe and God into an existential whole but also guides man to the presence of absolute where all questions melt away and silence plays an orchestra of meanings.
(The author is a freelance columnist with bachelors in Electrical Engineering and a student of comparative studies with special interests in Iqbaliyat & mystic thought. He contributes a weekly column for this newspaper that appears every Monday. He can be reached at: email@example.com)
Reclaiming India from ‘others’
By Shabbir Aariz
Results of 2019 parliamentary elections are a successful culmination of making India into a Hindu Rashtra exactly in line with the political ideology of one nation, one culture and one country that was born way back in the year 1923 initially propagated by Vinayak Damodar Savarkar, the ideology that obviously is older than the post 1947 secular TADKA, an abrasion of a temporary nature so far as the core philosophy of Hindutva is concerned. According to the Hindutva philosophy, the minorities living in India are described as “others”.
There should be no misgivings about making India a complete Hindu Rashtra being a well thought idea much before India’s independence from British. It will be appropriate to quote from Khushwant Singh’s ‘Absolute Khushwant’ “In fact long before Jinnah had come up with two nation theory, it was people like Keshav Bliram Hedgewar, Bal Gangadhar Tilak, Lajpat Rai and V.D Savarkar who had come up with Hindu-nation theory. Lajpat Rai had even drawn a map of divided India, dividing the country into two parts along with religious lines….” This mindset has worked overtime to isolate and marginalize India’s minorities, including Muslims, Christians and Sikhs. It is no secret that Muslims since India’s independence have suffered heavy losses to their life and property in nearly fifty thousand communal clashes and almost half of them being very lethal with official machinery either a mute spectator or helpful to those causing the loses.
India’s secular credentials have come under question at a number of times including Babri Musjid episode and Gujrat during the years 1992 and 2002 respectively.
Needless to say that none other than a minister in Modi’s cabinet in Gujrat, Hiran Pandey confessed later that the riots were preplanned and police were ordered not to interfere. The forensic report later confirmed that the fire to the Sabarmati Express at Godra that led to riots, was caused from inside the train. Christians too have not less suffered after having been subjected to violent attacks in which missionaries were killed, nuns sexually assailed, churches burnt and holy books dishonored.
Sikhs are no exception to their share of sufferings, notably during congress rule in 1984 putting the toll of killings unofficially toabout eight thousand, though the community described by the Sang Parivar as a sect of Hinduism while in the year 2000, K S Sudarshan launched a party as an extended arm of the RSS styled as Rashtriya Sikh Sangat which was also denounced by various Sikh organizations seen as a challenge to the Sikh identity.
And India has largely remained content to this state of affairs and marginalization of minorities as it has a pattern and purpose that interestingly caters to the interests of India’s elites. To serve that interest, they make the state a party to such marginalization which may sometimes surprise you but the whole idea behind it should not. The exercise of achieving the goal of Hindutva and making India the Hindu Rastra, finally started at a soft note by BJP in 1980’s followed by L K Advani’s Rath Yatra that left behind a trail of death and destruction knifing deep though the so-called Indian diversity. Advani, ironically now consigned to archives as an unhappy man.
The Hindutva agenda, however, gained an enormous speed after 2014 elections. The first five years of the rule have been the experimenting period to instill fears in the minds of minorities and push down the idea of Hindutva down the throats of resistance and the same has been successfully done.
There has been again a pattern in the events that followed 2014 like cow vigilantism, love jihaad and so on with a message that has gone down as planned. People like Pragya Thakur who criticize and humiliate Gandhi and glorify Godse, earn appreciation and make it to the parliament.
If Gandhi was not killed and not safely dead, he would be killed now for sure. The results of the 2019 parliamentary elections hold testimony to the fact that this nation has been at pains to reclaim it from “others” and “intruders”. It should, therefore, neither shock nor surprise anybody if the new dispensation undertakes quick steps in the direction of transforming the Indian state into a much awaited and complete Hindu Ratra because it was not the development but the nationalism as defined by Sang Parivar that the party has been voted to power. The idea to evolve Indian society into heterogeneous, multi-ethnic, multi-lingual, multi-racial and multi-religious society and its so-called diversity is a farce. The very such idea of India is a complete myth. The critics shall also rest in peace but then there are critics everywhere. Where shall all this stand India in the community of nations— who cares? Political pundits and some scribes will continue to make speculations but the reality is that an idea, a philosophy and a process has been on the anvil for a long time which seems to have blossomed for those who have cradled the idea of Hindutva and as such will guard against all kinds of reversals with all the might and ruthlessness.
(A leading lawyer and eminent poet, author contributes a weekly column. He can be reached at: firstname.lastname@example.org)
Eternal landscape geography of the soul:A wishful thinking
By Bhushan Parimoo
It was the other day the children assembled in the family made this writer realize how outdated he has become. It so happened while imploring upon one of the concerned in the Forest Department, on cellphone, to ensure during the ensuing planting season there should not be any miss to introduce Jarcanda as assured adorable gift of nature beyond words a native tree in the South of Latin America.
Has not one but five different colours Blue, Yellow, two species, white pale purple and pink. It was after this esteem Newspaper published a write up on December 24 of 2018 under the caption Rainbow: From Sky into Tree by these writer authorities assured to have these planted in state Forest Research Nurseries in Sidhra Jammu, After a long wait B.M.Sharma IFS then Director of the institute took initiative got this plant raised against very heavy odds through the dedication of Rakesh Abrol DFO and his dedicated team. Scheduled previous plantation drive had been at the lowest ebb in monsoon season in the history of the Forest Department.
A criminal negligence at higher echelon caused about 1.65 crores plants of about 80 rare species got outdated thus wasted. No one was held responsible to cause exchequers money as well as hard labour put in by the staff detailed in these nurseries. In a transparent accountable deliverance system many heads must had been rolled down.
Children being near the listening distance to the conversation promoted one of granddaughter asking in utter disbelief why Jarcanda trees are not here who had come to celebrate her 5th birthday from Johannesburg, South Africa. Stressing Johannesburg has a long unending avenues of the tree, and on her return these shall be in full bloom it looks fantastic, desired to know why these are not planted here.
Another one from Chandigarh, put me further on the back foot with her childish query that Climate, topography and the rock formation of the both places is alike then why it is not as beautifully laden with flowering trees as Chandigarh. Another mocked me does Nanu, Art 370 is the reason. Another child corrected that Environment has neither any boundary nor it keeps it so.
Reverting back one of them Dadu as an environmentalist you owe an explanation? This time had to fumble with the words because it was neither advisable nor appropriate to share with them the way deliverance apparatus is plagued. Too early to expose them to this obnoxious astrosphere.
Way back in 2010 on the social site a few flowering trees with many shades of hue and colours on road avenues drew attention. Quite a breath taking affair never saw such rich blooming trees anywhere in the state. And there after for last 8 years persistently it is being pleaded to emulate what others have done with their landscape.
The cities like Chandigarh, Bangalore and a few others are the most beautiful planned cities before us. In particular in terms of roadside landscape and chore of avenues trees. A simple question arises similar to which children asked what stops the authorities to embark upon such programmes despite there is a large scope of landscape, roadside and avenue plantation.
As a lay man one would like both sides of the roads, canal, banks, even the premises of the various institutions adorned with beautiful shady and forage trees, with it the flowering tress regime which flower around the year one after the other.
It makes one to think where lies the hitch despite adequate funds are available rather wasted with impunity. State has urban forestry Divisions to take care of the Municipality and its periphery, Municipal Corporations, Town Area committees have their own wing, beyond it comes Social Forestry under which National Highways other major roads and whole rural space under its ambit.
The authorities at the helm of affairs need to device objects of managements for different sites while doing plantation activities. It is desirable that the first and foremost priority of plantations along the banks of rivers, canals and on roadside be the prime objective.
This writer is of the view that a road avenue should be laced with beautiful flowering trees with the scented flowers in full colourful bloom of one colour for a season stretch within such trees has a definite flowering seasons.
Such tree lines could be alternated with other species having a flowering season immediately succeeding the flowering time of earlier species. Which makes permanent bloom in all the seasons through the year .With a few shady trees desired to be intermingled in the rows in such a manner without compromising the atheistic .
Writer to be sincere is not technical expertise to handle requisite planning such as to device a suitable plantation model but a technical driven scheme can be worked out by the concerned.
An inquest was made after the children pointed out the lack of zeal to add atheistic beauty as elsewhere on the landscape of the state, a few species tried elsewhere under similar condition could be worked out.
Banyan tree, flowering month throughout the year, religious, bark and aerial roots yield fibre, leaves as fodder and gives shade. Variegated or Buddhist bauhinia orchard tree, flowers march to April to June , has floral buds edible, pods and leaves used for fodder, scared tree, timber wood Java cedar, bishop wood, west Indian cedar, vinegar wood, red cedar, flowering season march to April, timber used for pile, foundation railways etc. dye for rattan stuff. Scarlet bottlebrush, flowering March to August, ornamental. bastared cedar, Indian redwood, Chittagong wood, flowering season march to May used for furniture, bark for tanning, flowers yield dyes, Rose wood, south Indian rosewood, flowers March to May, gives shade and timber. Child life tree, lucky bean tree, Indian amulet, wild olive tree, gives flower from March to May, an ornamental tree, and leaves used a fodder. Mango, cupid’s favourite, spring tree, cuckoo’s joy lowering March to April, fruit edible, timber and medicinal one.
Indian meddler, bullet wood tree, gives flower from March to May, ornamental, insecticides, fish and arrow poison.
Sliver oak or Silky oak, flowers from April to May, Ornamental and avenue tree. Indian blackberry, black plum, jave plum, flowers season April to June, fruit edible and has a medicinal value, timber, fuel wood, dyes. Leafed jacaranda flowers April to May, ornamental and avenue tree. Sausage or fetish tree, cucumber tree, flowers from April to July, ornamental and purgative. Saffron teak, Shade, Wood for carving, making combs, writing tables and ornamental platters flowering June to July. Kadam flowers from July to September. Bottle palm.
Royal palm, mountain glory, flowers August to October, ornamental, wood used for making match boxes, pulp; flowers scared, fruits edible. Stone siris, white siris, used as for timber, fodder, medicinal uses also yields charcoal and gum, flowering season from August to September. Australian Acacia or Phyliode, Australian Wattle.
Ornamentals Tree &fuel Wood flowering month September to November. Pink or red cedar. Indian oak tree, jasmine tree, flowers from September to November, ornamental, yield low quality cork, source of timber. Chinese Yellow tree flowers October to November. Ornamental, flowers source of yellow dye, medicinal, seeds used for beads. Camel hoof, tree bean, mountain ebony, flowers October to December, leaves for fodder, flora buds as food.
The bio tree, pipul flowers October to September, almost through the year scared tree leaves used for miniature paintings, host for lac and silk worm insects, ornamental, Kasood, djoowar, flowers November to December, Ornamental, timber for bridges, props, telegraph poles also used firewood.. Shingle tree, used for making tea chests, flowering season December to February.
Scholar or devil’s bark tree, shaitain wood tree used medicinal (vermifuge), wood used for making slates black boards, bark bitter and astringe flowering season December to March. Jack Fruit, fruit and seed edible, yields a yellow dye, and timber for furniture, flowering season November to January, Mast tree, Indian fir. ashoka tree, flowers February to May, Indian scared tree and ornamental. It is up to the authorities to consider suggestion, one can take a horse to the water, drinking is his business.
(The writer is a Jammu based Environmentalist)
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