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Unseemly haste: on the triple talaq Bill

Monitor News Bureau

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On December 28, the Lok Sabha passed the ‘triple talaq’ Bill — the Muslim Women (Protection of Rights on Marriage) Bill — following a day of engaging discussion. It will soon be tabled in the Rajya Sabha. The legislation was mooted in the aftermath of the Supreme Court’s judgment in August declaring that the practice of instant triple talaq was not constitutionally protected and would have no legal effect. At first glance, these developments come across as a classic example of collaboration the between the branches of government. The Supreme Court made a decision, the government conceptualised a Bill to reinforce the court’s decision, and Parliament is now in the process of enacting that Bill into law. However, this narrative collapses when the issue is considered more closely, as the Bill is at odds with the very judgment that it purports to reinforce.

The statement of objects and reasons accompanying the Bill indicates that it is meant to give effect to the court’s judgment, which it claims had failed to produce any deterrent effect in reducing the practice of triple talaq across the country. The purpose of the court’s judgment was disarmingly simple: to deprive talaq-e-biddat of recognition in the eyes of the law. That remains the case irrespective of the frequency with which it is exercised. To speak of “illegal divorce”, as the statement does, is therefore a contradiction in terms – triple talaq is simply not a divorce in the first place.

The Bill then proceeds based on this mistaken premise. Although it confirms that pronouncements of triple talaq are void, it goes further by criminalising the utterance of triple talaq. A victim of triple talaq, the Bill says, is entitled to a subsistence allowance and custody of minor children. These provisions belong to a Bill that regulates divorce, not marriage. A victim of triple talaq remains married to her husband. As a wife (rather than an ex-wife), she should be entitled to far more than mere subsistence. The question of custody does not arise where the couple remains married.

 

The linchpin of the Bill is the criminalisation of triple talaq with a penalty of imprisonment of up to three years. This also undercuts one of the important effects of the Supreme Court’s judgment. Until the judgment, there was an asymmetry between the authority conferred upon the words of a Muslim man as opposed to a Muslim woman. By indicating that Muslim men lacked the power to divorce their wives through triple talaq, the Court diminished that asymmetry. This Bill accentuates it once again and puts men at the centre of legislative policy, by triggering a number of legal consequences upon the utterance of those words.

The alacrity and speed of Parliament’s response to the Supreme Court’s judgment is remarkable. One of the significant questions that arose before the Court was whether it would be appropriate to defer to Parliament on this issue. While the two judges in the minority favoured imposing a six-month injunction to enable Parliament to enact legislation on the subject, the judges in the majority specifically chose not to do so. As one of the judges in the majority noted, “it is not for the courts to direct” the enactment of any legislation.

The fact that the Supreme Court did not direct Parliament to enact legislation does not preclude it from doing so. However, it is interesting that Parliament and the government have responded in a matter of months in the context of a conscious decision not to direct any legislative response. A similarly swift response followed the Supreme Court’s judgment in the Shah Bano case over 30 years ago. In contrast, governments have failed to respond — or have taken an agonisingly long period of time to respond — to judgments recommending legislative action. The best example is the Vishakha case, where legislation on sexual harassment at the workplace was enacted no less than 16 years after the Court’s advice to Parliament. A recommendation from the Court in 1995 to amend the rules of evidence to better address cases involving custodial deaths has still to be implemented.

Overall, the attempt to ride on the coattails of the Supreme Court’s judgment is misplaced. A further round of litigation seems inevitable if this Bill were to be enacted, and there is an even chance that the court may decide that a law criminalising the use of three words violates the right to equality under the Constitution. The moral of the story is not dissimilar to the 2G case. Not everything that is arbitrary or unlawful is, or in this case should be, criminal.


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Opinion

Curbs on Pakistan media?

The Kashmir Monitor

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By Amir Zia

Is press freedom on the retreat in Pakistan? Are these the worst of times for those holding dissenting views in the land of the pure? Are visible and invisible hands out to gag the mainstream media?

Despite all the challenges of Pakistan’s struggling and flawed democracy, conservative orientation and deeply religious roots, its media is vibrant, diverse, bold and candid, encouraging those who raise the flag of dissent and non-conformity. It amplifies the voices of rights activists, ethnic groups, the oppressed classes and most religious minorities.

 

At the same time, however, sensational political statements and conspiracy theories usually take centre-stage on news channels and papers, at the expense of genuine issues faced by people.

This statement-oriented journalism is not the result of state or government pressure. It is, on the contrary, driven by the rat race of ratings, social media hits and a preference for news that sells. Despite these skewed priorities, Pakistan’s press, it would appear, is not in chains.

Absolute freedom of expression is a concept that is being defined and redefined by the evolving conditions in a country: A newspaper stall in Karachi.

Yet, of late, politicians, rights activists and media personnel say that there is an unannounced censorship at work and fear grips the media, as the number of ‘red lines’ continue to increase.

At the other end of the spectrum are those who claim that not only is the Pakistani media enjoying an unprecedented level of freedom, but that it also has a tendency to distort facts and shamelessly push various political agendas, present half-truths and, sometimes, spew lies. According to this school of thought, the media remains overwhelmingly sensational: fake news and toxic arguments on social media are an example of the ‘limitless’ freedom of expression in the country.

Between these two extremes, lies a middle ground. While problems do exist as far as press freedom is concerned, at the same time, misinformation is disseminated through various media platforms.

Absolute freedom of expression is a concept that is constantly being redefined, depending on the social, economic and political conditions of a country. A single yardstick cannot be applied universally.

Broadly speaking, there are two main yardsticks with which press freedom can be measured: historical and regional. The other, finer details vary from country to country and region to region.

Historically, press freedom has made huge strides in Pakistan since the country’s creation. Long gone are the days of the Press and Publications Ordinance (PPO) of 1962 that empowered the government to seize newspapers, shutdown media organisations and arrest journalists and editors.

The decade of the ’70s, which witnessed the dismemberment of Pakistan and the rise and fall of Zulfikar Ali Bhutto – our first and, so far, last civilian martial law administrator – proved far from ideal, despite the presence of a democratically elected government. Bhutto opted for high-handed actions against dissenting voices, from political opponents to poets, writers and journalists. But it was the former military dictator, General Zia-ul-Haq, who added more bite to the PPO in the 1980s, empowering the authorities to prosecute publishers if published news was not to the government’s liking. During the Zia era, censorship was tough, brutal and direct. His regime did not hesitate to lash journalists and put them behind bars.

After Zia’s sudden death and the return of democracy in 1988, the media started to open up. The notorious PPO was revised, but successive elected governments and various political, ethnic and religious parties continued to target the press and take high-handed action against newspapers and journalists. For instance, in his second stint in power, Nawaz Sharif used the might of state machinery to punish a critical media and arrest journalists.

Surprisingly, it was under General (R) Pervez Musharraf that the Pakistani media saw an unprecedented boom. The electronic media witnessed expansion, as he allowed private news and entertainment channels to open shop, while radio stations were also encouraged. At the insistence of Sheikh Rashid Ahmed, his information minister at the time, the military ruler also allowed cross-media ownership – a controversial decision that lead to the hegemonies of select media tycoons.

Ironically, the media liberalisation and openness eventually contributed to Musharraf’s own fall, during his confrontation with the judiciary. His half-hearted attempts to muzzle select media outlets during the peak of the lawyers’ movement proved lethal. The media contributed to destabilising his government.

After the 2008 general elections and to date, the media managed to guard its turf despite many ups and downs, taking on successive governments and mighty state institutions Some media organisations took a critical view of the Pakistan Armed Forces and the Inter-Services Intelligence (ISI).

This resulted in an on- and off- tiff between the state institutions and some media groups, leading to the blocking of the transmission of select news channels and obstacles being placed in the path of newspaper distribution.

This impasse between state institutions and media groups was aggravated due to the non-implementation of libel and defamation laws. In the absence of legal recourse and an established code of conduct within media organisations, there was hardly any independent platform where an aggrieved party could turn for a fair hearing. The regulator proved too weak and politically influenced to carry out this task.

Yet the Pakistani media operates in a freer atmosphere compared to past decades. Yes, there are problems, obstacles and even setbacks, but the media has expanded its boundaries. Many subjects, once taboo, are now openly discussed and debated. There are hardly any holy cows left; be it the government or state institutions, all are under the microscope.

There are, however, cultural and religious sensitivities that have to be taken into account. Pakistani journalists operate in an altogether different world compared to their counterparts in Western Europe or the United States. Several social and religious issues, while kosher in the West, are either discussed in a hushed manner in Pakistan, or seen from a different perspective because of the country’s religious moorings and its semi-tribal and semi-feudal roots.

Similarly, as Pakistan remains engaged in its longest internal war, against terrorism, since 2001, and has hostile eastern and western frontiers, there are conflict areas where the media faces obstacles while reporting. Any state, faced by such internal and external threats, takes measures that may not be the norm in times of peace.

The Pakistani press is less jingoistic, more diverse and aggressive in questioning those in power compared to its counterparts in India – the world’s largest democracy. Pakistanis should be proud that while the Indian media overwhelmingly promotes the government and state narrative without questioning, the Pakistani media does the opposite.

Similarly, if the condition of press freedom in Pakistan is compared to its two western neighbours – Iran and Afghanistan – and the one in the north, our friend China, we stand head and shoulders above them all.

Out of more than 50 Muslim countries, including democracies such as Turkey, Bangladesh and Egypt, there is more freedom of expression in Pakistan. Its scorecard is also better than Far Eastern countries such as Malaysia and Indonesia as well as secular countries like Singapore and South Korea.

At the same time, however, the press still has a long way to go. While expanding boundaries of freedom is an endless business, the media should review itself critically and overcome shortcomings and unprofessionalism in its ranks. Only an objective, fair, balanced and factual media will be able to keep expanding its boundaries.

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Opinion

Muslimcook who saved life of Gandhi

The Kashmir Monitor

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By Suhail Ahmad Wani

History is often a medley of versions of an event in the past, gradually embellished over time. We all know about the brutal TinKathiya system which was prevailing in Champaran district until Gandhi ji led the Champaran Satyagraha movement, under that system the tenant farmers were forced to mandatorily cultivate Indigo crops in three Katha of land on every twenty katha(one bigha) they owned. Since, indigo crops were poorly compensated by Britishers& European Indigo mill owners and in case of refusal to cultivate Indigo crops, farmer had to face heavy taxation. Farmers were force to leave under miserable condition. When Gandhi ji arrived at Champaran, the news spread like in the region like a wildfire and he was greeted by a large crowd of peasants at railway stations all along the way from Muzaffarpur to Motihari.

Since, Indigo mill owners and Britishers officials were aware about Gandhi’s leadership ability and capability to fight against atrocity and torture. They were also keeping a sharp eye on all developments.

 

The year was 1917, on the afternoon of April 15, thousands had gathered at Motihari railway station (in Bihar’s East Champaran) to wait for a man who was destined to lift their lives out of misery. It was 3 pm when Gandhi alighted at the station from a train coming from Muzaffarpur. He had come to probe the appalling conditions under which local farmers were being forced by the landlords to grow indigo. Nobody knew it then but this fact-finding mission would snowball into the first Satyagraha (policy of passive political resistance) that Gandhi would lead in the country and begin a new chapter in India’s independence struggle. According to the book (Champarankeswatantrasenani) during this visit, Gandhi got a dinner invitation from a British manager of an indigo plantation named Erwin. So Erwin told his cook, BatakMian, to serve Gandhi a glass of milk laced with poison. To ensure that this was done, he offered substantial inducements as well as issued threats of dire punishment. When the time came, the deeply patriotic cook did present the glass of milk to Gandhi, but also warned him of its contents and revealed Erwin’s sinister intentions behind it. DrRajendra Prasad, who would later go on to become India’s first president, witnessed the entire episode. While Gandhi escaped the assassination attempt to successfully lead the Champaran Satyagraha, the man who had saved his life had to pay dearly for it. Dismissed from work, BatakMian was thrown behind bars and tortured. His house was turned into a crematorium and his family was driven out of their village (SiswaAjgari, a hamlet near Motihari). With time, his act of bravery was erased from public memory, until 1950, when DrRajendra Prasad visited Motihari (the then-headquarters of an undivided Champaran). As India’s first president alighted at the railway station, he was greeted by a huge crowd that had gathered to welcome him. Just then, he witnessed a commotion near the entrance as a haggard old man tried to make his way towards him. Recognizing him instantly as BatakMian, Prasad walked up to him, hugged him and escorted him to the dais where he gave him a chair next to him. To the surprised and curious crowd, the President introduced the man sitting next to him as the person who had saved Mahatma Gandhi’s life. He then narrated the story of how the impoverished cook had turned down all kinds of inducements to poison Gandhi and faced brutal punishment as a result. Had it not been for BatakMian, Gandhi would have died, Prasad exclaimed, before wondering aloud what impact such a tragedy might have had on India’s independence. On learning about the hardships faced by the cook’s family, he also ordered the collector of the region to give 24 acres of land to BatakMian and his three sons as a token of appreciation from the nation. This incident seared BatakMian’s story into the memories of Champaran’s residents. However, nearly a century after the Champaran Satyagraha, his grandchildren are still waiting for the government to honour its promise. In 2010, after reading a report in the Hindustan Times on the plight of the family, then President PratibhaPatil had ordered the district magistrates of East and West Champaran to submit a report on action taken to fulfilRajendra Prasad’s promise. But thanks to government apathy, the move did not lead to any action.

BataqMian Ansari’s sacrifice which deserves a prominent place in the history of freedom movement of India, came to limelight only when freedom fighter Syed IbraheemFikri (Delhi) breleased his book written in Urdu (Hindustani Jung-e-Azadi Mein MusalmanoKaHissa) in 1999. But it was BatakMian’s patriotism, which did not allow his soul to serve the poisoned milk to Gandhi ji. So, he took the glass to Gandhi ji but revealed the conspiracy in front of Ervin, Gandhi Ji and Dr. Rajendra Prasad. Thus he saved the life of Gandhi ji who led the Champaran Satyagraha movement and changed the narrative of struggle for freedom of India. But BatakMian had to pay heavily for his patriotism. The manager put him in Jail and brutally tortured him. His house was turned into crematorium and later he and his family were forced out of village. What would bigger tragedy that this extraordinary Indian, without who India’s independence might not have been possible, has completely been ignored. Isn’t it tragic that today the man who killed Mahatma Gandhi is known to all but very few know BatakMian who saved the Mahatma’s life in 1917? The unsung hero BatakMian died in 1957. Today, the tombs of BatakMian and his wife lie unattended in the nondescript village of SiswaAjgari. His grandchildren live on a patch of land near the Valmiki Tiger Reserve forest and make a living as laborers

(The writer is a research scholar at University of Indore and can be reached at: [email protected])

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Opinion

Trump Tries Cooling Tensions with Pakistan

The Kashmir Monitor

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By Michael D. Shear and Salman Masood

President Trump, who on Twitter last year accused Pakistan’s leaders of “nothing but lies & deceit,” welcomed the country’s prime minister to the White House on Monday in an effort to mend relations and seek help in ending the war in neighboring Afghanistan.

Seated next to Prime Minister Imran Khan in the Oval Office, Mr. Trump gushed about the prospect of improved relations and trade with Pakistan and said he expected that Mr. Khan would help negotiate peace in Afghanistan so United States troops could come home.

 

“There is tremendous potential between our country and Pakistan,” Mr. Trump said during a 40-minute question-and-answer session with reporters from both countries. “I think Pakistan is going to help us out to extricate ourselves.”

Administration officials believe pressure from Pakistan could push the Taliban into a permanent cease-fire in Afghanistan, though they acknowledged that promises of such help from the Pakistani government had failed to materialize in the past.

“Washington could be overestimating Islamabad’s influence over the Taliban. So there’s potential for disappointment,” said ArifRafiq, a policy analyst and commentator on relations between the two countries. “But, like Trump said, Pakistan is a ‘big country’ and important in its own right. It’s critical for Washington to maintain a long-term partnership with Islamabad and not cede the region to Beijing.”

Mr. Trump has repeatedly said he wants to withdraw American forces from Afghanistan and end the nearly 18-year war. But ties between Pakistan’s intelligence service and extremist groups in the region have long frustrated American hopes of a peaceful regional solution.

The president was more optimistic on Monday about Pakistan’s cooperation, even as he suggested that he always had military options if diplomacy failed.

“I could win that war in a week. I just don’t want to kill 10 million people,” Mr. Trump said, describing what he said were prepared military plans in Afghanistan. “If I wanted to win that war, Afghanistan would be wiped off the face of the earth. It would be gone in 10 days.”

Mr. Khan — once Pakistan’s star cricket player and now like Mr. Trump a celebrity-turned-leader — agreed quickly that seeking peace in Afghanistan was the better option.

“There is no military solution in Afghanistan,” Mr. Khan said. “If you go all-out military, there would be millions and millions of people who would die.”

With Mr. Khan by his side, Mr. Trump claimed that Prime Minister Narendra Modi of India had recently asked him to help mediate the seven-decade dispute between Pakistan and India over the Kashmir region, one of the world’s most sensitive flash points.

“I was with Prime Minister Modi two weeks ago and we talked about this subject,” Mr. Trump said. “He actually said, ‘Would you like to be a mediator or arbitrator?’ I said, ‘Where?’ He said, ‘Kashmir.’ Because this has been going on for many, many years. I was surprised at how long.”

Both countries have claimed the disputed region since Pakistan’s creation in 1947.

“If I can help, I would love to be a mediator,” Mr. Trump said Monday.

Mr. Khan appeared willing for Mr. Trump to play a role. But just hours after the meeting between the president and Mr. Khan, a spokesman for India’s Ministry of External Affairs denied that such a conversation between Mr. Trump and Mr. Modi had taken place.

“No such request has been made,” the spokesman, Raveesh Kumar, said on Twitter. “It has been India’s consistent position that all outstanding issues with Pakistan are discussed only bilaterally.”

In a statement on Monday evening, the State Department acknowledged that “Kashmir is a bilateral issue,” but added, “As the president indicated, we stand ready to assist.”

Mr. Khan arrived in the United States on Sunday, landing at Dulles International Airport in Virginia where a picture of him riding the airport’s people mover with other travelers caused a minor social media uproar about the lack of pomp and circumstance.

The prime minister received more of an official welcome on Monday at the White House, where Mr. Trump greeted him in front of the West Wing before a bilateral meeting and a working lunch.

Relations between the two countries have been strained for years because of Pakistan’s ties with extremist groups and its lack of cooperation with the United States’ campaign against terrorist organizations since the Sept. 11 attacks.

But Mr. Trump deepened the rift in January 2018. He tweeted that the United States had “foolishly given Pakistan more than 33 billion dollars in aid” and accused Pakistan’s leaders of treating American officials like fools and giving safe haven to terrorists: “No more!”

Three days later, Mr. Trump suspended security aid to Pakistan, shutting down the flow of up to $1.3 billion in aid each year with a demand that Pakistan’s government cut off ties with extremists.

American officials said last week that the president’s meeting with Mr. Khan was an attempt to repair relations between the two countries, though they said the Trump administration remained “cleareyed” about the continuing links between Pakistan and terrorist groups.

A senior administration official had told reporters that Mr. Trump appreciated Mr. Khan’s earlier statements that Pakistan would no longer be a refuge for terrorist groups. But the official said the United States remained concerned given that terrorist organizations — including Jaish-e-Mohammed, Lashkar-e-Taiba and the Haqqani network — continued to operate in Pakistan with the tacit approval of its national intelligence and military agencies.

Pakistan’s continued imprisonment of ShakilAfridi, a Pakistani doctor who reportedly helped the United States confirm the location of Osama bin Laden, also remains a sore spot between the two countries, officials said.

Mr. Trump said on Monday that he planned to press for the release of Dr. Afridi. A tribal court in northwestern Pakistan in 2012 sentenced Dr. Afridi to 33 years in prison after he helped the C.I.A. pin down bin Laden’s location by running a vaccination drive backed by the United States.

Former President Barack Obama’s administration objected strenuously to Pakistan’s treatment of Dr. Afridi, and Trump administration officials last week called upon Pakistan to release the doctor.

Mr. Khan’s visit to the White House was part of his first trip to the United States as prime minister as he tries to move beyond the diplomatic clashes with Mr. Trump.

A fiery, nationalist leader in Pakistan, Mr. Khan has been critical of Pakistan’s partnership with the United States in the past. He fired back at Mr. Trump’s tweets last year, accusing the United States of decades of failures in Afghanistan.

Mr. Khan has accused past Pakistani rulers of selling themselves short and kowtowing to American dictates. But before the meeting on Monday, Mr. Khan had said he wanted a reset in the bilateral ties.

In Pakistan, local television news networks gave breathless coverage to Mr. Khan’s visit. The prime minister’s address a day earlier to a rally of thousands of Pakistani-Americans in Capital One Arena in Washington was portrayed as a testament to the Pakistani leader’s popularity in the United States.

Before meeting Mr. Trump, Mr. Khan told his cheering supporters at the Washington rally that he had never bowed to anyone except Allah and would not leave his countrymen embarrassed or disappointed during the meeting with Mr. Trump.

But on Monday, Mr. Khan was far less confrontational, repeatedly praising Mr. Trump for his leadership. “He has now forced people to end the war, to have a settlement,” Mr. Khan said of Mr. Trump. “This is a critical time.”

Mr. Trump said he hoped Pakistan could help resolve the war so the United States could curtail its security measures in Afghanistan. He said that if that happened, the United States might restore some of the funding to Pakistan that he cut off last year.

“I think that Pakistan is going to be a very big help,” the president said, adding later: “I think Pakistan will save millions of lives in Afghanistan. As of this moment, they are working very hard.”

(nytime.com)

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