Category Archives: Law

The Censorship of India

udta punjab

Written by Randeep Singh

The Bombay High Court has overturned the censor board of India’s decision to make 89 cuts to Udta Punjab, a film about drug abuse among Indian youth. That’s good news for Udta Punjab; so why was it subject to such censorship in the first place?

It’s because India’s Censor Board (i.e. the Central Board of Film Certification) is an arbitrary, paternalistic and repressive tool of government which dates from the colonial era. The first censor boards in India were set up in 1920 to discipline, rear and guide Indians from their naïve, childlike and unruly selves.

Today’s Censor Board continues the colonial tradition of parenting Indians, protecting them from all sorts of realities films. It has grown increasingly conservative since 1991 as a reaction to Westernization and is currently staffed with BJP members and supporters, including its head, Pahlaj Nihalani.

The Udta Punjab controversy has nevertheless brought out Karan Johar, Mahesh Bhatt and Aamir Khan in support of the film. Online petitions to screen the uncensored version of the film gained tens of thousands of signatures. The Bombay High Court decision too leaves hope that, if censorship of cinema grows in India, so too will resistance.

 

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Filed under Censorship, Cinema, Hindi Cinema, India, Law, Politics, Randeep Singh, Uncategorized

India Bound

india_censoredWritten by Randeep Singh

The film Haider was released on October 2, 2014. The film is an adaptation of Shakespeare’s Hamlet to the violent backdrop of Kashmir in the mid-1990s. Among other things, Haider looks at the atrocities of the Indian army. It has become one of the most critically acclaimed films in India this year.

On October 15, 2014, the Allahabad High Court issued notices to, among others, the film’s director, director and actors to respond to a petition. The petition was filed by the Hindu Front for Justice an organization which seeks to restrain the film’s screening on the basis that it insults the sovereignty, integrity and unity of India.

How does a film like Haider endanger the “sovereignty, integrity and unity” of India? Aren’t India’s restrictions on the freedom of expression, such as national security, public order and incitement to violence,  sufficient to deal with problems that may otherwise imperil the “sovereignty, integrity and unity” of India?

The “sovereignty, integrity and unity” limitation on freedom of expression merely enables the Indian power to curb any thought or opinion it deems “anti-national.” And what is more cherished to the Indian nationalist mythology than the idea that India is a benign, secular democracy, a view questioned by Haider?

In its stamping out of ideas, thoughts or opinions, which just may have a ring or truth to them, the Indian state privileges the right of an ambiguous and undefined the “nation” over those of democracy which relies on a free flow of ideas. The result is a narrowing of the Indian mind.

If Haider is restrained from playing in Indian cinemas, the Indian state and its fascist enthusiasts will have again (as they have done before with M.F. Hussain, Deepa Mehta, Sonali Bose, Arundhati Roy, Wendy Doniger) have privileged the rights of the “nation” over those of Indians themselves.

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Art and Obscenity: The Case of Manto

manto

Written by Randeep Singh

The Urdu short-story writer Manto was charged with obscenity six times for his short-stories, three times in India before 1947 (‘Dhuan,’ ‘Bu,’ and ‘Kali Shalwar’) and three times in Pakistan after 1947 (‘Khol Do,’ ‘Thanda Gosht,’ and ‘Upar Neeche Darmiyaan’). He was fined only in one case. The charges of obscenity haunted him nevertheless until his death: “I am not a pornographer but a story writer,” he would defend himself.

Under section 292 of the Indian Penal Code and the Pakistan Penal Code in Pakistan’s early years, a book or writing would be considered obscene if “it is lascivious or appeals to the prurient interest or if its effect … if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

The book or writing would not be found obscene however if it was “justified as being for the public good on the ground that such book, … writing… is in the interest of … literature, art … or other objects of general concern.”

Manto wrote about his experiences at the trial and appeal hearing of “Thanda Gosht” between 1949 and 1952. A witness at trial for Manto, Syed Abid Ali Abid, the Principal of Dayal Singh College, testified: “from Wali to Ghalib, everyone at some time, has written what is generally labeled as obscene. Literature can never be obscene. And, what Manto writes is literature.”

One witness, Dr. Saeedullah, gave Manto the title of “musavvar-e-hayaat,” the painter of life. Soofi Tabassum, a professor of Government College, deposed that “immoral writing is where the sole object of the writer is to undermine morality” and that “Thanda Gosht” did not affect public morality.

In Manto’s testimony, “Thanda Gosht” was a story “telling human beings that they are not separated from humanity even with they become animal like.” Like Flaubert’s Madame Bovary which had also been charged with obscenity, “Thanda Gosht” was a serious story filled with melancholy. As for the potentially corrupting influence of his stories on the public, Manto remarked, “my stories are for healthy people, normal beings, not for minds who dig  up carnal meanings in innocent and pure things.”

The case of Manto is relevant to the question of what is art and what is obscenity. The following questions are worth considering:

  1. What is the artists’ intention in writing the story (to arouse sexual excitement etc.)?
  2. Is the sexual element of the story the primary or dominant value of the story or is it subordinated to the writer’s aesthetic goals?
  3. How does the reader experience the story? Does it appeal more to his or her aesthetic judgement or mostly to his or her senses and carnality?
  4. Does the aesthetic experience of reading the story do away with the reader’s “practical, operational” ways of viewing its characters and situations as if they were real people or situations?

If the story’s primary or overriding goal is to sexually arouse the reader, then the work can be considered obscene. If the story’s primary or overriding goal though is to use sexual or erotic scenes for some larger artistic purpose related to theme, setting etc., the story can be considered literature. A story moreover may have sexual situations or scenes which by themselves may be considered obscene but which have some meaning in the story’s overall context.

In “Thanda Gosht,” Manto tells the story of Isher Singh, a Sikh, who tried to rape an already dead Muslim girl, a heap of “cold flesh.” In “Khol Do,” a brutalized, unconscious  girl on the verge of death, Sakeena, opens her shalwaar qameez after the doctor examining her utters the words “khol do” (‘open’) to a nurse to open a window. The suggestion of raping a corpse or a girl opening her shalwaar on hearing the words “open (it)” by themselves may have been obscene; in their proper context, they illustrate the extent to which women were brutalized in the Punjab in 1947.

Manto was not only holding up a mirror to the dirt, hypocrisy and puritanism in Indian and Pakistani society; he was showing a way out of it. Ismat Chughtai wrote in her memoir “Kaghazi Hai Pairahan” that Manto’s “flinging it (dirt) about makes it visible and one’s attention can be called to the need of cleaning it.”  His stories unsettle us because they take us to the darker corners of our psyche, to desires repressed and to the ugliness that results. South Asia still struggles with the brutalization of women, sexual repression, sexual abuse, a growing AIDS menace and with discussing sex or sexuality openly.

Manto is still holding up the mirror to ourselves.

Further reading:

Ayesha Jalal, The Pity of Partition: Manto’s Life, Times and Work across the India-Pakistan Divide (Princeton University Press, 2013).

Aziz Akhmad, “Manto Ka Muqaddama: Obscenity Trial”:  http://pakistaniat.com/2009/09/29/saadat-manto-trial/

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A Gay Guy in a Turban

South Asian GLBT Protest (2)

Written by Randeep Singh

On December 15, 2013, Kanwar Anit Singh Saini attended the Global Day of Rage in Toronto to protest the Supreme Court of India’s upholding of Section 377 of the Penal Code of India which criminalizes homosexual sex.  He kisses another gay man at the protest. Another protester holds a poster above them with two men and the word “pyaar” written in Urdu. The photo was posted on his Facebook page with the caption “proud to be illegal.”

It’s interesting that while many in the diaspora have condemned what has happened in India, fewer have bothered to reflect on homophobic prejudice and intolerance within their local communities. The photo of Saini kissing another man generated hateful comments on Facebook from within the diaspora. Saini recalls on his Facebook page how his uncle once said the family would’ve killed Saini as a boy had they known he was gay.

South Asian GLBT persons like Saini continue to fight hate and intolerance within (and outside) their ancestral communities, including from “progressive” Indians, Pakistanis etc. Recently, I received a statement issued by a local South Asian group to the Indian Law Commission condemning the Supreme Court ruling. I was surprised to see the statement being lauded by people whom I have experienced homophobia from personally. I asked the group’s President that while I welcomed the statement, we’d do well to challenge prejudices in our backyard.

The openly gay former Indian prince Manvendra Singh Gohil said recently in an interview on CBC Radio that challenging Section 377 in India’s courts is one thing, but challenging Indians to open their hearts and minds is the greater struggle. That too is true here in Vancouver, as well as in Toronto, London, California and Queens. Saini has helped us all in that struggle by reminding us that GLBT South Asians are here and will keep up the fight.

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The Union of India vs. Gay, Lesbian, Bisexual and Transgendered Indians

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Written by Randeep Singh

The Supreme Court of India has upheld section 377 of the Penal Code of India, which characterized homosexual sex as “against the order of nature.” The decision reversed a 2009 ruling of the Delhi High Court which had ruled that the law violated constitutional rights to equality and personal liberty.

To clarify, Section 377 was never abolished by the Delhi High Court: it has remained the law in India, including New Delhi. The Delhi High Court decision was only binding in that Union Territory and no where else in India. The law can only be abolished by Parliament, not by any court, including the Supreme Court of India.

As for the problems with the decision.

First, the Supreme Court’s otherwise correct statement that only Parliament can amend the law, overlooks the historical importance of the Supreme Court of India in upholding the fundamental rights and freedoms of Indians despite the state. The Supreme Court has interpreted rights and freedoms expansively to include the right to education, the right to work with dignity and on behalf of socially disadvantaged including the poor, women and backward castes. It has historically been the Supreme Court of India which has persuaded Parliament to enact socially inclusive laws, not vice-versa.

Second, the Supreme Court held that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders.” How did the court come to this determination? How many Indians are in the closet? Is not one person enough to challenge a law as unconstitutional? Moreover, the Supreme Court of India has historically upheld the rights of a vulnerable social group from the excesses of more dominant social groups, as it has done in the case of backward classes, the poor and women. Why has it failed to do so now?

Third, the Supreme Court holds that Section 377 criminalizes certain acts and not sexual orientation. Under this logic, Indian homosexuals are not breaking the law so long as they do not engage in sexual intercourse. There is no separation between the act of sex and one’s sexual orientation. Legally prohibited from having sex, India’s homosexuals will have to either think twice before getting intimate with their partners or they will have to go further underground. It is a clear case of discrimination based on sexual orientation.

I’m reminded of the Supreme Court’s decision in 2005 when it refused the appeal of Afzal Guru (who was convicted of the December 2001 attack on the Indian Houses of Parliament). The court ruled that the “collective conscience of the society will only be satisfied” if Afzal received the death sentence. In this case too, the Indian Supreme Court has sought to appease the collective “moral” conscience of society, represented in this case by conservative religious bodies, supported in the recent past by senior leaders of the BJP like the late B.P. Singhal who argued homosexuality was against the ethos of Indian culture.

Section 377 remains law, but change will come eventually. Just before posting this piece, I read that Sonia and Rahul Gandhi have criticized the ruling and that India’s Law Minister has stated the government has not abandoned efforts to make homosexuality legal. The law has changed for other socially disadvantaged groups in the past and the composition of the Supreme Court and Parliament is changing. Legal reasoning is dynamic and new precedents can be set. More than anything, the GLBT community in India, and its supporters locally, nationally and internationally will keep moving forward. The moment hasn’t come yet but the destination beckons.

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The State of Jammu & Kashmir vs. Union of India

Disclaimer: This is not a legal document, judgement or academic opinion on the legality of the accession of Kashmir to India but rather an attempt to bring together some facts and legal principles pertinent to the accession question and have the reader come to his or her own finding through further inquiry if necessary.

433px-Kashmir-Accession-Document-a

Was the accession of Kashmir to India legal?

Facts

On August 14 and 15, 1947, India and Pakistan gain independence. The rulers of the 565 princely states of British India have to decide to join either India or Pakistan. The Maharaja Hari Singh is the ruler of the princely state of Kashmir and does not make a decision as to which country to join.

On October 22, 1947, Pathan tribesmen from Pakistan invade Kashmir. The Maharaja of Kashmir appeals to India for help.

On October 26, 1947, the Maharaja flees Kashmir and arrives in Jammu. Also on or about October 26, 1947, the Maharaja meets with a representative of the Indian Prime Minister and signs the Instrument of Accession. On October 27, 1947, India troops arrive in Srinagar (Kashmir). Recent British sources indicate that the Indian PM’s representative did not reach Jammu until the morning of October 27, 1947 by which time Indian troops were already arriving in Srinagar.

Issues:

  1. Did the Maharaja act of a free mind when he signed the Accession?
  2. Did the surrounding circumstances influence the Maharaja’s decision?
  3. If so, did those circumstances influence the Maharaja’s decision-making ability in such a way that he cannot be said to have acted of a free mind?

The Law

I look at three legal principles relevant to the issues above.

The question of duress: duress is legally defined as a situation where one party exerts pressure unlawfully on another party to compel that party to do something that he or she would ordinarily not do. For duress to apply against India, India would have had to have done something unlawful, such as threaten to use violence against the Maharaja, his family or threaten to seize his property and hold it ransom. The use of suggestion or persuasion on the part of India does not qualify as duress.

The question of undue influence: undue influence occurs in relationships where one party exerts pressure on a weaker party so as to overpower the will of that weaker party and thereby induce an agreement. In this case, India would have had to do something to influence the Maharaja – including making military aid to him conditional upon his signing the accession instrument – which was short of actual force, but stronger than mere talk, resulting in the signing of the accession.

The question of unconscionability: an unconscionable transaction is an agreement that no right-minded would ever make and no fair-minded person would ever accept. In this case, there would have to be an inequality in the bargaining power between India and the Maharaja of Kashmir. If there was, then the Maharaja also would have had to have made an improvident bargain, that is he would have had to sign the accession (for military aid) without proper regard for the future.

If that were the case, there arises a legal presumption of unconscionability against India which India would have to rebut.

Written by Randeep Singh

Further Reading:

Ganguly, Sumit, “Conflict and Crisis in South and Southwest Asia”, in Michael E. Brown, ed., The International Dimensions of Internal Conflict, Cambridge, MA:  The MIT Press, 1996a, pp. 141-172.

Ganguly, Sumit, “Explaining the Kashmir Insurgency: Political Mobilization and Institutional Decay”, International Security, vol. 21, no. 2, Fall 1996b.

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The Story of Kainat Soomro

Outlawed-in-Pakistan

In 2007, Kainat Soomroo says she was walking home from school in her hometown of Mehar, Sindh. She went into a store to buy a toy for her niece. While looking around in the store, someone covered her mouth with a handkerchief. She fainted.

Kainat claims she was kidnapped and raped by four men over the next three days. After the third day, she escaped back to her family. Her father tried in vain to report the matter to the police. She was declared an outcaste by the local jirga (council). Her family was told to redeem its honour by killing her.

Instead, her parents defied the jirga and fled with Kainat and the rest of the family to Karachi . There they enlisted the help of a lawyer and of the NGO-group War Against Rape (W.A.R) who helped them bring the four men to trial.

The men were acquitted however as there was no evidence corroborating Kainat’s oral testimony. A month later, Kainat’s brother was murdered by unknown assailants. One of the accused rapists, Ahsan Thebo, claims also that Kainat married him during her captivity, though some suspect this was a tactic to avoid criminal responsibility since marital rape is not a crime in Pakistan.

Kainat and her family now live in poverty in Karachi and have suffered repeated threats on their lives including Thebo’s threat to take Kainat back or kill her. Yet Kainat remains undeterred:  ”I want justice, I will not stop until I get justice.”

Her case is currently under appeal.

Written by Randeep Purewall.

http://www.war.org.pk/

http://www.pbs.org/wgbh/pages/frontline/pressroom/press-release-outlawed-in-pakistan/

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