Between sixes and eights
UNION Law Minister Thambidurai has a lot of explaining to do on his fax (pas?) about a sitting Judge of the Madras High Court. He chose an indecorous way to virtually oust an upright and respected member of the Bench. And he did it at the most suspicious moment.

This bhadralok politics!
POLITICS in India, whether packaged in an ideological box or not, invariably moves on its own momentum. Everything here is a matter of convenience. No wonder, politicians, more often than not, are seen as strange bedfellows in the public eye.

Banning landmines
THE treaty banning the use of landmines which came into force from March 1 can at best be described as a small step in the right direction. As in most other instances, the big players, who deliver sermons on human rights and peaceful living to lesser nations, have refused to join the global movement against landmines.

ROOTING FOR PEACE
by Praful Bidwai
MANY Indians can only think of Pakistan in stereotypes. They believe it is a society on the way to Talibanisation, in which it is virtually impossible for people to conceive of peaceful co-existence with their larger “Hindu” neighbour.

BC women and reservation
by Shantha Krishnan
THE introduction of the 84th Constitutional Amendment Bill for reservation for women in the Lok Sabha and the Vidhan Sabhas in December, 1998, soon after the six-day odyssey women’s round-the-country Rail Chetna Yatra — created instantaneous jubilation among women. But that was only a first step.

Guardianship: the mother
of all issues
by Anupam Gupta
THERE is a change of style no doubt, but not a change of direction. Silently but firmly, the Supreme Court continues to push forward towards the goal of gender equality. The latest, February 17 pronouncement on the right of mothers to act as guardians lacks both the flamboyant rhetoric and the technical sophistication of the Shah Bano case.

Recounting instances from Lahore trip
by Humra Quraishi
EVENTS lie so crammed that it makes you wonder whether the world is crashing to an end and that’s why everything has to be fitted as soon as possible...Well, as of now, last weekend saw Uma Vasudev holding a special reception in honour of Satish Gujral, where the guest of honour was Chief Minister Shiela Dikshit.

Suitable Boy for Atia
by Rajnish Wattas
DEAR sister Atia, your novel proposals to settle the long-standing Indo-Pak territorial dispute through the nuptial knot has captured the imagination of many Indians. While your exorbitant “mehar” demand has been considered absolutely unjustified, unacceptable and anti-national, your marital ambitions have won many hearts.

75 Years Ago

Motilal Nehru’s appeal for unity
PANDIT Motilal Nehru has issued the following statement to the press: “I am sorry (to say) that owing to illness in the family and my own indisposition, I have not been able to resume my tour in Bihar as I fully intended.

Between sixes and eights

UNION Law Minister Thambidurai has a lot of explaining to do on his fax (pas?) about a sitting Judge of the Madras High Court. He chose an indecorous way to virtually oust an upright and respected member of the Bench. And he did it at the most suspicious moment. Add to it the fact that he is the most obedient representative of Ms Jayalalitha in the BJP-led government and that the mighty lady has suffered at the hands of the Judge, Mr C. Shivappa. Given this background, it will need the suspension of disbelief to accept his version, pale and unconvincing as it already is. The Minister says the Judge’s correct year of birth is 1936 and as such he should have retired last December at the completion of 62 years. The file about his date of birth started moving early last year on the basis of a complaint from someone in Karnataka. The case was sent to the President, together with Mr Shivappa’s explanation supported by proof that he was born in 1938. After consulting the Chief Justice of India, Rashtrapati Bhavan has now upheld the validity of the complaint. As the Minister says it, or tries to say it, he is an innocent political executive caught in the wrong place at the wrong time. He merely carried out his painful duty to inform the Judge of the President’s decision and nothing should be read into it. But as his critics and the victimised Judge himself say, the ministerial version is shod through with half-truths, suppressed truth, mala fide intentions and selfish interest.

The late morning fax message attests to the sense of urgency of Mr Thambidurai. All very well since it conveyed a presidential finding. But it goes ill with the more than two weeks’ delay in acting on the file noting. It is inexplicable that the ministry did not prod Rashtrapati Bhavan to finalise the case before the crucial date of December 11, 1998 — the day the Judge is now supposed to have retired. But the urgency goes extremely well with a case the Judge was to hear on March 5. It is an important case and involves close relations of the Minister! Two, it is an anonymous complaint, the same as the one the PMO received about corruption in the Naval Headquarters, which ultimately led to the sack of Admiral Vishnu Bhagwat. True, the school leaving certificate shows his year of birth as 1936 but that is only in the numericals. In words, it categorically spells it out as 1938. Then there is an insurance document supporting the year which is in words. There is also marriage papers of his parents and if they are read with the minister’s preferred year of 1936, Mr Shivappa’s mother would have been all of 12 years when she delivered the now famous Judge.

Some events from the more recent past are relevant. Mr Shivappa denied bail to Ms Jayalalitha saying that there was a prima facie case against her, and that ruling sent her to jail. He heard a case about sand quarrying in Mr Thambidurai’s constituency and fixed the loss to the government at Rs 29 crore. The AIADMK feels that it was Mr Shivappa’s judicial neutrality and innovativeness that has encouraged an impartial police inquiry and speedy prosecution of all Jayalalitha cases. And now he is gone. Even in his hour of crisis he is totally judge-like — sober, dignified, and detached enough not to cast political aspersions. In this respect he is closer to Admiral Vishnu Bhagwat than to the quarrelling Mr Mohan Guruswamy. It all boils down to three dismissals and one government.

This bhadralok politics!

POLITICS in India, whether packaged in an ideological box or not, invariably moves on its own momentum. Everything here is a matter of convenience. No wonder, politicians, more often than not, are seen as strange bedfellows in the public eye. The Marxists are no exception to this general rule, though they carry the cross of ideology on their shoulders far more seriously in public life than other political groups. Still, within the Marxist framework they do show enough flexibility to keep themselves afloat in the country's turbulent politics of coalitions. This flexibility has been more pronounced in recent times, especially with the ascendancy of the BJP at the Centre, than ever before. Take the case of Mrs Sonia Gandhi's Congress. Marxist leader Jyoti Basu and his close comrades are no longer hostile to the Congress as they were in the past. Perhaps this is part of their realistic response to the changing complexion of Indian politics. They are no longer adverse to supporting the Congress at the Centre in case it decides to topple the coalition government led by Mr Atal Behari Vajpayee. The latest proof of the Marxist softening towards the Congress is seen in the West Bengal government's decision to allow the installation of a statue of Indira Gandhi at Curzon Park in Calcutta. This decision has come after over seven years of wrangling over the site for the 12-foot statue among the West Bengal government, the state Congress, and the army authorities. The Congress would not settle for anything less than a prime spot for its leader who was projected as Goddess Durga by M.F. Hussain in his famous painting after Indira Gandhi's successful operation to liberate Bangladesh. The popularity of the former Prime Minister then was at its zenith. The people of West Bengal simply adored her for her courage and guts. Even the Marxists acknowledge this though they had been at the receiving end of Indira Gandhi's political onslaughts. She was, in fact, instrumental in toppling Kerala's first Communist government. Ideologically, too, she had stolen the thunder from the Marxists with her radical socialist policies and popular slogans like “garibi hatao.”

Ironically, Indira Gandhi will now have Lenin, Marx and Engels for company in the Esplanade parkland! In a way, this is a rather belated acknowledgement by Indian Marxists of the class Indira Gandhi belonged to. Indeed, during her time she virtually outplayed the politicians belonging to different shades with her shrewdness and the killer instinct. Small wonder that the then Congress President, Dev Kant Barooah, once thundered: “Indira is India, and India is Indira.” That was, of course, part of the Congress's typical sycophancy culture. In the case of West Bengal's Marxists, the honouring of Indira Gandhi is nothing but part of their bhadralok politics, Marx or no Marx.

Banning landmines

THE treaty banning the use of landmines which came into force from March 1 can at best be described as a small step in the right direction. As in most other instances, the big players, who deliver sermons on human rights and peaceful living to lesser nations, have refused to join the global movement against landmines. The implementation of the treaty is only a small victory for the peaceniks because the USA, Russia and China have refused to commit themselves to a total ban on the production of mines. Their promise not to export landmines will be of little help to the movement because they account for nearly 75 per cent of the production and use of landmines. It is not different to understand the reason why India, Pakistan and Sri Lanka too have refused to sign the treaty which commits the signatories to destroying their stockpiles within four years of the international law coming into force — by 2003. When the campaign against landmines was launched by a handful of NGOs in 1991, few nations had shown interest in the issue. However, thanks to the dedication of the volunteers and the involvement of Princess Diana, the movement soon gave birth to a powerful international campaign against landmines. In 1997, after 40 countries ratified the treaty in Ottawa, only the big powers continued their resistance to the campaign. As of today, about 130 countries have agreed to ban the production, export, stockpiling and use of landmines and 85 countries have ratified the treaty. The credit for giving a fillip to the campaign should go to Canada which was quick to grasp the humanitarian thrust of the movement.

Thereafter, governments and NGOs worked together with the United Nations to produce what is being described as the “Agenda for Action”. The basic thrust of the agenda is to rid the world of anti-personnel landmines within 10 years. However, unless the USA, Russia, China and their minor sidekicks too sign the treaty, the goal of ridding the world of landmines may remain unrealised. According to one estimate between 60 and 100 million mines have been planted in areas of conflict in 70 countries. It takes only $ 3 to lay or make a mine but it may cost anything between $ 250 and $ 1000 to get it out. And it can take up to 30 years to declare an affected area as mine-free. The reason why most countries have supported the campaign against landmines was explained by Ms Jody Williams while receiving the Nobel Peace Prize in 1997 for her role in sustaining the movement. She said that “landmines distinguish themselves because once they have been sown, once the soldier walks away from the weapon, they cannot tell the difference between a soldier and a civilian — a woman, a child, a grandmother going out to collect firewood to make the family meal....Once peace is declared, the landmine does not recognise that peace. The war ends, the landmine goes on killing.” At least 26,000 civilians, mostly women and children, are killed every year by abandoned landmines. Hopefully, the “big three” would give up their resistance and join the campaign, sooner than later, for making the planet earth a safe place for civil society. Why must innocent lives be lost because of the political follies of others?

ROOTING FOR PEACE
The view from Karachi
by Praful Bidwai

MANY Indians can only think of Pakistan in stereotypes. They believe it is a society on the way to Talibanisation, in which it is virtually impossible for people to conceive of peaceful co-existence with their larger “Hindu” neighbour. In the “Islamic” republic, there can be few voices of dissent from the Left, unlike from the religious Right. Thus it is assumed that there is at best — an insignificant peace movement in Pakistan; no one writes much about it. The consensus in Pakistan in favour of the bomb, many believe, is very nearly complete. The Pakistan peace movement essentially comprises crazies and fringe elements, or those who indulge in nostalgia trips about Lahore. That is why even the small improvement registered during the recent Lahore summit is shaky and can easily founder on the rock of Kashmir.

The truth is starkly different. Going by the February 27-28 Pakistan Peace Conference here, there is a strong peace sentiment which has grown deep roots into civil society, people’s movements and non-governmental organisations (NGOs). The Pakistan peace movement is real. We in India have something to learn from it and should draw inspiration from the 500 delegates-strong conference, involving a wide range of NGOs, ethnic groups and social constituencies, and including 30 people from the rest of South Asia. This was the biggest such convention in the sub- continent since the nuclear tests of last May.

The peace movement of Pakistan was not born yesterday. The Pakistan-India Forum for Peace and Democracy, set up in 1995, has been more active in Pakistan than in India. It has held four conventions of activists (two in each country), numbering 200 to 300 each. Contrary to reports in much of our Press, Pakistan also witnessed a strong campaign against conducting nuclear tests after May 11, when India crossed the threshold.

Now it takes moral courage to demand such restraint when most politicians, strategic “experts” and former diplomats, not to speak of asserted mullahs, shout from the rooftops that nuclear tests can be Pakistan’s only honourable answer to India’s grave “provocation”. It is not easy to stand up and be counted as peaceniks when that means you could lose your job. And yet Pakistani peace activists demonstrated just such courage. They had to face not just heckling but also physical assault at the hands of Jamaat-e-Islami youth for taking a stand.

Equally significant was the strong display of anger by the people of Baluchistan (where Chagai is located) at the tests, with their harmful effects on health and the environment. So powerful was this sentiment that the Chief Minister of Baluchistan, Mr Akhter Jan Mengal, did what few Indian and Pakistani politicians ever do: resign on an issue of principle. The tests involved terrible human rights violations. As an activist puts it: “The poor people of Chagai turned pale soon after the pearl black mountain Rascoh turned white.” Those who were displaced have not been resettled. Chagai, like Pokhran, is a fit case for independent investigation and long-term monitoring of health and the environment, as well as human rights abuses.

The Pakistan peace movement draws people from remarkably different backgrounds, scientists and feminists, human rights activists and development and environmental NGOs, trade unionists and artists. At the Karachi conference, the ratio of Sindh-based participants to the rest was roughly one to two. The conference featured several cultural events, including sufi dances, plays, poetry recitals and a concert by the sufi pop group, Junoon, which is banned from staging public appearances. The emphasis was on plurality, tolerance, secularism, democracy, equity and peace.

Like the Indian peace movement, the Pakistan movement too has a broad, holistic perspective, and sees nuclear weapons not just as pure technological artefacts but also as part of a large social, political, military and scientific system which creates, maintains and justifies them. However, it does not ignore the specific technological and material aspects of nuclear weapons and nuclearism (i.e. the doctrine of elite dependence on these weapons of mass destruction for a number of objectives and purposes, security being just one). Thus, the final resolution of the conference emphasises restraint measures, including cuts in military spending, and a commitment not to test nuclear weapons and not to use them first (no first-use). The conference also set up two alternative commissions comprising experts, former officials, and citizens: one on defence and security, and the other on ethnic minorities. This is a useful precedent.

It is possible to disagree with some specific formulations of this resolution. For instance, one might question the tactical wisdom of emphasising a no-first-use (NFU) commitment, one of the few token gestures of restraint India has made. Such unilateral non-binding commitments have no legal value unless they are translated into treaties. They can be as easily rescinded as they are made, as Russia has done. Second, even under international treaty law, they can be set aside by citing “the supreme national interest”. And third, for military leaders, especially in South Asia, who have been brought up on a strategic diet of surprise and pre-emptive use doctrines, etc, it is hard to believe that an NFU pledge would really survive a serious military crisis.

Additionally, many Pakistani generals argue that nuclear weapons alone can prevent the complete rout of Pakistan’s conventional forces by India, with its overwhelming superiority, of the order of 3:1. The argument is of dubious value. The first use of nuclear weapons by Pakistan against India is likely to provoke massive retaliation with conventional and/or nuclear weapons. India can develop a crude second strike nuclear capability far more reliable than Pakistan. Such retaliation would be utterly devastating for Pakistan. A Pakistani first strike can only be premised upon a profound strategic irrationality.

However specious the argument that Pakistan must not make an NFU commitment, it does carry some weight in the military. So, Islamabad has not reciprocated India’s NFU offer, itself made after a lot of hesitation and vacillation. (India first wanted a multilateral treaty and then hedged in the NFU proposal with other conditions). The functional relevance of the Pakistani peace movement making an NFU demand upon its government is different from what it is for its Indian counterpart. Of greater and common relevance would be a joint demand by both movements that the two governments must agree never to make, induct or deploy nuclear weapons, nor carry out more tests, and that they must earnestly return to the global disarmament agenda.

India and Pakistan can do a great deal if they decide to return to the path of nuclear sanity. They can seriously lobby for a negotiating forum in the Conference on Disarmament on nuclear weapons elimination, and try to turn the fissile material cutoff treaty being currently negotiated into a “framework agreement”, whereby all those who produce or stockpile weapons-usable nuclear materials have to report every year what they have done to stop production and cut stockpiles. An FMCT which is not a one-off measure, but like the Kyoto protocol on global warming, involves frequent negotiations on further reductions, could fuse well into the fight for a nuclear weapons (abolition) convention and agreements on phased nuclear elimination.

Above all, India and Pakistan can and should offer to put all their programmes to develop nuclear weapons and ballistic missiles on hold for, say, five years during which the five recognised nuclear weapons-states negotiate qualitative nuclear weapons reduction by 50, 70, 90 per cent. This would be the best way of rolling back some of the damage the two have inflicted upon their own security and upon the global disarmament agenda. They could thus contribute to the worthy goal of elimination of these horror weapons from all over the globe.

Such major changes in official policies, it can be safely predicted, will not come about through initiatives at the state level alone, however, far-reaching. They will of necessity require citizens’ action, grassroots pressure, and campaigning by NGOs, all leading to shifts in public opinion and the emergence of new policy agendas through advocacy and lobbying. No great or epochal evil in history, such as colonialism or racism, has ever been abolished without popular mobilisation strongly driven by moral revulsion at the evil. Nuclear weapons are just such an evil. Their eradication too will need concerted citizen-level action.

This is not as utopian or daunting as it might seem. After all, only a year ago, the demand by peace NGOs for normalised Indo-Pakistan relations and greater citizen-level contacts was declared by many to be unrealistic and utopian. But with the Vajpayee-Sharif summit at Lahore, it has invaded and become part of the official bilateral agenda. Ideal solutions can only come about through realistic small steps. But that is no reason why we must not believe in ideals. Without them, life itself would be hopeless and meaningless.

BC women and reservation
by Shantha Krishnan

THE introduction of the 84th Constitutional Amendment Bill for reservation for women in the Lok Sabha and the Vidhan Sabhas in December, 1998, soon after the six-day odyssey women’s round-the-country Rail Chetna Yatra — created instantaneous jubilation among women. But that was only a first step. It is in the interest of women as well as a healthy polity that the next stages are successfully cleared in the current Budget session. The remaining stages, as prescribed under Article 368 of the Constitution, are the passage of the Bill by a special majority of the total membership of each House of Parliament, and a majority of not less than two-thirds of each House present, and voting and ratification by the legislatures of not less than one-half of the states. If these stages are not cleared within the life of the 12th Lok Sabha, the Bill, so painfully introduced, will lapse and the game of snake and ladder will have to start all over again.

This requires identification, recognition and neutralisation of the factors which stubbornly stood in the way of introduction of the Bill and will now block its passage. These are general gender-bias against women, the anxiety of men that they will lose about another 140 seats and the issue of sub-quota for backward class women. Settling of the last of these issues to the satisfaction of all sections in Parliament is necessary to help neutralise the other two factors.

Available estimates place the number of backward class (BC) MPs at 200. This number, spread over different political parties, is adequate to deprive the Bill of the special majority required. Even some non-BC MPs may be deterred from voting for a quota Bill without a BC sub-quota in view of the possibility of a vigorous campaign in the next elections on the potentially high-voltage emotive sub-quota issue to mobilise BC voters, a sizeable percentage in many constituencies. In this situation, having made our point through securing the introduction of the Bill, it is time to think coolly and bring about a unified approach.

The sub-quota for BC women is opposed on two grounds: constitutionality, and antipathy to dividing women. It is mentioned in influential quarters that reservation for OBC women is unconstitutional.

The present Bill proposes to introduce two new Articles, 330-A and 332-A, after the existing Articles 330 and 332 in Part XVI, titled “ Special provisions relating to certain classes”. The classes referred to in the 13 Articles of this part are SCs, STs, socially and educationally backward classes and Anglo-Indians. Out of them, the reservation of seats in the Lok Sabha and the Legislative Assembly of every state is provided only for SCs and STs by Articles 330 and 332. There is no such reservation of seats for backward classes or women or BC women. The reservation of elective seats and offices of chairpersons for women (including SC and ST women) in addition to the reservation of seats for SCs and STs was made, for the first time, in panchayats and municipalities by Articles 243-D and 243-T figuring in the newly inserted Parts IX and IX-A by Constitution (73rd) and (74th) Amendment Acts, 1992. These two Articles also empower the legislature of any state to make reservation of seats and offices for BCs.

Coming to the second argument against BC women’s sub-quota, it is undoubtedly a laudable desire that women should not be divided. But are there not differences in the agonies of untouchable women who are asked to bathe down the river with buffaloes; construction labour women, with babies clutched to their breasts, carrying up brick and mortar on their head; or stone-cutter women forced to work in quarries exposed to the elements? These and many other categories are typical of BC, SC and ST women. Many of these communities have not even seen the portals of a legislature. Would not a provision which will bring their representatives into the national and state legislatures, along with their educated sisters, enrich the women’s quota? Will it not help to better realise the goal of all-round humanisation, sought to be achieved by the feminisation of these legislatures? Will not the sub-quota powerfully integrate the existing social divisions among women rather than create division?

The answers are a firm “yes”. The inflow of these streams into the legislatures on the initiative of their educated sisters will also strengthen the women’s movement and enrich its content.

Women have won a glorious victory in securing the introduction of the Bill against heavy odds. We should not allow to peter out the historic opportunity, now within our reach, to begin to give a new turn to India’s polity and to humanise it with the woman’s touch. The time is now.

(The author, a JNU academic, was one of the yatris of the Rail Chetna Yatra of December, 1998.)

Suitable Boy for Atia
by Rajnish Wattas

DEAR sister Atia, your novel proposals to settle the long-standing Indo-Pak territorial dispute through the nuptial knot has captured the imagination of many Indians. While your exorbitant “mehar” demand has been considered absolutely unjustified, unacceptable and anti-national, your marital ambitions have won many hearts.

While the most eligible “suitable boy” of your fancy will remain only a poetry-reciting dream, there could be other alternatives. Besides the unreasonable demands made by you, have you thought of the sheer logistics of such a make-believe venture? Gone are the days when an emperor on a caparisoned elephant with a royal baraat could ride into “enemy territory” and come back home safely, with a bride-cum-peace accord in tow.

Nowadays, Heads of State, especially of chaotic democracies like ours, cannot move even an inch without the consensus of their allies. Before the Wagah border is opened once again for your proposed fantasy bus ride — or rather a convoy of them — carrying garrulous representatives of coalition partners, outside-supporters, fence-sitting partners, break-away Opposition partners, and mediapersons, how do you plan to organise a suitable reception of such an epic scale? And don’t forget to invite Daler Mehndi without whom no great Indian festivity can be complete these days!

Have you any idea of the razzmatazz and extravaganza of the mega-weddings hosted by our political heavyweight sisters from the South? Also, be prepared for a fiery speech by out great Bengal sister of the fire-brand variety— ready to ignite any moment without any “mamta” — on the occasion of such a historic subcontinental moment!

As such, I suggest that you may opt for a less explosive “new chemistry of relationships” and consider some more placid options. Now that your matrimonial offer with your brief resume has been splashed by all the leading newspapers of India — without charging their usual hefty fee for such kind of classified matrimonial ads — you are likely to receive many offers from across the border.

And even if you don’t, here are some from me as a fond brother. We have amidst us many eligible literary bachelors with both fame and fortune, whom you may like to consider. How about tying a bond with one of our most well-known nature-loving writers living in the Arcadian beauty of the Garhwal hills; which may help you get over your panoramic obsession with Kashmir? Or consider the golden hand of the original author of “Suitable Boy”, whose poetic-prose even bridged a wide gulf in California?

Guardianship: the mother of all issues

by Anupam Gupta

THERE is a change of style no doubt, but not a change of direction. Silently but firmly, the Supreme Court continues to push forward towards the goal of gender equality. The latest, February 17 pronouncement on the right of mothers to act as guardians lacks both the flamboyant rhetoric and the technical sophistication of the Shah Bano case. Yet it plugs an old and important loophole in the law and plugs it in a manner least likely to provoke a backlash.

The hopelessly patriarchal nature of the concept of guardianship was stated by their Lordships of the Privy Council 75 years ago in a language that bears citation.

“There is no difference”, said the Privy Council, speaking through Lord Parker on behalf of a Bench that included, among others, the venerable Syed Ameer Ali, “between English and Hindu law” on the point. “As in this country so among the Hindus, the father is the natural guardian of his children during their minorities, but his guardianship is in the nature of a sacred trust, and he cannot, therefore, during his life time substitute another person to be the guardian in his place”.

That was in Mrs Annie Besant’s case, in an appeal from the Madras High Court. The invocation of guardianship as a sacred trust was used as a pretext to confer a monopoly on the father — as if motherhood is anything less than sacred!

Married to a Hindu Brahmin member of the Theosophical Society, Mrs Besant was authorised by her husband in the year 1910 to arrange for the education of their two minor sons in England, at the University of Oxford, and appointed by him to that end as their guardian. Accompanied by the boys, Mrs Besant left for England in 1912. Having made the necessary arrangements, she returned to India by which time, however, the father had second thoughts. Revoking his wife’s authority to act as guardian, he now sought the custody of his sons and moved court for the purpose.

It was in this context that the Privy Council — then the highest court of appeal for litigants in South Asia, an emblem of colonial bondage — laid down the principle of the father’s non-negotiable, non-delegable, “natural” right of guardianship. (Though mercifully, on the facts, it decided otherwise).

It was this very principle which, albeit in a slightly diluted form, ultimately found its way into Section 6 of the Hindu Minority and Guardianship Act of 1956 interpreted by the Supreme Court last month. The “natural guardian” of a Hindu minor, says the Section, in the case of a boy or unmarried girl above the age of five years shall be “the father, and after him, the mother”.

A legitimate boy or girl, that is. The natural guardian of an illegitimate boy or illegitimate unmarried girl, says the same Section in the same breath, is the mother, and after her, the father.

The only eventualities in which the father becomes disentitled, under Section 6, to act as the natural guardian of his legitimate children is if he ceases to be a Hindu, that is, converts to another religion, or if he becomes an ascetic and renounces the world. Of the two, while the possibility of the first, however remote, cannot be ruled out in a pluralistic society, the second is a virtual impossibility in a vulgarly materialistic age.

Researching the passage of the Hindu Minority and Guardianship Act through Parliament in her book “Women and Family Law Reform in India” published in 1992, Archana Parashar quotes the then Union Law Minister as saying that the definition of natural guardian in Section 6 incorporated the “natural order of things”. It is an indication of the lack of interest generated by the Bill, says Ms Parashar, Lecturer in Law at the Macquarie University, Sydney, that “no one even bothered to question” why a mother could be the natural first guardian for illegitimate children but a guardian only after the father in the case of legitimate ones.

Does the work “after” in the Section, asked the Supreme Court last month, mean only “after the life time” of the father? If the question is answered in the affirmative, it said, the Section will have to be struck down as unconstitutional since it “undoubtedly violates gender equality, one of the basic principles of the Constitution”.

Courts lean, however, in favour of the constitutionality of statutory provisions, ruled the Bench headed by the Chief Justice of India. Section 6 is capable of an interpretation that would “retain it within constitutional limits”. The word “after” means not after the life time but “in the absence” of the father. And “absence” means not only actual absence but deemed, notional or constructive absence as well. If the father is living separately from mother and child and cannot attend to the child for that reason, or “if the father is wholly indifferent to the matters of the minor even if he is living with the mother”, or in case of physical or mental incapacity of the father, he can be “considered to be absent” and the mother can validly act as guardian.

Such an interpretation, maintained the court, would do no violence to the language of Section 6.

That claim, strictly speaking, is debatable. But not the sense of responsibility that underlies it. As the fate of the Shah Bano case so poignantly shows, judicial creativity is far more effective when it appears to respect the legislature than when it openly mocks at it.

Recounting instances from Lahore trip

by Humra Quraishi

EVENTS lie so crammed that it makes you wonder whether the world is crashing to an end and that’s why everything has to be fitted as soon as possible...Well, as of now, last weekend saw Uma Vasudev holding a special reception in honour of Satish Gujral, where the guest of honour was Chief Minister Shiela Dikshit. And the front lawns of her home were packed with those who form a part of New Delhi’s glitterati evening — Prem Shankar Jha, Rasheed Talib and spouse Fatima, ICCR’s deputy director-general D. Manchanda and his artist spouse, The National Gallery’s Anjali Sen, Doordarshan’s Rita Mukherjee and Sharad Datt, Suneet Vir Singh, Satish Chibba, Anita Singh, Sharon Lowen and Naresh Kapuria, Suresh Kohli and spouse, Jatin Das, Aruna Vasudev, Ved Marwah and many others. And amidst them all Satish signed one of Uma’s portraits which he had made in 1959. Capturing her face in a sombre mood, as though she was looking ahead at the years to come. A lot did change for both Uma and Satish, for as his wife Kiran tells me that once upon a time he was all set to marry Uma. If things didn’t work out along matrimonial lines, the bond of friendship seems absolutely strong. And later that evening after most of the guests left, Satish and Kiran stayed on recounting instances from their recent trip to Lahore and even those from the visit they undertook in the early eighties. As Kiran began saying “in 1982 when we had gone to Lahore Satish had fallen ill, in fact he had to be hospitalised for about six days so I couldn’t seen anything of the town... “Satish added” and when I became conscious and peeped out of that hospital window I could see Sir Ganga Ram School and some other buildings and it’s then that I realised at this very spot (where now this hospital stood erected), earlier there was a ‘pagal khana”!

There’s also news that Satish Gujral would be holding an exhibition of his works in Lahore this coming October. At least something came out of that bus ride.

National days

The Ambassador of the Kingdom of Morocco, Mohammed Belmahi, hosted his country’s national day on March 3 with an even better spread than that witnessed at the Kuwaiti national day celebrations. And needless to write that the city’s who’s who were present in full strength. For some reason there were few politicians and even fewer civil servants but a fair sprinkling from the diplomatic corps and business houses. In fact, this brings me to write that the Iraqi Embassy’s Charge d’Affaires told me during this reception that the new Ambassador of Iraq to India is the Editor-in-Chief of one of the highest circulated newspapers of Iraq, “Al Jamuriya” (The Republic) and though his appointment orders have come through, but he would be taking charge only by mid-March.

And as the High Commissioner of Sri Lanka walked up to a visiting Pakistani professor and several diplomats from the Third World countries, some journalists cried out that now there should be a bigger dosti pact — that is the bus rides should go beyond the Pakistani borders towards the other neighbouring countries of this region. It was a relaxing evening and it was touching to see several Moroccon women putting on aprons and helping the chefs serve the long lines of the invitees.

The Hakeem lies ill

Perhaps, for the very first time the legendary hakeem of Delhi, Hakeem Abdul Hameed, couldn’t host this year’s Holi Milan as he lies seriously ill (a note of apology from his sons for the inability to host such a gettogether came few days prior to Holi). And this 90-plus citizen of this city is perhaps the only one amongst the few millions who hosts gettogethers on both Id and Holi at his Kautilya Road situated home. A totally apolitical home. And his knowledge of the Unani was (I write was because since months he has more or less stopped seeing patients, because of his indifferent health) so perfect that just by touching the pulse for a minute he wouldn’t state just the condition of your health but even the number of children you’d borne. Several years back when I had taken my Alzheimer’s stricken father to him he ruled out any hope and frankly stated that that till date there exist no medicines to revive the dead or even the dying memory cells. Out of sheer curiosity I made him see my pulse. Whilst still catching my wrist he asked: “How many children did you conceive?” To my answer “Two children” he looked at me and swayed his head “No, your pulse tells me that the number should have been three. It has to be three!”. Yes, I had forgotten the miscarriage that I had. Such is this hakeem sahib’s fact finding prowess. And at time it is a difficult to believe that this tiny frail man, going about in darned shervanis is the man behind the Hamdard University, the several educational institutions and the range of sherbets and medicines that he has been instrumental in introducing.

Croatian Film Festival

Last week also saw the opening of the Croatian Film Festival (courtesy the Republic of Croatia) at the IIC, from March 4 to 13 and for its inauguration the Croatian Minister of Culture Bozo Biskupic had especially flown down. Then this weekend the Dhrupad Society — one of the active classical music societies — hosted the 15th Dhrupad samaroh at the India Habitat Centre. This tradition of the Dhrupad is carrying on without a break from the time of Emperor Akbar. If I am not mistaken then today’s youngest Dhrupad singer Wasifuddin Dagar can trace his ancestors directly to the 15th century. Moving ahead, WHO’s just opened art exhibition (5 to 22 March) at Rabindra Bhavan is successful in instilling a sense of awareness about the body, the ageing process, the factors that surround and much more.

75 YEARS AGO

Motilal Nehru’s appeal for unity

PANDIT Motilal Nehru has issued the following statement to the press:

“I am sorry (to say) that owing to illness in the family and my own indisposition, I have not been able to resume my tour in Bihar as I fully intended.

I, therefore, take this opportunity to thank the people of Chupra, Hazaribagh, Ranchi, Monghyr, Bhagalpur and Muzaffarpur for their kind and warm invitations, and assure them that my disappointment is keener than theirs.

My message to Bihar and Assam is the same as to the rest of India. The present is not the rest of India. The present is not the time to be wasted over subtle arguments on the meaning and implication of words and phrases like non-co-operation and civil disobedience, but for harmonious action and mutual support by adjusting the existing differences of opinion in a manner which would afford equal and honourable opportunities of service to all parties according to their own lights.

I heartily support Lala Lajpat Rai’s appeal and the principle of the resolution passed by the Bombay Provincial Committee. Nothing else will meet the situation.