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Tuesday, July 7, 2009

Section 377 - blot on democracy

This article is in response to the article by journalist Surajit Dasgupta in his blog about the Delhi High Court ruling and the reaction of people to it, Gagging with Gay Abandon.

If we go through the whole article, we will find that the writer has treated this subject in the same way as majority of media has done. They have treated this ruling as an incident related to homosexuality, which is far from truth. This ruling has upheld the basic fact that freedom of individual is sacrosanct in democracy and state has no right to dictate the behavior of individual subject to art 21 and art 14 of Indian Constitution. State has been taking up quite forcibly the role of moral guardian of society and Delhi HC bench has put the matter in proper perspective. The perspective being that the responsibility of state is to govern the country based on constitution and not to act as moral guardians. Secondly, it has also put in question the validity of law(s) passed during British Era. The sections of judgement will be quoted in support of assertion made and further the implication of this in the broader context of society will be discussed.

First let us look at sec 377 with the eyes of the judges , I quote from the judgement -

HISTORY OF THE LEGISLATION (starting from Page 3 of 105 page ruling)

2. At the core of the controversy involved here is the penal provision Section 377 IPC which criminalizes sex other than heterosexual penile-vaginal. The legislative history of the subject indicates that the first records of sodomy as a crime at Common Law in England were chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that sodomites should be burnt alive. Acts of sodomy later became penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British Colonies. Oral genital sexual acts were later removed from the definition of buggery in 1817. And in 1861, the death penalty for buggery was formally abolished in England and Wales.

However, sodomy or buggery remained as a crime "not to be mentioned by Christians."
3. Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India. Section 377 IPC is contained in Chapter XVI of the IPC titled “Of Offences Affecting the Human Body”. Within this Chapter Section 377 IPC is categorised under the sub-chapter titled “Of Unnatural Offences” and reads as follows:
377. Unnatural Offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.


4. The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 IPC. The expression “carnal intercourse” is used in Section 377 IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995), the term “carnal” means “of the body or flesh; worldly” and “sensual, sexual”. Consent is no defence to an offence under Section 377 IPC and no distinction regarding age is made in the section. In Khanu v. Emperor, AIR 1925 Sind 286, Kennedy A.J.C. held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings.... [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible.”[page 286] It appears that the courts had earlier held in R. V. Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382, that inserting the penis in the mouth would not amount to an offence under Section 377 IPC. Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices. In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252, the issue was whether oral sex amounted to an offence under Section 377 IPC. It was held that the “orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.” In Calvin Francis v. Orissa, 1992 (2) Crimes 455, relying on Lohana, it was held that oral sex fell within the ambit of Section 377 IPC. The Court used the references to the Corpus Juris Secundum relating to sexual perversity and abnormal sexual satisfaction as the guiding criteria. In Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, it was observed that Section 377 IPC implied “sexual perversity”. It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity.
5. The English law was reformed in Britain by the Sexual Offences Act, 1967, which de-criminalised homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee. The Committee advising the Parliament had recommended in 1957 repeal of laws punishing homosexual conduct.
======== End of quote ===============

If we go through above, it is clear that in 5 cases in which this section was used all involved ORAL Sex and not sodomy. That goes on to prove that if we ignore the Delhi HC order then the heterosexual population which indulges in oral sex has to be put behind bars for life. It does not matter that they are not homosexuals as the point of contention here is not sexual preference but sexual practice.

Further, if we take a closer look, then it becomes clear that this section appeared in our law books because we were ruled by British at that time and they sought to impose their own religio-cultural values on us, the slaves. In Indian history, we do not find a single legal instance, in any of the scriptures, where a person has been put on trial because of their sexual preferences/practices.

With the passage of time, when the rulers (British) were kicked out or left on their own (depending on your own interpretation) and went back to their country, the laws promulgated by them remained active in India because we inherited a political elite, educated in Britain, which to quote N.C. Chaudhuri, was more british than british themselves. They kept the law of conquerors alive in India when the same law has been repealed in the land of conquerors themselves.

Let us take a look at the judgement itself, so that we can discuss the scenario with the same perspective as the honorable judges, who upheld the rights of citizenry.

There were 8 parties in this case, but main battle of arguements was fought by Naz foundation and ministry of Health on one side and Ministry of Home Affairs (MHA) opposing them. Rest of the respondents/petitioners followed one or another bassed on their stance. GOI was represented by MHA for whom arguements were placed by ASG of India after Ministry of Health sided with NAZ foundation.

The petition was first moved in front of Delhi HC in 2001 when it rejected by the Court in 2004 on the ground that there was no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation. The Supreme Court vide order dated 03.02.2006 in Civil Appeal No.952/2006 set aside the said order of Delhi HC observing that the matter does require consideration and is not of a nature which could have been dismissed on the aforesaid ground. The matter was remitted to Delhi High Court for fresh decision.

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Friday, May 2, 2008

This is not cricket

Yesterday after winning the Rajasthan Royals vs Kolkata Daredevils game, RR teams captain, Shane Warne, blasted KKD captain Saurabh Ganguly for unsportsman like behavior.

His points,

1. Saurabh Ganguly came late both during RR's batting, making them wait in the sun, and also during his own teams batting.

2. Saurabh forced the Indian umpire to call for third umpire when he was caught out.

This stirred a hornet's nest. Suddenly, people belonging to Saurabh Ganguly's city started attacking Shane Warne, without even bothering to find out whether the incidents were true or not. While attacking they blabberred like anything, forgetting that they are on media and media was also led by a person of the same type. Let us go factual.

Arnab Dasgupta, News anchor of TimesNow, launched a scathing attack on Shane. In this he was supported by Boria Majumder, so called sports journalist of Time Now. Then they called in Joy something, Saurabh's coach from kolkata and he also blasted Shane.
As per Saurabh's coach, Graeme smith's word is not enough as Hansi Cronje, ex-captain of South Africa was guilty of match fixing. Stumps me. By this logic, his protege Saurabh, ex-captain of India, cannot be trusted as One of the Indian captains was also charged with match fixing.
Then Boria Majumder, wents on blabberring about what has happenned during India- Australia Tour.
And Arnab was blasting Shane Warne.

But all of them forgot to address the issues raised by Shane Warne. It was a typical nauseating regional chauvinism at display. Made more nauseating by the fact that one of the persons involved is a news anchor. It does raises doubts about all the news he reports.

The issues raised by Shane were answered by legendary Navjot singh sidhu on another news channel.
As per Sidhu, Saurabh always had a discipline problem. During England tour in infancy of his career, he refused to take drinks to the players on ground. Plus many more anecdotes were recounted by Sidhu showing the true nature of Saurabh Ganguly.
On the second charge, Sidhu said that Saurabh was within his rights to ask for the opinion of Third Umpire.

In this case, Third umpire, gave the benefit of doubt to Saurabh as to him catch was inconclusive. Funny. It was conclusive to commentators, leg umpire, millions of spectators watching on TV who saw the replay, but not to Arsad Rauf. Perhaps the gentleman needs a change of glasses.

Coming back to similar incidents, in the RR innings, Shane Watson was given LBW, when the replays showed that it was not lbw as he has nicked the ball before it touched the pad. Umpires game him out and he walked.

Similar incident had happenned with Rahul Dravid and he has also walked.

So why did Saurabh Ganguly do such thing? Reason lies in the personality of an individual. He thinks that he is beyond the game and the whole world should bow down to him and this is fed upon by his admirers of whom we have spoken above. And let us not forget that it is the same gang which came down heavily against Michael Stuart for staying on the crease after nicking a ball. Then Stuart was wrong, but this time Saurabh is right. What a joke? Looks like this anchor, sports journalist, keep different parameters for saurabh and another set for rest of the world.

Saurabh Ganguly said that 'claiming a dropped catch is not in the spirit of game'. Replays show, it was not dropped. And replays also showed that Shane Watson was not out of lbw, when Saurabh Ganguly and his team appealed and got him out.

Makes one wonder.

Saurabh Ganguly is the most successful test captain of India and he is at the fag end of his career. He started the IPL successfully, but in the second match which he won on his home ground, it was found that the pitch is broken and midway when his team was losing, lights went off breaking the concentration of his opponents. He won that game and after that has lost every match, inspite of having one of the best star studded teams of IPL.

Shane Warne, retired Australian player, got a team with only newcomers. His team even before the tournament started was written off by everyone. He is the coach and captain of his team. He has molded the team into one of the most powerful teams of IPL and is currently at no2 after the team led by MS Dhoni.

Is this riling Saurabh? God Knows, but somebody needs to tell Saurabh Ganguly that this is not cricket.

IPL also needs to apply its rules without discrimination. We cannot have Harbhajan singh disciplined and Saurabh Ganguly let off. But again, when Lalit Modi, commissioner of IPL is friend of Kolkata Knight Riders owner Shahrukh Khan, which was reported before the start of IPL at the auction time itself, then I think Saurabh will be let off. If he is not then Cricket will win else Corruption will win. It remains to be seen which one wins.

Tuesday, April 22, 2008

How do we change the focus of politics from caste/religion to grassroot issues?

In order for politics to change the focus from caste/religion to grassroot level, we have to change the focus of society from them. Society got an unhealthy fixation with those topics and it is constantly being forced to remain focussed on them by media, the vested interest, whose business will shutdown in absence of divisive news.

Why is society fixated on these issues. The reason is of resource allocation and usage. Every individual likes to stick with his own caste/religion so that he can corner a bigger share of resources and therein lies the problem. The problem is accentuated by the fact that we do not have clear cut data on the resources and requirements. All the plannings and other activities are carried out based on approximations. If we can get rid of these approximations then we will be through. with complete knowledge of our resources and requirements we will be able to do proper allocation of resources. This will take away the very reasoning behind caste/religion based alliances and politics will be forced to change accordingly. Because Politics is a reaction to the society's state and not vice-versa.

How to achieve it?

We must use IT - Information Technology for this purpose. We can have a system designed which has a computer in each of the villages. This system will capture all the local data, i.e., individual's birth, death, education, finances, agriculture, rainfall, land utilization, crop pattern and so on, at the minutest level.

Then this computer will upload that data to a block level database which will further upload to District, then district to state and finally state to National.

This will ensure that we always have exact data about resources and requirements. It might look like a lot of data entry, but it is not. To prove a point, everyday thousands and thousands take birth in our country, but on a village level, the births are once in a quarter or half-yearly.

Then during the budgeting, village creates its budget, which flows up to block, to district to state and to nation. And the allocations flow down to the village level. Expenditures accounted for at the village level.

some projects will be there like infrastructure for whole state or nation or district which will need to be carried out at respective layer.

This bottom up approach will ensure a proper utilization of resources and overall growth of the nation. this will result in making caste/religion based politics redundant.

Moreover, such a system will be more powerful in terms of response in natural emergencies and other problems which plague us.

The problem with our country has been that all the plannings have always been done in a top-down manner, thereby creating the ridiculous scenarion that a minister and his bureaucrats plan for rice cultivation, whereas, they have never touched a rice plant and do not even know whether rice grows on the top or below the ground. this urban centric, politician centric model has to go and then only the problems of divisive politics will go away.

regarding infrastructure for this, we can ask the industry to donate older computers, have solar powered systems, get networks extended to every village by service providers, sell partial data to banks and others to generate revenue which can be used for maintaining the data. Do away with voter-id, pan cards etc. Use a single number for every individual.

This will result in growth. And Growth will take away these divisive factors.


Politics - dirty drain water or orphan child of society

Politics - the word itself conjures up a sight of corrupt individuals. It is known to be the mother of all the corruptions and the word politician is supposed to mean a person without any morals, ethics and other values of life. The vision is that of a dirty sewer running through a clean society. But is it so? By giving it above definition, aren't we shirking our responsibility.

So simple to pass on the buck.

Politics is the mirror of society. All the components of society are reflected in it. So saying that politics is all corruption means that we say that society is all corrupt and by conclusion all of us are corrupt.

If a politician thrives on divisive and corrupt politics, it is because we as people thrive in that. If we stop accepting that sort of policies then politicians of that kind will disappear by themselves. But are we ready for a society, where law rules. No, we are not. Lawlessness and nepotism is our way of life. We cannot survive in a society where everything has to be done in the proper way. We will not like living in a society, where a policeman books us and asks us to appear in a court for jumping Red Light, rather we would like to slip a 50 Rs. currency note in his hand and save the time. We won't like a society where we won't be able to get on the train with a wait listed ticket, rather we like a society where we can get on the train with a general ticket and give Rs 250 to the TTE and get a reserved seat. All without bills off-course. We won't like living in a society where our children will get in a college or job based on their merits, rather we like living in a society where we can pay some money to a politician and get our kid ahead of the queue.

So why blame the politician ? becoz it is easy for our conscience and helps us in shifting the blame from ourselves to politicians. Were these politicians born corrupt. Nobody is. A child does not know corruption. The politician imbibed corruption while growing up and on getting the opportunity put it to work for him. So why blame him/her?

We will not live as a society without prejudices and we expect politicians to not to exploit that. When we have scenes where people kill each other, deprive each other, based on their color, caste, religion, language, we need something to blame. If it is not God, then it is politicians. Everybody else is to be blamed, excepting ourselves.

Why do we do that? Reason is very simple. We do not want to own the responsibility for our nation. We are still living in an enslaved society, where someone from above (previously british and now our neo-british) have to tell us what to do. That helps us in evading responsibility for our country. So that we can blame everyone but ourselves.

How many of us ever thought of entering politics?

If we ask anybody do they want to enter politics? Answer is no.

I did not as it was dirty word. And I guess majority will concur with me. So we do not want to get into the sewer to clean it up and keep on cribbing that it is stinking and somebody else must clean it up excepting me.

I feel that politics is not a dirty sewer rather it is the orphan child whose parent the society have kicked it out of home. Now the child has become criminal for making a living and the parents are cribbing. Sorry, the responsibility is of parents, not the child.

If the parents take the child back and nurture it, I am sure the child will turn out to be a beautiful child.


Tuesday, April 8, 2008

Reality & Illusion - Science

Reality– meaning something that exists. Illusion – meaning something that seems to exist. Reality is absolute whereas Illusion is relative and temporary. Prima Facie it looks like a straightforward scenario and easy to distinguish between reality and illusion.

This series of articles intend to explore the two using different paradigms from Science, sociology, politics, finance etc.

Solid matter - reality or illusion.

Matter is composed of 2 states - solids and fluids. Solid is the matter with definable boundaries and fluid without definable boundaries and takes up the boundaries of the container. So far so good. But the problem starts when we go on to define the properties of solids. Solid, we usually percieve, is something which does not have any empty volume inside it. Let us consider a block of iron of, say, 1 kg with no visible holes in it. Visible here being defined as visibility with naked eye and also with the most microscopic visual aid which human beings have devised till now I.e., electron microscope. Since, no holes are there and it has a definable boundary, so we call it a solid.
But is it so, let us go inside our solid block and see what is there?

The basic building block of nature is atom. An atom is composed of a nucleus containing neutrons, protons, pions and various other sub atomic particles surrounded by electrons in their orbits around nucleus, in a somewhat similar fashion as solar system. Just like solar system, an atom also has majority of its volume as empty space. The difference being that virtually all the mass of atom is concentrated in its nucleus with electrons having negligible mass.
The rough diameter of nucleus is 10
-12 cm and that of atom is 10-8 cm. So in a solid, as we call it, the 2 neighbouring nuclei (possessing nearly all the mass of atom) are kept apart from each other by a distance which is minimum 10,000 times their own diameter by a thinly spread out organization of electrons, with very little mass.
So, the solid which we know off is basically composed of maximum empty space with regular sprinkling of mass. So, the idea that our 1 kg has no holes is an illusion which we term as reality. The reality is that it is full of holes or rather it is holes only with small amount of solid mass scattered in the empty space.
If only we could minimize ourselves to the sub atomic mass, then suddenly the solid as we see will disappear and we will be facing huge empty spaces with small condensed masses scattered about. By the way, when we say that cosmic rays, gamma ray radiations etc. pass directly through thick walls also, what we mean is that these rays are so small that they are able to pass through the empty spaces in the atoms without colliding with nucleus or electrons in the same way as our spacecrafts pass through vacuum without colliding with any heavenly bodies. We call the universe as empty with stars and planets dotted, so there is no reason we should call a solid as full.
Hence the concept of solid as perceived by general people, comprising 99.99999% of human population, is illusion but is treated as reality.

Dual reality or Dual illusion –

Reality#1: Universe is infinite.

Reality#2: Speed of light is the speed limit of universe.

We never realize that the above 2 realities are mutually exclusive. Let us consider the evidences as we see them. It has been conclusively proved that the Galaxies are accelerating away from the centre of universe, by observing the Doppler shift in the spectrum of light reaching us from those galaxies. You can see and understand the Doppler shift if you listen to a train or speeding bus/car whose horns are blowing as it approaches you and then passes. You will notice a qualitative change in the sound of horn as it approaches you and then moves away from you. This is due to shift in the wavelength of sound. The same holds true for light also. As an object recedes from us, the light that we receive faces a shift in its wavelength. Using same principles, when light from galaxies was analyzed, it was found that the galaxies were accelerating outwards. This is physical evidence, which is true by the virtue of it being present.
So,let us presume that the Galaxies at the start point of their motion were at zero speed and the acceleration started. (This is a simplistic view, but will suffice for our purpose). As the time increases the speed of the galaxies, also increases and we do not have any factor or evidence that they are going to slow down. So a moment in time is reached when those Galaxies will cross the speed of light, 1,86,000 miles per second. There is no one in the Universe who will push the brakes and ask them to go slow so that they can abide by our laws of physics and can maintain a speed equal to or below the arbitrary speed limit we have set up. The only way it was possible was if Universe was finite, but that is out of question as Universe is infinite.

Hence, the reality that we believe in about speed of light is an illusion. An illusion that even great scientists believe to be reality and in order to preserve this illusion go to great extents, even to the extent of twisting facts to suit the theory. That is for another discussion, in another time.

Wednesday, June 13, 2007

Banning Orkut - Rape of Indian Constitution and Culture

Art. 19 of Indian Constitution

Right to Freedom

19. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right—

(a) to freedom of speech and expression;

* * * * *

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

The decision of Orkut banning taken by Maharashtra Adminstration in Maharashtra is a plain violation of the Art 19 (1)(a), even after it has been read in conjunction with Art 19(2). The administration can argue that it is doing it in the interest of keeping the public order but what needs to be looked into here is the spirit in which founding fathers wrote this clause. This clause has been written keeping in mind the ages old tradition of freedom of thought of hinduism. If one goes through the deliberations of Constituent Assembly then it becomes clear that founding fathers did not want this caluse to be misused by those who wanted to stop the development of Hindu/Indian Society as at that time various other laws and acts were being passed which were meant to outlaw the various draconian traditions like untouchability and so on in Indian Society.

Orkut is a free associating media. People gather here and they put forward their viewpoints on various topics. Just because somebody wrote something against Shivaji does not provide any justification for attack on cyber cafes and demand of orkut ban. It just shows the intellectual and moral bankrupcy of people indulging in that and the moral and legal bankrupcy of the administration which instead of tackling hooligans is busy bowing down to them. A shame on Indian Republic.

We are a land of diverse cultures and multiple languages and practices. We also have a history of clashes in our remote and not so remote past. There is nothing which one can say with guarantee that the view will not offend anybody in the country. Banning and violence is not the answer. Rather the answer is more dialogue in the nature of orkut where we try to reach a place of consensus or agreed disagreement so that we can bury the ghosts of our past.

The people who are demanding the ban,i.e., Shiv Sainiks, are in no way different from Talibans. They and Talibans and Ayatollah Khomeinis are all different sides of the same coin. The coin which brooks no difference, will accept no deviation from their line of thought and will try to stifle freedom of thought which is the hallmark of Indian and Hindu culture. These are the most vicious anti-hindu force we have seen in last 10,000 years as these people proclaim to be champions of hinduism. And this is the main reason that we must oppose them because if they succeed today then that day is not far off when every dissenting voice in India will be stifled out and we will become a hindu Iran where others will dictate what we should think, what we should eat and so on.

Coming to the administrations viewpoint that Orkut is a danger to public order.
"The police will certainly act since there's objectionable matter and an organisation has objected to it and we have verified that it is correct. Naturally, the police also feels there should be no law and order problem," said Anup Kumar Singh, Joint Commissioner Police (Thane).

Mr. Anup Kumar Singh, I pity the place from where you got your education as that seems to have given you a twisted sense of reality. You are JCP of Thane a district near Mumbai and so it is quite logical to believe that it is also a den of Organised Crime. On today's news channel there was a news that Iqbal Kaskar - brother of Dawood Ibrahim has been let off by MCOCA court due to lacklustre evidence gathering by Police. I understand it. You people are so busy banning Orkut and trying to stifle peoples ' voices that to you Dawood Ibrahim and the Organised Crimes gangs are upholders of public order. Your action speaks for you.

Going further, if we are going to ban every media which raises the heckles of hooligans then what about Parliament. Members of Parliament are known to be murderers (Navjot singh Sidhu), Human Traffickers (Katara), Scammers (Lalu Yadav) and so on. Every shade of personality which is deemed as a threat to Indian Nation and public order and Law and Order is represented there. So what about banning the parliament.

Furthermore, the various sections of Constitution offend the traditions of Hinduism, so what about banning the constitution itself.

Where do we Stop?