Friday, August 26, 2016

The Narendra Jadhav interview: 'Caste system is the most brilliantly administered scam in history'

Dalit Movement

The Rajya Sabha MP, a prominent Dalit voice, is arguing for an end to the practice of using surnames.

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Image credit:  Narendra Jadhav/Facebook

Mayank Jain

At a time when the country has just witnessed a big Dalit uprising in the Bharatiya Janata Party ruled state of Gujarat against atrocities, the conversation is rife about the ways in which the country can end caste-based discrimination. On this front Rajya Sabha's nominated Member of Parliament Narendra Jadhav has emerged as a prominent Dalit voice who has been advocating for his proposed bill that seeks to eliminate the practice of caste implying surnames.

Jadhav is also an economist and an erstwhile member of the Planning Commission and he has given multiple policy inputs in making sure that India's financial decision making is just and fair to the most unprivileged sections of society. Scroll.in sat down with Jadhav for a discussion about the current Dalit movement and its antecedents in the history where he described how there's a silent revolution going on in the country that nobody has yet taken note of. Edited excerpts from the interview follow:

There’s turmoil across the social fabric of India as minorities feel threatened and there’s cow vigilantism on the rise which has resulted into attacks on Dalits. Is there some sort of caste conflict undercurrent here which is fuelling these incidents and the pushback from the Dalit community?

What is happening right now in Gujarat and elsewhere is really a reaction to the most unfortunate incident that happened in the recent past. The truth is that atrocities against the Dalits all across the country are getting a lot of media coverage. These atrocities have been taking place for years but there’s now a sizeable increase in the number.

The Una incident is a typical point of departure for this movement. After this incident, there has been a lot of discussion about Dalit atrocities in the media already. And as a reaction to the Una incident – which was of course, a heinous crime against humanity – Dalits are refusing to undertake the activities which were conventionally entrusted to them.

In fact, they went to the extent of putting cow carcasses in front of the collector’s office. But this should be seen as a reaction rather than a provocative action in itself. So, we are not talking about an anti-caste revolution. Dalits are coming up and responding to the violence of upper-castes.

The recent Dalit rally in Una announced that Dalits of the state will stand together against atrocities and won’t do the job of cleaning up carcasses. There’s a long history of Dalit struggle but this time, there’s a sense of a united uprising. Do you think that Ambedkar’s dream is finally going to come true with these push-backs?

Why should they be doing these things at all? It is a baggage of the caste system that we carry. We divided the society into four varnas – Brahmin, Kshatriya, Vaishya, Shudra and there’s an underbelly below Shudras which has thousands of castes who are clubbed as untouchables. So this four-fold stratification is further divided into caste system which has more than 4,000 castes and sub-castes and sub-sub-castes.

In this regard, Dr. BR Ambedkar correctly described the Indian social system as a system of graded inequality in the ascending order of reverence and descending order of contempt. In the hierarchy of the caste system, jobs were earlier allocated depending on the caste in which one was born.

There was a big debate regarding this between no less than Mahatma Gandhi and Ambedkar about whether this system is division of labour. Gandhi defended the system by giving examples of UK and USA claiming that it’s simple division of labour. Ambedkar’s response to this assertion was phenomenal. He said that what we have is not really a division of labour, super-imposed on the division of labour is the division of labourers.

Division of labour has happened across the world but India is the only country where there’s a superimposed division of labourers. This was completely dependent on the accident of birth. So whether you become a scholar or a scavenger didn’t depend on your intrinsic talent or abilities, it depended on the caste you were born into.

But the conflict is not going to go away any time soon and as more Dalits realise the extent of atrocities, they are going to rise up and question the unchecked power and privilege of the upper caste communities. Should those who have monopolised much of the resources for the so called high born now be scared?

It was Ambedkar who made Dalits realise that it is because of the connivance of the so-called high-born, that they have perpetuated the system using the law of karma. The law of karma said you have to carry human excreta because you had done wrong things in your previous birth. This is something which was fed to us for generations.

I sincerely believe that the caste system in India is the most brilliantly administered scam in the history of human society. It is so intricate and well-designed that it has continued for ages.

What is happening now is a part of the response but it is not happening now. Ambedkar exhorted his followers to think about their position in society and question themselves about their human rights. The current struggle is a sign that those in power are very keen to perpetuate the traditional order of things while young Dalits are coming up and questioning this power. They have received education, at least a lot of them are now literate and they are asking for their human rights.

There’s a silent revolution going on in the country. Today, whichever way you look, you will find Dalits asserting themselves. Be it painting, sculpture or neurology, you will find a young boy or a girl trying to carve out a space for himself/herself. The political vacuum continues for them but Dalits are following Ambedkar’s call to educate, organise and agitate.

In this process, there’s an implicit conflict involved. These people are challenging the traditional order of society and those who want the traditional order continue to find it uncomfortable to deal with challenges coming from the underprivileged quarters. This is why there has been an increase in atrocities and violence against Dalits.

You just said that Dalits are slowly rising the ranks in fields like neurology and architecture which is a good sign. But there hasn’t been any report of upper caste people, for instance, joining the workforce for manual scavenging or cleaning sewers? Are Dalits forever going to be appropriated for the tasks that are considered ‘menial’?

It is very strange and surprising that so called high-born are asking or punishing Dalits for not doing their jobs. In 1929, Ambedkar gave a call in Maharashtra to stop taking the caracasses. The basic division was that the Mahar community was assigned the job of taking away the dead cattle. Ambedkar also belonged to this community. So it was the job of Mahars to skin and take the flush. The skin would be given to Chamars who would process it and make footwear and so on.

It was then that Dr. Ambedkar had made that appeal and it was followed by Dalits. In many villages, there were riots and social boycott of Dalits because they were not doing the menial jobs entrusted to them. The Dalits simply refused to do the dirty work for the upper-castes.

The current power-struggle is bringing out these reactions from the Dalit community and it is going to continue for a long time till we achieve social equality.

To achieve that end you have also proposed introducing a bill that aims to put an end to the practice of people using surnames in India. How do you think removal of surnames can end caste-based discrimination?

I propose to bring a private member’s bill in Rajya Sabha which will focus on dropping or deleting caste implying surname. I don’t think it will solve all the problems, it won’t. But it will be a giant leap forward. In all these years, the form of caste-discrimination has undergone a massive change.

Less than 100 years ago, in Maharashtra, Dalits had to carry an earthen pot around their neck to prevent their spit from falling on the ground. They also had to tie brooms to their waists to prevent their shadows from touching the ground. That kind of obvious form is gone now.

Now, it will be foolish to believe that the caste-system is gone. This has now acquired a sophisticated form and it resides in the minds of the people. It doesn’t show up in the raw and blood form anymore but it is always there. In this form, I believe, it is more pernicious than the earlier forms.

In the US, there was an experiment conducted where they sent identical resumes for some job opening. The resume was ideal and perfect but it was sent under different names. There were two groups of the names – the white sounding names and the black sounding names.

The proportion of people among blacks who got invited was miniscule while most of the white people were invited. This is how the mindset works. Similar studies have also happened in India for upper-castes and Dalits on a smaller scale and the results were no different.

In India, if you compare the conviction rates, the rate is much higher for general population while conviction rate for atrocities against Dalits is only 22% and that again varies from state to it. That is because a lot of people in judicial as well as the bureaucracy carry the caste bias they have to their duty.

To my mind, a very effective way to delete the surnames which indicate the caste. It is not the first time that this has been spoken about. Everyone from Periyar to Jagjivan Ram have spoken about this.

But nothing ever happened on that front…

Which is why I am trying to introduce a bill to change the situation. In southern India, people actually drop their surnames and suffix the name of the place they come from or simply choose a different name. What is the caste of Rajnikanth?

Earlier, in many parts, caste was the surname. Suresh Gopi, the great actor in Malayalam and Tamil films has dropped Nair from his name. There are umpteen examples of people dropping their surnames.

Even in the north, if you remember, after the Jaiprakash Narayan movement, lots of people dropped their surnames and chose neutral surnames like Kumar. Narayan advocated that actively. What we are talking about is dropping the surnames.

Did Mahatma Gandhi and Ambedkar ever discuss or debate this idea?

Of course they did but they were talking about opposite things. While Gandhi was asking his followers to go back to villages since he saw villages as a self-contained region based on self-reliance. Ambedkar called villages “cesspots” and he exhorted his followers to the leave the village and go to the city. Why?

Because, in a village you will always be identified by your caste. What you can do or cannot do will depend on the caste that villagers already know but cities afford you anonymity since people didn’t know these migrants and hence, their caste was hidden from the larger population.

There’s going to be a massive urbanisation in the next 20 years. With this urbanisation, one effective way is to drop the caste-based surnames. In one generation, we can relegate this discrimination to the past.

But you also support the caste-system for its diversity, if I am right? How does that fit in with this vision of having a casteless society?

Please understand that I am not against caste systems per se. Each caste has its own culture and traditions. That is a part of our rich diversity. I am not against that. The problem comes when you arrange that as a graded inequality and you force people to do things based on the accident of their birth rather than their capabilities.

It is not just in the society’s interest that we need to move beyond this discrimination but it is also in our country’s economic interests.

How do you think we can improve our economic situation by removing caste-based discrimination?

Just imagine how many Einsteins would have been born if everyone got the same access and opportunity to education. For a very long time, only about 3% of the people had access to education and if the British had not come, this would have persisted for even longer.

These 3% made the laws and exercised the laws and everyone else was kept out. In the shastras, there’s a punishment for shudras for listening to the vedas which is that molten lead should be poured in their ears. And if they have the temerity of studying vedas, their tongues should be cut. No wonder, Ambedkar said that to annihilate the caste system you have to put dynamite to the dharma-shastras.

But how did the British help make education more inclusive?

I am not here to talk about the good and bad they had done. Whatever their motivations may be, they did a very good thing by making education free and compulsory for the children of those enrolled in the British military. That is how Dr Ambedkar got his primary education because his father was enrolled in the British Army and as a part of that, Ambedkar got a chance to study.

Everyone blames Macaulay for many things but I am grateful to him. He was the first person to take education outside the confines of a temple and he kept it outside. His motives may be any, I don’t care about it. What I know is that a large part of the society which could not enter temples and were deprived of education suddenly started receiving education.

There is a lot of push by this current government to skill India and provide digital literacy but much of it seems to be on paper. What are some of the ways in which we can effectively uplift the socio-economic status of Dalits without being partisan and treating them like vote-banks like the governments traditionally have?

There are two things to be done. Dalits are not given the same level access to the judiciary. I gave the example of low conviction rates when it comes to crimes against Dalits but there’s a lot more to be done. Last year, the Prevention of Atrocities Act was strengthened, revised and passed by both the houses of the parliament. But we need a rigorous implementation of that act.

In some states, the conviction rate is as low as 3% and there’s always under-reporting of cases. It means that in 97% of the cases, the perpetrators of heinous crimes go scott free.

In 1975 and 1979, Indira Gandhi as the Prime Minister came out with a very good scheme that was called Scheduled Caste Sub Plan and Tribal Sub Plan. Essentially, it meant that from the plan expenditure of the government they must earmark for Dalits and Adivasis which corresponds to their population in the total population.

Dalit population is 16.8% and tribal population is about 8.6% so they should spend that much amount from plan expenditure to uplift these communities directly. It was to be done for states similarly depending on their ratios.

So what happened after this scheme? Did it achieve expected results?

You won’t believe that in all these years, this scheme has never been implemented properly in letter and spirit. When I took over as a member of Planning Commission, the first thing I did was to check on this scheme and the proportion was 7% instead of 16.8%. And even in this earmarking, a large amount of money was siphoned off for non-Dalit purposes.

For instance, in Delhi, about Rs 700 crore were diverted to the Commonwealth Games. And this is not an exception, it is a rule. Out of 68 different departments and ministries in the central government, only one department had opened that subhead after 40 years of the scheme.

Even today, it is less than 10%.

On the other hand, many people feel that there is a lot of appeasement. Dalits are facing a double whammy as what is being announced or told to them is much more than what is actually reaching them. This is creating a kind of animosity between the general population and Dalits whereas on the ground, very little work is happening for their welfare.

This is actually quite interesting since debates around reservations always revolve around the idea of having a meritocracy and people advocate that educational institutions should get rid of reservations? What is your stand on this?

What meritocracy are we talking about? This is hypocritical. How do you compare a little boy whose mother is a sweeper and his father is a peon somewhere? He doesn’t have electricity at home. How do you compare him to someone who has not only had private schooling but coaching as well? And even though we know marks are not reflective of intelligence or capabilities, we still can’t let this false equivalence to perpetuate.

In our own enlightened self-interest, we must have reservations because if we don’t expand the gene pool, we can’t expect to make progress.

You have advocated extending them to the private sector as well but why do we have reservations in the first place and can we expect them to go away ever?

Reservations are needed because of the innate inability of our social system to be just and fair. Why is our system not just and fair? It is because of the caste-ridden mindset. As long as it is unjust and unfair, we need reservations. Have we come close to a system where we are just and fair? We have not.

There should be reservations in private sector jobs also. How private is really private? Aren’t we giving them all kinds of concessional land, electricity and tax concessions? I am not saying we are obliging them but we give huge loan waivers to the industrialists. And if private is not entirely private, I think as part of corporate social responsibility, we should expand and extend reservations to the private sector as well.

And this must be done in our enlightened self interested. When Ambedkar presented the final draft of the constitution, he gave a most brilliant speech which said the following:

    On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality.

    In politics we will be recognizing the principle of one man one vote and one vote one value.

    In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value.

    How long shall we continue to live this life of contradictions?

    How long shall we continue to deny equality in our social and economic life?


    If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.

Final question: what do you think about the appropriation of Ambedkar by political parties and especially the Bharatiya Janata Party?

Everyone is appropriating Ambedkar and what is wrong with that? First of all, we need to know that we have not recognised Ambedkar as a national leader. We have this caste-ridden mindset. We looked at him only as an emancipator of Dalits which he was, of course. But he was an intellectual colossus who was truly a national leader. His entire contribution needs to be seen in the enormity.

Dr Ambedkar awakened the social conscience of modern India. To brand him as a Dalit and a leader of Dalits, we have done a grave injustice to him. That is now changing as all political parties have understood this and now they are trying to recognise Ambedkar for what he was. But their motivations might be different.

It’s perfectly fine to recognise Ambedkar but I am saying that it should be done in the right letter and spirit. It should not only be symbolic, it should be substantial.

We welcome your comments at letters@scroll.in.

Source: scrollin

Thursday, August 25, 2016

How the Una protests reflect Ambedkar's great wisdom in the Constituent Assembly


The Dalit icon had said that continued marginalisation would lead to class struggle and noted that fraternity was integral to nation-building.

 

scrollin
 Image credit:  Sam Panthaky/AFP

Madhav Chandavarkar

India celebrated its 70th Independence Day on August 15 against the backdrop of widespread agitations by Dalits over the increased boldness of cow protection vigilante groups in Gujarat.

But these protests are not just about gaurakshaks, they are another instance of a community rallying against discrimination in society. As one of the most recognisable Dalit icons, BR Ambedkar was aware of this and stated multiple times in the Constituent Assembly Debates that unless this disenfranchisement could be curbed, such sentiments would threaten the stability of the document with which he is most associated – India’s Constitution.

Some people may assume that as the “father of the Constitution”, Ambedkar is its sole author, but the document on the basis of which India is governed was actually the product of the Constituent Assembly. The Assembly comprised leading figures from the Congress party and members of other communities who sat and discussed the provisions of the Constitution, and were assisted in this capacity by various committees.

Though he had other roles, as the head of the drafting committee, Ambedkar was in charge of making sure that decisions made by the Assembly and the various committees were translated into the final draft.

Despite the hegemony of the Congress, the Assembly was remarkably diverse – the party actively sought out non-members (like Ambedkar) and allowed its own members to vote freely. Any given issue elicited a host of conflicting stands and the members would hammer out their differences until they came as close as possible to a unanimous decision.

The idea of India


Reading the proceedings of the Assembly (of which the Debates are just a part) thus provides a more textural understanding to the Constitution and acts as a window to the kind of India its founding fathers wished to create.

Ambedkar, unsurprisingly, is one of the prominent speakers in the Debates. One of his standout speeches was on the eve of the Constitution’s adoption. He spoke on the conditions that he felt would benecessary to ensure that the Constitution would last and that democracy in India would be achieved in reality.

Ambedkar felt that “democracy in India was only a top-dressing on an Indian soil which is essentially undemocratic” and pointed out that ensuring political democracy would be insufficient without creating social democracy.

Granting political equality through voting, without simultaneously ensuring social and economic equality would be creating an unsustainable set of contradictions, he felt. This is why he included Liberty, Equality and Fraternity in the preamble and viewed them as inseparable.

What is paramount


Ambedkar valued fraternity as the most integral part of nation-building and felt that without it, liberty and equality “will be no deeper than coats of paint”. He dubbed castes as “anti-national” as they created social divisions in social life. He must have spoken from personal experience when he said that the historical monopoly of political power reduced many to “beasts of burden” and “beasts of prey” in a manner that sapped their “significance of life”.

He surmised that these subjugated peoples were “tired of being governed” and were impatient for self-governance. He felt that the longer they were denied this urge for self-actualisation, the more likely they were to resort to a class struggle. And in his view, nothing threatened the health of the Constitution more than societal divisions.

However, fraternity is extremely hard to create because unlike liberty and equality, it cannot be secured through laws. One way to achieve it could be to delve more into the founding of our nation as a society. This would mean school lessons that are not a drab timeline of events, well-researched biographies (not hagiographies) as well as plays, movies and stories.

Educating India


Knowledge of the founding of a nation is invariably accompanied by literacy in the core principles that the founders fought for and that the nation holds dear. Sadly, the average constitutional literacy of Indians is a fraction of that of citizens in other countries, such as the United States.

Most Americans are taught about the founding fathers, the Federalist Papers and the Bill of Rights at an early age. Aside from giving the average American a working knowledge of the rights granted to him or her, this education has come to shape public discourse quite remarkably. Almost all civil-rights movements in the US, be it those for women, African-Americans, or more recently, the lesbian, gay, bisexual and transgender community, draw their legitimacy from the language of the Declaration of Independence.

The remarkable response to the Broadway play Hamilton – a musical about Alexander Hamilton, one of the founding fathers of the US – shows that the American polity recognises the worth of Constitutional history. However, in India these subjects have historically been handled dryly in Civics classes and a system of rote regurgitation prevents these lessons from having any permanency in children’s minds.

The long road to equality


The flogging of Dalit youth in Gujarat’s Una last month for skinning the carcass of a dead cow and the resultant protests show that India is still a long way off the vision of equality held by our founding fathers. But the longer that certain sections of the society – be it Dalits or Kashmiris – continue to feel marginalised, the greater the threat to the Constitution.

It is to their credit that the protestors in Gujarat followed another tenet of Ambedkar and used constitutional methods to express their dissent. But unless such sections of society feel more included, stability will be difficult to sustain – as Abraham Lincoln said, a house divided against itself cannot stand.

It is, therefore, time to inculcate the fraternity Ambedkar spoke of by rediscovering our constitutional history, both inside and outside schools. Not only would this help give Indians a better knowledge of their rights but also a sense of the idea of India. This could be the umbrella under which Indians discover a sense of fraternity – and if nothing else, create public literacy in the rich language of constitutionalism that people looking to reform India can capitalise on.

Madhav Chandavarkar is a research associate at Takshashila Institution, an independent, non-partisan think tank and school of public policy. 

We welcome your comments at letters@scroll.in.

Source: scrollin

How the Una protests reflect Ambedkar's great wisdom in the Constituent Assembly



The Dalit icon had said that continued marginalisation would lead to class struggle and noted that fraternity was integral to nation-building.

 

scrollin
 Image credit:  Sam Panthaky/AFP

Madhav Chandavarkar

India celebrated its 70th Independence Day on August 15 against the backdrop of widespread agitations by Dalits over the increased boldness of cow protection vigilante groups in Gujarat.

But these protests are not just about gaurakshaks, they are another instance of a community rallying against discrimination in society. As one of the most recognisable Dalit icons, BR Ambedkar was aware of this and stated multiple times in the Constituent Assembly Debates that unless this disenfranchisement could be curbed, such sentiments would threaten the stability of the document with which he is most associated – India’s Constitution.

Some people may assume that as the “father of the Constitution”, Ambedkar is its sole author, but the document on the basis of which India is governed was actually the product of the Constituent Assembly. The Assembly comprised leading figures from the Congress party and members of other communities who sat and discussed the provisions of the Constitution, and were assisted in this capacity by various committees.

Though he had other roles, as the head of the drafting committee, Ambedkar was in charge of making sure that decisions made by the Assembly and the various committees were translated into the final draft.

Despite the hegemony of the Congress, the Assembly was remarkably diverse – the party actively sought out non-members (like Ambedkar) and allowed its own members to vote freely. Any given issue elicited a host of conflicting stands and the members would hammer out their differences until they came as close as possible to a unanimous decision.

The idea of India

Reading the proceedings of the Assembly (of which the Debates are just a part) thus provides a more textural understanding to the Constitution and acts as a window to the kind of India its founding fathers wished to create.

Ambedkar, unsurprisingly, is one of the prominent speakers in the Debates. One of his standout speeches was on the eve of the Constitution’s adoption. He spoke on the conditions that he felt would benecessary to ensure that the Constitution would last and that democracy in India would be achieved in reality.

Ambedkar felt that “democracy in India was only a top-dressing on an Indian soil which is essentially undemocratic” and pointed out that ensuring political democracy would be insufficient without creating social democracy.

Granting political equality through voting, without simultaneously ensuring social and economic equality would be creating an unsustainable set of contradictions, he felt. This is why he included Liberty, Equality and Fraternity in the preamble and viewed them as inseparable.

What is paramount

Ambedkar valued fraternity as the most integral part of nation-building and felt that without it, liberty and equality “will be no deeper than coats of paint”. He dubbed castes as “anti-national” as they created social divisions in social life. He must have spoken from personal experience when he said that the historical monopoly of political power reduced many to “beasts of burden” and “beasts of prey” in a manner that sapped their “significance of life”.

He surmised that these subjugated peoples were “tired of being governed” and were impatient for self-governance. He felt that the longer they were denied this urge for self-actualisation, the more likely they were to resort to a class struggle. And in his view, nothing threatened the health of the Constitution more than societal divisions.

However, fraternity is extremely hard to create because unlike liberty and equality, it cannot be secured through laws. One way to achieve it could be to delve more into the founding of our nation as a society. This would mean school lessons that are not a drab timeline of events, well-researched biographies (not hagiographies) as well as plays, movies and stories.

Educating India

Knowledge of the founding of a nation is invariably accompanied by literacy in the core principles that the founders fought for and that the nation holds dear. Sadly, the average constitutional literacy of Indians is a fraction of that of citizens in other countries, such as the United States.

Most Americans are taught about the founding fathers, the Federalist Papers and the Bill of Rights at an early age. Aside from giving the average American a working knowledge of the rights granted to him or her, this education has come to shape public discourse quite remarkably. Almost all civil-rights movements in the US, be it those for women, African-Americans, or more recently, the lesbian, gay, bisexual and transgender community, draw their legitimacy from the language of the Declaration of Independence.

The remarkable response to the Broadway play Hamilton – a musical about Alexander Hamilton, one of the founding fathers of the US – shows that the American polity recognises the worth of Constitutional history. However, in India these subjects have historically been handled dryly in Civics classes and a system of rote regurgitation prevents these lessons from having any permanency in children’s minds.

The long road to equality


The flogging of Dalit youth in Gujarat’s Una last month for skinning the carcass of a dead cow and the resultant protests show that India is still a long way off the vision of equality held by our founding fathers. But the longer that certain sections of the society – be it Dalits or Kashmiris – continue to feel marginalised, the greater the threat to the Constitution.

It is to their credit that the protestors in Gujarat followed another tenet of Ambedkar and used constitutional methods to express their dissent. But unless such sections of society feel more included, stability will be difficult to sustain – as Abraham Lincoln said, a house divided against itself cannot stand.

It is, therefore, time to inculcate the fraternity Ambedkar spoke of by rediscovering our constitutional history, both inside and outside schools. Not only would this help give Indians a better knowledge of their rights but also a sense of the idea of India. This could be the umbrella under which Indians discover a sense of fraternity – and if nothing else, create public literacy in the rich language of constitutionalism that people looking to reform India can capitalise on.

Madhav Chandavarkar is a research associate at Takshashila Institution, an independent, non-partisan think tank and school of public policy. 

We welcome your comments at letters@scroll.in.

Source: scrollin

Tuesday, August 23, 2016

Ending the impasse

Sriram Panchu 
thehindu

Illustration: Deepak Harichandan

The judiciary-government face-off cannot go on indefinitely. The Supreme Court and the executive need to finalise the Memorandum of Procedure for appointment of judges

The tension between the judiciary and the government on the appointment of judges to the High Courts and Supreme Court seems to be intensifying. The two have been locked into conflict on this issue for the last 16 months. Meanwhile, 475 seats in the High Courts remain unoccupied, a staggering and unprecedented number. The damage to an already overloaded judicial system is beyond calculation. Our higher judiciary at the State level struggles to keep its head above water, managing against odds to keep the system going, but its hopes of an efficient and responsive justice delivery system have receded considerably.

The collegium debate

Supreme Court judgments in 1993 and 1998 gave rise to the collegium of the five senior-most Supreme Court judges, who exercised the supreme power of appointment to the judicial ranks. The judgments provided for a consultative process between the executive and judiciary, and for the government to return for reconsideration a name sent by the collegium. However, the appointment had to be made if the collegium reiterated its view. Essentially, the court had the last word; this was the cardinal concept laid down. The methodology for consultation was contained in a Memorandum of Procedure (MoP) formulated in 1999.

In April last year, the government brought in the National Judicial Appointments Commission (NJAC) Act, after securing an unanimous vote for its passage in Parliament and some State Assemblies. This was widely seen, in the language of Star Wars, as the empire striking back, an attempt to break the judiciary’s monopoly by placing the Law Minister and two “eminent persons” (in whose choice the judiciary had a minority voice) at the deciding table, along with the Chief Justice of India and his two senior-most colleagues. Predictably, the NJAC was challenged. Several appointments were in the pipeline, but the court declined to direct these to be processed for appointment.

In October 2015, a five-judge Bench of the court held the NJAC to be unconstitutional, a decision that caused heartburn to the entire political class, and a severe loss of face for the government. It was clear that it would only be a matter of time before another attempt was made to undermine the supremacy of the collegium. That opportunity presented itself sooner than later. Following its judgment, the court, admitting that the existing collegium system had serious flaws, called for suggestions to improve it. Responses came in thick and fast. The court could itself have proceeded to reformulate the MoP, and in retrospect, it would have been wiser for it so to do. Instead it heeded the request of Attorney General Mukul Rohatgi that the government should be permitted to do this exercise. Perhaps the judges felt that this would compensate for having excluded the government from the deciding table, and that if the government drafted the revised MoP it would be co-opted into acceptance of the judgment. However, in its Order dated December 16, 2015 permitting the government to formulate a revised MoP, the court was careful to mention the points that needed to be addressed, namely eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaints mechanism. It also specified that this MoP was for the faithful implementation of its decisions in the earlier cases.

The MoP runs into a few pages, and all it needed were insertions to cover the above points. This exercise should have taken a couple of weeks. However, it is eight months now and the document is far from finalised. It appears that the logjam is over the government’s assertion that if it rejects a candidate on the ground of national security or public interest, then such rejection is binding on the court. In simple terms, the last word would belong to the executive whenever this reason is invoked. This is where the court is unwilling to relent, since it goes against the grain of its judgments establishing the collegium.

The government’s position

An observer can be forgiven for thinking that the Arab and the camel syndrome is playing out here. The government sought a limited role as the draftsman of the MoP, and then utilised this slender opening to prise open the door, seat itself at the table, and exclude the judiciary by invoking the mantra of national security or public interest. It may be noted that the existing MoP does not deal with the “last word” issue, that being contained in the judgment itself; the government is therefore out of bounds in its current attempt. It is also somewhat strange that the government positions itself as the protector of national security and public interest, as if the court will insist on a name going through where these are threatened.

This hiatus cannot go on indefinitely. Appeals, remonstrations and rebukes from the Chief Justice of India do not seem to have the desired effect. It looks as though apart from the court, the other branches do not view the deterioration of the justice system as a pressing issue. Perhaps the time has come to face the problem squarely, and to adopt a more direct method of engaging for resolution. The Attorney General could take the lead in meeting both sides, formulating and reformulating proposals. Else, the Law Minister, with necessary authority, could engage with the judges. Another option is for the Prime Minister to take the lead to invite the Chief Justice and senior judges for a discussion. And let us not rule out the ultimate possibility of the President being just that bit proactive to bring the heads of the two institutions together. These above methods may serve to end the impasse and get matters resolved. If these are not tried, or are unsuccessful, the Supreme Court should consider recalling its order permitting the government to draft the revised MoP, and to undertake the task itself. That exercise should take a week at the most.

Sriram Panchu is a Senior Advocate at the Madras High Court. Email: srirampanchu@gmail.com

Source: thehindu

Sunday, August 21, 2016

The Importance Of Cheering For Caster Semenya

Lindsay Gibbs

Sports Reporter at ThinkProgress. Contact me: lgibbs@thinkprogress.org.

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South Africa’s Caster Semenya reacts after finishing in second place in the women’s 800-meters final at the 2012 Summer Olympics, London. CREDIT: LEE JIN-MAN, AP

You might not know the name Caster Semenya, but it’s likely you’ve heard her story.

When she was only 18 years old, the South African runner won gold at the 2009 world championships in the 800 meters. She went on to win the silver medal at the London Olympics, and is the overwhelming favorite in Rio.

But, unlike her record-setting peers on the track, Semenya isn’t best known for her speed.

Semenya is allegedly intersex. Ever since three hours before her world championship race in 2009 — when news unacceptably leaked that the International Association of Athletics Foundation (IAAF) was going to subject her to a gender test — she has been more famous for her naturally-occurring testosterone levels than her talent.

“God made me the way I am and I accept myself.”

Over the last seven years, the narrative surrounding Semenya has taken on a life of its own. She’s no longer viewed as a human being; she’s merely a concept to debate. While others get fawning Sports Illustrated covers when they dominate their sports, Semenya gets ridiculed and questioned, poked and prodded.

When the controversy over her gender erupted, it took Semenya and those close to her by surprise.
 
According to the Guardian, at the world championships, she “was so overwhelmed by the global controversy that she had to be persuaded to accept her gold medal.”

Still, through it all, Semenya just keeps running, and refuses to apologize for the body she was given.

“God made me the way I am and I accept myself,” she said back in 2009, when intimate details about her body first became a talking point for pundits.

“I can’t stop running because of people,” Semenya said to the BBC last year, as reported by ESPN. “If you have a problem with it, come straight to me and tell me. I cannot stop because people say no she looks like a man this and that. It’s their problem, not mine.”

That attitude in itself is worth celebrating.

thinkprogress
South Africa’s Caster Semenya celebrates winning silver in the Women’s 800m final at the 2011 World Athletics Championships in South Korea. CREDIT: LEE JIN-MAN, AP

Now, before we continue, let’s get a few of the facts straight.

The IAAF cleared Semenya to compete in 2010, and the following year, it implemented new regulations for women with hyperandrogenism, or elevated testosterone levels. The purpose of the new rule was to maintain the division between men’s and women’s sports, based on the belief that the primary reason that elite male athletes are better than elite female athletes is testosterone.

If women tested had testosterone levels higher than the new rules permitted, they had to artificially lower them through medication or invasive surgery in order to keep competing against other women.
 
Thus, Semenya’s presence in Rio is completely by the rules. Furthermore, it’s crucial to note that she has never been suspected of doping or cheating in any way; her condition has never been officially confirmed or detailed; and there is no definitive proof that she took anything to lower her testosterone levels between 2011 and 2015 in order to comply with IAAF regulations.

However, from 2010 to 2015, most of Semenya’s times in the 800m were great but not other-worldly, and this year, she is running even faster than she did in 2009. While there are multiple explanations for her career renaissance — she just started to work with a new coach; she is finally healthy after dealing with injuries for a few years; she is taking her fitness and training more seriously than she did earlier in her career— many assume it is because she no longer has to artificially suppress her testosterone levels.

In the past, the IAAF has specifically documented that they single out female athletes who “display masculine traits” for testosterone tests.

So how did we get here, to the place where a quiet 25-year-old from a small village in South Africa is the poster child for gender limits in sport?

Well, back in 2009, IAAF officials said they were forced to gender test Semenya because her time in the 800m dropped seven seconds in less than nine months and they had to make sure she didn’t have an “unfair advantage.” But that was not the sole reason.

“Just look at her,” Russian Mariya Savinova, who finished fifth in the 2009 world championship, told reporters after the race. (If that name sounds familiar, it’s because Savinova just happens to be known as “the face of Russia’s doping scandal.”)

Unlike drug tests, gender tests (or testosterone tests, if you will) are not carried out at random. And Semenya happens to be tall, muscular, flat-chested, and black. This is not a coincidence. According to Katrina Karkazis, a senior research scholar at the Center for Biomedical Ethics at Stanford University, in the past, IAAF specifically singled out female athletes who “display masculine traits” for testosterone tests, while the International Olympic Committee (IOC) has encouraged its national charters to “actively investigate” any “perceived deviation” in gender.

In practice, gender testing is far more about policing women’s bodies than protecting women’s sports.

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Dutee Chand CREDIT: RAFIQ MAQBOOL, AP

Testosterone tests tend to target women who don’t fit into the ideal Western standards of what a woman should look like — delicate and overtly feminine, white and lithe. This includes women like Dutee Chand, an Indian sprinter who was selected for gender testing after her success at the 2012 under-18 national championships and 2013 Asian Championships.

The tests Chand was forced to undergo — without explanation, mind you — were extremely invasive. As reported by the New York Times, it involved an MRI and a gynecological exam that included “measuring and palpating the clitoris, vagina and labia, as well as evaluating breast size and pubic hair scored on an illustrated five-grade scale.”

She was subsequently banned from competition, and wasn’t given a reason until she found out through the media that she produced more testosterone than most women.

To echo Jessica Luther of Excelle Sports, “ How is this in any way okay? How can we care more about some old racist, transphobic, and sexist imperial idea of ‘woman’ than about the lives of these actual women?”

But instead of undergoing an operation like four elite athletes from “rural or mountainous regions of developing countries” were allegedly forced to undergo before the London games, or taking medication to alter her body’s natural chemistry, Chand decided to fight the ruling.

Thanks to Chand’s legal challenge, the CAS overturned the hypoandrogenism regulations last year. And this year, Chand made it all the way to Rio, with her natural body in tact.

But, significantly, Chand did not win the gold medal in her 100m Olympic race this week. In fact, she didn’t even advance to the semifinals, let alone the final. She finished seventh out of eight in her heat, with a time of 11.68 seconds.

Her naturally elevated testosterone levels did not launch her directly to the top of the podium, or automatically separate her from the rest of the field. Among other athletes on the Olympic stage, she was simply one of the many elites watching the handful of exceptionals breeze past them.

Chand still made the most of her trip to Rio, though, by meeting one of her idols.




You’d think that Chand’s rather mortal performance would put this argument over elevated T levels into perspective. Of course, it hasn’t.

There is literally a sense of trepidation in the air ahead of Semenya’s 800m final on Saturday. Everyone is already discussing what it will mean if Semenya wins, and, heaven forbid, beats the world record time of 1:53.28. (Which at 33 years old is the longest-standing record in track and field.)

The Associated Press calls Semenya as a “dilemma.” Denise Lewis wrote in wrote in Telegraph Sport that Semenya’s inclusion is “not a healthy situation for the sport.” Tom Fordyce of the BBC wrote if Semenya breaks the world record in Rio, it could spell the end of her career because of the attention it would bring to her condition.

And Paula Radcliffe, a ridiculously dominant marathon runner in her time who currently holds the world record in the sport, says Semenya is an affront to the entire competition.

“When we talk about it in terms of fully expecting no other result than Caster Semenya to win that 800m, then it’s no longer sport,” Radcliffe told the BBC.

Semenya should not be seen as a threat; she should be seen as a treat.

But all of this pearl-clutching and fear-mongering is as absurd as it is demeaning.

After all, sports are supposed to reward freak-of-nature athletes. Looking across the Olympic games, it’s clear that there is no one “right way” to have an Olympic body, especially for women. There are super skinny and flexible synchronized swimmers, short gymnasts, plus-size weight lifters, and abnormally tall basketball players. Every elite athlete has some sort of physical advantage they were born with.

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Semenya runs in her 800m preliminary heat in Rio on Wednesday. CREDIT: MARTIN MEISSNER, AP

And the most dominant athletes? They really have the physical gifts. Michael Phelps has feet and hands that are practically fins. Usain Bolt is much taller than most sprinters. Simone Biles is even shorter and more muscular than the majority of the gymnastics field.

These stars have found ways to maximize the gifts they were given and take their sports to the next level. Their dominance isn’t seen as boring; it’s seen as extraordinary. How is what Semenya is doing any different? The concept of a level playing field has always been a myth. From bodies to coaches, economics to nationality, a lot of luck and chance goes into who turns into an Olympic athlete and who doesn’t.

For that reason, Semenya should not be seen as a threat; she should be seen as a treat. After all, a woman running in the body she was born with and setting records is not an affront to the sanctity of sport. It is the entire purpose of sport. We should be marveling at it.

The public flogging Semenya has endured would have broken most people. Her trip to the world championships in Berlin was only her second trip away from home, and it ended with bookmakers offering odds on her gender. Shy and private, she’s tried to stay away from the spotlight that’s followed her over the last decade, but she’s never given up her love for and dedication to her sport.

“Running is what I will always do,” Semenya said.

“Even if, maybe, the authorities could have stopped me from running in 2009, they could not have stopped me in the fields. I would have carried on with my running, it doesn’t matter. When I run I feel free, my mind is free.”

There are two more chances to see Semenya run in Rio: the 800m semifinals on Thursday night and the final on Saturday night. Cherish it, because her races are truly something special — not because of her gender, because of her greatness.

Source: thinkprogress