A Loving Teacher

This week, a 20 year-old American scandal was revisited by newspapers. Americans were reminded of the case in which an attractive, convicted school teacher was interviewed by everyone from Oprah Winfrey to Larry King. Several books have been written on the case, and a couple of movies made.   

The story started in 1989, when Mary Kay Letourneau, a 27 year old married woman, with a teaching degree from Seattle University, was hired by the Shorewood Elementary School. Two years later, among her second grade students was an eight year old boy- Vili Fualaau. The school was like any other elementary school, the second grade was like everywhere else, filled with small, noisy brats.

Four years later, in grade six, Mary had Vili Fualaau as her student once more. Outside of school lessons, she was helping Vili develop his drawing skills. He often visited her house, and became friends with her son Steve. By the way, Mary already had four children by this time. While teaching Vili how to draw, Mary felt drawn to him. Their physical relationship began. The boy was 12 years old, and his teacher 34.

In a few months, Mary’s husband found a bunch of love letters between his wife and her student. By now Mary was visibly pregnant. The husband understood the connection between the love letters and the pregnancy. Mary was arrested for second-degree child rape. She was out on bail when her daughter Audrey was born. At the time of her birth, Audrey’s father was 13 years old.

The same year, in August 1997, Mary was convicted of child rape. (An adult having sex with a minor is statutory rape, even when it is consensual. A minor’s consent is no consent. Depending on the country, the adult may not be charged if the age difference between the two parties is less than four years. In the USA, this is called the Romeo and Juliet law. Clearly not applicable in this case).

 In the court, Mary cried and admitted her conduct was immoral and illegal. She was sorry, and promised it won’t happen again. She begged for help. To the court’s surprise, Vili’s mother said Mary was not a bad person; she had simply made a terrible mistake. Mary had been punished enough (by the media) and if she went to jail for a long time, Vili would feel personally guilty for that.

The mandated punishment for the offence was a 7½ year imprisonment. However, Judge Linda Lau considered the circumstances, the plea bargain, and sent Mary to jail for three months, keeping the rest of the prison term suspended, on condition that Mary should never again meet or contact Vili in any way.

The verdict provoked a huge debate. If the perpetrator was a male teacher and the victim a girl student, would any court be so lenient? Some commentators, including the TV host Bill Maher, said this constituted love; they were soul mates, and how could anyone be punished for love. Maher insisted women can’t rape.

In Jan 1998, Mary was freed from jail. She was free as long as she didn’t meet or communicate with her former student. In less than a month, the police found Mary and Vili in a car along with more than $6000 in cash. They were planning to flee the country together. Mary was arrested once again, and another trial started.

Judge Linda Lau noticed Mary was pregnant again. The judge had no choice, though, but to send Mary to prison for 7½ years. ‘You had an opportunity that you foolishly squandered’, the judge told her. In prison, Mary gave birth to Georgia, her second daughter from Vili. The daughter was whisked away at birth, and given to Vili’s mother. Vili’s mother looked after both her granddaughters. The father of those two girls was 14 years old.

A year later, Mary’s husband divorced her, took the four children and moved to Alaska.

In August 2004 Mary was released from prison after serving her full term. The condition remained, however, that she should not meet or contact Vili. If she did, she risked going to prison again. Judge Linda Lau hoped that after spending 7½ years in prison, Mary would have the sense not to break the judge’s order.

The next day though, Vili Fualaau filed a motion urging the court to reverse the order. Vili loved Mary, she was the mother of his two daughters, and he was unable to live without her. As it was, they had not met for more than seven years. 

Judge Linda Lau had no choice. Vili at 21 was now an adult. And if two adults wished to see each other, who was a judge to stop it? Judge Linda granted the motion. Mary, 43, and Vili, 21, reunited. Their daughters were 7 and 6 years old.

The following year, in May 2005, the two married at a winery in Washington in the presence of 250 guests. Two of Mary’s four children from her first marriage attended the wedding. (One of them had played with Vili as a child). Mary adopted the name of her new husband, her former school pupil. Since then her passport name is Mary Kay Fualaau.

Two years ago, the couple celebrated ten years of their happy marriage. They were interviewed on television and their story published by most newspapers.

This week, Vili filed for separation. Mary is now 55; Vili is 33, and their daughters 20 and 19. Vili told the court the daughters are no longer dependent on the parents.

 *****

Those who believed in this immortal love story were shocked on reading about Vili filing for separation. It has been 25 years since he met Mary as a student. They now have two adult daughters. Their celebration of ten years’ wedded bliss confirmed their true love.

Vili, in his latest interview, has comforted everyone. His separation request, he says, is only for technical reasons. He loves Mary, they will continue to live in the same house. Difficult to find useful employment, he wants to start selling Marijuana (legal in some places). The police must verify his and his wife’s records before granting him licence. With Mary’s sex offender status and prior conviction, he has no chance of getting that licence. So they will divorce technically, but will continue to live together and love one another.

One sociologist, while commenting on the whole affair, lamented how young boys seduced by their school teachers find their lives destroyed. Vili has been reduced to selling Marijuana. Mary Kay has completely messed up his life. A much older woman, manipulating a young pupil, will always end up ruining that boy’s life, maintains the sociologist.

Story retold

Some storytellers have suggested there are only seven basic plots, and from Shakespeare to Bollywood films, the same plots are regurgitated all the time. God’s stories are also similar, the same stories repeated again and again. Let me now re-tell the above story with minor variations.

On another continent, there was a school boy whose name was Emmanuel. He studied at a Jesuit high school. Brigitte, one of the teachers, was 25 years older than him. Brigitte was married and had three (not four) children. She was appointed as a drama teacher for Emmanuel’s class.

Emmanuel was 15 when he and his 40-year old teacher began working together on adapting an Italian play called The Art of Comedy. ‘We wrote and little by little I was totally charmed by his intelligence.’ Brigitte said. She added he had mature relationships with adults, whom he treated as his equals. (Mary had said the same about Vili).

It all started with a kiss.

Brigitte’s daughter was Emmanuel’s classmate. When Emmanuel began visiting Brigitte’s house often, his parents mistakenly thought their son was in love with the daughter. When they realised it was the mother he was in love with, neither of them thought it was great news. They decided not to lodge a police complaint against Brigitte in what was called ‘corruption of a minor’ in their country. Emmanuel’s mother requested Brigitte to please not do anything stupid until Emmanuel turned 18. Emmanuel’s father decided to send him to another city for further education. Hopefully distance would put an end to this silly liaison. 

  

Before leaving, Emmanuel assured Brigitte he would return. Whatever you do, I will marry you, the 16-year old boy said. Both knew how passionate their relationship had become.

Living in different cities, they would call each other all the time and spend hours over the phone. ‘Bit by bit, he defeated all my resistance, in an amazing way, with patience.’ Brigitte would recall later.

In 2006, she divorced her husband. The following year, Emmanuel and she married. He was 29 and she was 54. Her children from the first marriage, two of them older than Emmanuel, attended the wedding.

This year they celebrated ten years of their marriage, and twenty-five years of their romance. Their story was picked up by global media and once again debated by journalists, politicians, sociologists, criminologists, and moralists. Despite stormy debates, Emmanuel Macron succeeded in becoming the youngest president of France at the age of 39. On winning, in front of the flashing cameras, he passionately kissed his 64-year old wife, Brigitte.

*****

Plots may be limited in number. Stories are repeated over and over again, with slight variations.

But stories that look identical may have very different endings.

Ravi 

Revenge

Revenge is delivering justice. To someone who has been cruel, unjust, criminal. A court may exist to do that job. But you may lack patience to go through a trial. You may not trust the court. You may not know which court to go to. The court may not exist at all. You then take matters in your own hands. You become the judge, the jury. You argue the case in your head. You pronounce the verdict. You punish the guilty. That is revenge.

Revenge is not a two party transaction. It can be, but doesn’t have to be. X kicked Y viciously. Then Y slapped X fiercely. M swore at N. Then N insulted M. That is two-party revenge. But what happens when X murders Y? The revenge must be taken by someone else. Possibly by a court. The court may issue a verdict to hang X. The hangman hangs him. Justice is delivered. The murder is avenged. Neither the judge nor the hangman had anything to do with the murderer. Nothing personal. But they execute him.

If not the court, the victim’s brother may decide to take revenge. Or father. Or a friend. The revenge may start a feud. A vendetta. A gang war. Where every revenge is followed by another. The bloody cycle may keep on. For ever.

Revenge may be sought between individuals. But it doesn’t have to be. When a State kills, you wish to take revenge on the State. When a Religion kills, you wish to take revenge on that Religion. Things like States and Religions and Communities are abstract. But the abstract is capable of killing. Killing real people. How do you take revenge on the abstract?

Here, fortunately, the abstract is made of specifics. A State has its citizens. A Religion has its followers. These are living, breathing humans. Killable humans. You can’t kill them all, but you can kill a small portion. The way research is conducted on a sample of the population. A random sample. Any random sample you kill is likely to be representative. Or like a clever researcher, you can select a sample to produce a skewed result. Like selecting a rock concert to kill more teenage girls.

Killing innocents is a barbarian act. Callous. Dastardly. Now a loser’s act. But how are the victims innocent? They are part of a State that kills. If you belong to a State, you become part of its collective karma. You reap its benefits, and you share its flaws. You enjoy its prosperity, and you stain yourself with its stigmas. If your State kills, there is at least a little blood on your hands. Because the State is abstract, and your hands are real. You voted to elect the leaders with those hands. Leaders who throw bombs and send drones. Yes, true, we voted as adults. But why target children? Why innocent children?

Because Newton has said for every action there is an equal and opposite reaction. Here it’s not equal in numbers, but intensely equal in spirit. We read the names Georgina, Olivia, Martyn, Alison, Lisa, Jane, Neil, Angelika, John, Michelle, Kelly. Their innocent, happy faces evoke reactions of anger at the way they died. Such a violently cruel and wasteful end to beautiful young lives. Yes, it’s heartbreaking. Heartbreaking also because we are familiar with those names. With such faces. With such lives.

Somewhere else, other people are making similar lists. Bana, Ola, Amena, Adnan, Majd, Suske, Sydu, Uri, Lely, Marwan, Burhan. Their names are written in scripts we don’t understand. Their photos are published in newspapers we never see. Their parents cry on TV channels we don’t subscribe to. These kids are not blown off by suicide terrorists. They are flattened by Tomahawk missiles. Or by a Mother- of- all- Bombs. Not men in masks, but men in uniform slaughter them. We pay the uniformed men’s salaries and honour them. The children slaughtered are collateral damage. They have no names, simply numbers, very large numbers. And we don’t pay much heed to those numbers. In our part of the world, each human has a value. In their part of the world, humans are statistics. Dozens in our media shock us. The news of thousands in their media never reaches us.

However, each Bana, Ola, Amena, Adnan, Majd, Suske, Sydu, Uri, Lely, Marwan, Burhan has parents. And siblings. Unless the Tomahawk missile has killed them all, the survivors have similar emotions. The same tears. Extreme anger. They also call their dead children innocent. Try to explain collateral damage to those parents. They also want to punish the guilty.

But surely they can’t be so cruel. They can’t kill our children to avenge the killing of their children. How barbaric and heinous. They should know two wrongs don’t make a right.

Well, only those whose children are murdered truly know what revenge means. Two wrongs don’t make a right, but one wrong doesn’t either. When a killer of a child is executed, many parents attend the execution. They express satisfaction - justice has been served. They call it “closure”.

Which court should the parents of Bana, Amena and Suske go to? To seek a closure? When a State has killed their children, someone must take revenge. If their own State is incapable of doing it, they may call upon their Religion to do it.

Can a third party pass judgment? Sure, it can. Writers and thinkers do it all the time. Without boundaries, they criticise wrongdoers with their pens. Their fingers ferociously pound on their keyboards to assault the culprits. Jihadis don’t use pens or keyboards. Their methods are more direct.

State and Religion are both abstract. For revenge, specific individuals from the Religion must be chosen to target the State. Those religious fellow-mates may have nothing to do with the children killed by the Mother-of-all-Bombs. But they become self-appointed judges. They are a court unto themselves. The trial runs in their heads. They are prosecuting on behalf of the dead children’s parents.

They pronounce a “guilty” verdict. They decide the modus operandi and place for the execution. A lower court works with knives, guns, and stolen vehicles. A superior court uses Semtex and shrapnel. These courts know the quantum of punishment can’t match the scale of the crime. Because the State is militarily far more powerful. However, revenge can be symbolic. Equal in spirit. Death for death. Semtex and Shrapnel for Tomahawk missiles. Their teenagers for our teenagers. The judges get so involved in the process, they sacrifice themselves to deliver justice.

Justice is delivered. Revenge is taken. Nothing personal.

*****

Epilogue

India and Russia

In the two countries where I’ve spent most of my life, India and Russia, many suicide bomb attacks and serial bombings have taken place. The 1993 Bombay serial bombing (12 blasts: 257 dead), 1995 Budyonnovsk hospital capture (150 dead), 2002 Moscow theatre siege (174 dead), 2004 Beslan school siege (400 dead), 2006 Bombay bombing in trains (7 blasts: 209 dead), and the multiple location terror attack in 2008 (171 dead) are some of the prominent ones in my memory. (Both in 2006 and 2008, fewer than 24 hours earlier, I had been in the locations where bombs exploded.)   

Islamic terrorism was the root of most of those attacks. Even before the identity of the suicide bombers is announced, we know the names are likely to be Muslims. And yet, most of these attacks were retaliations, an act of revenge.

The Babri Mosque demolition (1992), a completely unprovoked, absolutely senseless act by Hindu fundamentalists caused more than 2000 deaths. The 1993 serial bomb blasts were a direct revenge of that event. The 2002 Gujarat riots killed nearly 800 Muslims. The terror acts in Bombay were in revenge of those riots. The terrorist acts in Russia were mostly carried out by Chechens as a result of the Russian state mercilessly crushing the Chechen separatist movement.

The major terror attacks ceased after Hindus in India calmed down, and the Russian State left Chechnya alone (having made sure it remained part of Russia).

War on terror = War on Islam

Since the fall of communism, the USA and NATO have been at war with Islam. Afghanistan, Iraq, Libya, Iran, Mali, Philippines, Somalia, Yemen, and of course Syria. Most of these aggressions were called “Operation Enduring Freedom”. If the USA and its allies really wanted to bring freedom and democracy to these countries, that noble cause would have been welcome. After a protracted occupation (Afghanistan), killing the heads of states (Iraq and Libya) and aggravating a civil war (Syria), not a single Muslim country has tasted freedom or peace. Their state is worse than it was before the US/NATO intervention.

Embracing the House of Saud, the monarchs of Saudi Arabia - the most evil Islamic rulers – at the same time as pretending to bring freedom to other Muslim countries has shown what a complete humbug this entire campaign has been. In all likelihood, the Middle East is the playground for the US to test its new weapons and keep its growing military establishment occupied.

Syria

This unending war has reached a farcical stage where the USA and its NATO allies can’t explain any more why they are in Syria. Bomb-dropping pilots have no idea whom they are killing. Instead of winning wars or bringing peace, the world now has an unprecedented refugee crisis.

First, there were Talibans who were bad enough. Then Al-Qaida took over. The Islamic State of Iraq and Levant (ISIL) now makes Al-Qaida look moderate.  Islamic terrorism has grown in direct proportion to the length of the American occupation and ferocity of American weaponry. And countries like the UK have blindly joined in this meaningless venture.

CJTF-OIR 

The USA along with its partners has formed a Combined Joint Task Force- Operation Inherent Resolve to defeat ISIL. This was formed in 2014. Since then France, Belgium, Germany and UK have experienced terrorist attacks. France and UK have conducted airstrikes in both Iraq and Syria as part of the CJTF-OIR initiative.

Make UK safe

“The UK government is pleased to announce it is withdrawing its forces from Iraq and Syria. Using the Brexit philosophy, the UK would like to focus on its internal matters, and leave the Iraqis and Syrians to solve their own issues.  As part of its peace initiative, UK hereby pledges not to conduct any airstrikes anywhere. While the UK reserves the right to defend itself against any external attack, it will not join any war or coalition that has no direct relevance to the defence of the UK territory.” 

This peace declaration is a piece of fiction written by me. But such a declaration, in my view, is the only way to stop terrorist attacks on the UK soil. Withdrawal of military forces from Syria is the need of the hour, instead of an additional deployment of 5000 armed soldiers on the streets of UK.

The alternative is to budget the loss of innocent civilians every few months. Stocks of Semtex and Shrapnel may be traced or controlled, but speeding vehicles directed at crowds can’t be.

You can’t stop all revenge-takers. Their number is infinite. It’s better to remove the reason for revenge.

Ravi 

Divorce Divorce Divorce

An Indian Muslim male can legally have four wives at the same time. Not only that, he may divorce any of them at any time by simply saying “talaq talaq talaq”. Some Muslim women in India have experienced instant dissolution of their marriage via a letter, Facebook, twitter, SMS or WhatsApp. Last year, Shayara Bano received a letter from her husband notifying her she was a divorcee. She filed a petition in India’s Supreme Court challenging the Muslim Personal Law. This week, a five judge bench concluded listening to both the sides. However, the court has “reserved” its verdict, meaning it hesitates to rule on religious matters. Since the court won’t, I offer here my views and verdict.

Shah Bano and Shayara Bano

In 1978, Shah Bano, a 62 year old Muslim lady, was dumped by her husband. They had been married for 46 years, and had five children. Her husband, an affluent lawyer, had another wife, a much younger woman. He refused to pay Shah Bano any maintenance beyond 90 days. That’s what the Muslim Personal Law requires. (It must be noted that the five children were thrown out of the house along with their mother after the divorce). Shah Bano courageously fought in the courts. The Supreme Court’s verdict, given seven years after the divorce, was in her favour. Her ex-husband was directed to pay Rs 179.20 (15 dollars then) a month to Shah Bano. The Ulemas (custodians of Islamic law) were incensed. How dare the Supreme Court interfere with their Personal Law? They appealed to Rajiv Gandhi, India’s then prime minister. Rajiv had a record majority in parliament based on the sympathy vote generated by his mother’s assassination. Using that majority, Rajiv Gandhi passed a new law sardonically named Muslim Women (Protection of Rights on Divorce) Act, 1986, and overturned the court’s decision. Sharia won, Shah Bano lost. Politics won, core moral values and decency were debauched.     

Thirty years later, Shayara Bano was similarly discarded by her husband. She had been married for 13 years. Her petition pleads the court to abolish (a) Polygamy (b) Triple talaq and (c) Nikah Halala.

Polygamy

In Prophet Muhammad’s time, the world in general and Muslims in particular were perennially engaged in wars. Constant wars increased the male mortality rate, leaving thousands of young widows. This was the logic behind allowing Muslim men to take multiple wives. (Muhammad himself had 13 wives).

In India, female foeticide, better treatment of sons over daughters and absence of any major war have resulted into a skewed male-female ratio. (940 f/1000 m). If multiple spouses must be allowed, polyandry – a woman marrying many husbands- is the mathematical need of the time.

For Hindus, polygamy was abolished in 1955. One may still occasionally find bigamist Hindus (or Christians). If wives are happy to share a husband, an outsider can’t launch a case against a bigamist. Only one of the wives can. An aggrieved Hindu wife can go to the court, get an illegal second marriage annulled, and the husband punished. An Indian Muslim wife doesn’t have that choice. Her husband doesn’t require her consent when marrying the second, third or fourth time.  

Triple talaq

Triple talaq was not intended to be instant noodles, but a cunning patriarchal community twisted a 1400-year old text to suit its convenience.

The original concept of triple talaq involved a process of separation, negotiation, cooling down and a possible reconciliation. Many months were supposed to pass between the man uttering the first and third talaq. Only if both parties understood the marriage was irreconcilable, the man would utter ‘talaq’ the third time. The divorce was then irrevocable.

In today’s high-speed world, that process has been shortened to the minimum. The Muslim males and mullahs base Sharia rigidly on the Quran, but in a grand display of hypocrisy ignore that Facebook, Twitter, SMS and WhatsApp didn’t exist in the time of the Prophet.  

An ordinary employment contract requires a few months’ notice before an employee leaves or is asked to leave a company. It reduces the shock, allows tying up loose ends, parting with dignity. In triple talaq, a man can divorce, even evict his wife and children in a flash.

Nikah Halala

The third point in Shayara Bano’s petition refers to a bizarre Nikah (marriage) practice. As we saw above, once Talaq has been pronounced three times, the marriage is over, irreversibly finished. Now, if the husband regrets his decision or the couple wishes to start anew, India’s Muslim Personal Law doesn’t allow it- except under one condition. The divorced wife must marry another man, have sex with him, and then wait for that marriage to end in a divorce or husband’s death.  Only as a divorcee or widow of another man, she can come back to her former husband.

There have been cases of men asking friends to rape divorced wives to fulfil the Nikah Halala condition. Certain commercial websites offer Nikah Halala as a product.  Men offer to marry a wronged woman, sleep with her and then divorce her, all for a specified sum (not cheap).

Ancient British Laws

Religious partition happened during British rule. (Blame it on the British). To fuel the “divide and rule” political strategy, different civil laws were enacted for different religions. The Sharia-based Muslim Personal Law (Shariat) Application Act, 1937 still governs the civil affairs of the Indian Muslims. Parsi Marriage and divorce act, 1936 exists and is applicable. India’s criminal code, the Indian Penal Code, was enacted in 1860. Though it’s not as ancient as the Quran, and has undergone several amendments, a major overhaul is needed.

Homosexuality is still a crime, at least on paper (Sec. 377). Any Indian man can be sent to prison for 5 years for having an affair with a married woman (unless it is with her husband’s express consent) (Sec. 497). Indian men, well-versed in the law, make sure their mistresses are unmarried. An Indian woman’s adultery is not a crime, irrespective of her or her lover’s marital status. Because as one Supreme Court judge (ancient in age and attitude) said: “only men can seduce, women can’t.”  

Civil Law vs Criminal Law

Though there may be some overlap, civil law and criminal law have a different purpose. Civil law tries to resolve disputes (family, property) and give justice/compensation to the affected party (e.g. alimony to wife, restoring grabbed property etc). Criminal law punishes the guilty, sometimes imprisons them. In cases such as a murder or rape, resolving disputes or compensating the victim is not the aim, punishing the offender is. Because of the element of punishment, guilt needs to be proven “beyond reasonable doubt”. In civil cases, the standards are not so strict. The judge can decide the case based on probability. We all remember how O.J.Simpson was pronounced not guilty in the criminal case, but was declared a murderer and fined in the civil case.

Fortunately, India has one criminal law for all. Indian Muslims can’t be flogged for their crimes. For more than forty years, the All India Muslim Personal Law Board (AIMPLB) has been fighting to preserve Sharia for Indian Muslims. The courts are told not to interfere in the personal affairs of Muslims.

Is it not surprising AIMPLB doesn’t say a word about the Criminal Law that is common for all?

All India Muslim Personal Law Board (AIMPLB)

This is a private, self-appointed body made of Ulemas that claims to represent the 170 million Indian Muslims. In 1973, Indian govt had proposed a bill that would open the way for a uniform civil code. Feeling threatened, a select group of Ulemas and other Muslim leaders formed this board. Since then, they have successfully fought against all attempts to introduce one civil law for all Indians.

It is a national shame that this retrograde patriarchal bunch dictates the life of 85 million Muslim women in India. Look at some of the board’s thoughts officially presented in the latest affidavit filed in the Supreme Court.

AIMPLB says: “Polygamy is a social need and a blessing for women because an unlawful mistress is more harmful for social fabric than a lawful second wife. Polygamy ensures sexual purity and chastity and whenever polygamy has been banned, it emerges from history that illicit sex has raised its head.”

Justifying instant talaq it says: “Legal compulsions of time-consuming separation proceedings and expenses may deter him [the husband] from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive.”

AIMPLB admitted triple talaq is a sin, and a bad practice. However, an Indian Court has no right to ban it, because it’s a personal religious matter. Now the Muslim board has said it would “recommend” it can be excluded from a marriage contract, and that a man declaring triple talaq could be socially boycotted.

In theory, Indian Muslims can opt for a civil law and a secular appearance. A Muslim male can opt to be clean-shaven, not wear a skull cap; a Muslim woman can throw away her burqa. They can register and dissolve marriages in the govt courts if they wish to.

However, in practice, most Muslim women are little educated, oppressed by patriarchal indoctrination, given away in marriage very young, and financially dependent on males. This pitiable state accompanied by superstition is the source of the power of the Muslim Personal Law board. Using that power, the board makes sure Indian Muslims would remain backward in perpetuity.

Analysis: My view

Let’s keep aside all these points and look at some fundamental, universal truths.

First, a marriage contract is unique. Because it is the only contract between two parties that can produce many more parties. Children, brought to this world without their permission, are mostly helpless for a significant number of years. It is the parents’ moral duty to raise them. If parents divorce, children should be cared for to the best of parents’ ability anyway. Since society can’t trust the integrity of every parent, it must regulate the parents’ conduct through civil laws. Children, the most critical by-product of a marriage, must be protected by the civil laws. Divorce laws must ensure their continuous care.

Second, the law must be equitable between a man and a woman. Both in marriage and divorce, they must have equal rights. If a man can have four wives, a woman should be allowed to have four husbands as well. 

Third, the civil laws must acknowledge the gender difference. It’s the woman who carries the child in her womb, suffers delivery pains, breastfeeds the baby and teaches the child to speak (mother tongue). As a rule, a mother is the main parent in raising the child. It is maternal nature. This has nothing to do with religion or how advanced the society is. Any law regulating marriage or divorce must consider this additional burden women bear. In a family, a woman’s place is higher than a man’s.  

When you apply those three tests; child protection, equality and acknowledging a woman’s extra burdens; the Muslim Personal Law fails. In triple talaq, children are not protected, not even discussed. Polygamy, triple talaq and Nikah halala are not merely patriarchal. They demean women. Under Sharia, a woman’s testimony is worth half of that of a man. A marriage contract is between her male guardian and husband, she is just a product traded between two males. Sons are entitled to inherit twice the share of the daughters.

Uniform Civil Code

Each person comes out of a mother’s womb, breathes, toddles and then walks, eats and sleeps, unites with another to produce off-springs, becomes middle-aged, later old and dies. This is Nature’s law and it’s the same for absolutely everyone, a Christian, a Muslim, a Hindu or any other.

When Nature has uniform laws for everyone, why should Man have different laws?

Indian constitution (1950), in its article 44, expects India to have a Uniform Civil Code. Due to its sensitivity, it was called a ‘directive principle of state policy’ rather than a law. The Muslim Personal Law Board has used that wording to deny its enforceability.

The five SC judges for the Triple Talaq case are from five different communities- a Sikh, Christian, Parsee, Hindu and a Muslim. (Strangely, for such an important issue on justice for women, all five judges are men. SC’s only lady judge, R.Banumathi, should have been included). A similar panel should be formed to write the Uniform Civil Code so that minorities don’t perceive it as a Hindu Civil Code.

Uniform Civil Code doesn’t regulate customs; it regulates rights and responsibilities. The wedding functions of Hindus or Muslims will remain exactly the same as today. Religious rituals will be unchanged, and one can believe or not believe in any god of his choice. Responsibilities towards your partner and children must be governed by civil laws that are equitable, morally sound and recognise a woman’s role in the family.

This issue is for the government to legislate on, not for courts. Successive governments have lacked the courage to take up this issue. Govt cowardice has forced women like Shayara Bano to rush to the Supreme Court. This case presents an opportunity for the Indian government to implement a Uniform Civil Code. It is not a religious or secular but a moral obligation.

Seventy years after independence, we can no longer blame the British for the continuing uncivil practices in India.

Ravi

Your Lunatic Lordship

At the time of writing this story, Indian police in three states are looking for the High Court Justice Chinnaswami Swaminathan Karnan (hereafter called “Karnan” to limit the wordcount). Karnan is bald, with a bristled grey moustache, white religious mark on his forehead, and is usually suited and booted except in his sleep.

Karnan has been a HC Judge for eight years, and what an electrifying period of eight years it has been. In 2011, he formally complained against a fellow judge for deliberately touching him by foot, because he is a Dalit, a lower caste person. The upper caste judges always discriminated against him. He would barge into other court rooms where fellow judges were conducting their cases - Karnan suspected other judges (upper caste) were given better cases. Angry at the injustice, he would start shouting and interfering. The upper caste judges smiled and tolerated it all. Complaining against Karnan could stamp you as anti-Dalit.

Sex defines marriage

Karnan’s judgements were innovative. In June 2013, he pronounced an important moral verdict. If a man and a woman, both adult and unmarried, have sex, their act of sexual gratification is a valid marriage under law. Exchanging rings or garlands, registering the marriage and following religious customs were for the satisfaction of society. Consummation constituted marriage. Some sections of media and public, essentially immoral people, protested against the judgement. Karnan then issued a “gag order”, (a Judge’s prerogative), silencing everyone.

In late 2014, twenty Madras (Chennai) HC judges wrote a letter to the Supreme Court. It talked about the anguish and agony suffered by all of them at the hands of this gentleman. Look, they are all discriminating against me, harassing me, said Karnan in response.

Boss is not a superior

In a few months, Karnan started Suo Motu proceedings against his own boss, Justice Sanjay Kaul, the Chief Justice of the Madras HC. (Suo Motu is another privilege of a judge, to begin a case at his own initiative, without a plaintiff or police). Karnan accused his boss of giving him dummy cases. Because of his caste. The SC ordered a stay on those proceedings. Infuriated at the interference, Karnan launched criminal proceedings against the two SC judges who had ordered the stay. Karnan’s order charged them under the SC/ST atrocities act. (An act to protect atrocities against lower castes).

Transfer and cc to all

The SC deliberated Karnan’s matter for months. Finally, on 12 February 2016, the Chief Justice of India ordered his transfer from Chennai to Calcutta. During British days, criminals and political convicts were transferred to the Andaman Islands. In independent India, unruly judges are transferred to the north-east of India.

All hell broke loose when Karnan saw his transfer order. How dare anyone transfer him without his prior consent? Three days later, Karnan issued a judicial order bringing a stay on the transfer. In his order, he said to the SC, “I am apt to constrain Your Lordship’s Order after invoking Article 226 of the Constitution of India, by staying Your Lordship’s tentative recommendation Order dated 12.02.2016... I request Your Lordship not to interfere in my jurisdiction...” He also asked the SC to submit a written statement in two weeks’ time. Karnan sent a copy of his judicial order to the Prime Minister, President, Law Minister, leaders of all opposition parties and the National Commission for Scheduled Castes and Scheduled Tribes (called “SC/ST Commission” hereafter). He always sent copies of his important orders to prominent politicians and the SC/ST commission. Karnan was perfectly entitled to it; no law prohibited sending copies of the order.

The SC, instead of sending a written explanation as demanded by Karnan’s order, made all his orders, suo motu or otherwise, null and void. Karnan knew they had done it because he belonged to a lower caste. Reluctantly, and after wild protests, he agreed to move to Calcutta. In the Calcutta HC, he became a full-fledged HC Judge again, capable of passing valid orders. The Madras HC – its judges, staff and secretaries – threw a grand party to celebrate Karnan’s departure for Calcutta.

Letter to the Prime Minister

On 23 Jan. 2017, Karnan wrote an open letter to the Prime Minister of India. The letter listed 20 corrupt HC and SC judges. He asked the PM to arrange their interrogation by a central competent agency. For unknown reasons, the PM did nothing. Karnan didn’t issue any order against the Prime Minister; probably he wanted to give him some time.

The SC of India, on the other hand, reacted. It issued a contempt notice against Karnan, for degrading the judiciary and making allegations of corruption against SC Judges. In March, the top court issued a warrant against Karnan, barring him from practicing in the court.

This was outrageous. Instead of investigating the corruption among the judges, the whistleblower was about to be punished. This was unacceptable to Karnan. On 16 March, he issued an order asking the SC judges (issuers of the contempt notice) to pay Rs 14 crore (2 million dollars) for disturbing his mind and normal life. He ordered the Registrar General of the SC to deduct the amount from the salaries of each of the accused.

Two weeks later, the SC wondered, for the first time, if there was something wrong with Karnan’s mental health. By now, Karnan, unable to work from the court, was working from his residence in Calcutta. He issued an order summoning the SC judges to his residence for questioning his mental health.

On 1 May, the SC ordered that a medical team should examine Karnan for any mental illness. The following day, Karnan issued an order to the Air Control Authority of India asking it to prevent any of the SC Judges from travelling abroad, since otherwise they could spread the virus of caste discrimination globally.

On 4 May, the medical team sent by the SC visited Karnan at his Calcutta home (now also an HC office). Karnan offered them tea, talked as politely as he could, and despatched them off. By now India’s most recognised judge; TV channels were vying for his interviews. Karnan soundly argued that the SC erred in sendingthe order to him. If he was mentally ill, (which of course he was not) the order should be sent to his relatives and not him. In any case, mental illness has nothing to do with the soundness of a person’s mind, he added.

A deserving punishment

By now, Karnan had had enough of the unfair SC. He must give them a deserving punishment. This week, on Monday, Karnan sentenced J.S.Khehar, the Chief Justice of India and seven other SC judges to 5 years of Rigorous Imprisonment and a fine of Rs 100,000 each. They are charged under the SC/ST (prevention of atrocities) Act. If the fine is not paid within a week, they will serve another six months of imprisonment.

Karnan directed Delhi’s Director General of Police to arrest the SC judges. (The poor man didn’t know Delhi, unlike other states, has a Commissioner of Police and not DGP, but that didn’t really matter.) As usual, he sent copies of his orders to the SC/ST Commission. 

Oddly enough, the SC judges, instead of surrendering themselves, pronounced a six-month jail for Karnan, and issued a non-bailable warrant. Karnan’s lawyer argued that next month he turns 62 and is obliged to retire. (Sixty-two is the retirement age for judges of all castes). That was a reasonable request. Why send an HC Judge to jail and spoil the reputation of the Indian judiciary, when a month’s wait can send him to retirement? The unreasonable SC disagreed.

For the last three days the police have been looking for Karnan in Bengal, Tamil Nadu and Andhra Pradesh. He is not found. His lawyer, though, has launched a case in the SC to bring a stay on the order sending Karnan to jail. Unless the SC wants to engage in discriminatory practices, it must consider Karnan’s appeal.

*****

Analysis

The inbreeding of Judges

Who appoints judges? In the USA, we recently saw Trump nominating Neil Gorsuch to the SC and the senate somehow confirming it. When politicians appoint judges, can the judges rule against those politicians or their parties? Judges are human, and unfortunately can suffer from the same biases as all of us do. Indian judges retire at 62, American SC judges don’t retire, they are in power until death. The American SC now has 5 conservative and 4 liberal judges. It is expected that borderline cases will, for the foreseeable future, get conservative verdicts by a 5:4 vote.

Judges can also be elected, as in the State Court Judges in 32 out of 50 states of the USA. Like politicians, those judges need campaign money, and it is too much to expect them to rule against the sponsors in court cases. 

In India, the judiciary has for long fought against any politician interfering in the selection process of the judges. India’s finance minister called this ‘the tyranny of the unelected’. In what is called the Collegium system, a judicial inbreeding system, judges select judges. After the Karnan saga, nobody clearly remembered how he was appointed. Karnan was appointed by three judges. Justice P.K.Mishra apologised for appointing him without knowing him. The Chief Justice of India then, justice Balkrishnan said: “Others propose the names, and we go by that. I didn’t make any specific enquiry about him.” Justice A.K. Ganguly who had proposed Karnan’s name said he didn’t remember, it was so long ago. He thought for social justice, a Dalit judge should be part of the HC Judiciary.

India has fewer than 600 High Court judges and only 31 Supreme Court judges. That is half a judge for every million. (Or one HC/SC judge per 2 million Indians). Absolutely no written record is kept of the appointment procedure. Three judges get together over tea and biscuits, discuss a candidate (like Karnan) and appoint him. With no checks and balances, the Indian judiciary is supremely powerful. (Indira Gandhi was convicted by a High Court judge for a minor misfeasance, causing the Emergency of 1975) And if you criticise the judiciary too strongly, you may attract contempt charges and go to jail.

Reservation

An affirmative action (USA) or positive discrimination (UK) is called “reservation” in India. It is essential to support historically oppressed sections of society. In India, schedules (lists) of such people are prepared. Castes and tribes falling into the lists are the Scheduled Castes and Scheduled Tribes (SC/ST). Many Indian institutions follow reservations by making entry easy for the SC/ST candidate, not exit. In other words, an SC/ST candidate may enter a medical institute with entry standards relaxed. However, he must study, compete with everyone and qualify to become a doctor just like everyone else. In critical areas of life, professionals must be selected on merit. A blind person is handicapped, and deserves sympathy, but he can’t be made a pilot to show positive discrimination. A High Court judge is a serious profession capable of affecting the lives of many people. He must be selected on merit, not on caste. Karnan is not the first or the last SC/ST judge in India. The others, though, were selected despite their caste, and not because of it.

The enigmatic language

Indian judiciary’s argument about keeping the appointments within a family is that the Indian politicians are not yet evolved (meaning they are backward). There is some merit in this argument, since an illiterate Indian can become a member of the Indian parliament (and many do), age and residence being the only qualifications. Judges, on the other hand, have a law degree as a minimum.

Reality, though, shows that the law degree is no evidence of quality education. The legal profession, just like politics, is not the first choice of the brightest Indian minds. Second, many of the judgements are so enigmatically written, one wonders which law colleges teach such creative writing. Look at the following judgement of a High Court:

“(The)...tenant in the demised premises stands aggrieved by the pronouncement made by the learned Executing Court upon his objections constituted therebefore...wherewithin the apposite unfoldments qua his resistance to the execution of the decree stood discountenanced by the learned Executing Court”.

Such abstract language is not exceptional, it’s widespread. The Supreme Court quashed the above verdict, not on any legal grounds, but by saying they didn’t understand what the HC judge wanted to say. (Compare this to a beautiful ruling written in plain English with Emoji, web symbols, so that children affected by the case can read it. http://www.bailii.org/ew/cases/EWFC/HCJ/2016/9.html . This ruling from last year was written by Mr Justice Peter Jackson from an English High Court.)

Karnan’s case makes it imperative to involve people from outside the judiciary in the selection process. Also, as in any corporation, the process must be transparent with records maintained in writing.

Why was Karnan not impeached?

In theory, an Indian judge can be impeached. But the process is so complicated that both the houses of Parliament will need to spend days, possibly months, trying to get the vote through.

In some countries, buffoons become judges. In some countries, buffoons become presidents. Until they can be removed after a long struggle, we simply need to sit back and enjoy the show.

Ravi