We are certainly holding our own in the worldwide competition of absurd laws.
In the beginning was the Preamble to the Constitution, with the people, in 1950, proclaiming India to be a sovereign democratic republic promising justice, liberty and equality. Yet the ink had barely dried when, a year later, the First Amendment had to be rushed into print. The so-called Schedule IX had to be created, with the laws under it declared immune from challenges of being unconstitutional. In their zeal for the fundamental rights of zamindars, the Indian courts had been striking down land-reform laws right and left, and it was important to create a firewall to protect social-welfare legislation aimed at reducing inequalities in Independent India.
India thus has the distinction of laws passed under the Constitution requiring protection from the same Constitution. At last count, there were close to 300 laws cowering under Schedule IX, with the Supreme Court trying to drag them out of cover and smite them dead. The last round in the tug of war took place in January 2007, when a nine-judge Constitution Bench declared that laws previously protected under the Schedule could now be struck down on the ground of being violative of fundamental rights and affecting the basic structure of the Constitution. This will undoubtedly not be the last word on the issue, however.
In Pakistan, anytime confusion surfaces regarding whether the country is secular or otherwise, the Preamble to the Constitution itself proclaims that sovereignty over the entire universe belongs to Almighty Allah. The people of Pakistan are thus to exercise authority solely within the limits prescribed by Him. Accordingly, presidents and prime ministers take oath in the name of Allah, and end with a plea for help and guidance from Him. At the same time, however, the country has a secular penal code, which often contradicts Islamic tenets.
Likewise taking recourse in divine intervention, the 1971 Constitution of Bangladesh begins bismillah-ar-rahiman-ar-rahim – In the name of Allah, the Beneficent, the Merciful. But it then goes on to take a syncretic route, simultaneously pledging absolute trust and faith in Almighty Allah and in democracy and socialism. Unlike Bangladesh, Nepal today stands proclaimed categorically a secular republic under the Interim Constitution. At the same time, though, it should be noted that in the present dispensation ambiguities certainly remain, particularly with regard to the religious/cultural ceremonies earlier performed by the king as head of state.
More than a half-century after India was declared a republic, the powers, privileges and immunities enjoyed by Parliament and the state legislatures remain similar to those of the English Parliament. The Indian counterpart has consistently refused to enact a law defining its privileges, continuing instead to enjoy the imprecise, vague and undefined powers of its English predecessor. Nikhil Wagle, editor of the Marathi daily Mahanagar, was jailed some years back for pressing the Maharashtra state assembly to define its privileges. The hazards of undefined powers in India have likewise been evident in journalists being hauled up regularly for contempt of the legislature. However, the instance of the Uttar Pradesh state assembly directing that two judges of the Allahabad High Court be brought, in custody, before the House for having dared to release an individual sent to jail by the assembly for contempt – well, for now this can be taken as perhaps the single most absurd instance of a Southasian legislature’s wayward activism.
India, in more-loyal-than-the-king mode, faithfully retains archaic laws that the British themselves have long ago jettisoned. For instance, under the Indian Penal Code of 1860, homosexual relations between consenting adults is still a crime punishable with a prison term ranging from ten years to life. Terming homosexuality as “against the order of nature”, the law considers only heterosexual sex – and that, too, only for purposes of procreation – as legitimate. Of course, the binary of natural and unnatural can easily be used to criminalise a broad spectrum of acts. For instance, what of contraceptive devices, which stop ‘natural’ procreation? This relic of the Raj lives on in Pakistan and Bangladesh, as well. Perhaps only Nepal is saved from colonial relics in the law books, for never having been colonised.
Queen Victoria has long been dead, and her demise has been followed by a century and a half of tumultuous change around the world. But her spirit lives on in India and other erstwhile colonies where adultery, rather than being a civil wrong, remains a criminal offence. A wife, though no longer legally considered the property of her husband under law, still cannot initiate prosecution for adultery. On the other hand, the husband can prosecute the man who has had sex with his wife.
Meanwhile, in India serious physical and mental harassment continues to be trivialised as “outraging the modesty of a woman”, rather than being treated as a heinous offence resulting in serious penal consequences. Anything lascivious, appealing to prurient interest or ‘tending’ to corrupt the young is punishable as obscene under the Indian law, again circa 1860. Rather than revisiting these provisions and creating a precise definition of obscenity in tune with modern times, the Indian Parliament instead has chosen to catapult the same 1860 Victorian formulation into the definition of obscenity in the course of creating cyber offences under the Information Technology Act, enacted in 2000.
Indeed, today the battle against ‘obscenity’ and ‘terrorism’ is being waged in cyberspace as well. Malicious Code Item No 13 of Pakistan’s proposed Prevention of Electronic Crimes Act, 2007, states that any code that crashes your computer or damages data amounts to “utilising or accessing” a computer network or electronic system with “terroristic” intent. Rights groups maintain that the legislation defines terrorism as already covered in the Anti-Terrorism Ordinance of 1999, even while it fails to explain what is meant by the word cyber in ‘cyber-terrorism’. As has been seen time and again around the world, perfectly innocuous actions by innocent citizens can quickly be transmuted into dangerous crimes due to ambiguously worded definitions. Indeed, under the current wording, the simple act of formatting your hard disk could technically lead to charges of ‘destruction of data’, punishable by seven years imprisonment and a fine of a million rupees.
Wave that flag
In accordance with Zia ul-Haq’s Hudood Ordinance of 1979, a woman today still must produce four male witnesses to prove an allegation of rape. If she is unable to produce these onlookers, the rape survivor can be imprisoned or put to death for adultery. A blind woman who has been raped can be convicted on charges of adultery because she is not able to identify her attacker.
At the forefront of the ‘war on terror’ in the post-9/11 world, Pakistan is also busy imprisoning members of the Ahmadiyya community, a Muslim splinter sect. Ahmadis have been officially accused of “deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs”, an offence that has been declared prosecutable by anti-terrorism courts. Under the Pakistan Penal Code, Ahmadis can also be punished for calling their place of worship a masjid, for referring to their call to prayer as azan – or, for that matter, even calling themselves Muslim. Not to be left behind, moves are afoot in Bangladesh to likewise get the state into the act of declaring who is and who is not a Muslim. Accompanied by attacks on mosques, communal violence and destruction of property, demands have been raised to legally declare Ahmadis to be non-Muslims.
In India, after the attack on Bangladeshi writer Taslima Nasreen in 2007, exiled for her allegedly anti-Islamic books, Akbaruddin Owaisi, the leader of a political party named Majlis-e-Ittehadul Muslimeen (MIM), said, “It is legitimate to kill Taslima Nasreen under Islamic law, but unfortunately we could not do it.” Majlis Bachao Tehreek, MIM’s primary rival, declared that the plan to issue fatwa against Nasreen had originally been theirs. Following complaints by Owaisi, the police, implementing the secular law of the Indian Penal Code, registered cases against Nasreen for promoting religious enmity and acts prejudicial to ‘harmony’.
Like the term harmony, affection also has a place in Indian law – though it is not in the arena of matrimonial law that this is considered necessary. Rather, ‘affection’, explained variously as fond attachment, sentiment, love and emotion, enjoys a vital place in the grand crime of sedition. Whosoever incites or attempts to incite ‘disaffection’ towards the Indian government can be carted away to prison for life. This was a hot topic during the Raj. In 1922, Mohandas K Gandhi was tried and convicted for sedition in Ahmedabad. Of course, in true Gandhian fashion, he declared that preaching disaffection against imperial rulers had become his foremost duty, pleaded guilty and invited sentencing. Nip the trouble in the bud and catch those spreading disaffection, seems to have been the British reasoning. The provision remains unchanged since 1860 – despite the fact that spreading a bit of ‘disaffection’ towards the state could be exactly what the doctor should order for a healthy democracy.
Not everything can be put on the head of the angrez, however. As industrialist Naveen Jindal asks, “Do you realise that if Mahatma Gandhi were alive today and not a minister, even he would not have been able to fly the national flag?” Apart from inspirational sentiments of the freedom struggle that the flag does not belong just to the wealthy, only purported VVIPs and ‘high dignitaries’ can legally display the national flag on their premises in post-Independence India. Jindal hoisted the flag atop his Raigarh factory in 1993, but it was quickly taken down by the police. Ever since, he has been fighting a legal battle for the right of the common citizen to fly the flag in republican, free India.
Southasian countries can, however, proudly take their place in the comity of nations, as absurd laws seem to be sine qua non for membership in the G8 group of countries. In France, it is still forbidden to name a pig Napoleon. In the UK, it is illegal not to tell the taxman anything you do not want him to know – though you do not have to tell him anything you do not mind him knowing. In the US state of Colorado, it is illegal to ‘own’ a pet – the town’s citizens, legally speaking, are merely ‘pet minders’. Ships of the Royal Navy that enter the Port of London must still provide a barrel of rum to the constable of the Tower of London. And so it goes.
The difference in this worldwide competition for the absurd is that laws in the West have the flavour of quirky leftovers. In Southasia, on the other hand, absurd laws criminalising homosexuality, and defining blasphemy, sedition, terrorism, adultery and rape continue to curtail liberty, while spreading misery for the region’s people.
Rakesh Shukla has more than three decades of engagement with law, constitutional jurisprudence, human rights and justice, along with training and practice in psychodynamic therapy. Explorations in the interface of law, social movements for change, and psychoanalysis are the major areas of his work.