Aye Dil Hai Mushkil, truly!

When the Chief Minister of a State one is residing in presides over an extortion deal and that too in the CM’s official residence, the song that comes to my lips often these days is, “Aye Dil Hey Mushkil Jina Yaha, Jara Bachke, Jara Hatke Yeh Hey Bombay Meri Jaan!” The deplorable act of Mr. Devendra Fadnavis of having brokered the ransom deal between the filmmakers of Aye Dil Hai Mushkil and the chief of Maharashtra Navnirman Sena (MNS) for the film to be screened in theaters is being criticized strongly.

Among the many critiques of this incidence, one very strong piece of analysis that I came across was by a senior Gujarati journalist Mr. Ajay Umat whose article has been published in a Gujarati daily NavGujarat Samay, of the Times Group.  

I translate some excerpts from the article to the best of my ability for a wider readership here.
[For those who wish to read the piece in original Gujarati could go to the link http://epaper.navgujaratsamay.com/paper/11-9@9-23@10@2016-1001.html ]

Navgujaratsamay.com

Sunday Navgujaratsamay                                                             Ahmedabad 23 Oct 2016

“Aye Dil Hey Mushkil”: Tax/Impost in the name of Army Martyrdom?  
 Point of order

[By] Ajay Umat

“The saying that ‘the world bows down, if there is someone who can make it bend ’, has been proved correct by the Supremo of MNS Raj Thackeray. Can you imagine the terrible picture of raw bullying in Mumbai by Raj Thackeray who in the last election won only three percentages of votes and just one seat in the 288 member legislative assembly? At the residence of the Chief Minister of Maharashtra ,on one side, cutting a sorry figure are sitting Karan Johar, the producer of the film ‘Aye Dil Hey Mushkil’ and the president of film and television guild of India, Mukesh Bhatt. While on the other side is the Chief Minister of Maharashtra Devendra Fadnavis in the role of an expert mediator. While Raj Thackeray, indulging in raw bullying, in the pose of a judge, announces his judgement and orders that from today I will not allow in Indian films Pakistani artists, singers and musicians. If the film ‘Aye Dil Hey Mushkil’ is to be released, pay five crores to the Indian army welfare fund and also give in writing that from today, no Pakistani artist will have any place in Bollywood films. 

The command of Raj Thackeray is received wholeheartedly by the Bollywood producers Karan Johar as well as Mukesh Bhatt and the Chief Minister of Maharashtra announces this compromise happily through his twitter handle.

Is this not a shameful incident? What is Raj Thackeray’s status? The Chief Minister of Maharashtra who is running the coalition Government of BJP and Shiv Sena falls on his knees before Raj Thackeray and accepts his terrorism so that the people of Maharashtra can be entertained. At the residence of the Chief Minister, Karan Johar and his group ... are agreeable to pay a tribute of rupees five crores because Karan Johar, Mukesh Bhatt and the entire Bollywood is convinced that the Chief Minister of Maharashtra is without any spine. Raj Thackeray wanted that Fadnavis bows, instead the Government of Maharashtra prostrated. The producers of Bollywood [films] are aware that the tribute of five crores is reasonable as against the price of the glass panels of multiplex film screens as well as the expenditure incurred in making the film. Albeit, Raj Thackeray considers this as penitence and a penalty for the justice delivered. 

 It seems as if Gandhi’s principles of truth, non-violence and peace have been exiled. Probably the weapon of indefinite fast in the struggle by Anna Hazare, Maharashtra’s dutiful son has been blunted. This is because the Chief Minister of Maharashtra who had pledged to abide by the constitution of India has surrendered to Raj Thackeray and has accepted his fast and furious style of justice.  It is probable that in the coming days Raj Thackeray will change the preface of the constitution from ‘we the people’ to ‘we the bullies’. Besides, it may be proved that in this country, those who can twist the wrist can bring in jungle raj in Bharat. 

The puzzling question is- who is Raj Thackeray? In this country the authority to decide which film should be screened or not dwells with the Modi Government and the censor board. It does not dwell with Raj Thackeray. Where has Raj Thackeray got the authority to impose a fine of five crores? The tragedy is, helpless before the bullying of Raj Thackeray; Fadnavis uses the Chief Minister’s bungalow to arrive at a compromise. Should the citizens of this country tolerate such type of bulling and intimidation? In the coming days how many goons, plunderers, bandits, rogues will Fadnavis submit and give legitimacy to? 

 

Raj Thackeray and Pakistan Cricketer Wasim Akram Photo Source: epaper timesofIndia.com

Severely rebuking the above incident, the [ex] commissioner of Mumbai police and a BJP parliamentarian himself, Mr. Satyapal Singh has said that the policy and conduct of Fadnavis is totally wrong. How can any person extract surety form film producers and compel them to pay five crores? The Chief Minister should have considered this a question of law and order and should have acted sternly. Satyapla Singh has expressed fear that in the coming days, this kind of a compromise may set a wrong precedent. Indian Army has declared this obstruction by Raj Thackeray impure. [Former] Lieutenant General B.S. Jaswal has said that Indian Army and its retired jawans are not begging for alms. The Indian Army is above politics and political parties.  Please stop such disruptions by twisting wrists in the name of the Army. Stop blackmailing Bollywood in the name of the Army. We cannot digest forceful charity imposed on Bollywood. The retired officers of the Indian Army are questioning - who is Raj Thackeray to measure the martyrdom of jawans? ...Kindly stop deriving political gains in the name of Army. Air force’s retired Air Marshall Manohar Bahadur says that we have been trying to serve the country for the past forty years. Will the jawans now have to take for welfare money collected as tax? Hey Ram! What is happening in my country? Through his twitter handle Manohar Bahadur has warned Raj Thackeray to not to cash on the sentiments and sympathies of the nation... Without naming Raj Thackeray, the Defense Ministry has declared that the donations given to the army welfare fund should be given willingly and not by force.  Congress and NCP have asked - what is the theoretical difference between today’s situation and the imposition of tax on Bollywood by Dawood Ibrahim and Chota Rajan? 

The fundamental problem is that the leaders of this country do not adopt a clear stand when required because of the politics of vote...When Raj Thackeray agitated on the streets of Mumbai on the issue of Mharashtrians against Biharies, the other political parties remained silent because they were scared to adopt a clear stand. When Shiv Sena dug up the cricket pitch of Wankhede stadium in Mumbai and Feroz Shah Kotla grounds in Delhi, the concerned Government had not declared it as treason. Instead the venue of cricket was changed. Raj Thackeray in the name of ‘Marathi Manus’ promoted parochialism.  He formed Maharashtra Navnirman Sena, built muscle power and is aiming the gun at Bollywood.  

One issue that is being discussed on social media is that after the producers of Bollywood pay rupees five crores to the army welfare fund as repentance ...how much money will have to be paid to Raj Thackeray’s party? There cannot be any ‘cess’ in the name of patriotism. The rule of law should prevail in the country. In a democracy there is no place for unconstitutional obstruction by Raj Thackeray... If such obstacles carry on then there is a possibility that tomorrow Raj Thackeray may decide the price on the Pakistani players in IPL also. 

Disturbed by the obstacles created by Raj Thackeray, Ratan Tata has said - the growing intolerance in the country will prove to be dangerous in the future.

 Fadnavis should tell Raj Thackeray that there is no need to cross Lakshman Rekha – the line of control in politics. If your love for the country is overflowing, show your bravery at the border by crossing the line of control. Kindly do not sow the seeds of goondraj in Mumbai. "

[By Ajay Umat ]

End

Bihar’s Prohibition and Excise Act, 2016 - Throwing out the baby and more with the bath water

Bihar’s Prohibition and Excise Act, 2016 – and the ban on liquor and drinking in the state that follows the enforcement of this law – is currently much in the news. Not only is it being pushed by the Government in Bihar, but a number of leading social movements are also supporting it. They are also promoting this as a model law that should be implemented across the entire country. 

At the same time, there are serious issues with the law, with an earlier version having been struck down by the Patna High Court on 30-September-2016 stating that its provisions are draconian and that its implementation would bring in a virtual police-raj in the state.

Given this, it’s critically important to understand the law and its provisions. In this post, I examine some of the provisions of this law, in the context of the broader debate around prohibition. I do this as a woman, and as a practicing social worker. 

Addiction- a social - economic problem or a criminal offence?

As a student of social science and a practicing social worker for nearly three decades, I believe that social awareness, social support and social as well as economic reform measures are required to check socially undesirable behaviour relating to addiction and substance abuse, rather than severe punitive actions aimed at the person who is substance dependent. In fact, I believe that such severe punitive actions in the matters of substance dependence pertaining to alcohol, smoking and other substances can in fact be detrimental to the individual concerned, his/her family and society at large. For such matters, what is required is counselling, social and medical support, de-addiction and rehabilitation centers, support to the family and so on. In a society, to consider substance abuse by an individual as a grievous criminal offence punishable by long imprisonment will be detrimental to both, the individual as well as the society at large. This fact is well established by social work research and studies. 

Bastar Beer prepared from Sulfi. Photo source:

https://en.wikipedia.org/wiki/Bastar_district#/media/File:Bastar_Beer.jpg

The Bihar Prohibition Law 

Given this, I find the punishments  for possession, consumption, storage or transportation of even small quantity of alcohol or such substance under Bihar’s Prohibition and Excise  Act, 2016[1]  to be draconian in nature towards the individual, his/her family and community. This Act leaves no scope whatsoever for warning, correction, mitigation, reformation, rehabilitation and probation of a person who is substance dependent or a person in possession of alcohol or other intoxicating substances. Along with the substance dependents, it criminalizes occasional users/social users as well. Worse still, it has the scope of considering the family of a substance dependent, criminal too, with strict punishments! It has severe provisions like arrest without warrant, confiscation of premises, sealing of premises, etc. where any crime under this act is said to have been committed. Furthermore it has the provision of collective fine for the “wrong doing” of individual/individuals in an area and the whole community living there could be held responsible for repeat offenses under the act. Besides, a lot of powers are given to the collector and even the police.

It is these draconian aspects of the earlier Bihar Excise (Amendment) 2016 which led the High Court to severely criticize the Act, and strike it down. The new law which was notified after this High Court judgement, unfortunately, has similar draconian provisions. 

It would be pertinent here, therefore, to see some of the sections in the judgment passed by the Patna High Court pertaining to the Bihar’s Excise [Amendment] Act, 2016. I highlight some sections from the common judgement here:

1.     Regarding the provision in the  Act[2] that –“  the offense punishable under that section in respect of any intoxicant ... shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that the offence was committed without his knowledge ...” , the court says the following:

“This provision reverses the criminal jurisprudence of prosecution having the liability to prove the guilt beyond reasonable doubt. Here, a person is presumed to be guilty unless he proves to the contrary. The presumption of innocence is totally taken away and the burden of proof thereof is put on the accused... For any reason, if he fails to prove his innocence, he would straightway be liable to punishment, which would be of minimum 10 years imprisonment with astronomical fine and would lose his entire property by virtue of confiscation and the Courts are rendered helpless in the matter even though there may be mitigating circumstances...”

2.   About the collective fine that can be imposed under the Act, the Court says the following: “...A plain reading of the aforesaid Sections would show that the punishment is entirely depended upon subjective satisfaction of the Collector. What is the fine is left totally to the discretion of the Collector. How and what would constitute a group and how an area would be identified, in a town or a village, is not known nor defined. No one has to be heard before fine is imposed. There is no provision for appeal. We are dealing with a provision of penalty. It is a piece of substantive law. Substantive law without guidance and without procedural safeguards can only be termed as draconian, it being completely vague, uncertain and unlimited. Even though it may professed to have a social objective to attend, the means to achieve the same      are clearly unconstitutional. The provision is, thus, clearly ultra vires the Constitution being in violation of Articles 14 and 21 of the Constitution”.

3.   Regarding confiscation of the premises, the court says “...for an offence

          committed by his tenant or anyone in his permissive possession,

          over which he has no control, his premises would be confiscated.

          There may not be a more draconian provision. A house may

          consist of several rooms occupied by different members of the

          family. A particular member violates the law, the family premises

          is up for confiscation. I may further illustrate that if two

          neighbours are on inimical terms, one could easily plant liquor in

          the neighbours premises, the neighbour, being unaware; still, by

          virtue of the presumption clause, not only he gets convicted but his

          premises also get confiscated. These common day illustrations can

          be multiplied to show the draconian effect of the law. The effect of

          these provisions is virtually that we are converting the State into a

          Police State. Citizens would always be living under a threat or, at

          least, a threat perception of being easily implicated. That surely is

          not conducive and should not be permitted.” (Emphasis added)

4. The court further states: “...Similarly, when it comes to the Bihar Prohibition Act, 1938, which deals with liquor, which per se taken in small quantities in a civilized manner is not  injurious, the punishments are balanced with the social needs, but when we come to the amended provisions of the Bihar Excise Act, 2015, the provisions are clearly draconian and in excess of the balance need to be maintained...”
 

And further, that “...the punishment as prescribed by the recent amendment to the Act with effect from 01.04.2016, on all three counts, i.e., the personal punishments, both physical and monetary, punishment of confiscation of premises and punishment to the community, are quite unreasonable and draconian and cannot be justified in a civilized society. It may be justified in a Police State, which surely we are not. I would, therefore, declare the provisions, as aforesaid, to be ultra vires and violative of Articles 14 and 21 of the constitution.” (Emphasis added)

5.  The Court finally concludes as follows: “...To conclude, in my opinion, Section 19(4) of the Bihar Excise Act, 1915, as amended with effect from 01.04.2016 (passed by the State Legislatures on 31.03.2016) is ultra vires the Constitution and unenforceable. The impugned  notification, dated 05.04.2016, issued by the State under Section          19(4) of the said amended Act is also ultra vires the Constitution  and, consequently, unenforceable and the penal provisions of  enhanced sentence and provision, with regard to confiscation of property, as introduced by the amendments on 31.03.2016, with effect from 01.04.2016, are also held to be ultra vires the  Constitution.”

By studying carefully the Act and the judgement of the Bihar High Court on the Act, one feels that a whole community, the whole family including women and children, already aggrieved by a substance dependent in the family could be further punishable under this act. Surely, a wife, a mother, a daughter, a father, a brother, a son does not want to be imprisoned for the actions of a member in the family who may have committed an offence under this Act. Besides, it is normally seen that a family wants an erring member to stop substance abuse and that he/she is rehabilitated and not punished so harshly. For example, I have seen in the course of my work that women normally would wish that their sons/husbands who are given to excessive drinking should be reformed; they would not like them to be put away in prison for 5-10 years! I have often seen that mostly women or the aggrieved party wants liberation from addiction and not the substance dependent. But there is no scope for this in the act.

It is important to note that after the enforcement of this Act, twelve people have died after drinking spurious alcohol in Gopalganj, Bihar. This is a typical outcome of enforcing such a law as drinking goes underground with underhand dealings. Furthermore a very large number of people, around thirteen thousand including women have already been jailed in the State of Bihar since the enforcement of the amendment in April this year! And one must not forget that it was Nitish Kumar himself in the first place who had promoted liquor outlets in every village to boost revenue as the CM of Bihar! [ http://www.thehindu.com/opinion/op-ed/bihar-liquor-ban-and-nitish-kumar-government/article8981995.ece ]

To conclude, such an act will certainly lead to misuse, fear and further turmoil in the society rather than reform and rehabilitate those dependent on intoxicating substances. This act instead of providing relief and rehabilitation could cause further distress to the family of those dependent on intoxicating substances. It is therefore worrisome that this act has already been enforced in Bihar. However what is more disturbing is that some of the leading social workers of the country as part of Nasha Mukt Bharat Andolan are not only backing the Bihar Chief Minister for having enforced such an act but are also calling for enactment of such an act, the provisions of which are clearly termed draconian and unconstitutional by the High Court of Bihar, to be enforced across the country!

I appeal that the implementation of this Act be suspended, and the provisions of the Act studied, reviewed and widely discussed, particularly among the women – urban, rural, tribal, and the penal provisions be suitably amended, in line with the principles that (a) substance dependence  is best tackled through social awareness, social support, social and economic reform, counseling and rehabilitation and not through criminalisation and (b) Having a balance between the nature of the actions and the punishment.

End

---

[1] Initially the Government of Bihar had made an amendment to Bihar Excise Act, 1915 and a notification was issued by the state on 5^th April 2016. This was struck down by the Patna HC on 30-Sep-16. Meanwhile, the Government of Bihar enacted a new law and notified it on 2^nd October 2016 retaining most of the harsh features the High Court of Bihar had found unconstitutional and harsh. The Government of Bihar has also challenged the High Court verdict in the Supreme Court now.

[2] Act here means the Bihar’s Excise [Amendment] Act, 2016 unless specified otherwise.