The Gujjar leaders' acceptance with alacrity of the Rajasthan chief minister's peace formula will be widely admired. Never in the history of such violent protest movements, a protesting group was too eager to grab an olive branch, even though it was predominantly at the receiving end of the state violence. Not just that. A bit of Gandhigiri was also evident; its leader sincerely apologised to the nation for the violence unleashed by the community to express its protest. It is nobody's contention that the formula unveilded by the Government - the appointment of a commission headed by a retired Judge of the High Court - could lead to a solution which would be entirely satisfactory to the warring groups. It could at best give the Government and the stake-holders a respite from the period of madness which characterised the week-long violence which paralysed life in much of North India, and threatened to unleash a large-scale civil war involving the two dominant communities. Now that peace has returned, the focus must now be on rebuilding the social fabric in Rajasthan and elsewhere, and depoliticise the issue. Today's story in Business Standard finally focusses on the merits of Gujjars' demand - a point which I had tried to analyse in my earlier post. Sociologist Nandini Sundar's article in HT here provides an academic perspective on the issue. The state Government must also act quickly, without further waste of time, in creating sub-categories within the OBC-fold, and apportion a specific percentage for Gujjars within the OBC, without waiting for the Commission's report. In any case, inclusion in the ST list is a lengthy process, and Gujjars, like others already waiting, cannot aspire for quick decisions in their favour.
Tuesday, June 5, 2007
LIBERALISM IN INDIA: INCONSISTENCY EXPLAINED
My post on what it means to be a liberal in India elicited insightful responses on the limits of liberalism. Here, I bring to our attention, an article written by Mukul Kesavan in the Telegraph on May 31 here. (Thanks to Mr.Abi for the link) He handles the problem of liberal inconsistency - an issue of concern to some of us - in historical context, which should be of interest to all of us. He says in this crucial paragraph: "Being inconsistent in these matters is not always a dishonourable position, because liberal inconsistency has some warrant in the history of the republic. The Indian state’s policies were often less than even-handed because it needed to manage anxiety and vulnerability and difference. The decision not to extend the uniform civil code to Muslims, for example, was one of these inconsistencies. Many liberals criticized Nehru’s ‘failure’ to draw Muslims into the ambit of a uniform civil law, but equally there were many who sympathized with his decision because they agreed with his sense that the Fifties was a time when a Partition-torn Muslim community needed reassurance, not ‘robust’ reform. You can argue that the exemption of Muslims bought the young republic time to make its Muslim population feel at home. You can equally argue that it was a timorous and cowardly unwillingness to grasp the nettle which gave the Hindu right a stick to beat secular liberals with. In a country as diverse and complicatedly troubled as India, one size doesn’t always fit all. But those of us who cite our Republican history as precedent, who argue that circumstances alter cases, and believe that consistency is, sometimes, a poor guide to policy, must also accept that there will be times when our inconsistency will be exploited by our ideological enemies to attack people and institutions that we value."
Saturday, June 2, 2007
GUJJARS’ FURY (PART II): MERITS OF THEIR DEMAND
THERE has been little media attention on the merits of Gujjars’ demand to get into the ST list. Most commentators have pointed to the origin of Gujjars’ demand, and assumed that if Jats had not been included in the OBC list, Gujjars would not have sought entry into the ST list, even though under the ST list too, they would have faced stiff competition from the more powerful Meenas in the State.
First, the facts. The Scheduled Tribes are specified in accordance with the provisions of Art.342. The first list in relation to a State/UT is by a notified Order of the President, after consultation with the State Government concerned. Any subsequent modification can only be effected through an Act of Parliament, as it requires an amendment of the Constitution. The first list was thus promulgated on Sep.6, 1950 and is known as the Constitution (ST) Order 1950.
The criteria fixed for inclusion of a community in the list of STs are:
1. Indications of primitive traits,
2. Distinctive culture,
3. Geographical isolation,
4. Shyness of contact with the community at large, and
5. Backwardness.
The communities fulfilling the above criteria are considered for being notified as STs, in accordance with the modalities approved by Government in June 1999. (in the case of OBCs, the criteria is mainly about social, educational and economic backwardness, whereas in the case of SCs, it is untouchability. The National and State BC commissions should normally operate independently in their fields, namely the Central and State lists, though I am not sure of this). These modalities have laid down a procedure to be followed with regard to inclusion or exclusion of any community in the list. Before a Bill is introduced in Parliament for this purpose, any representation on these matters must first be sent to the State Government for comments. If the State Government recommends that the request be acceded to, the proposal with the recommendation of the State Government will be sent to the Registrar General of India. If the RGI agrees with the comments of the State Government, the proposal is then sent by the Ministry of Tribal Affairs to the National Commission for SC and STs. (it has now been split into one for SCs and another for STs).
In case the State Government, the RGI, and the NCST all agree, the Ministry then approaches the Cabinet for approval. After the Cabinet approves the Bill, it is sent to Parliament.
In case the State Government agrees but the RGI does not agree, the proposal is sent back to the State Government along with the RGI’s comments. It is then open to the state Govt. to try to convince the RGI with new facts and figures. Where the State Government and the RGI both agree, but if the NCST does not, then the Ministry of TA has to reject the proposal.
While considering a particular claim for inclusion, it is necessary that it must by and large satisfy the five-point criteria mentioned above. There is no weightage assigned to each of these criteria. Now, let us take some of the recent instances considered for inclusion. (There has been no inclusion to the ST list for the past three years, even though some 1016 proposals are under various stages of consideration, according to an answer given to an unstarred question no.941 on 6-3-07 in Lok Sabha).
In 2001, the demand to include Gowada, Kunbi, Velip, and Dhangar communities of Goa in the list of STs was considered. The Centre had failed to extend the Constitution (ST)Order 1950 to the U.T. of Goa, Daman and Diu, immediately after the liberation of Goa in 1961. Although in 1968 the Goa, Daman and Diu (ST) Order 1968 was promulgated, it declared only tribes from Daman and Diu as STs, while those from Goa were excluded.
The Government of Goa recommended the inclusion of these four communities in the ST list of the State. The RGI and the NCBC (The NCSC or NCST were not in existence then) concurred with the State Government with regard to Gowada, Velip and Kunbi communities. The RGI did not favour Dhangar’s inclusion. A Parliamentary committee which examined the issue, however, favoured Dhangar’s inclusion. The MTA told this Committee in 2001, that it was preparing a Cabinet note for the inclusion of the other three communities. The MTA also told the committee that it was merely a post office in finalisation of such claims, an admission which the Parliament committee had then deplored. Accordingly, the three tribes were added to the ST list. One does not know whether the non-inclusion of the fourth community was an election issue at all in the recently concluded Goa assembly elections.
In another instance, the West Bengal Government recommended the inclusion of ‘Deswali Majhi’ community in the ST list. The West Bengal government claimed in 1999 that this community might have some association with the Santals in the long past, but at present it is a separate community. The RGI in 1981 did not favour its inclusion on the ground that they had given up Santal language, and they were not considered by Santals as belonging to their community. The community fulfilled only two of the five-point criteria for inclusion – 1 & 5. However, a Parliamentary committee found in 2001 enough historical evidence suggesting that it was a tribe, and asked MTA to seek RGI to expedite reconsideration of the State Government’s recommendation in this regard. As in the Goa case, the current ST list for West Bengal does not include this community, and one does not know the views of RGI and NCST in this regard.
The statement furnished in the Lok Sabha in response to a question in March this year reveals that Assam tops the list of proposals being considered for inclusion in the ST list (113). There are 18 proposals from Rajasthan. But if the reports are any indication, the State Government is yet to forward its recommendation on Gujjar’s demand to the Centre; therefore, Gujjar is certainly not one of these 18 proposals.
Gujjars have been recognized as STs in Himachal Pradesh and J&K, but not in other States, underlying the geographical differences. Despite their recent fury, there has been no attempt on the part of their leaders to articulate their demand for inclusion in the ST list, or how they qualify the criteria. Merely because Meenas, a community similarly placed, has been in the ST list, does not ipso facto sustain their claim. It is said that only Bhil Meenas in South Rajasthan, especially in Udaipur belt, are the real STs, and that other Meenas have been wrongly included. If it is so, then it has to be shown with proof, to convince the authorities concerned, without taking recourse to agitations, which would politicize the issue, and make it beyond resolution.
First, the facts. The Scheduled Tribes are specified in accordance with the provisions of Art.342. The first list in relation to a State/UT is by a notified Order of the President, after consultation with the State Government concerned. Any subsequent modification can only be effected through an Act of Parliament, as it requires an amendment of the Constitution. The first list was thus promulgated on Sep.6, 1950 and is known as the Constitution (ST) Order 1950.
The criteria fixed for inclusion of a community in the list of STs are:
1. Indications of primitive traits,
2. Distinctive culture,
3. Geographical isolation,
4. Shyness of contact with the community at large, and
5. Backwardness.
The communities fulfilling the above criteria are considered for being notified as STs, in accordance with the modalities approved by Government in June 1999. (in the case of OBCs, the criteria is mainly about social, educational and economic backwardness, whereas in the case of SCs, it is untouchability. The National and State BC commissions should normally operate independently in their fields, namely the Central and State lists, though I am not sure of this). These modalities have laid down a procedure to be followed with regard to inclusion or exclusion of any community in the list. Before a Bill is introduced in Parliament for this purpose, any representation on these matters must first be sent to the State Government for comments. If the State Government recommends that the request be acceded to, the proposal with the recommendation of the State Government will be sent to the Registrar General of India. If the RGI agrees with the comments of the State Government, the proposal is then sent by the Ministry of Tribal Affairs to the National Commission for SC and STs. (it has now been split into one for SCs and another for STs).
In case the State Government, the RGI, and the NCST all agree, the Ministry then approaches the Cabinet for approval. After the Cabinet approves the Bill, it is sent to Parliament.
In case the State Government agrees but the RGI does not agree, the proposal is sent back to the State Government along with the RGI’s comments. It is then open to the state Govt. to try to convince the RGI with new facts and figures. Where the State Government and the RGI both agree, but if the NCST does not, then the Ministry of TA has to reject the proposal.
While considering a particular claim for inclusion, it is necessary that it must by and large satisfy the five-point criteria mentioned above. There is no weightage assigned to each of these criteria. Now, let us take some of the recent instances considered for inclusion. (There has been no inclusion to the ST list for the past three years, even though some 1016 proposals are under various stages of consideration, according to an answer given to an unstarred question no.941 on 6-3-07 in Lok Sabha).
In 2001, the demand to include Gowada, Kunbi, Velip, and Dhangar communities of Goa in the list of STs was considered. The Centre had failed to extend the Constitution (ST)Order 1950 to the U.T. of Goa, Daman and Diu, immediately after the liberation of Goa in 1961. Although in 1968 the Goa, Daman and Diu (ST) Order 1968 was promulgated, it declared only tribes from Daman and Diu as STs, while those from Goa were excluded.
The Government of Goa recommended the inclusion of these four communities in the ST list of the State. The RGI and the NCBC (The NCSC or NCST were not in existence then) concurred with the State Government with regard to Gowada, Velip and Kunbi communities. The RGI did not favour Dhangar’s inclusion. A Parliamentary committee which examined the issue, however, favoured Dhangar’s inclusion. The MTA told this Committee in 2001, that it was preparing a Cabinet note for the inclusion of the other three communities. The MTA also told the committee that it was merely a post office in finalisation of such claims, an admission which the Parliament committee had then deplored. Accordingly, the three tribes were added to the ST list. One does not know whether the non-inclusion of the fourth community was an election issue at all in the recently concluded Goa assembly elections.
In another instance, the West Bengal Government recommended the inclusion of ‘Deswali Majhi’ community in the ST list. The West Bengal government claimed in 1999 that this community might have some association with the Santals in the long past, but at present it is a separate community. The RGI in 1981 did not favour its inclusion on the ground that they had given up Santal language, and they were not considered by Santals as belonging to their community. The community fulfilled only two of the five-point criteria for inclusion – 1 & 5. However, a Parliamentary committee found in 2001 enough historical evidence suggesting that it was a tribe, and asked MTA to seek RGI to expedite reconsideration of the State Government’s recommendation in this regard. As in the Goa case, the current ST list for West Bengal does not include this community, and one does not know the views of RGI and NCST in this regard.
The statement furnished in the Lok Sabha in response to a question in March this year reveals that Assam tops the list of proposals being considered for inclusion in the ST list (113). There are 18 proposals from Rajasthan. But if the reports are any indication, the State Government is yet to forward its recommendation on Gujjar’s demand to the Centre; therefore, Gujjar is certainly not one of these 18 proposals.
Gujjars have been recognized as STs in Himachal Pradesh and J&K, but not in other States, underlying the geographical differences. Despite their recent fury, there has been no attempt on the part of their leaders to articulate their demand for inclusion in the ST list, or how they qualify the criteria. Merely because Meenas, a community similarly placed, has been in the ST list, does not ipso facto sustain their claim. It is said that only Bhil Meenas in South Rajasthan, especially in Udaipur belt, are the real STs, and that other Meenas have been wrongly included. If it is so, then it has to be shown with proof, to convince the authorities concerned, without taking recourse to agitations, which would politicize the issue, and make it beyond resolution.
Friday, June 1, 2007
GUJJARS’ ANGER: A WAY OUT – PART I
I thank Mr.Vivek Reddy for initiating a debate on Pratap Bhanu Mehta’s article. For the present, I will hold my comments on his stand on the issues being referred for consideration by the Constitution Bench on the Mandal II matter. It is important to note that the Constitution Bench, to be set up by the CJI, is not bound to consider all the issues which have been framed for consideration by the PP Bench. Some of the issues, including the one cited by Mr.Reddy in his short comment, are debatable, and doubts have been expressed privately whether they need to be referred and considered at all. Prof. Upendra Baxi, for instance, has expressed his surprise that one of the issues being referred is whether Mandal II law has violated the Universal Declaration of Human Rights. He has termed it as ‘Globalisation of Human Rights”, a view which requires some elaboration. The Constitution Bench is free to conclude that some of these issues don’t deserve to be considered at all, and if they do so, it is easy to find justification for it. I notice that some of the responses in the Comments section to Mr.Vivek Reddy’s view, has already echoed this sentiment. Therefore, I am not dealing with the Mandal II matter here for the moment.
I come back to Mr. Mehta’s article. He is in fact suggesting that caste mobilization to secure the OBC/ST label is seen as the solution, and the political class aggravated it by not taking timely steps to defuse the situation.
Two things: One, how did the Jats get into the OBC category in Rajasthan? No doubt, mobilization helped those responsible to consider their demand. But nobody looks at the reasons the NCBC gave to justify their inclusion in the OBC. The NCBC has done a detailed study running into nearly 100 pages, examining historical and social evidence. One important conclusion which they reached was that the Jats, excluding those in Bharatpur and Dholpur, were tenants historically, and were always involved in the struggle against landlords. As tenants, they had not secured their rights, and land reforms were delayed because of entrenched feudal elements in the State. The Government, too, while including the Jats in the OBC category, has consciously excluded Jats of Bharatpur and Dholpur, as in these two areas, Jats were the rulers. (The former external affairs Minister, Natwar Singh is a Jat from Bharatpur, for example.) In Ajmer, which was under the administration of the Commissioner during the British rule, Jats were included as the BCs. In any case, if there is a genuine complaint, that Jats were unjustly included in the OBCs, then it could be represented to the NCBC for a review of its decision. There is no point in suggesting that inclusion of one community in the OBC list left the other communities in the list with no option but to demand their inclusion in the ST list.
I come back to Mr. Mehta’s article. He is in fact suggesting that caste mobilization to secure the OBC/ST label is seen as the solution, and the political class aggravated it by not taking timely steps to defuse the situation.
Two things: One, how did the Jats get into the OBC category in Rajasthan? No doubt, mobilization helped those responsible to consider their demand. But nobody looks at the reasons the NCBC gave to justify their inclusion in the OBC. The NCBC has done a detailed study running into nearly 100 pages, examining historical and social evidence. One important conclusion which they reached was that the Jats, excluding those in Bharatpur and Dholpur, were tenants historically, and were always involved in the struggle against landlords. As tenants, they had not secured their rights, and land reforms were delayed because of entrenched feudal elements in the State. The Government, too, while including the Jats in the OBC category, has consciously excluded Jats of Bharatpur and Dholpur, as in these two areas, Jats were the rulers. (The former external affairs Minister, Natwar Singh is a Jat from Bharatpur, for example.) In Ajmer, which was under the administration of the Commissioner during the British rule, Jats were included as the BCs. In any case, if there is a genuine complaint, that Jats were unjustly included in the OBCs, then it could be represented to the NCBC for a review of its decision. There is no point in suggesting that inclusion of one community in the OBC list left the other communities in the list with no option but to demand their inclusion in the ST list.
Secondly, Rajasthan seems to have learnt no lessons from the manner other States have learnt to manage similar social tensions. The BJP unjustly promised the Gujjars that their demand for inclusion in the ST list would be considered. Instead of promising this, the BJP could have sub-divided the existing OBC quota, and fixed percentages for different communities. Tamil Nadu defused a similar violent protest by Vanniars, by creating MBCs within the OBCs. Andhra Pradesh and Karnataka have four categories within the OBC quota. Kerala has eight. Ezhavas, the largest OBC community in Kerala, is a very backward class, and has 14 per cent reservation. Beyond this, the Ezhavas have to compete on merit. There is grumbling, but it is all manageable. The Gujjars’ grievance stems from their perception that Jats’ entry into the OBC list has created some sort of imbalance: the answer is to create a semblance of balance, by protecting the Gujjar’s quota, by creating a new most backward class category within the OBCs. Uttar Pradesh under Rajnath Singh had done a similar thing, when he included Jats of U.P. in MBC category. It is, therefore, curious why Rajnath Singh as Party President, has not advised the Rajasthan Chief Minister to try a similar method, when Gujjars first made their displeasure known about Jats’ entry into the OBCs. Tomorrow, I intend to discuss more on the Gujjars’ demand for inclusion in the ST list.
Thursday, May 31, 2007
The problem with Caste
Pratab Bhanu Mehta in a well written piece in the Indian Express identifies the problems with giving reservation on the basis of caste.
I welcome the recent Supreme Court Order in Ashok Thakur case referring the matter to a Constitution Bench. One of the issues which the Court is considering whether using caste would destroy the unity and the integrity of the country. This issue needs serious consideration and I hope the Supreme Court strikes down the current approach of giving caste based reservation.
I welcome the recent Supreme Court Order in Ashok Thakur case referring the matter to a Constitution Bench. One of the issues which the Court is considering whether using caste would destroy the unity and the integrity of the country. This issue needs serious consideration and I hope the Supreme Court strikes down the current approach of giving caste based reservation.
Wednesday, May 30, 2007
STRETCHING THE WRONG WAY!! METAPHYSICAL MUSINGS ON THE YOGA--PATENT CONTROVERSY
The latest move by the government of India “to lodge its protest against yoga-related patents issued by the US Patents & Trademarks Office” prompted a number of emails to me this morning. Some even went to extent of suggesting: “Surely, if the government is taking this up, there must be some merit in this case”.
If you really want to believe that a naked emperor is adorned with the finest clothes, be my guest!! It’s all a matter of perception anyway, and as our good old sages rightly intuited: the world is nothing but “Maya”-- an illusion!!
Metaphysical musings aside, given the fact that governmental interventions in matters of this sort cost time and money (tax payers, of course), I think it’s important to think through these issues carefully and not fall prey to a trigger happy attitude. Shwetasree did an excellent post reflecting on this constant confusion between “patents” and “copyrights” and this tendency to force emotional rhetoric down the throats of unsuspecting members of the public.
In the wake of complaints that SpicyIP only caters to IP aficionados, I’ve tried to present the issues in a simple Q/A format below. A special thanks to my friend, Rohan George, an excellent journalist with “Down to Earth” for highlighting the utility of such a format to me.
1. Has the USPTO granted any patents on yoga asanas?
No. I searched the USPTO database and couldn’t find a single patent that claims any of the yoga asanas. It’s highly amusing therefore to hear a government official state lament:
"It's ridiculous to even think that an asana which has been practised for several years can be patented just because they think it is different. They have not been looking at the digital library,"
Well, good sir, they’re going to ask you to take a look at the USPTO database before venturing into your digital library!
2. Are there any patents related to yoga at all?
Yes, a search of the USPTO database reveals 166 Yoga related patents. However, most of them relate to yoga related props and accessories (and some of them only mention the term “yoga” in passing). Examples include:
i) Device and Kit for Body Stretching
ii) Yoga Grip Block
iii) Yoga Mat Carrier
iv) Yoga Socks
3. Do these patents matter?
A patent is granted to any invention that is “new”, “inventive” and “useful”. Upon grant, a patent provides the exclusive right make, use and sell the invention in question. Given this fact, do we have objections to any “accessory” related patents that meet the patentability criteria spelt out above? I guess not, since they don’t lay claims on our “timeless” asanas –rather, they cater to what Ayesha had earlier referred to as “karma capitalism”—a world where yoga has become more of a fashion statement and less of a spiritual endeavour.
In other words, Suketu Mehta who was concerned about his father performing Sirsasana in the wake of these “accessory” monopolies need not worry, unless his father insists on standing on his heard whilst at the same time, wearing the Yoga Socks.
4. If there are no patents on yoga asanas but only on the props/accessories, why is there so much of a fuss?
I’m not entirely sure—it probably has to do with the fact that such emotional appeals are fashionable today. Those that have been following this thread will know that this controversy has its roots in our famed “hot” guru Bikram claiming copyrights over his 26 sequence “sauna” room Yoga. I’m also guessing that some part of all this fuss (or tamasha, to use an Indian term) sprang from Suketu Mehta’s famed editorial that made its rounds in almost all the IP related listservs that I know of. I advised Suketu to stick to fiction when I first reacted to his NY Times piece—and now the advise turns to a deep imploration—as he has in many ways caused a considerable waste of my valuable time (and I’m sure of many others who are tired of dealing with this constant play on emotional rhetoric).
5. Where does Bikram Choudhary and the copyrighting of “hot yoga” poses fit into all of this?
If at all Yoga fans and guardians of Indian heritage need to be concerned, it’s with the copyrighting of Yoga sequences by Bikram Choudhury. Of course, this copyright only covers the exact 26 sequence step allegedly distilled out of the ancient scriptures by Bikram, to be performed in a “hot” environment. It does not prevent you from doing the asanas in any other sequence in a not so hot environment. More importantly, such a copyright may be contestable: As I noted in an earlier posting:
"… even under the most liberal IP standards that the US has now come to represent, you could still run a claim that yoga sequences are not copyrightable, since they are predominantly “functional”. And if the US is serious about “precedents” and respecting the classic “idea expression” dichotomy laid down in Baker vs Selden, you’re likely to succeed. The Patry Copyright Blog, by William Patry, Senior Copyright Counsel, Google Inc, elucidates this point quite well and also cites to 2 law review articles on this theme.”
The copyright issue is a complex one and the “real” issue here--- however, there are strategic ways of dealing with this, which the government or any interested party ought to explore. But unless we identify the correct issue, we may be barking up the wrong tree (or in the context of Yoga, breathing up the wrong nostril OR stretching the wrong way).
6. Any final pearls of wisdom?
Yoga in many ways is about “breath”—so lets take some deep breaths here, calm our minds and explore these issues in a sensible way.
As the noted Yoga maestro, BKS Iyengar, once remarked “Yoga teaches us to cure what need not be endured and endure what cannot be cured”.
I’m hoping that “ignorance” is something that can be cured. Else, we may have no choice but to endure it.
If you really want to believe that a naked emperor is adorned with the finest clothes, be my guest!! It’s all a matter of perception anyway, and as our good old sages rightly intuited: the world is nothing but “Maya”-- an illusion!!
Metaphysical musings aside, given the fact that governmental interventions in matters of this sort cost time and money (tax payers, of course), I think it’s important to think through these issues carefully and not fall prey to a trigger happy attitude. Shwetasree did an excellent post reflecting on this constant confusion between “patents” and “copyrights” and this tendency to force emotional rhetoric down the throats of unsuspecting members of the public.
In the wake of complaints that SpicyIP only caters to IP aficionados, I’ve tried to present the issues in a simple Q/A format below. A special thanks to my friend, Rohan George, an excellent journalist with “Down to Earth” for highlighting the utility of such a format to me.
1. Has the USPTO granted any patents on yoga asanas?
No. I searched the USPTO database and couldn’t find a single patent that claims any of the yoga asanas. It’s highly amusing therefore to hear a government official state lament:
"It's ridiculous to even think that an asana which has been practised for several years can be patented just because they think it is different. They have not been looking at the digital library,"
Well, good sir, they’re going to ask you to take a look at the USPTO database before venturing into your digital library!
2. Are there any patents related to yoga at all?
Yes, a search of the USPTO database reveals 166 Yoga related patents. However, most of them relate to yoga related props and accessories (and some of them only mention the term “yoga” in passing). Examples include:
i) Device and Kit for Body Stretching
ii) Yoga Grip Block
iii) Yoga Mat Carrier
iv) Yoga Socks
3. Do these patents matter?
A patent is granted to any invention that is “new”, “inventive” and “useful”. Upon grant, a patent provides the exclusive right make, use and sell the invention in question. Given this fact, do we have objections to any “accessory” related patents that meet the patentability criteria spelt out above? I guess not, since they don’t lay claims on our “timeless” asanas –rather, they cater to what Ayesha had earlier referred to as “karma capitalism”—a world where yoga has become more of a fashion statement and less of a spiritual endeavour.
In other words, Suketu Mehta who was concerned about his father performing Sirsasana in the wake of these “accessory” monopolies need not worry, unless his father insists on standing on his heard whilst at the same time, wearing the Yoga Socks.
4. If there are no patents on yoga asanas but only on the props/accessories, why is there so much of a fuss?
I’m not entirely sure—it probably has to do with the fact that such emotional appeals are fashionable today. Those that have been following this thread will know that this controversy has its roots in our famed “hot” guru Bikram claiming copyrights over his 26 sequence “sauna” room Yoga. I’m also guessing that some part of all this fuss (or tamasha, to use an Indian term) sprang from Suketu Mehta’s famed editorial that made its rounds in almost all the IP related listservs that I know of. I advised Suketu to stick to fiction when I first reacted to his NY Times piece—and now the advise turns to a deep imploration—as he has in many ways caused a considerable waste of my valuable time (and I’m sure of many others who are tired of dealing with this constant play on emotional rhetoric).
5. Where does Bikram Choudhary and the copyrighting of “hot yoga” poses fit into all of this?
If at all Yoga fans and guardians of Indian heritage need to be concerned, it’s with the copyrighting of Yoga sequences by Bikram Choudhury. Of course, this copyright only covers the exact 26 sequence step allegedly distilled out of the ancient scriptures by Bikram, to be performed in a “hot” environment. It does not prevent you from doing the asanas in any other sequence in a not so hot environment. More importantly, such a copyright may be contestable: As I noted in an earlier posting:
"… even under the most liberal IP standards that the US has now come to represent, you could still run a claim that yoga sequences are not copyrightable, since they are predominantly “functional”. And if the US is serious about “precedents” and respecting the classic “idea expression” dichotomy laid down in Baker vs Selden, you’re likely to succeed. The Patry Copyright Blog, by William Patry, Senior Copyright Counsel, Google Inc, elucidates this point quite well and also cites to 2 law review articles on this theme.”
The copyright issue is a complex one and the “real” issue here--- however, there are strategic ways of dealing with this, which the government or any interested party ought to explore. But unless we identify the correct issue, we may be barking up the wrong tree (or in the context of Yoga, breathing up the wrong nostril OR stretching the wrong way).
6. Any final pearls of wisdom?
Yoga in many ways is about “breath”—so lets take some deep breaths here, calm our minds and explore these issues in a sensible way.
As the noted Yoga maestro, BKS Iyengar, once remarked “Yoga teaches us to cure what need not be endured and endure what cannot be cured”.
I’m hoping that “ignorance” is something that can be cured. Else, we may have no choice but to endure it.
Saturday, May 26, 2007
WHAT IT MEANS TO BE A LIBERAL IN INDIA-PART III
The range of opinions expressed on the issue (in the comments section) convinces me of two things: One, we are all concerned about the negative consequences of hate speech laws, primarily with the way they are being applied by the authorities, sowing seeds of discrimination between various religions. The second, which stems from the first, is that there is a gulf between the objective of these laws, and the reality; that is, in practice, these laws have been so identified with the compulsions of maintaining peace and l aw and order, that their original objectives have been more or less discarded.
The debate is mainly about Vadodara and the Punjab incidents. My initial feeling that they are unrelated – because the former was a private exhibition whereas the latter was in the public realm – cannot be legally sustained. (Here, I thank Mr.Srinivasan, though I am not sure whether his reservation against my earlier stand was on similar grounds). In other words, the fact that Vadodara was a private exhibition, meant for peer review cannot be the sole ground of defence for Chandra Mohan. Section 295 A IPC – which is applicable in both Punjab and Vadodara cases – is silent on whether an exception could be granted if the alleged act took place in the private realm. The possible view that this qualification has to be read into the provision makes no sense, as the alleged act, even if held in the private realm, can come within the scope of this section. The test has to be whether Chandra Mohan and Dera Chief had “deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, and insulted the religion of that class.” I am revising my earlier view that the test has to be whether the alleged act is likely to lead to disturbance of law and order. I based that view on the rationale underlying this provision, which is the maintenance of public peace and tranquility in India, where religious passions can be easily aroused and inflamed.
While reading on this issue, I came across an insightful article by Soli Sorabjee in the book Law and Justice: An Anthology, edited by him (Universal Law Publishing Co.Ltd.,2003). He cites from the Report of the Select committee in connection with the enactment of S.295A in the IPC in 1927. The Committee was impressed by an argument that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a sock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words ‘with deliberate intention’ by inserting reference to malice, and we think that the section which we have now evolved will be both comprehensive and at the same time of not too wide an application.”
In Ramji Lal Modi v. State of Uttar Pradesh (AIR 1957 SC 620), the Supreme Court upheld this section, and reasoned that it did not penalize any and every act of insult to religion or the religious beliefs of a class of citizens but was directed to acts perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens. “The calculated tendency of this aggravated form of insult is clearly to disrupt the public order….” (from the SC Judgment in this case).
However, it is, in my view, possible to suggest that an alleged act may not have this tendency; in other words, disruption of public order need not be a test to determine whether an alleged act falls within the four corners of this section.
Sorabjee says: “One may legitimately criticize the tenets of a particular religion and characterize them as illogical or irrational or historically inaccurate. But it is not permissible to condemn the founder of a religion or the prophets it venerates as immoral persons or frauds and charlatans. Courts would in such cases probably infer a “deliberate and malicious intention” to insult the religion, particularly if the language is abusive or vituperative. Ultimately, it depends upon the approach of the judges. Do they attach more weight to freedom of expression or are they more concerned with preservation of peace and order?”
He continues: “ The authorities deem it prudent to play it over-safe. The tendency is to ban a book or a play, if there is the slightest possibility of demonstrations and disturbances, to forfeit it and drive the aggrieved person to court to obtain a judicial verdict.”
Sorabjee cites from the observation of five dissenting members of the Select Committee which approved S.295A: “It’s a regrettable concession to fanaticism, it will on the contrary, make the situation worse; each side will accuse the other of publishing writings which are against their religion, and government will again be seen siding with one party or the other.” Another member warned: “It will only accentuate the evil which it is meant to remove. Far from healing the differences which will linger, or which now and then come to the surface, it would widen the gap by encouraging insidious men to do mischief in stealth…” Sorabjee says his objection was not only perceptive but prophetic. According to Sorabjee, criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression. “We need not more repressive laws but more free speech to combat bigotry and to promote tolerance”, he says.
Put in this historical context of the genesis of S.295A, I feel both Chandra Mohan and the Dera Chief cannot be accused of deliberate and malicious intent – the true test for invoking this Section. They are not guilty of using abusive or vituperative language or sign. Clearly, there has been a concession from the authorities to crossing the limits of tolerance as perceived by a section of the people. The number of people wrongly feeling outraged in Vadodara may be less, and more in Punjab, but that itself does not justify the use of S.295 A.
Does the law needs amplification, as suggested by Mr.Dilip, so as to make it detailed with reference to the scope of this section? I think that would further curtail the scope of freedom of expression, even though it may be justified on the basis of past experience. It can be suggested that the Courts could decide whether S.295 A is attracted, depending on the facts and circumstances of each case. A list of such acts falling under S.295A as Mr.Dilip suggests, may be an answer to limit the discretion of the courts which may be carried away by the ‘disturbance to law and order’ argument. At the same time, it helps to know what act is likely to outrage a particular religion. However, we need to take precautions that the Khajuraho sculptures and their modern counterparts do not become vulnerable to misconceived attacks from the moral police due to such legal amplification.
The Dera chief would not have had deliberate and malicious intention to insult the Sikhs by dressing like their Guru. But it needs to be asked why he did it in the first place. If it is an inadvertent error, then including this act in the proposed list under S.295 A, would stop repetition of similar acts. After all, what great freedom of expression is involved in this? If a particular form of dress is likely to offend a religion, why should a person have a licence to wear that dress in public, especially when that person himself is a public personality, and his actions and symbols are closely scrutinized by public for hidden messages?
In the case of Vadodara painting, Chandra Mohan’s painting would have been entirely due to academic interests. Since such actions need legal protection from vandalism, there can be a proviso to S.295 A clearly mentioning that if the alleged act was done in the course of an academic study, meant for peer review, and not strictly for public exhibition, the section would not apply. That way, we could balance the demands of free expression as well as the compulsions to protect religious sentiments from being outraged by irresponsible or inadvertent actions by individuals.
The debate is mainly about Vadodara and the Punjab incidents. My initial feeling that they are unrelated – because the former was a private exhibition whereas the latter was in the public realm – cannot be legally sustained. (Here, I thank Mr.Srinivasan, though I am not sure whether his reservation against my earlier stand was on similar grounds). In other words, the fact that Vadodara was a private exhibition, meant for peer review cannot be the sole ground of defence for Chandra Mohan. Section 295 A IPC – which is applicable in both Punjab and Vadodara cases – is silent on whether an exception could be granted if the alleged act took place in the private realm. The possible view that this qualification has to be read into the provision makes no sense, as the alleged act, even if held in the private realm, can come within the scope of this section. The test has to be whether Chandra Mohan and Dera Chief had “deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, and insulted the religion of that class.” I am revising my earlier view that the test has to be whether the alleged act is likely to lead to disturbance of law and order. I based that view on the rationale underlying this provision, which is the maintenance of public peace and tranquility in India, where religious passions can be easily aroused and inflamed.
While reading on this issue, I came across an insightful article by Soli Sorabjee in the book Law and Justice: An Anthology, edited by him (Universal Law Publishing Co.Ltd.,2003). He cites from the Report of the Select committee in connection with the enactment of S.295A in the IPC in 1927. The Committee was impressed by an argument that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a sock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words ‘with deliberate intention’ by inserting reference to malice, and we think that the section which we have now evolved will be both comprehensive and at the same time of not too wide an application.”
In Ramji Lal Modi v. State of Uttar Pradesh (AIR 1957 SC 620), the Supreme Court upheld this section, and reasoned that it did not penalize any and every act of insult to religion or the religious beliefs of a class of citizens but was directed to acts perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens. “The calculated tendency of this aggravated form of insult is clearly to disrupt the public order….” (from the SC Judgment in this case).
However, it is, in my view, possible to suggest that an alleged act may not have this tendency; in other words, disruption of public order need not be a test to determine whether an alleged act falls within the four corners of this section.
Sorabjee says: “One may legitimately criticize the tenets of a particular religion and characterize them as illogical or irrational or historically inaccurate. But it is not permissible to condemn the founder of a religion or the prophets it venerates as immoral persons or frauds and charlatans. Courts would in such cases probably infer a “deliberate and malicious intention” to insult the religion, particularly if the language is abusive or vituperative. Ultimately, it depends upon the approach of the judges. Do they attach more weight to freedom of expression or are they more concerned with preservation of peace and order?”
He continues: “ The authorities deem it prudent to play it over-safe. The tendency is to ban a book or a play, if there is the slightest possibility of demonstrations and disturbances, to forfeit it and drive the aggrieved person to court to obtain a judicial verdict.”
Sorabjee cites from the observation of five dissenting members of the Select Committee which approved S.295A: “It’s a regrettable concession to fanaticism, it will on the contrary, make the situation worse; each side will accuse the other of publishing writings which are against their religion, and government will again be seen siding with one party or the other.” Another member warned: “It will only accentuate the evil which it is meant to remove. Far from healing the differences which will linger, or which now and then come to the surface, it would widen the gap by encouraging insidious men to do mischief in stealth…” Sorabjee says his objection was not only perceptive but prophetic. According to Sorabjee, criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression. “We need not more repressive laws but more free speech to combat bigotry and to promote tolerance”, he says.
Put in this historical context of the genesis of S.295A, I feel both Chandra Mohan and the Dera Chief cannot be accused of deliberate and malicious intent – the true test for invoking this Section. They are not guilty of using abusive or vituperative language or sign. Clearly, there has been a concession from the authorities to crossing the limits of tolerance as perceived by a section of the people. The number of people wrongly feeling outraged in Vadodara may be less, and more in Punjab, but that itself does not justify the use of S.295 A.
Does the law needs amplification, as suggested by Mr.Dilip, so as to make it detailed with reference to the scope of this section? I think that would further curtail the scope of freedom of expression, even though it may be justified on the basis of past experience. It can be suggested that the Courts could decide whether S.295 A is attracted, depending on the facts and circumstances of each case. A list of such acts falling under S.295A as Mr.Dilip suggests, may be an answer to limit the discretion of the courts which may be carried away by the ‘disturbance to law and order’ argument. At the same time, it helps to know what act is likely to outrage a particular religion. However, we need to take precautions that the Khajuraho sculptures and their modern counterparts do not become vulnerable to misconceived attacks from the moral police due to such legal amplification.
The Dera chief would not have had deliberate and malicious intention to insult the Sikhs by dressing like their Guru. But it needs to be asked why he did it in the first place. If it is an inadvertent error, then including this act in the proposed list under S.295 A, would stop repetition of similar acts. After all, what great freedom of expression is involved in this? If a particular form of dress is likely to offend a religion, why should a person have a licence to wear that dress in public, especially when that person himself is a public personality, and his actions and symbols are closely scrutinized by public for hidden messages?
In the case of Vadodara painting, Chandra Mohan’s painting would have been entirely due to academic interests. Since such actions need legal protection from vandalism, there can be a proviso to S.295 A clearly mentioning that if the alleged act was done in the course of an academic study, meant for peer review, and not strictly for public exhibition, the section would not apply. That way, we could balance the demands of free expression as well as the compulsions to protect religious sentiments from being outraged by irresponsible or inadvertent actions by individuals.
UPDATE: WHY DO WE REQUIRE S.295 A IPC? In the comments section, doubts have been expressed whether we require S.295 A IPC at all in view of its possible abuse by those who don’t value freedom of expression (Mr.Srinivasan has this view). Mr. Suresh asks why can’t we have the right to criticize other religions? The answer has to be found in the origin of S.295 A. This section was enacted in 1927 when the existing provision (which still continues) S.153A was found inadequate in the Rangila Rasool case. (Ray Paul v. Emperor, AIR 1927 Lah 590). A tract, Rangila Rasool, was published in which there were offensive references to the Prophet Mohammed’s personal life. The High Court took the view that the prosecution which was launched under S.153A was not legally sustainable because the writing could not cause enmity or hatred between different religious communities though it was certainly offensive to the Muslim community. Justice Dalip Singh who delivered this judgment was a Christian, and there was an unreasonable demand to sack him. The plea for a change in the law thus emerged. Such was the outrage caused by the tract that the author of the tract was later killed. (Source: Law and Justice: An Anthology Ed. By Soli J.Sorabjee)
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