Saturday, 23 February 2013

It’s high time India instituted anti-age discrimination legislation

Age related discrimination comes in various forms. It may be in the form of a law or rule which creates an entry barrier on the basis of age. It may be in the form of prejudice or stereotyping at work places and elsewhere. Article 15(1) of the Indian Constitution provides that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Protection from discrimination on the basis of a person’s age is not provided for by the Constitution, something not very surprising since awareness of the need to prevent age-based discrimination is, even now, over 60 years after the Constitution came into force, very low in India. Also, do remember that the fundamental rights set out in the Indian constitution are available only against the State.

In India, one finds age-discrimination everywhere. Most places of higher study prescribe a maximum age for applicants. One cannot apply to take the Common Law Admission Test (which is mandatory for admission to a five year law degree at a National Law University) unless one is below 20 years of age. To take the Joint Entrance Exam for the prestigious Indian Institute of Technology (IIT), one has to be 25 years old, or younger. The entrance exam for the All India Institute of Medical Sciences has a similar age limit. One cannot take the civil service exams unless one is younger than 30 years as at a specific cut off date. Thankfully, admission to the Indian Institutes of Management is not subject to any age limit.

There has been very little debate about the age limits mentioned above. India has such a young population and there is so much competition that people assume it is justifiable to discriminate on the basis of age. Not many question why a 30 year old shouldn’t be entitled to join a 5 year programme at a prestigious law university or why a 35 year old should be prevented from starting a B.Tech course at an IIT. Wouldn’t a 40 year old man with a fair amount of private sector experience make a good civil servant? Or at least as good as a 26 year old? To some extent, these age limits have been accepted since almost all Indian students are supported by their parents until they start working and very few students take a break from studies before starting college. Even though there are no age limits for entering the prestigious IIMs, there is also no mandatory requirement for prior work experience.

The age-based restrictions for admission to good colleges and the civil services had their origin in the Imperial Civil Service exam instituted by the British government to select eligible young men to rule the jewel in the British crown. Candidates had to be aged between 21 and 24 and initially the exam could be taken only in Britain. The age and venue restrictions were meant to make it difficult, if not impossible, for Indian candidates to sit for this exam and gain entry to the corridors of power. However, even after India’s independence, these age-based restrictions continue to find a place in a number of Indian institutions. Discrimination on the basis of age has not faced any serious challenge in Indian courts. The closest one gets to are a few cases involving air hostesses and their right to continue working even after reaching a certain age.

Throughout the European Union, anti-age discrimination rules were instituted after the Directive 2000/78/EC of 27 November 2000 for establishing a general framework for equal treatment in employment and occupation was passed. For example in the UK, Employment Equality (Age) Regulations 2006 came into effect from 1 October, 2006. Employers in the European Union no longer specify age limits in job-adverts. Even an indirect specification, such as a requirement that applicants for a vacancy must hold doctorates, when a Ph.D is not really needed for the job, would be considered to be a breach of anti-age discrimination rules.

Employers in the European Union are now liable for the actions of their employees who discriminate against or harass other employees on the basis of age. The victim of age discrimination may not always be an older person. In a case under the Irish Employment Equality Act 1998, a newly-recruited and much younger female manager was systematically belittled and humiliated before other staff by a male manager. Senior management had failed to make any effective intervention despite the complainant's request and she eventually resigned. The Equality Officer held that the behaviour constituted age-based harassment under the Irish legislation, as well as gender-based harassment and awarded her EUR 6,500 in compensation.

It is high-time India did away with age-based barriers for admissions to educational institutions, the civil services and other government jobs. The only exceptions to this rule should be jobs where physical ability (that deteriorates with age) is very important, such as employment with the armed forces or the police. Even for such jobs, it is ridiculous to keep the age limit very low. It ought to be possible for any individual below the age of 30 to commence training to join the armed forces or the police.

India should also institute laws which prohibit any employer, from having age as a selection criterion, while hiring employees. All organisations should be required to have internal rules which prohibit any form of harassment (such as calling someone “kid” or “child” or “old man”) on the basis of age. Just as older people should not be discriminated on the basis of age, younger employees too should not have to face stereotypes at their work places.

Finally, I get to the million dollar question – retirement. Is it age-based discrimination to specify a retirement age? Strictly speaking it is. In an ideal world, a person should be called on to retire only on medical grounds. Throughout the European Union, compulsory retirement has been done away with. The UK used to permit employers to compulsorily retire employees at the age of 65, under an opt-out clause in the EU Directive mentioned above, but this has also been withdrawn. However, I feel that in India, compulsory retirement at a mandated age is justified. India still has such a large number of unemployed people that it cannot afford to allow its senior citizens to keep working until they voluntarily decide to call it a day.

Friday, 22 February 2013

How did Balachandran Prabhakaran die?

At least in the case of Balachandran Prabhakaran, there are no more questions - the cause of death is crystal clear. The 12 year old boy was captured by the Sri Lankan army, held prisoner, given a snack and then shot dead in cold blood. Five shots were fired into his chest at close range. The burn marks around the wound make it impossible that he was killed in cross-firing or in the course of a battle.

In March 2012, Channel 4 had released pictures of young Balachandran’s dead body, along with his five bodyguards. Apparently, in the last days of the LTTE, Prabhakaran’s young son was sent out to surrender along with five bodyguards. They were taken prisoner, interrogated about Prabhakaran’s and then………….shot.

Did Balachandran die first before his bodyguards or did he undergo the agony of seeing the men meant to protect him die before he was killed? Was Balachandran was killed in front of his trussed up body guards, who were later shot?

Why did Channel 4 wait for so long to release pictures of Balachandran which show him in army custody before his death? Did they have these pictures all along or did they just get hold of them? It is obvious that these pictures were taken as a war trophy, by individuals who witnessed the cruel execution. It is also possible that these pictures were circulated among Sri Lankan military personnel or veterans. Presumably, Channel 4 paid a lot of money and acquired them. I would like to believe that Channel 4 is not holding back any further evidence it may have regarding Prabhakaran’s death or the death of his wife Mathivathani Erambu or Prabhakaran’s daughter Duwaraka, though corporate greed being what it is, we are likely to see more pictures in an year from now. Most probably Channel 4 has pictures which show how Mathivathani Erambu and Duwaraka were executed. Releasing these pictures in batches keeps global interest in this story alive for longer. Milk the story for all that it’s worth!

Why oh why oh why Sri Lanka did you have to execute a 12 year old boy thus? Why did you have to stoop to the LTTE’s level? You will never live this down – the shame from this incident will be remembered for generations to come.

Monday, 18 February 2013

Was Afzal Guru actually guilty?

After Afzal Guru’s execution, many have questioned the way in which he was hanged and buried, without informing his family in time or handing over his dead body to his family. Advocate Colin Gonsalves who represented Guru in the High Court argues here on his blog that the trial court had denied him a lawyer. Also, the police broadcast his (forced) confession on prime television resulting in the popular perception that Guru was guilty. This trial by media made it impossible for Guru to receive a fair trial subsequently, according to Gonsalves.

The failure to provide legal representation is a serious lapse for which there are no excuses. Also, the torture claims are a black mark on the Indian security forces. Eminent jurist Fali S Nariman has said that Afzal Guru’s execution without properly communicating it to his family is a big mistake and an embarassment.

However, there is an accusation which is far more serious, namely that Guru might not be guilty at all, that the prosecution did not prove his guilt beyond reasonable doubt. Obviously, this is a far more serious allegation, one which goes to the root of India’s criminal justice system. The police/prosecution’s case against Afzal goes like this. After the attack on the Parliament, some of the dead terrorists had slips of papers in their pockets which had Afzal Guru’s mobile number on them. That led the cops to Guru and his laptop which had even more details. Transcripts of phone calls made to Afzal Guru by Mohammad (one of the five terrorists) established that Mohammad had told Afzal Guru that Mohammad and his accomplices were going to carry out the attack as per plan. The information stored on Guru’s laptop made it clear that Guru was deeply involved in providing hideouts and accommodation to the terrorists after they reached Delhi, and in purchasing the chemicals used to prepare the explosives that were used. Guru also had Rs. 10 lakhs on him. The fact that Guru was a former militant who had once crossed the LoC to receive arms training in PoK did not help matters.

Guru’s response to the prosecution’s charge, set out in an interview given to my namesake, Journalist Vinod K. Jose, is that he was framed. Since Guru was a surrendered militant, he was known to the police and was monitored by them. Guru claims that one DSP Davinder Singh asked him to do a small job. Guru had to take one man to Delhi and find a rented house for him in Delhi. Apparently, this man did not speak Kashmiri and called himself Mohammad, the name of one of the five gunmen who attacked Parliament and who was killed in the attack along with the other four. Guru claims that he was arrested in at Srinagar when he was about to catch a bus for Sopore. From Srinagar, he was taken to Parimpora police station, tortured, taken to the STF headquarters and from there taken to Delhi.

On the whole I believe the government version. I can believe it if Indian policemen are alleged to have killed someone in a fake encounter and then claimed that the dead man was responsible for a particular atrocity. However, I do not think the police would be able to fabricate evidence to such an extent that it stands scrutiny in a series of courts, including the Supreme Court.

This article claims that that the case against Guru certainly did not merit a death sentence. Which is rubbish. Guru is either guilty or not guilty. If the case against him is not proved beyond reasonable doubt, he cannot be punished at all. No, he cannot even be sentenced for a single day. On the other hand, once his guilt in respect of the charges against him is proven, then the actual sentencing is a different matter altogether. It is downright silly to argue that Guru’s guilt is not sufficiently proven and so he should be sentenced to life imprisonment rather than award him the death penalty. There is a clear distinction between conviction and sentencing. The former consists of deciding if the accused is guilty of the charges placed against him. If s/he is, the court proceeds to the next step of sentencing. When the Supreme Court stated that “the collective conscience of the society will be satisfied only if the death penalty is awarded to Afzal Guru”, the court had completed the first step and was assessing the punishment appropriate for Guru. One cannot interpret the Supreme Court’s statement to mean that it wanted to kill Guru irrespective of his guilt, just to satisfy the rest of India.

It is a different matter altogether to argue for clemency or to say that death sentences have no place in the 21st century – one can understand that argument, though in this case, I feel the death penalty was warranted.

As expected, Guru’s execution has caused an uproar, especially in the Kashmir Valley. Interestingly, former head of R&AW Mr. B. Raman argues here that since “Afzal Guru was an accomplice and facilitator, who did not actively participate in the attack on the ground”, he could have been shown clemency, though B. Raman also says that “nobody can question the appropriateness of the death penalty awarded to him.

At the end of the day, I am with Gopal Subramanium, a former Solicitor-General of India, who argues that there was compelling evidence against Guru and that the death sentence in his case was fair. He goes on to add that however, “what one cannot appreciate is the manner — the disregard for various human requirements which are necessary, like meeting with the family, informing the family, after all there is the element of grieving which is involved in execution. I think the state should have been extremely forthcoming — it should have prepared, and it could have done that secretly. It could have done that with care and caution.

Sunday, 17 February 2013

Book Review: Damn Few – Making The Modern Seal Warrior, by Rorke Denver

Ever since three US Navy SEALs lying on the fantail of USS Bainbridge downed three pirates holding a hostage inside a cabin in the MV Maersk Alabama, SEALs have become a household name in the world of counter-terrorism. The assault on bin Laden’s compound in Abbottabad only cemented that reputation. In case you’ve wondered what it takes to be a US Navy SEAL and what goes into a making of a SEAL warrior, then Rorke Denver’s book Damn Few is for you. True, there have been a number of books on SEALs before, some of them written by former SEALs. Some months ago, I had reviewed former navy SEAL Matt Bissonnette’s book “No Easy Day” which detailed the raid on Osama Bin Laden’s compound in Abbottabad by SEAL Team Six, of which Bissonnette was a part. No Easy Day expends a lot of energy discussing Navy SEAL tactics and the workings of the mind of a SEAL. Similarly “Seal Target Geronimo”, Chuck Pfarrer’s narrative about the bin Laden raid, though burdened with a number of made-up add-ons, describes SEAL training in good detail. However, Denver’s Damn Few is almost entirely about the making of a SEAL and cuts to the chase right from first page. Also, Denver has been involved in training SEALs and one hears from the horse’s mouth how some men make the cut and some don’t. There are a few snippets of action from Iraq and Afghanistan, but they are just that – snippets – more to illustrate how SEAL training helped them than anything else.

Damn Few is not an impersonal description of SEAL selection process and the training imparted to SEALs. Rather, it is Denver’s very personal story of how a sports crazy boy, not particularly good with Math, brought up by a strong-willed, single mother, motivated by Winston Churchill's writings, ended up as a SEAL. In addition to SEAL training, there are touching tales of Denver growing up with his younger brother, with whom he is very close, bits of family history and how Denver met his wife Tracy.

Like his predecessor Bissonnette, Denver steers clears of politics. This is a soldier’s narrative and it’s written in black and white. They are good guys and there are bad guys and no prizes for guessing who the good guys are. If you are looking for a discussion on American politics or on the decision to invade Iraq or Afghanistan, you will be disappointed. Denver is a soldier who obviously believes in obeying orders – his not to question why.

Denver’s narrative, assisted no doubt by co-author Ellis Henican, a columnist at Newsday, reads very well. The language is simple with an occasional flourish. However, what makes Damn Few stand out from other books about SEALs is that Denver not only trained to be a SEAL, but has been involved in training others and devising training plans. In fact, Denver’s involvement in SEAL training is so total that he allows his readers to be privy to crucial questions such as whether quality will be compromised if the number of SEALs is drastically increased.

In all, Damn Few is an excellent book for any SEAL fan.