Addressing transgenerational trauma through history education - The Daily Guardian
Connect with us

Legally Speaking

Addressing transgenerational trauma through history education

For a civilisation which constantly reiterates its belief in the power of truth, it is sad that its descendants do not seem to have the courage of their conviction to let the truth do the talking through history books.

J. Sai Deepak

Published

on

Two days ago, legendary West Indian cricketer Michael Holding delivered a powerful message on the ongoing #BlackLivesMatter movement which has taken the United States of America by storm and has started a global conversation on racism, in particular with respect to the stereotypes associated with members of the African community in predominantly White countries. While there are several relevant threads from an Indian perspective to pull from Holding’s heartfelt and deeply emotional message, following are the excerpts which this author wishes to focus on for the purpose of this piece:

“I hear people talking about brainwashing. I didn’t quite understand as a young man what brainwashing meant. I now understand what brainwashing means. We have been brainwashed, and not just Black people, White people have been brainwashed in different ways. I go back many years, think about religion. You and I are supposed to be Christians. I am not really a very holy person, not a very religious person. That’s what we were taught. Look at Jesus Christ, the image that they give you of Jesus Christ- Pale skin, blonde hair, blue eyes, where Jesus came from, who in that part of the world looks that way? But again, that’s brainwashing to show you this is what perfection is, this is what the image of perfection is. If you look at the plays of those days, Judas who betrayed Jesus is a black man. Again, brainwashing people to think “oh he is a black man! He is the bad man!”. Go through history…

These lights that are shining on us, you can tell me who invented the light bulb, right? Thomas Edison, right? Everybody knows Thomas Edison invented the light bulb. Thomas Edison invented the light bulb with a paper filament. It burnt out in no time at all. Can you tell who invented the filament that makes these lights shine throughout? Nobody knows, because he was a black man! I was not taught in schools. Lewis Howard Latimer invented the carbon filament to allow lights to continuously shine. Who knows that?! Everything should be taught! When you go back to schooling as a young man, I remember my school days. I was never taught anything good about black people.

 And you cannot have a society that is brought up like that, both white and black, that only teaches what’s convenient to the teacher. History is written by the conqueror, not by those who are conquered. History is written by the people who do the harm, not by the people who get harmed. And we need to go back and teach both sides of history and until we do that and educate the entire human race, this thing will not stop. They keep on telling me, “There’s nothing called White Privilege”. Give me a break! I do see white people going into a store and I don’t see them being followed. A black man walks in, somebody is following him wherever he goes. That is basic white privilege!…. and things like that have to change!”

 A thousand supremely qualified academics, educators, psychologists and historians can write tomes of books and reams of literature to make the very same point in a circumlocutory and esoteric fashion, but Michael Holding has hit the nail on the head- there is a clear and direct psychological impact of history education in schools on a community’s self-identity at the individual and collective planes, and the way the world perceives and treats members of the community.

While it would be factually incorrect to draw exact parallels between the Indic experience at the hands of various colonizers and the oppression suffered by Africans in different parts of the world, perhaps the common thread is the experience of dehumanisation through slavery which was religiously justified and institutionalised by various forms of colonialism. In fact, indigenous communities of Bharat have suffered bloodier forms of oppression for a longer period of time with the result being that members of several communities suffer from transgenerational trauma, which the Indian State has been conveniently oblivious to thanks to its conscious policy of historical amnesia since the 1950s.

The continued insensitivity underlying the said approach has been sought to be justified on grounds of preserving social harmony, when the fact remains that the fragility of this pretence of harmony is exposed so often that harmony is the exception and is rarely intentional. This thoroughly exposes the Indian State’s inability to wrap its head around the importance of presenting true history before the society so that the right lessons are drawn by all stakeholders. In general, one of the central purposes of teaching history is to ensure that, while the current generation cannot be held responsible for the reprehensible behaviour of its ancestors, there is sufficient disincentive in the form of social sanction against repeating such behaviour. This is the very object of memorializing the trauma of the past.

The Indian State’s failure to grasp this basic role of history education is one of the single biggest reasons for the existing fissures in the Indian society, and if the 484-page Draft National Education Policy 2019 (“the Draft NEP”) is anything to go by, there is no sign of improvement on this front. The Draft NEP presented the Government with a fantastic opportunity to institutionalise the process of truth and reconciliation by revamping its approach to history, instead of the partisan propagandic role history has been employed for over seven decades. However, there is no sign in the document that the Government has either the intent or the stomach for such an exercise.

While the Draft NEP (a) indicates a review of certain accepted premises of the Indian education system and (b) tentatively attempts to proffer a path which remoulds the system in a manner which is consistent with Indic civilizational ethos and aspirations, it appears that this is more inadvertent and incomplete than intentional and comprehensive. As a consequence of this diffident approach, the Draft NEP lands a half punch. For a nation which aspires to be a “Vishwaguru”, the Draft NEP lacks the civilizational confidence needed to revamp the education system to be able to achieve that status in the foreseeable future.

Even if such a lofty purpose were not placed at the centre of this exercise, at the very least the NEP is expected to be sensitive to the long existing and emerging challenges which can be traced to the Indian education system, right from the history curriculum which actively aids the maleficent process of historical amnesia, to the science curriculum which reinforces the accepted false notion that science and reason are essentially Western constructs which have been imported to civilize the superstitious natives.

The sad irony is that while colonizers had no compunction benefitting from Indic knowledge systems despite perpetuating negative stereotypes about it through the education system to deprive the native of his/her sense of selfworth, Indian education policy makers have had no qualms whatsoever in perpetuating the same mindset to the detriment of the present and the future, and certainly at the expense of the past. In other words, independent India has continued with the very same education system which was designed to produce glorified Anglicised colonialised subjects, instead of producing rooted, civilizationally aware and confident thought leaders, entrepreneurs and nation builders. In short, any Indian achievement is despite the education system, and not because of it.

Another critical aspect of the Draft NEP which is inexplicably terse (a single Paragraph) in its comments and suggestions for improvement, is legal education. The Draft NEP appears to be comfortable with the fundamental Anglo-Saxon outlook of the Indian legal system and makes no attempt to introduce and mainstream Indic legal jurisprudence, logic and reasoning as part of legal curriculum and as part of law-making in the country. This reflects a deep-seated ignorance, apathy and perhaps even a self-loathing approach to the native legal systems which held this civilization together even when it was not a single political unit.

Policy makers appear to be indifferent to the impression that exists in the minds of young law students and practitioners that concepts of justice and rule of law are necessarily and solely attributable to Western thought. No wonder even the highest Court of the land looks to the West for inspiration, as opposed to drawing from the vast ocean of Indic jurisprudence which is much more in sync with the native pulse of this land.

The bottom line is that the #BlackLivesMatter movement has stirred discussions across the globe which have long been brushed under the carpet for various reasons. Bharat must benefit from the momentum provided by this movement to ignite those discussions within its society which have been considered politically incorrect and taboo for generations for the fear of “hurting sentiments”. For a civilization which constantly reiterates its belief in the power of truth, it is sad that its descendants do not seem to have the courage of their conviction to let the truth do the talking through history books. If the truth doesn’t stand a chance in Bharat, does Bharat at all have the right to aspire for the status of “Vishwaguru”?

 J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Verbal cruelty in marriage

Pinky Anand

Published

on

Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.

WHAT IS MATRIMONIAL CRUELTY?

Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

Continue Reading

Legally Speaking

‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

Published

on

The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

Continue Reading

Legally Speaking

VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

Published

on

The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

Continue Reading

Legally Speaking

CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

Published

on

On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

Continue Reading

Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

Published

on

The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

Continue Reading

Legally Speaking

GUJARAT HC GRANTS RELIEF TO DIPLOMA HOLDERS: STUDENTS CAN’T BE FAULTED FOR PHARMACY COUNCIL’S FAILURE TO APPROVE MEDICAL STORES FOR IMPARTING TRAINING.

Published

on

The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

Continue Reading

Trending