SUCH is the weight of colonial and post-colonial erasure that the girls and women living in Pakistan today have very little idea about the very early feminists who have come before them. Current nationalist intoxications wish to divide all things and everything along the lines of a border drawn by the British and incongruous to the actual groupings of the subcontinent`s multitudinous identities. There are persistent efforts, on both the Indian and Pakistani sides, to read current divisions and delusions in the historical past. The consequence has been a history full of holes,large omissions and boisterous erasures where the stories of people should be.

Given that India and Pakistan and Bangladesh are all patriarchal societies, it follows that the histories of these lands that have been resuscitated from the past, and presented to populations that do not have much of an idea of the past, have been male histories. There are many male heroes and leaders, poets and writers, men who gave memorable speeches and men who stood up to the British; the stories of women are harder to find.

Women, however, were present and they were busy. In her essay `Feminist Inheritances and Foremothers: The Beginnings of Feminism in Modern India`, the historian Padma Anagol turns her attention to the women of Maharashtra in India.

It is f ascinating to consider these intrepid women of the late 1800s who refused to bow to the patriarchal societies in which they found themselves. It is notable that their activities for reform took place in the context of severe criticism from their Western rulers, who saw India as backward and uncivilised.

Some of the struggles took place under the larger umbrella of social reform movements in which individuals of all religions participated and engaged. In Anagol`s view, it is these reform societies that were the precursors of contemporary feminisms that exist in the subcontinent today.

In the late 1930s, a woman named Lakshmibai Tilak became one of the first Indian women to write her autobiography. The book, which tells the story of Tilak`s life, includes the story of her grandfather who was hanged in 1857 owing to his participation in the uprising against the British. Born in 1868, shewas married off at an early age to a Marathilanguage poet who was subject to many whims and eccentricities and of ten just got up and lef t, leaving his family behind. It is quite likely that it was owing to these events that Tilak advocated for women`s financial and economic independence. In an effort to do just this, she began training as a nurse, an endeavour she sadly had to abandon owing to family responsibilities.

Similarly spirited was Rakhmabai Raut, a woman who had been married early, but who refused to leave her father`s home to live with her husband.The husband sued in court when Rakhmabai was 19 years old. She still refused to join him, pointing out his lack of education and his dishonest lifestyle. The British judge ruled in favour of Rakhmabai, saying that she did not have to go and live with her husband because the marriage had been arranged when she was a minor and had never been consummated. The decision caused a huge outcry in India, where marriages of minors were of ten arranged and where asking for the consent of the parties was unheard of.

Hindus were particularly incensed by the judge`s application of these concepts of consent and consummation because they imagined marriage as a sacrament for eternity rather than a contract lasting a single life.

The tumult from this case and the continuing agitation by women against abuse, child marriage and other cultural and religious customs that demeaned their existence led to vehement debates in the local press across India. Men and religious figures feltthat women had become very rebellious and had overstepped their boundaries. Women on the other hand felt that these issues had remained in the dark for a long time and it was time there was public debate on them.

In a similar manner to the feminists of today, those very early feminists were accused of being puppets of the British. It was the emergence of the nationalist Quit India movement against the British that ended up uniting reform-minded men and women. Ruttie Jinnah, the wife of Quaid-i-Azam Mohammad Ali Jinnah, was also said to have been active in these movements.

British women who were busy advocating for the right to vote in Britain were eager to have Indian women join their fight for suffrage. They were startled when many Indian feminists from the time expressed no interest in getting the right to vote, alleging that they did not wish to be equal to Indian men because both the men and they would still be under the thumb of the British rulers. When we are free, they said, we will have the right to vote in our free nations. This was correct; when India and Pakistan were created in 1947, Indian and Pakistani women had the right to vote alongside the men.

The blurring of boundaries between nationalism and feminist reform has proven to be a burden. In both India and Pakistan, women who should be feminists are instead subsumed into expressions of `patriotism` that are based on intellectual and religious obscurantism. They are eager to wave flags but not hold up banners and to denounce those women who do organise and march as `bad` women. It is an old recipe of divide and rule, of creating useless definitions where a `good` woman is just one who kowtows to the toxic masculinity of the state and domestic violence. One wishes that the sheer unoriginality of the critiques of women who wish to control their own would convince women to discard theme. If women in the 1800s could rebel, then so can the women of 2020. • The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

In a recent judgment, the Peshawar High Court ruled that powers of a judicial officer acting as `Justice of Peace` under the Code of Criminal Procedure (CrPC) are not unbridled rather these are structured with prescribed parameters and limits.

The bench of Justice Abdul Shakoor and Justice Sahibzada Asadullah ruled that there were no two opinions that the powers conferred on the ex-officio Justice of Peace were not judicial rather these were ministerial, and while dealing with applications under section 22-A (6) of the CrPC he could issue directions to the concerned police officials for observance of all legal and requisite formalities, but he could not step into the shoes of the investigating agency, which was independent in all respects.

The bench made these observations while dismissing a writ petition titled `Qutab Khan and another versus District Police Officer, Dera Ismail Khan`, on Oct 7, 2020.

The district and sessions judges (DSJs) and additional district and sessions judges (ADSJs) have been exercising ex-officio powers of `Justice of Peace` under section 22-A (6) and 25 CrPC since an amendment was made in the law in 2002. Under the said provision, these judicial officers are empowered to order registration of an FIR over a complaint if the concerned police officer declined to register the same. They can also order transfer of investigation of a case from one police officer to another.

In the instant case, local police had signalled a car to stop at a picket in DI Khan, but the driver had driven away.

The police had chased the said car and found it stuck in mud with no driver nearby.

The investigating officer had found a wallet containing an ID card of one Mohammad Ibrahim, a resident of Lakki Marwat, whereas another card of the petitioner, Qutab Khan, was lying on the dashboard.

During search of the car the police recovered 48 kilogrammes of charas and 12.5kgs of opium after which an FIR was registered on June 5, 2016, under section 9-C of the Control of Narcotics Substance Act at Dera Town police station. Later, both the petitioners, Outab Khan and Mohammad Ibrahim, were arrested and charged in the case.

The case took an interesting turn after around two years of the occurrence when another person (respondent No 6) appeared before the investigating officer in 2018, requesting he should be included as accused in the case.

The said person also approached a judicial magistrate that his statement should be recorded under section 164 of the CrPC, but the magistrate declined his request on Feb 10, 2018.

The said person told the police that he was accompanying the two arrested accused persons (petitioners) to Azad Kashmir and had stolen their car when they were sleeping in their room. He claimed that after stealing the car he went to Bannu where a drug trafficker put the seized drug in the said car.

The present petitioners then approached the court of exofficio Justice of Peace requesting that the said person should be included as accused in the case. However, the Justice of Peace dismissed their plea on March 15, 2018, following which they approached the PHC requesting to set aside the order of Justice of Peace and to include the said person as accused in the case and also to direct the police to produce him before a magistrate for recording his confessional statement.

In the detailed judgment authored by Justice Sahibzada Asadullah it is observed that it was surprising that for a long time, the petitioners did not disclose that it was another person (respondent No 6) who had taken away their car.

`Though an effort was made to convince the Court to direct the concerned police officials to declare the respondent No 6 as accused, as it was he who claimed the contraband, but the learned Justice of Peace fully conscious of his powers and jurisdiction, did not agree to the request of the petitioners for issuing a direction to the investigating officer/prosecution agency to array him as accused, by extending benefit to the petitioners,` the court observed.

The bench observed that a Justice of Peace or an exofficio Justice of Peace in Pakistan performs functions which are administrative and ministerial in nature and not judicial in character.

`Even the superior courts of Pakistan having constitutional, legal, supervisory and inherent jurisdiction have consistently and consciously refrained from directly interfering with investigation of a criminal case by the police and, therefore, it is but obvious that Justice of Peace or exofficio Justice of Peace possessing only administrative and ministerial powers should be twice shy of such direct interference,` the bench ruled.

The court ruled: `The law is settled that an Ex-officio Justice of Peace while exercising his powers cannot step into the shoes of the investigating agency though he can issue direction in respect of the matters provided under Criminal Procedure Code, but not more than that.

`The prerogative to declare a person as an accused or otherwise, lies with the prosecution agency and a proper mechanism has been chalked out for the purpose. It has never been the intent and spirit of the section to bestow unbridled powers upon the ex-officio Justice of Peace, if so, the results would be drastic and chaotic.

The powers of Justice of Peace were assigned to the DSJs and ADSJs through the Code of Criminal Procedure (Third Amendment) Ordinance, 2002, which was promulgated on Nov 15, 2002. Through that amendment subsection 6 was included in section 22-A of the CrPC.

Sub-section 6 states: `An ex-officio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding (i) Non-registration of a criminal case; (ii) Transfer of investigation from one police officer to another; and (iii) Neglect, failure or excess committed by a police authority in relation to its functions and duties.