Sunday, February 25, 2007

The Search for Accountability in securing justice.

Primo Levi, the Auschwitz survivor wrote in 'The Drowned and the Saved";

“And there is another, vaster shame, the shame of the world. … And yet there are those who, faced by the crime of others or their own, turn their backs so as not to see it and not feel touched by it … deluding themselves that not seeing was a way of not knowing, and that not knowing relieved them of their share of complicity. … Never again could it be cleansed; it would prove that man, the human species – we, in short – had the potential to construct an infinite enormity of pain, and that pain is the only force created from nothing, without cost and without effort.”

The above is a piece that was written after Levi saw the Holocaust repeating itself in Cambodia. Accountability, as a word, doesnt seem to be in existence when it comes to crimes against humanity. More than half of the world today is victimised by international crimes while the international community sits in the UN and passes resolutions that seem to have no effect.
The other day I read on DAILY DARFUR that the US non intervention in the matter is because of Kharatoum's support and giving information to the US about Osama. Powerful governments dont seem to value life of the people in other parts of the world (ps: the death toll in darfur crosses 300,000). Gone are the days when Woodrow Wilson gave his fourteen points and pledged for the safety of the international order.
While international crimes are occurring there seems to be lack of action on the part of the international community to prevent them. The answer then lies in making the Governments responsible for the protection of the international order. The International Criminal Court (ICC) then is one step in furtherance of this effort. The first cases have been taken up by the Prosector against the Lords Resistance Army and the world is waiting to see what happens next. Can the Court stand up to the very principles it was meant to protect?
However, its not just governments that are playing a role in ensuring international justice. NGOs and activists have been very supportive and played an important part. More info can be found at the NGO Coalition Site. In India for instance, ICC - India is conducting awareness workshops about the International Criminal Court and mass crimes situations in India. Similar initiatives are seen in other countries.
There can be no justice without accountability. Accountability happens when the governments feel more responsible towards the lives of people.
(End of part I..............)

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Friday, February 23, 2007

The Right to Food

A lot of doubt has arisen on the nature of the right to food. While the petition of PUCL is still being decided by the Court, interim orders have been passed to secure the right to food for children and other people. But then, in what sense are we construing the nature of this right? A reading of Paschim Bengal Kisan Samiti and Francis Coralie tells us that the right to food may be interpreted in Article 21 of the Indian Constitution. However, no case has formally sought to do so.

I would like to look at the nature of this right in light of starvation deaths. There are around 50 million people dying of starvation in our country. This is at a time we call the 'economic boom' and see a rise in agriculture exports. Food surplus reached around 12 million tonnes in 2002.
The above data is relevant if we understand food in terms of the rights enshrined in part III and part IV of the Constitution. While part III enshrines the civil and political rights, part IV or the directive principles talk about the economic and social rights. Part IV rights are non- justiciable and cannot be enforced in a Court of law. The Constitution assembly debates show that part IV rights are placed such because they can only be enforced if the state has the requisite resources to provide for them. Since at that time, the State did not seem to have the resources, they were termed as the 'fundamental principles of governance' and must be achieved as soon as possible. BR Ambedkar and Dakshayeni Nivedkar stated that once the state has resources, such rights must be provided for. It then becomes an obligation for the State to do so. In terms of the right to food, Article 47 in part IV gives us an idea of the right to food and the responsibility of the state in raising the level of nutrition in the Country. This right then still is a non justiciable right and cannot be enforced per se.
Now here lies the argument, if economic and social rights are to be enforced depending on the State's availability of resources, would the very fact that people are dying despite a food surplus be deemed a denial of a right and the violation of an obligation on the part of the State to provide? If we have people starving to death and Food Corporation of India godowns filled with food 50 kms away, would this be a violation of the obligation to provide, respect and protect? This is something we need to ponder about. Why is it that despite the resources at hand the State does not provide for the welfare of the people? This does not apply to merely food but also other areas like education and employment. Somewhere down the line we see the whole idea of a welfare state boiling down to a mere idea that exists only in theory and not in practice.

More information on the right to food is available at;

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Thursday, February 22, 2007

European Parliament passes a motion to end Dalit Discrimination in India

Below is a motion of the European Parliament. It is revolutionary in the sense that it is obliging India to do something that its not done in the past many years. This resolution also comes forth in light of the Indian review of the Convention on the Elimination of Racial Discrimination (CERD) which takes place tomorrow. The .Pdf version of the Document may be downloaded here.



The European Parliament ,

– having regard to the hearing held by its Committee on Development on 18 December 2006,

– having regard to its resolution of 28 September 2006 on the EU's economic and trade relations with India (1) and Parliament's Human Rights Reports of 2000, 2002, 2003 and 2005,

– having regard to General Recommendation XXIX (descent-based discrimination) adopted by the United Nations Committee on the Elimination of Racial Discrimination on 22 August 2002 and the 48 measures to be taken by the State Parties,

– having regard to the study being undertaken by the UN Sub-Commission on the Promotion and Protection of Human Rights, in which draft Principles and Guidelines for the elimination of "discrimination based on work and descent" are being developed, and noting the preliminary report issued by the Special Rapporteurs on discrimination based on work and descent,

– having regard to the various provisions in the Constitution of India for the protection and promotion of the rights of Dalits, concerning at least 167 million people, including the provisions on the abolition of the practice of untouchability, the prohibition of discrimination on grounds of caste, equality of opportunity in matters of public employment and educational, employment and political affirmative action through reservations in State-run institutions and political representative bodies; having regard also to numerous legislative measures ordering the abolition of some of the worst practices of untouchability and caste discrimination, including bonded labour, manual scavenging and atrocities against Dalits,

– having regard to the National Human Rights Commission, the National and State Commissions for Scheduled Castes and the National Safai Karamchari Commission, dealing with the problem of manual scavenging,

– having regard to Rule 91 and Rule 90(4) of its Rules of Procedure,

A. whereas India is the largest functioning democracy in the world where every citizen is equal before the ballot box, India's immediate past President and Head of State was a Dalit and Dalits have served as ministers; whereas there are Hindu schools of thought which reject caste discrimination and exclusion as an aberration of their faith,

B. whereas Dalits and similar groups are also found in Nepal, Pakistan and Bangladesh,

C. whereas the National Human Rights Commission of India has reported that the implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act remains very unsatisfactory, and whereas it has published numerous recommendations to address this problem,

D. whereas, despite twenty-seven officially registered atrocities being committed against Dalits every day, police often prevent Dalits from entering police stations, refuse the registration of cases by Dalits and regularly resort to the practice of torture against Dalits with impunity,

E. whereas, despite the fact that many Dalits do not report crimes for fear of reprisals by the dominant castes, official police statistics averaged over the past 5 years show that 13 Dalits are murdered every week, 5 Dalits" homes or possessions are burnt every week, 6 Dalits are kidnapped or abducted every week, 3 Dalit women are raped every day, 11 Dalits are beaten every day and a crime is committed against a Dalit every 18 minutes (2) ,

F. whereas a recent study on untouchability in rural India (3) , covering 565 villages in 11 States, found that public health workers refused to visit Dalit homes in 33% of villages, Dalits were prevented from entering police stations in 27.6% of villages, Dalit children had to sit separately while eating in 37.8% of government schools, Dalits did not get mail delivered to their homes in 23.5% of villages, and Dalits were denied access to water sources in 48.4% of villages because of segregation and untouchability practices,

G. whereas half of India's Dalit children are undernourished, 21% are "severely underweight", and 12% die before their fifth birthday (4)

H. whereas untouchability in schools has contributed to far higher drop-out and Illiteracy levels for Dalit children than those of the general population, with the "literacy gap" between Dalits and non-Dalits hardly changing since India's independence and literacy rates for Dalit women remaining as low as 37.8% in rural India (5) ,

I. whereas Dalit women, who alongside "Tribal" women are the poorest of the poor in India, face double discrimination on the basis of caste and gender in all spheres of life, are subjected to gross violations of their physical integrity, including sexual abuse by dominant castes with impunity and are socially excluded and economically exploited,

J. whereas the National Commission for Scheduled Castes has observed substantial under-allocation and under-expenditure of the allocation for Dalit welfare and development under the government's Special Component Plan for Scheduled Castes,

K. whereas Dalits are subjected to bonded and forced labour and discriminated against in a range of markets, including in the labour, housing, consumer, capital and credit markets; are paid lower wages and subjected to longer working hours, delayed wages and verbal or physical abuse,

1. Welcomes the various provisions in the Constitution of India for the protection and promotion of the rights of Dalits; notes however that, in spite of these provisions, implementation of laws protecting the rights of Dalits remains grossly inadequate, and that atrocities, untouchability, illiteracy, inequality of opportunity, manual scavenging, inadequacy of wages, bonded labour, child labour and landlessness continue to blight the lives of India's Dalits;

2. Expresses its concern at the low rate of conviction for the perpetrators of such crimes and calls on the Government of India to improve its criminal justice system in order to facilitate registration of charges against perpetrators of crimes against Dalits, to increase the conviction rate for such perpetrators, to significantly reduce the duration of court procedures; and to take special measures for the protection of Dalit women;

3. Welcomes the recent ban on the employment of children as domestic servants and workers in roadside eateries, restaurants, teashops etc. and urges the Indian Government to take further steps towards the complete banning of all forms of child labour;

4. Calls on the Government of India to take urgent steps to ensure equal access for Dalits to police stations and all other public institutions and facilities, including those related to its democratic structure such as panchayat buildings (the buildings housing local assemblies) and polling booths;

5. Applauds the fiscal policy followed by the Planning Commission of India and the various Ministries in the provision of the budgetary allocations towards the welfare and development of Dalits, and calls on the Government of India to ensure complete and time-bound implementation of all policy and budgetary measures towards the welfare and development of Dalits, including full implementation of the Special Component Plan for Scheduled Castes;

6. Urges the Government of India to engage further with relevant UN human rightsbodies on the effective elimination of caste-based discrimination, including the Committee on the Elimination of Racial Discrimination and the UN Special Rapporteurs assigned to develop Principles and Guidelines for the Elimination of Discrimination based on Work and Descent;

7. Calls on the Government of India to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and to take preventive measures to reduce the risk of Dalits facing torture, to take legal measures to criminalize torture in India, to take punitive measures to prosecute police who commit torture, to consistently provide rehabilitation and compensation for torture victims and to put in place an independent complaints mechanism for victims of torture that is accessible to Dalits;

8. Notes with concern the lack of substantive EU engagement with the Indian Government, notably within the EU-India Summits, on the vast problem of caste-based discrimination;

9. Urges the Council and the Commission to raise the issue of caste-based discrimination during EU-India Summits and other meetings as part of all political, human rights, civil society, development and trade dialogues and to inform the committees concerned of the progress and outcome of such dialogues;

10. Urges the EU members of the Joint Action Committee to develop dialogue on the problem of caste-based discrimination in terms of its discussions on democracy and human rights, social and employment policy and development cooperation;

11. Reiterates its expectation that EU development programmes in India include specific measures to ensure that minorities such as Dalits and Adivasis and other marginalized communities, tribes and castes, are able to close the wide gap with the rest of the population regarding the attainment of the Millennium Development Goals;

12. Recalls its demand that the Council and the Commission give priority to promoting equal opportunities in employment in private EU-based companies and encouraging EU- based companies to implement the "Ambedkar Principles" (Employment and Additional Principles on Economic and Social Exclusion Formulated to assist All Foreign Investors in South Asia to Address Caste Discrimination);

13. Welcomes the EU's commitment to the development of Principles and Guidelines for the Elimination of Discrimination on the basis of Work and Descent by the UN Sub- Commission on the Promotion and Protection of Human Rights, and urges the Commission and the Council to continue that support;

14. Instructs its President to forward this resolution to the Council, the Commission, the governments of the Member States, the President, the Government and Parliament of India, the UN Secretary-General, and the heads of the UN Sub-Commission on the Promotion and Protection of Human Rights, the International Labour Organization, the UNICEF, the World Bank and the International Monetary Fund.

(1) Texts Adopted , P6_TA(2006)0388

(2) Derived from figures provided in Crime in India 2005 , and

(3) Cf. G. Shah, H. Mander, S. Thorat, S. Deshpande and A. Baviskar Untouchability in Rural India , ,

Sage Publications, India, 2006.

(4) National Family Health Survey, commissioned by the Indian Ministry of Health and Family Welfare,

1998-99 (last survey available), Chapter 6, p. 187,

(5) 2001 Census of India.

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Wednesday, February 21, 2007

India: ‘Hidden Apartheid’ of Discrimination Against Dalits

Taken from Human Rights Watch

India has systematically failed to uphold its international legal obligations to ensure the fundamental human rights of Dalits, or so-called untouchables, despite laws and policies against caste discrimination, the Center for Human Rights and Global Justice and Human Rights Watch said in a new report released today. More than 165 million Dalits in India are condemned to a lifetime of abuse simply because of their caste.
The 113-page report, “Hidden Apartheid: Caste Discrimination against India’s ‘Untouchables’,” was produced as a “shadow report” in response to India’s submission to the United Nations Committee on the Elimination of Racial Discrimination (CERD), which monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The committee will review India’s compliance with the convention during hearings in Geneva on February 23 and 26.

On December 27, 2006 Manmohan Singh became the first sitting Indian prime minister to openly acknowledge the parallel between the practice of “untouchability” and the crime of apartheid. Singh described “untouchability” as a “blot on humanity” adding that “even after 60 years of constitutional and legal protection and state support, there is still social discrimination against Dalits in many parts of our country.”

“Prime Minister Singh has rightly compared ‘untouchability’ to apartheid, and he should now turn his words into action to protect the rights of Dalits,” said Professor Smita Narula, faculty director of the Center for Human Rights and Global Justice (CHRGJ) at New York University School of Law, and co-author of the report. “The Indian government can no longer deny its collusion in maintaining a system of entrenched social and economic segregation.”

Dalits endure segregation in housing, schools, and access to public services. They are denied access to land, forced to work in degrading conditions, and routinely abused at the hands of the police and upper-caste community members who enjoy the state’s protection. Entrenched discrimination violates Dalits’ rights to education, health, housing, property, freedom of religion, free choice of employment, and equal treatment before the law. Dalits also suffer routine violations of their right to life and security of person through state-sponsored or -sanctioned acts of violence, including torture.

Caste-motivated killings, rapes, and other abuses are a daily occurrence in India. Between 2001 and 2002 close to 58,000 cases were registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act – legislation that criminalizes particularly egregious abuses against Dalits and tribal community members. A 2005 government report states that a crime is committed against a Dalit every 20 minutes. Though staggering, these figures represent only a fraction of actual incidents since many Dalits do not register cases for fear of retaliation by the police and upper-caste individuals.

Both state and private actors commit these crimes with impunity. Even on the relatively rare occasions on which a case reaches court, the most likely outcome is acquittal. Indian government reports reveal that between 1999 and 2001 as many as 89 percent of trials involving offenses against Dalits resulted in acquittals.

A resolution passed by the European Parliament on February 1, 2007 found India’s efforts to enforce laws protecting Dalits to be “grossly inadequate,” adding that “atrocities, untouchability, illiteracy, [and] inequality of opportunity, continue to blight the lives of India’s Dalits.” The resolution called on the Indian government to engage with CERD in its efforts to end caste-based discrimination. Dalit leaders welcomed the resolution, but Indian officials dismissed it as lacking in “balance and perspective.”

“International scrutiny is growing and with it the condemnation of abuses resulting from the caste system and the government’s failure to protect Dalits,” said Brad Adams, Asia director at Human Rights Watch. “India needs to mobilize the entire government and make good on its paper commitments to end caste abuses. Otherwise, it risks pariah status for its homegrown brand of apartheid.”

Attempts by Dalits to defy the caste order, to demand their rights, or to lay claim to land that is legally theirs are consistently met with economic boycotts or retaliatory violence. For example, in Punjab on January 5, 2006 Dalit laborer and activist Bant Singh, seeking the prosecution of the people who gang-raped his daughter, was beaten so severely that both arms and one leg had to be amputated. On September 26, 2006 in Kherlanji village, Maharashtra, a Dalit family was killed by an upper-caste mob, after the mother and daughter were stripped, beaten and paraded through the village and the two brothers were brutally beaten. They were attacked because they refused to let upper-caste farmers take their land. After widespread protests at the police’s failure to arrest the perpetrators, some of those accused in the killing were finally arrested and police and medical officers who had failed to do their jobs were suspended from duty.

Exploitation of labor is at the very heart of the caste system. Dalits are forced to perform tasks deemed too “polluting” or degrading for non-Dalits to carry out. According to unofficial estimates, more than 1.3 million Dalits – mostly women – are employed as manual scavengers to clear human waste from dry pit latrines. In several cities, Dalits are lowered into manholes without protection to clear sewage blockages, resulting in more than 100 deaths each year from inhalation of toxic gases or from drowning in excrement. Dalits comprise the majority of agricultural, bonded, and child laborers in the country. Many survive on less than US$1 per day.

In January 2007 the UN Committee on the Elimination of Discrimination against Women concluded that Dalit women in India suffer from “deeply rooted structural discrimination.” “Hidden Apartheid” records the plight of Dalit women and the multiple forms of discrimination they face. Abuses documented in the report include sexual abuse by the police and upper-caste men, forced prostitution, and discrimination in employment and the payment of wages.

Dalit children face consistent hurdles in access to education. They are made to sit in the back of classrooms and endure verbal and physical harassment from teachers and students. The effect of such abuses is borne out by the low literacy and high drop-out rates for Dalits.

The Center for Human Rights and Global Justice and Human Rights Watch call on CERD to scrutinize the gap between India’s human rights commitments and the daily reality faced by Dalits. In particular, CERD should request that the Indian government:
  • Identify measures taken to ensure appropriate reforms to eliminate police abuses against Dalits and other marginalized communities;

  • Provide concrete plans to implement laws and government policies to protect Dalits, and Dalit women in particular, from physical and sexual violence;

  • Identify steps taken to eradicate caste-based segregation in residential areas and schools, and in access to public services; and,

  • Outline plans to ensure the effective eradication of exploitative labor arrangements and effective implementation of rehabilitation schemes for Dalit bonded and child laborers, manual scavengers, and for Dalit women forced into prostitution.
“International outrage over the treatment of Dalits is matched by growing national discontent,” Smita Narula said. “India can’t ignore the voices of 165 million citizens.”

“Hidden Apartheid” is based on in-depth investigations by CHRGJ, Human Rights Watch, Indian non-governmental organizations, and media sources. The pervasiveness of abuses against Dalits is corroborated by the reports of Indian governmental agencies, including the National Human Rights Commission, and the National Commission on Scheduled Castes and Scheduled Tribes. These and other sources were compiled, investigated, and analyzed under international law by NYU School of Law’s International Human Rights Clinic.


The UN Committee on the Elimination of Racial Discrimination (CERD) is a body of independent experts responsible for monitoring states’ compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified by India in 1968. It guarantees rights of non-discrimination on the basis of “race, colour, descent, or national or ethnic origin.” In 1996 CERD concluded that the plight of Dalits falls squarely under the prohibition of descent-based discrimination. As a state party to ICERD, India is obligated to submit periodic reports detailing its implementation of rights guaranteed under the convention. During the review session CERD examines these reports and engages in constructive dialogue with the state party, addressing its concerns and offering recommendations. CERD uses supplementary information contained in non-governmental organization “shadow reports” to evaluate states’ reports. India’s report to CERD, eight years overdue, covers compliance with the convention from 1996 to 2006 yet does not contain a single mention of abuses against Dalits – abuses that India’s own governmental agencies have documented and verified.

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Tuesday, February 20, 2007

Queer Thoughts



Till recently I hadn’t realized that the insertion of an article would mean a lot. The usage of an adjective as a noun is a mere reflection of the way we think in the society. Such improper usage does have a major impact on the people who are in the receiving end of this term. By referring to someone as ‘a gay’, we create a sort of an identity of the person without any justification. Orientation has never been the basis of any classification in our society and never should be. The point is that we in India, do not realize it. Neither does most of the world.

We have been discussing social exclusion in class for the past one week. Looking at the ways in which the state has the responsibility to provide for the protection of a socially excluded group. Surprisingly, no one looked at it from the perspective of homosexuals. On one hand we say that the state recognizes that social exclusion is bad and must protect the excluded group and provide for their welfare. On the other, we have the State that is itself creating a socially excluded group. Section 377 does precisely that. It creates normality into an abnormality and all because most people in the society think so. The other day, we had some one saying that being gay is a deformity (by birth). Like how ridiculous can one get?

Offences are wrongs in the society. Accordingly, the confession by a person about his/her orientation, which may I remind you is a private act, is a wrong. Some people gather the courage to break the societal obstacles and speak up and we on the other hand, despise them.

Verbal usage then plays an important role in referring people by terms. For most, who think that homosexuality is wrong, they use ‘ a gay’ and create an unwanted identity. Other sensible people use the adjective. The truth remains that the latter however, is the correct usage and the creation of an identity is wrong.

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Friday, February 16, 2007

Taking Rights Seriously


In 1977, Ronald Dworkin wrote ‘Taking Rights Seriously’, a book that argued that that rights must be understood as extremely important moral concerns, and cannot be outweighed merely because a majority would be better off by violating the rights of an individual. Rights need extremely strong protection because they are necessary for the dignity and equal respect of individuals, especially when those individuals form a minority within a society. Dworkin believes that the right to free speech and due process is a paradigm example of a right that should be given extremely strong weight-what he elsewhere has called treating rights as trump cards. Dworkin finally says that only when governments respect rights will respect for the law be generally reestablished.

A few weeks ago, President Bush signed the Military Commissions Act, a piece of legislation that has undermined the notion of civil liberties in the legal setup. What the Act has basically done is, to legalize Guantanamo, disallow Habeas Corpus petitions and prohibited the invocation of Geneva Conventions protocols. In brief, it is a law that has diluted the basic principles of justice and righteousness in the garb of providing security for the citizens. In most ways, this Act makes people think. To what extent can the State violate civil liberties? When Dworkin writes that only when Governments respect rights will the law be respected, what and whose rights are we talking about? Looking at this situation in the example of India, we see that with two major terrorist strikes in the past one year, people are questioning the Centre’s stance on terrorism. Some are even advocating the invocation of POTA and to do away with the Unlawful Activities Prevention (Amendment) Act, 2004. While such debates continue all over the country, the question still remains unanswered, ‘to what extent can the state restrict a right?’.

Fundamental rights and due process are the very foundations on which our legal system is based. It goes without saying that the benefit of the rights mentioned in part III of the Constitution goes to all citizens of the country and not a section of them. If a democracy cannot protect these rights, then it ceases to be one. When we talk of the democratic state of ‘rule by the people’, at least in theory it is not meant to be the rule of a majority but the rule of each and every citizen and the protection of his rights. What terrorism does, is that is creates pressure on the centre to look at other means of curbing terrorist activities, the most common of which is to abridge and take away the fundamental freedoms of certain people. When the Prevention of Terrorist Act (POTA) was introduced in 2002, the majority cheered for they had found a way to tackle terrorism, but some remorsed for the greater harm that was being caused under the cover of national security. And what’s more, the Supreme Court gave sanction to such legislations in Kartar Singh and PUCL v. Union of India. The Unlawful Activities Prevention (Amend) Act, 2005, was, in issues like the collection of evidence, harsher than the POTA. Over a length of time, if we notice and plot the legislations against terrorism on a continuum, they move towards the taking away of civil liberties.

This problem, however is not India specific. The detention of people in the United Kingdom, the terrorist laws in Spain and of course the measures of the United States are examples where developed legal systems are compromising civil liberties and rights in interests of national security. There is an unequivocal settlement that national interests are of primary importance. But what about rights and fundamental freedoms? Alan Dershowitz once emphasized that the Government loses credibility when it cannot tackle issues along due process concerns and resort to other means of prosecuting people. The point that is sought to be made out here is that terrorism’s greatest victory is the shackling of the state system. If we, as a democratic state do not stand by the very principles of rights we are made of, we shackle the very foundation of democracy. In the interests of protecting a majority, the rights and freedoms of a minority must never be compromised. Once again I emphasise, that a democracy is not of a majority but comprised of each and every citizen living in it. We must deal with terrorism within our existing setup. The history of our nation has begun with the protection of liberties for everyone and must not end at any stage.

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