Defining Modesty

The Supreme Court has finally filled a gap in the Indian Penal Code. Since 1860, there was no concrete definition of 'modesty' in the Code even though outraging the modesty of a woman is an offence.

In Ram Kirpal v. Union of India, Jusitices Arijit Pasayat and SH Kapadia have sought to bring some clarity in Section 354 of the IPC. Section 354 deals with assault or criminal force to a woman with intent to outrage her modesty in circumstances in which the offender intends to so do or knows that it is likely that his actions will have the same result, but it does not define what constitutes a woman’s modesty.
According to the Court,

“the essence of a woman’s modesty is her sex” and that “the act of pulling a woman, removing her saree, coupled with a request for sexual intercourse... would be an outrage of the modesty of the woman; and the knowledge that modesty is likely to be outraged, is sufficient to constitute the offence.”

However, the aspect of intention is still present to constitute an offence. Like rape laws, feminists are campaigning to do away with that aspect too. In as much as mens rea is an important part of criminal law, if such is removed for heinous crimes, then where exactly does the law stand?

'SIKH' Guy in Jail for singing about 'human rights abuses'

(From The Independent)

To the police in India, Paramjeet Singh is a "Sikh terrorist" recently arrested with two others for supposedly carrying explosives and handguns with the intention of disrupting the local elections that took place last month.

But to his family and numerous supporters, he is just a musician who happens to sing about human rights abuses in the Punjab and is now paying a high price for speaking out in a region of India where human rights groups are often refused access.

There are suspicions that Mr Singh, a British national and retired foundry worker from Wolverhampton, has been caught up in a miscarriage of justice. Because of the delays built in to the Indian judicial system, he could be imprisoned for up to three years before getting a chance to prove his innocence.

Today he faces a hearing in a Punjab court charged with a string of offences.

Staring at a television screen in their suburban home in Wolverhampton, Mr Singh's wife, Balvinder Kaur, watches a recording of her husband, shackled in chains, from the news report last December that announced her husband's arrest. "This is so hard to watch," she says, wiping away a tear with her pink headscarf. "I can't forget that day, I can't believe what he's going through."

On 23 December, police in the Punjab claimed they had uncovered a major terrorist plot aimed at disrupting the elections. They called a press conference and displayed a vast array of weapons, including RDX explosives, grenades and hand guns, which they alleged were found in the boot of a Sikh nationalist's car. Three suspected terrorists had been arrested.

One of the three arrested was Mr Singh, who was in India with his wife and baby granddaughter buying supplies for a holiday home he was building in his ancestral village. The weapons, police claimed, were found in his car. The next day Mr Singh and his co-accused, Amolek and Jaswinder Singh, appeared in court charged with terrorist-related crimes. Despite police protestations, they were permitted to speak briefly to the media. All three of them claimed they had been tortured overnight by policemen who wanted them to sign a written confession.

"He was in such a state," remembers Ms Kaur. "His legs were painful and he could barely walk. He said they kept standing on his back and legs to try and force him into signing a confession."

Within 24 hours Indian reporters had unearthed discrepancies in the evidence against the three men, and soon the police began changing their story.

Not only did the police repeatedly alter exactly where they had arrested the three men, but during a second press conference held by the authorities the next day, they said they had in fact not found the explosives in Mr Singh's car but in a haystack on land near his farm in the village of Gakhal.

Doubts were soon cast on those accusations when local reporters went to Mr Singh's village immediately after the press conference and could not find a single villager that had seen a policeman for more than a week. Protests soon erupted outside the prison nearby demanding the three men's release.

Further suspicions about the police evidence were then published after a woman claimed two days later that she had seen police digging a hole in the haystack near Mr Singh's farm, trying to make it look like they had found the weapons cache.

Mr Singh's daughter Ravi Gakhal, a lawyer based in Birmingham, believes her father's arrest was politically motivated.

She is concerned by the fact that the evidence against her father is similar to that in the case of another British Sikh activist who spent three years in an Indian jail before being cleared of all charges.

Balbir Singh Bains was arrested in 1999 by Delhi police who said they had found a consignment of RDX explosives. When Mr Bains finally had his day in court, the judge threw out the charges, calling them a "balloon of falsehoods" after it emerged the RDX in question had come from a police warehouse.

A spokesperson from the Foreign Office said that consular officials have visited Mr Singh in prison.

---------------------------------------------- Jerome Taylor for The Independent

The Right to Dope

Is there a right to dope?
Should the possession of cannabis be legalised ?

My classmate Aditya Wadhwa explored these questions in his project paper titled "Collapse of the Criminal Justice System in Trafficking of Cannabis". I must say that he raised some really interesting arguments. While a part of it talks of the Indian legal system, the rest is a general argument citing cases from different law systems. The project may also be downloaded here.

There is a simple economic argument supporting the legalization of drugs, which goes as thus: if you legalize it, you can tax it. Though, Milton Friedman has come up with a new line of thought in his article- The Drug War is a Socialist Enterprise- which says that the criminalization of drugs only benefits a few people, like, as he says, under socialism where only a few individuals benefit. He says that these individuals are the people which form lobbies; but, in this case these people instead for asking for the de-criminalization, ask for the criminalization (on moral grounds), which though increases the risk, but gives them more monetary benefit. The researcher though not completely agreeing with the argument agrees with the conclusion, which says that drugs should be dealt with like Tobacco and Alcohol.

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Further, it is important to look at the Dissenting opinion given by Justice Levinson, who proposed the "harm to other" approach which mandated the application of strict scrutiny to Mallan's constitutional claim. It explored Mallan's claim under the so called "harm to others" theory. The essence of the dissenting argument was that the state's police power is not unlimited. It is subject to judicial review and must be declared null under the Hawaii Constitution if it is exerted in an oppressive manner. The dissent faulted the majority for ignoring the constitutional prerequisite of the "harm to others" analysis. The dissent cited Territory v. Fritz Kraft to support its proposition that the state's police power to prohibit certain criminal acts is subject to the following constraints:

"(1) It may not proscribe conduct that is merely 'innocent,' 'innocuous,' or "'harmless';

(2) its reach is limited to the proscription of conduct that imperils 'the public health, safety or welfare';

and (3) it may not be 'exerted in an arbitrary ... manner."'

The dissent argued that Mallan's charge of marijuana possession did not "harm others," and accordingly, was not subject to the state's assertion of police power. The core of the dissent's argument was that the state can only exercise its police powers when the general welfare is affected directly, or where others are likely to be harmed by the proscribed act. Thus, central to the dissent's argument is that the possession of marijuana for recreational purposes is harmful neither to the user nor to the public at large.

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UN on Extra Judicial killings

UN independent expert on extrajudicial killings urges action on reported incidents

28 March 2007 – A United Nations independent human rights expert on extrajudicial killings today called for action in response to reported incidents in the United States, Iran, the Russian Federation, Bangladesh, Nigeria and Indonesia.

“In recent years the United States has consistently argued that the UN Human Rights Council, and all other international human rights accountability mechanisms, have no legitimate role to play when individuals are intentionally killed, so long as it is claimed that the actions were part of the ‘war on terror,’” said Philip Alston, the Special Rapporteur on extrajudicial, summary or arbitrary executions.

“While this argument is convenient because it enables the US to effectively exempt itself from scrutiny, if accepted it would constitute a huge step backwards in the struggle to promote human rights.”

In a separate statement, he urged Iran to stop executing juvenile offenders, calling the practice “unacceptable.”

“It is time for Iran to demonstrate that its commitment to international law involves concrete action, not just empty words,” said Mr. Alston, calling on the country’s Government to “immediately commute all death sentences imposed for crimes individuals committed before the age of 18.”

In a statement directed at the Russian Federation, he called for an end to extrajudicial killings of journalists. “Murders are always tragic, but when journalists are being murdered to cover up human rights abuses, the stakes for the society are even higher than usual,” he said.

“The Government of Russia must bring to an end what appears to be a consistent pattern of failing to prosecute those responsible for these murders and of failing to take the measures required to prevent furthers assassinations of journalists.”

Egypt must instruct its police to stop using firearms to disperse crowds, he said in another statement. “Even if a country makes some demonstrations illegal, and even if the demonstrators ignore the law, that does not mean that the police are allowed to shoot at the demonstrators.”

In a report including several allegations he has received regarding Egypt, Mr. Alston expressed his appreciation for the detailed responses that the Government had made to his requests for further information regarding these incidents, but noted that his dialogue with the Government had revealed serious legal misunderstandings that required immediate reforms.

Bangladesh must stop the Rapid Action Battalion and other elite security forces “from using murder as a policing technique,” said the expert in a separate statement.

His report covers a series of allegations he has received regarding Bangladesh, “none of which were effectively addressed by the Government.”

He also called on Nigeria to “make good on its commitment to end extrajudicial executions by the police” but added in a separate statement that “unfortunately, it seems like business as usual with the Nigerian police continuing to get away with murder.”

In a letter to Nigeria Mr. Alston called for the Government “to underscore the fact that the imposition of the death penalty for offences such as sodomy is unconstitutional.” But his report indicated that the Government ignored his letter.

Indonesia should investigate all those implicated by the report into the murder of Munir Said Thalib, a leading human rights activist, said the expert said in another statement.

In a letter earlier this year, the Government responded to Mr. Alston’s inquiries in a manner that he characterized as “cooperative but incomplete.”

Also today, the Geneva-based UN Human Rights Council heard reports from the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Representative of the Secretary-General on the situation of human rights defenders.

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HIGH TIME THE INTERNATIONAL COMMUNITY ADDRESSES ISSUES LIKE NANDIGRAM.

Article of Note: The Fight Against Terrorism and the Rule of International Law

An Interesting read:

The Fight against Terrorism and the Rules of International Law -
Comment on papers and speeches of John B. Bellinger, Chief Legal Advisor to the
United States State Department

Heidelberg, 15 November 2006
Dr. Silja Vöneky2

During the last months John B. Bellinger, Chief Legal Advisor to the United States State Department, is engaging in dialogue with politicians and legal scholars in European countries as there are – from his point of view – a number of misimpressions that have become prevalent over the last years, particularly in Europe, in regard to the US positions on questions of the legal basis and legal limits of the “war on terror” and the treatment of detained terrorists.

However, in my view, for enhancing the dialogue concerning these matters it is important – as a first step - to make very clear what are the differences in the interpretation of the relevant legal rules, as, for instance the limits of the law of self defence; the applicability of the laws of war; lacunae in the laws of war; the question of “unlawful combatant” versus “offensive civilian”; the question of who is a prisoners of war; the treatment of detainees which are not prisoners of war: the legal limits of the Third Geneva Convention and of common Art. 3 of the Geneva Convention; the applicability of human right treaties; the core principles of humane treatment; the range of procedural rights; the interpretation of the prohibition of torture, etc. The following statement tries to lay down a “European” approach to answer the legal questions concerning the fight against terrorism and makes a proposal how to avoid misperceptions and misunderstandings in the future.

Full paper available here

Questions-

Had my Law and Poverty presentations today. Went off pretty well. Manage to educate some about state accountability and other issues.

I thought of putting down some of the questions that were posed to me by Kalpana Kannabiran at the presentation;

1) On whom does one pin state accountability; the executive, legislature or the judiciary?

2) Does the non performance of a right call for a change in the right or stricter implementation mechanisms?

3) How does one look at a solution to stop state atrocities?

4) What is a favourable outcome from Nandigram?

5) Is DK Basu as effective as Miranda?


* My presentation was on my project, "Access to justice: arguing for Miranda rights in India". The Project links are there in the previous posts.

Bong Hits 4 Jesus

To what extent can schools control a student’s right to free speech and expression?

Can University students to exercise this right free from any authority?

The above questions are sought the be answered in the Bong Hits 4 Jesus case. Below is some Info on the case in CNN

Justices hear ‘Bong Hits 4 Jesus’ case

WASHINGTON (AP) — A high school senior’s 14-foot banner proclaiming “Bong Hits 4 Jesus” gave the Supreme Court a provocative prop for a lively argument Monday about the extent of schools’ control over student speech.

If the justices conclude Joseph Frederick’s homemade sign was a pro-drug message, they are likely to side with principal Deborah Morse. She suspended Frederick in 2002 when he unfurled the banner across the street from the school in Juneau, Alaska.

“I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs,” Chief Justice Roberts said Monday. (Watch why “bong hits” are on the court’s plate )

But the court could rule for Frederick if it determines that he was, as he has contended, conducting a free-speech experiment using a nonsensical message that contained no pitch for drug use.

“It sounds like just a kid’s provocative statement to me,” Justice David Souter said.

Students in public schools don’t have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the court said in a landmark speech-rights ruling from Vietnam era.

Morse, now a Juneau schools’ administrator, was at the court Monday. Frederick, teaching and studying in China, was not.

Former independent counsel Kenneth Starr, whose Kirkland and Ellis law firm is representing Morse for free, argued that the justices should defer to the judgment of the principal. Morse reasonably interpreted the banner as a pro-drug message, despite what Frederick intended, Starr said.

School officials are perfectly within their rights to curtail student speech that advocates drug use, he said. “The message here is, in fact, critical,” Starr said.

Starr, joined by the Bush administration, also asked the court to adopt a broad rule that could essentially give public schools the right to clamp down on any speech with which they disagree. That argument did not appear to have widespread support among the justices.

Douglas Mertz of Juneau, Frederick’s lawyer, struggled to keep the focus away from drugs. “This is a case about free speech. It is not a case about drugs,” Mertz said.

Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.

The outcome also could stray from the conservative-liberal split that often characterizes controversial cases.

Justice Samuel Alito, who wrote several opinions in favor of student speech rights while a federal appeals court judge, seemed more concerned by the administration’s broad argument in favor of schools than did his fellow conservatives.

“I find that a very, a very disturbing argument,” Alito told Justice Department lawyer Edwin Kneedler, “because schools have … defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.”

Justice Stephen Breyer, in the court’s liberal wing, said he was troubled a ruling in favor of Frederick, even if he was making a joke, would make it harder to principals to run their schools.

“We’ll suddenly see people testing limits all over the place in the high schools,” Breyer said.

On the other hand, he said, a decision favorable to the schools “may really limit people’s rights on free speech. That’s what I’m struggling with.”

After the arguments, two dozen sign-carrying demonstrators chanted, “Teachers should teach, not limit free speech.”

Scores of students waited outside the court early Monday for a chance to listen to the arguments.

Ninth graders on a class trip from Mosinee, Wisconsin, were in general agreement on the issue. Cari Kemp, 15, said Frederick’s protest was “just a joke” but that “the school took it too far.”

The justices, as they often do, sought to probe the limits of each side’s argument by altering the facts one way or another.

What if, Souter asked, a student held a small sign in a Shakespeare class with the same message Frederick used. “If the kids look around and they say, well, so and so has got his bong sign again,” Souter said, as laughter filled the courtroom. “They then return to Macbeth. Does the teacher have to, does the school have to tolerate that sign in the Shakespeare class?”

Justice Antonin Scalia, ridiculing the notion that schools should have to tolerate speech that seems to support illegal activities, asked about a button that says, “Smoke Pot, It’s Fun.”

Or, he wondered, should the court conclude that only speech in support of violent crime can be censored. “‘Extortion Is Profitable,’ that’s okay?” Scalia asked.

A clear majority seemed to side with Morse on one point, that she shouldn’t have to compensate Frederick. A federal appeals court said Morse would have to pay Frederick because she should have known her actions violated the Constitution.

A decision is expected by July.

The Essence of Civil Liberties

Justice Anand Presented the Annual Tarkunde Memorial Lecture on HUMANISM: THE ESSENCE OF CIVIL LIBERTIES.
Below are some of the excerpts from the lecture.

The basic concept of civil liberties is the upholding of the dignity and worth of the individual, which is the essence of human rights. Man is born free and there is constant struggle to break the shackles, when in bondage. This perception led to renaming the Indian Mutiny of 1857 as the First War of Indian Independence. The Civil War of America was a similar response. Civil liberties in South Asia present a mixed picture. It is dismal where democracy is either not real, or is in the nascent stage, even if not absent in form.

The aftermath of 9/11 with the frenzy of war against terrorism has global impact. It is greater where the civil liberties were already not sacrosanct and the institutional protection was weak. Strength of the polity to overcome the impact determines the current state of civil liberties. Democracy is the best form of polity for protection of civil liberties; human rights are at the core of constitutional governance. India has the lead in this venture, thanks to the large number of human rights activists in all spheres, and the country ethos. Tarkunde and his ilk have made a large contribution.

Civil liberties are a potent tool for empowerment of the people through human development. India with its vast human resources has a great potential. It is already emerging as a super power threatening even the lead status of USA, because of the intellectual capital and its vast resource of knowledge makers in this century of knowledge. The linkage between human rights and human development is recognized, as they share a common vision and serve a common purpose. They in turn depend on the quality of governance, that is, democracy. Synthesis of all three concepts in the polity is essential to achieve the aim.

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It is a fallacy to think that there is any conflict between human rights and national security. The coexistence of human dignity and national security in the Preamble to the Constitution of India is sufficient to dispel this impression. It is only in the event of a possible conflict that there has to be priority, and then too the non-derogable rights remain sacrosanct while the other rights become subservient only to the extent necessary in the larger interests.

Even after 9/11, in the UN Security Council Resolution 1373 of 28 September 2001, the States were called upon inter alia to take appropriate measures for combating terrorism in conformity with relevant provisions of national and international law, including standards of human rights. In the same context, Mary Robinson, the UN Commissioner for Human Rights said:

There should be three guiding principles for the world community: the need to eliminate discrimination and build a just and tolerant world; the cooperation by all States against terrorism, without using such cooperation as a pretext to infringe human rights; and a strengthened commitment to the rule of law, and also,

What must never be forgotten is that human rights are no hindrance to the promotion of peace and security. Rather they are essential element of any strategy to defeat terrorism.

The UN General Assembly emphasized in this context, that States must adopt measures in accordance with the UN Charter and the relevant provisions of the international law, including international standards of human rights. Gandhiji had this in mind when he said: Peace does not come out of a clash of arms, but out of justice lived and done.

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Humanitarian principles govern also the remedy for human rights violations. According to Prof. Van Boven principles, the only appropriate response to victims of gross violations of human rights is one of reparation, which encompasses access to justice, and reparation for harm suffered. The four main forms of reparation are: restitution, compensation, rehabilitation, and guarantee of non-repetition. Duty to prosecute perpetrators is included in reparation. Impunity is in conflict with this principle. The NHRC applied this principle in recommending the obligatory State response to the victims of the Gujarat carnage in the year 2002. A lot remains to be done in that behalf.

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The Complete lecture may be viewed at The PUCL site.

The Right to Die (IHT)

AIX-EN-PROVENCE, France: 'Every person shall have the right to die with dignity; this right shall include the right to choose the time of one's death and to receive medical and pharmaceutical assistance to die painlessly. No physician, nurse or pharmacist shall be held criminally or civilly liable for assisting a person in the free exercise of this right."

Within the next half century, perhaps much sooner, the right to choose to die with dignity will be as widely recognized as the right to free speech or to exercise one's religion.

It will cease to be called euthanasia or mercy killing. It will not be viewed as killing, but as a fundamental human right as expressed in the imaginary constitutional amendment above.

In Europe, euthanasia is already sanctioned by law in Belgium, the Netherlands and Switzerland. In the United States, the state of Oregon has also allowed it.

The decision last week by a French criminal court in Périgeux illustrates how social mores precede changes in the law. The facts of the case are simple: A 65-year-old woman suffering from terminal pancreatic cancer was given potassium chloride by a nurse and died shortly after.

Potassium chloride is a fatal poison. The dose was prescribed by a doctor and administered by a nurse acting on the doctor's orders. Prior to the fatal dose, the patient suffered from fever, trembling, incontinence, nausea, pain and an intestinal blockage causing vomiting of fecal matter.

The nurse was indicted for assassination and the doctor for assisting. The charges were later changed to poisoning. The two accused risked maximum prison sentences of 30 years.

After four days of trial the nurse was acquitted and the doctor was given a one-year suspended sentence. The court also ordered that the conviction not be registered in national government files, which will enable the doctor to continue to practice. It is not clear who initiated the prosecution. Neither the husband nor the son of the deceased woman pressed charges. In fact, they supported and thanked both doctor and nurse. The prosecution argued that the principle of not killing must be upheld, but the jury did not agree.

The decision shows once again that laws are a lagging indicator of social change.

France revised its law in 2005 and now permits what it terms passive euthanasia, which may mean withholding treatment or giving painkillers in such a massive dose that the patient can slide into an eternal sleep. But it forbids active euthanasia such as the use of potassium chloride.

A generation ago, in 1980, a number of people in France formed an Association for the Right to Die with Dignity (ADMD), which now has over 40,000 members. As medical care improves and people live longer, one can expect to see more such associations around the world, and eventually a change in perspective.

At present, the law focuses on the act of the physician or nurse, and not on the rights of the patient. As that focus shifts so that the right of the patient to die with dignity becomes paramount, one can expect to see the law proclaim a fundamental right.

The fear of abuse by doctors, nurses, or family members wishing to do away with an unruly patient or parent will recede.

Every time we step into an automobile we run the risk of being killed or seriously injured. Yet despite the thousands of auto fatalities every year in every country, the risk is accepted because of the benefits of automobile travel.

The legal philosopher Hans Kelsen defined justice as social happiness. But social happiness is an evolving concept and one that varies from one culture to another.

One need only look at how practices in the workplace — holidays, wages, hours per week, maternity leave for mothers and fathers — vary widely from country to country, and yet are regarded as vested rights in each.

Neither the French nor the American Constitution, nor the UN Universal Declaration of Human Rights, nor the European Convention on Human Rights, includes the right to die with dignity. But then many of the human rights we take for granted today — including non-discrimination and free speech — are far more recent than one might imagine.

One can predict with some confidence that as life expectancy is extended, social mores will evolve and the law will follow.

Ronald Sokol, former lecturer in law at the University of Virginia, practices law in Aix-en-Provence, France. Article Published in the International Herald Tribune

Movie : AN INCONVENIENT TRUTH

AN INCONVENIENT TRUTH : A GLOBAL WARNING feat. Al Gore

directed by : Davis Guggenheim/ 93 min

An Inconvenient Truth is a documentary film about climate change, specifically global warming. Directed by Davis Guggenheim and presented by Al Gore, the film explores data and predictions regarding climate change, interspersed with personal events from the life of Al Gore.

Gore reviews the scientific evidence for global warming, discusses the politics and economics of global warming, and describes the consequences he believes global climate change will produce if the amount of human-generated greenhouse gases is not significantly reduced.

The film includes many segments intended to refute critics who say that global warming is insignificant or unproven. For example, Gore discusses the risk of the collapse of a major ice sheet in Greenland or West Antarctica, either of which could raise global sea levels by approximately 20 feet (6m), flooding coastal areas and producing 100 million refugees. In an effort to explain the global warming phenomenon, the film examines annual temperature and CO 2 levels for the past 600,000 years in Antarctic ice core samples . An analogy to Hurricane Katrina that destroyed almost a million homes in coastal Mississippi, Louisiana , Alabama, and Florida is also used. The film ends with Gore noting that if appropriate action is taken soon (releasing less CO2, growing more plants and trees), the effects of global warming can be successfully reversed.

An Inconvenient Truth is also the title of a companion book authored by Gore, which reached #1 on the New York Times bestseller list. The book contains additional, detailed information, scientific analysis, and Gore's commentary on the issues presented in the documentary.

The film premiered at the 2006 Sundance Film Festival and has several awards to its credit (including Best Documentary Feature, Academy Awards, 2007; Best Documentary Feature, BFCA 2007; Stanley Kramer Award, PGA Golden Laurels Awards 2007 etc). It is the third-highest-grossing documentary in the United States to date. Both Gore and Paramount Classics , the film's distributor, have pledged proceeds from the film to further educational campaigns about climate change. Gore also calls upon viewers to learn how they can help in this initiative. For more information about the campaign, log on to www.climatecrisis.net.

Contact:Anand Patwardhan 9819882244,Lynne Henry 9820896425,Bijon 9833588105
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The movie is specially screened at Prithvi Theatre Mumbai on 26th march as part of the Vikalp Film Festival. (1800 hrs)
The Entry is Free.
For more information, contact Anand Patwardhan - 9819882244, Lynne Henry - 9820896425

The Massacre at Nandigram

One multinational Company, a communist government in the State, 4000 police personnel and 10,000 acres of land; All that is required for a massacre that results in the death of 20 villagers and wounds 70 more. This incident has now turned out to be one of the worst instances of the abuse of state power since Godhra, gujarat.
Nandigram is a small town in West Bengal, India where the Government proposed a Special Economic Zone for a Multinational Company named 'Salim group'.

State power must never be used to further private interests. Well, that is precisely what has happened in Nandigram. To what extent does the State recognise the 'right to property' in India? Off late it has been using the non-existence of this right to inflict pains and increase the troubles of the Rural poor. Not surprisingly, this has been to the extent of causing death in India. 'Accountability' doesnt remain to be seen in the usage of State power. (refer to my earlier post on accountability) . How can one have faith in the Government in a democracy when it cannot protect the interests of its people? A left government, meant to protect the poor, has now done something that the communist preacher of Kolkata are ashamed to acknowledge. The Sarkar family has even returned the rabindra awards and done a repeat of what tagore did after the Jallian walla Bagh Massacre.
While this is a topic on which I can write on great length, I shall stop here as I got an exam tomorrow. Readers are requested to see the video below. Also, other readings attached.

- Video on the Nandigram Issue
- Nandigram on Cuckoo's Call
- Are SEZ's a good idea? Nitin Desai

BLOG Award

http://blogofthedayawards.blogspot.com/2007/03/social-blog-human-rights-issues-and.html


THANK YOU

MIRANDA RIGHTS IN INDIA (part II-)

Chapter III - POLICE AND THE LAW

The above chapters are indirectly related to a greater issue of accountability and responsibility on the part of the government on the part of the government to educate the citizens about the law and not abuse the powers in the hands of the state machinery. In this chapter we shall discuss mainly about the attitude of the police towards the poor and the treatment meted out to them. This will later lead us to conclude the need for checks in the police functioning today.

3.1 The fallacy of Ignorantia Juris Non Excusat

Legal systems all over have been based upon the common maxim of ignorantia juris non excusat, that is ‘ignorance of the law is no excuse’. The principle, the had first originated in the Code of Justinian [1], was used as a defence by the government when people said they did not know about the law. The reason then was that it was simple to understand and not complex in nature.

With time, law became more and more complex in nature and so did the excuse of the government for using this principle. Now, they said, “it was a small evil in exchange for a greater good”[2]. If this was removed then everyone would claim that they did not know the law which would then become difficult to prove. What it then did become was a manner by which the government shed the responsibility for educating its citizens about the law. It removes any trace of accountability on the part of the government and places the burden on the common man to know the law.

In the past few decades, some Courts in the world are trying to do away with this maxim in the area of ‘rights education’. They seek to place the burden on the government to educate the citizen[3]. It all started in 1966 with Miranda[4] and similar instances in the United Kingdom[5] and other European nations[6]. In the USA, this issue was recently upheld in Dickerson v. United States[7]. As regards to the situation in India, the Courts have always sought to apply and interpret the maxim in its strict sen.[8]se without any exceptions In this way, DK Basu was a relief to the poor. But the fact remains that the government does not have any responsibility to educate the poor in this country. All mechanisms of accountability seem a distant dream.

I argue that the rights of the poor would be secured only if the government takes upon itself the responsibility to protect them. Such responsibility does not seem to exist in India. It is then imperative that if this country must develop, the rights of a 250 million people must be secured.

3.2 The Police and Implementation of the Law

I would like to approach the aspect of police accountability by showing how the police is presently implementing the law. The data presented is based on the research that was conducted by myself in the month of December in the city of Mumbai.

The DK Basu judgment says that the rights laid down in para 36 must be placed in a conspicuous place in every police station. In the eight police stations that were visited, only three of them were in a place that could be well seen. The rest five were in the office of the inspector which is visited only by a few of them. These five police stations were in the slum areas of Mumbai that included the Dharavi, Sion and Chembur areas of Mumbai. On questioning a few police constables, I learnt they knew about the procedure and the way it was to be followed.

On enquiring as to how many cases are reported to the Control room within 24 hrs, three persons reported by myself were not known to the control room for the next 48 hours. One of them by the name of Walekar was placed in a police locker for 2 days and there was no record of his arrest.

3.3 Police Brutalities in India

The issue of police brutalities and custodial violence and no surprise in this system of ours. According to the statistics of the National Human Rights Commission alone, in the year 1999, there were 193 custodial deaths in the country.[9] Every day violence in the police station is not a new phenomenon. Sadly, there is no law in the Country to protect the citizens from torture specifically. Such brutalities have been read into the normal sections of assault[10] and hurt[11] in the Indian Penal Code. The Courts have also at numerous instances discussed the issue of custodial violence [12] and condemned the same.

In the Survey conducted by the researcher, around 41 % of the people interviewed had been subjected to some form of violence or the other at the hands of the police. Some of them also included lathi beatings and slaps. One of them, a juvenile, was even paraded around the police station in his underwear. If this is just an analysis of 25 odd people in the city of Mumbai, we can only imagine what would be happenning in the whole of India. I again get down to the same argument that there is a great need for police accountability in the country to stop such acts of violence against the poor and illiterate.

3.4 Reforms in the Police Act

We today have a 146 year old Police Act[13]. The first comprehensive review at the national level of the police system after independence was undertaken in 1977, when the Government of India appointed the National Police Commission. In its first report[14], the Commission dealt with the modalities for inquiry into complaints of police misconduct in a manner which will carry credibility and satisfaction to the public regarding their fairness and impartiality and rectification of serious deficiencies in the system. Various Committees that have been set up after this period like the Dharma Vira Commission, Julio Roberto Committee, Soli Sorabjee Committee and the Padmanabiah Panel have zeroed in on the maladies of the Police Act and called for drastic changes in the functioning of the system.[15] I argue that the issue at hand is not ‘police reform’ that these committees and judgments propose but that of ‘police accountability’. Our country has not taken a serious stance on the issue of Police accountability and the status of such investigations.

In the United States of America, the rights of individuals have always received supremacy over the investigation process.[16] This is to the extent that, if the rights of arrested persons are affected, then the investigation to that extent will be declared invalid.[17] In this manner, some degree of responsibility to follow the law is placed on the Police. Similar situations must be applied in India too so that the rights of the poor are protected in this country. The accused must have full knowledge of his rights at the time of the investigation and if he is not aware of them, the state must remind him of them.

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[3] JW Meeker and John Dombrink, “ Access to Civil Courts for those of Low and Moderate Means”, 66 S. Cal. L. Rev. 2217.

[4] Miranda v. Arizona, 384 US 436 (1966).

[5] Criminal Justice and Public Order Act, 1994 (United Kingdom).

[6] § 136 Strafprozessordnung (German Criminal Procedure Code) : Letter of Rights (European Union)

[7] Dickerson v. United States, 530 US 428.

[8] State of Maharashtra v. Mayor Hans George, AIR 1965 SC 722.

[9]“Right to Free Legal Aid: Cause to Despair, Reason to Hope”, A Report of the Centre for Social Justice, 1^st ed. 1998, p. 4.

[10] Section 324, Indian Penal Code.

[11] Section 321, Indian Penal Code.

[12] Prakash Singh v. Union of India, (2006) 8 SCC 1 : Vineet Narain v. Union of India, AIR 1998 SC 889 : Sube Singh v. Union of India, AIR 2006 SC 1117.

[13] Indian Police Act, 1861.

[14] Report of the National Police Commission, February 1979.

[15] Poonam Kaushish, “Police Reform: Who Should Control the Police”, Central Chronicle, October 25, 2006.

[16] Miranda v. Arizona, 384 US 436.

[17] Ibid.

MIRANDA RIGHTS IN INDIA (part I- Introduction)

I undertook a project titled ACCESS TO JUSTICE: ARGUING FOR MIRANDA RIGHTS IN INDIA for my Law and Poverty Course this semester. It involved a field study wherein I sought to provide the ground work for having Miranda in India. Ofcourse, we do have DKBASU guidelines, but they arent enough to ensure due process in our Country. The next few posts are going to be specific chapters of my project.
The Complete Project may also be downloaded here
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INTRODUCTION

It is very often said that poverty means the degeneration of human rights. Rights, that are meant to be inalienable to human kind since their existence. One of the most important of these rights is the right to due process. Every person has a right to life and be tried by fair and just procedure[1]. It is highly unfortunate that while law seems to be in place for the protection of such rights, it fails in its implementation. The citizen is not aware of such law and more often that not, the poor man has to bear the brunt of actions. Poverty, is inextricably linked to the criminal legal system when it comes to the ‘access to justice’ and the protection of rights and freedoms.

The right to life and liberty[2], of which due process is an essential part has been given the highest regard in the Constitution and considered inviolable in nature. The ‘procedure established by law’ as explained in Maneka Gandhi’s case[3], must be reasonable, fair and just. In a country where more than 250 million people are below the poverty line, the fairness of the system still remains to be seen. The legal system in the country is against the poor. The goals of socialism and equality have not yet been realized and remain a distant dream. Most laws are made to facilitate the growth of wealth for the rich and the few that are made for the poor fail in their implementation. The legal system itself, apart from the provision for legal aid, has done nothing to support the poor in the country.

Access to justice can be understood in two ways- firstly, getting justice to the victim of a particular crime and secondly justice, in the protection of the rights of the accused. The procedure to every conviction must be fair and just. An achievement of justice in a case must consider the procedure by which it is conducted. Rights must be preserved, procedure must be followed and the accused must be given a free and fair trial. In the research, I have chosen to look at the latter aspect of ‘access to justice’. The rights of the accused are vital in the conduct of a trial. When a poor citizen stands as an accused, he needs to be aware of his rights. He needs to know that he has a right to free legal aid, a right to have his relatives informed, and most importantly, not to be tortured or be subjected to custodial violence. The situation in the Country is such that with a large majority of the people illiterate, such people are ignorant of their rights and the government on its part is doing nothing to educate them. It seeks to rest on the clichéd principle of ignorantia juris non excusat, that ignorance of the law is no excuse.

On the same lines, the Federal Court of the United States in 1966 pronounced the famous ‘Miranda Rights’ in Miranda v. Arizona[4]. What is said was that on arrest, every person must be read out his rights and the consequences of such abrogation would be the freedom of the arrested person. It attached, some degree of accountability on the police and state machinery for the protection of the rights of the citizens. In India, the case of DK Basu v. State of West Bengal[5], the Court issued directions in the form of requirements that are to be followed at the time of arrest. In the case, the Court relied on Miranda and tried to secure, atleast in theory, rights to the accused. However, such procedures are far seen to be implemented. Numerous incidents have taken place where the police authorities have abused procedure and resorted to violence. This project looks at rights granted to the accused in relation to poverty and illiteracy. It shall seek to critique the legal system and address the issue of police accountability that is gaining importance today. To facilitate his research, the author has conducted a field study, the data collected from which will be used to further his conclusions about the topic.

[1] Biswanath Prasad Singh v. State of Bihar, 1994 Cri LJ 242.

[2] Article 21, The Constitution of India.

[3]Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[4] Miranda v. Arizona, 384 US 436.

[5] DK Basu v. State of West Bengal, (1997) 1 SCC 416.

Religious Terror in an Emerging India

I did come across some good readings today. Posting the links here.
Apologies for not putting up anything original.

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PERSONAL PERSPECTIVES ON AN EMERGING INDIA

Age is not the graying temples or the crinkles around your eyes, or the constant backache. Instead it is the faded memories of your life – like snapshots left exposed to the direct light for a little too long. Age is also progress, as you try and remember the past and sync it with your present.

In the wee hours of the morning, just when the sun was trying to rub sleep out of its eyes, I stepped into the front yard of my childhood home, mind and body ravaged by the transcontinental time drift. A slight cold drizzle fell as I cupped my first cigarette of the day.

As a kid, it was my favorite time of the day: waiting for my grandfather and after him my father to walk me across the street to the school bus stop. Three decades later, things were very different. Instead of the crow’s craw or chirping of the sparrows, all I heard was the bleat of the horns. And when that subsided, the audible whoosh of an ultra modern Metro zipping on the overhead tracks.

Read More

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DEMOCRACY'S COLLAPSE INTO NEAR RELIGIOUS TERROR

While Americans have been focused on the war on terror, Iraq, and the future of democracy in the Middle East, democracy has been under siege in another part of the world. India – the most populous of all democracies, and a country whose Constitution protects human rights even more comprehensively than our own -- has been in crisis. Until the spring of 2004, its parliamentary government was increasingly controlled by right-wing Hindu extremists who condone and in some cases actively support violence against minorities, especially the Muslim minority. Many seek a fundamental change in India's pluralistic democracy. Despite the recent electoral loss, these political groups and the social organizations allied with them remain extremely powerful. The political future is unclear.

Read More (also see part ii, iii, iv and v)

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DRUGS FOR THE POOR

Thank you SANOFI- AVENTIS

For deciding not to patent your anti-malarial drug ; at a time when the existing malarial drugs are becoming ineffective and the mosquitos are becoming resistant to it.

For having concern for the millions of poor people on planet earth

For setting an example for the filthy rich pharmaceutical companies to follow

For helping the cause of countries like India and those in Africa.

For fighting against malaria and putting in billions of dollars in its research: The Impact Malaria programme was created in 2001 and is sanofi-aventis contribution to the fight against malaria. Its four major axes are:
1. to discover new antimalarial drugs,
2. to develop new combinations or formulations from existing drugs, particularly ACTs,
3. to inform, educate and communicate about malaria, especially remote healthcare facilities, communities and families,
4. to distribute antimalarial drugs which are vital to the poorest populations, with a differential pricing approach, including a "no profit-no loss" policy.
These actions are carried out with public and private healthcare organisations and the health authorities in the countries concerned, notably through national malaria control programmes in liaison with the WHO, Roll Back Malaria Partnership and leading international institutions.

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Restoring Habeas Corpus !!

The University of Chicago Law School's Blog is by far the best blog Ive ever read on law and HR issues. Imagine people like Posner, Straus and Stone writing! THE BLOG HERE
The following post was posted on the blog .....

PS: The article below is also related to my project/post on Terrorism and the Rule of Law. It would give the reader a good understanding of the Indian Situation.

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RESTORING HABEAS CORPUS RIGHTS ELIMINATED BY THE MILITARY COMMISSIONS ACT

The Constitution Project released the following statement today. Richard Epstein and I helped draft the statement:

We, the undersigned members of the Constitution Project’s Liberty and Security Committee and the Project’s Coalition to Defend Checks and Balances, are deeply troubled by the recent legislation eliminating habeas corpus for certain non-citizens detained by the United States. We recommend that Congress vote to restore federal court jurisdiction to hear these habeas corpus petitions.
Habeas corpus has for centuries served as the preeminent safeguard of individual liberty and the separation of powers by providing meaningful judicial review of executive action. In 2004, the United States Supreme Court upheld the right of Guantanamo detainees to file habeas corpus petitions to challenge the lawfulness of their indefinite detentions.

Nevertheless, in October 2006, Congress enacted the Military Commissions Act (“MCA”) eliminating habeas corpus for certain aliens held by the United States as “enemy combatants.” While we recognize the need to detain foreign terrorists to protect national security, we do not believe repealing federal court jurisdiction over habeas corpus serves that goal. On the contrary, habeas corpus is crucial to ensure that the government’s detention power is exercised wisely, lawfully, and consistently with American values.

The protections of habeas corpus have always been most critical in cases of executive detention without charge. In these circumstances, habeas corpus proceedings afford prisoners a meaningful opportunity to be heard before a neutral decisionmaker.

The unconventional nature of the current “war on terrorism” makes habeas corpus more, not less, important. Unlike in traditional conflicts, there is no clearly defined enemy, no identifiable battlefield, and no foreseeable end. The administration claims the power to imprison individuals without charge indefinitely, potentially forever. For that reason, it is essential that there be a meaningful process to prevent the United States from detaining people without legal authority or mistakenly depriving innocent people of their liberty. Habeas corpus provides that process.

Habeas corpus is particularly important because of the way in which many detainees at Guantanamo came into U.S. custody. Most detainees were captured far from an active battlefield; many were sold for bounty by Afghani warlords to the Northern Alliance before being handed over to American forces. And, unlike in previous conflicts, the U.S. military did not provide a prompt hearing to determine a detainee’s status, as the Geneva Conventions and U.S. army regulations require. As the Supreme Court has made clear, in the absence of such process habeas corpus is necessary to ensure that legal and factual errors are corrected and detention decisions are viewed as legitimate.

We recognize that the Military Commissions Act and the Detainee Treatment Act of 2005 provide detainees at Guantanamo with hearings before a Combatant Status Review Tribunal (“CSRT”), and that the CSRT decisions may be reviewed by the United States Court of Appeals for the D.C. Circuit. But we believe that this review scheme cannot replace habeas corpus for two principal reasons.

First, the CSRT process lacks the basic hallmarks of due process. Among other problems, it relies on secret evidence, denies detainees the chance to present evidence in their favor, and prohibits the assistance of counsel. In addition, the process permits the tribunal to rely on evidence obtained by coercion. Second, the D.C. Circuit’s review is limited to what will inevitably be an inherently flawed record created by the CSRT. Unlike a U.S. district court judge hearing a habeas corpus petition, the D.C. Circuit cannot consider evidence or make its own findings of fact, and, therefore, it cannot rectify the CSRT’s inherent procedural flaws.

The result does not provide these prisoners the process which they are due. The government has detained prisoners for more than five years without a meaningful opportunity to be heard, and has failed to create an adequate substitute for habeas corpus.

Restoring habeas corpus is also important to protecting Americans overseas. The United States cannot expect other nations to afford our citizens the basic guarantees provided by habeas corpus unless we provide those guarantees to others.

If the United States is going to establish a system of indefinite detention without charge, it must at least ensure there is a meaningful process to determine it is holding the right people. When no such process has been provided, as in the case of Guantanamo detainees, habeas corpus supplies the critical fail-safe procedure to ensure that the executive has complied with the Constitution and laws of the United States. We also believe that in our constitutional system of checks and balances, it is unwise for the legislative branch to limit an established and traditional avenue of judicial review.
America's detention policy has undermined its reputation in the international community and weakened support for the fight against terrorism, particularly in the Arab world. Restoring habeas corpus would help repair the damage and demonstrate America's commitment to a tough, but rights-respecting counter-terrorism policy. Therefore, we urge Congress to restore the habeas corpus rights that were eliminated by the Military Commissions Act.

Members of the Constitution Project’s
Liberty and Security Committee &
Coalition to Defend Checks and Balances
Endorsing the Statement on Restoring Habeas Corpus Rights Eliminated by the Military Commissions Act*

Floyd Abrams, Partner, Cahill Gordon & Reindel LLP

Azizah al-Hibri, Professor, The T.C. Williams School of Law, University of Richmond; President, Karamah: Muslim Women Lawyers for Human Rights

Bob Barr, Former Member of Congress (R-GA); CEO, Liberty Strategies, LLC; the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union; Chairman of Patriots to Restore Checks and Balances; Practicing Attorney; Consultant on Privacy Matters for the ACLU

David Birenbaum, Of Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP; Senior Scholar, Woodrow Wilson International Center for Scholars; US Ambassador to the UN for UN Management and Reform, 1994-96

Christopher Bryant, Professor of Law, University of Cincinnati; Assistant to the Senate Legal Counsel, 1997-99

David Cole, Professor, Georgetown University Law Center

Phillip J. Cooper, Professor, Mark O. Hatfield School of Government, Portland State University

John J. Curtin, Jr., Bingham McCutchen LLP; former President, American Bar Association

John W. Dean, Counsel to President Richard Nixon

Mickey Edwards, Lecturer at the Woodrow Wilson School of Public and International Affairs, Princeton University; former Member of Congress (R-OK) and Chairman of the House Republican Policy Committee

Richard Epstein, James Parker Hall Distinguished Service Professor of Law, The University of Chicago; Peter and Kirsten Bedford Senior Fellow, The Hoover Institution

Bruce Fein, Constitutional Lawyer and International Consultant at Bruce Fein & Associates and
The Lichfield Group; Associate Deputy Attorney General, Reagan Administration

Eugene R. Fidell, President, National Institute of Military Justice; Partner, Feldesman Tucker Leifer Fidell LLP

Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress

Melvin A. Goodman, Senior Fellow, Director of the National Security Project, Center for International Policy

Morton H. Halperin, Director of U.S. Advocacy, Open Society Policy Center; Senior Vice President, Center for American Progress; Director of the Policy Planning Staff, Department of State, Clinton Administration

Philip Heymann, James Barr Ames Professor of Law, Harvard Law School; Deputy Attorney General, Clinton Administration

Robert E. Hunter, U.S. Ambassador to NATO, 1993-98

David Kay, Former Head of the Iraq Survey Group and Special Adviser on the Search for Iraqi Weapons of Mass Destruction to the Director of Central Intelligence

David Keene, Chairman, American Conservative Union

Christopher S. Kelley, Visiting Assistant Professor of Political Science, Miami University (OH)

Harold Hongju Koh, Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law, Yale Law School; Assistant Secretary of State for Democracy, Human Rights and Labor, 1998-2001

David Lawrence, Jr., President, Early Childhood Initiative Foundation; former Publisher, Miami Herald and Detroit Free Press

Thomas Mann, Senior Fellow and W. Averell Harriman Chair, Governance Studies Program, the Brookings Institution

Joseph Margulies, Deputy Director, MacArthur Justice Center; Associate Clinical Professor, Northwestern University School of Law

Alberto Mora, Former General Counsel, Department of the Navy

Norman Ornstein, Resident Scholar, the American Enterprise Institute

Thomas R. Pickering, Undersecretary of State for Political Affairs 1997-2000; United States Ambassador and Representative to the United Nations, 1989-1992

Jack Rakove, W. R. Coe Professor of History and American Studies and Professor of Political Science, Stanford University

Peter Raven-Hansen, Professor, Glen Earl Weston Research Professor, George Washington Law School

L. Michael Seidman, Professor, Georgetown University Law Center

William S. Sessions, Former Director, Federal Bureau of Investigation; former Chief Judge, United States District Court for the Western District of Texas

Jerome J. Shestack, Partner, Wolf, Block, Schorr and Solis-Cohen LLP; former President, American Bar Association

John Shore, Founder and President, noborg LLC; former Senior Advisor for Science and Technology to Senator Patrick Leahy

Neal Sonnett, Chair, American Bar Association Task Force on Treatment of
Enemy Combatants and Task Force on Domestic Surveillance in the Fight Against Terrorism

Suzanne E. Spaulding, Principal, Bingham Consulting Group; former Chief Counsel for Senate and House Intelligence Committees; former Executive Director of National Terrorism Commission; former Assistant General Counsel of CIA

Geoffrey Stone, Harry Kalven, Jr. Distinguished Service Professor of Law, the University of Chicago

Jane Stromseth, Professor, Georgetown University Law Center

William H. Taft, IV, Of Counsel, Fried, Frank, Harris, Shriver & Jacobson; former Legal Advisor, Department of State, George W. Bush Administration; Deputy Secretary of Defense, Reagan Administration

John Terzano, Vice President, Veterans for America

James A. Thurber, Director and Distinguished Professor, Center for Congressional and Presidential Studies, American University

Charles Tiefer, General Counsel (Acting), 1993-94, Solicitor and Deputy General Counsel, 1984-95, U.S. House of Representatives

Patricia Wald, Former Chief Judge, U.S. Court of Appeals for D.C. Circuit

Don Wallace, Jr., Professor, Georgetown University Law Center; Chairman, International Law Institute, Washington, DC

John W. Whitehead, President, the Rutherford Institute

Lawrence B. Wilkerson, Col, USA (Ret), Visiting Pamela C. Harriman Professor of Government at the College of William and Mary; Professorial Lecturer in the University Honors Program at the George Washington University; former Chief of Staff to Secretary of State Colin Powell

Roger Wilkins, Clarence J. Robinson Professor of History and American Culture, George Mason University; Director of U. S. Community Relations Service, Johnson Administration

*Affiliations Listed for Identification Purposes Only

Book Release

Just had a book of mine released today. In the sense I am the Assistant Author to the book. And yes, It's my first one.
The Title, LAW RELATING TO DOMESTIC VIOLENCE. It gives a theoretical concept of domestic violence to understand the Protection of Women from Domestic Violence Act, 2005 better.

TERRORISM AND THE RULE OF LAW

I just completed my Law and Literature project. It was a case study on Kartar Singh v. Union of India [(1994) 4 SCC 569]. For those who dont know, the case dealt with the applicability of anti- terrorist laws in India. In a not so surprising decision, the court stated that Rights may be compromised for the prevention of terrorism and the protection of the Country. This then leaves us with an important question, "Can the very fundamental Freedoms that we have stood for be compromised in the name of national security?"

While the project is attached below; I have posted its conclusion that will leave us with some interesting inferences.
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The judgment given by the Court in Kartar Singh then is erroneous. In the name of the security of the State, a legislation cannot compromise the rights of the individuals. All along the case, the Court has stressed that the situation in the Country demands the need for strict measures and even if they violate the rights in part III, they are justified. We must not forget that we are a democracy, in fact, the world’s largest democracy. When a government is made for the people and by the people, it must protect the rights of everyone and not just a majority. Terrorisms greatest victory would be the shackling of the very foundations that we have stood for the past many years.

The judiciary in our country has never been rights oriented. It has always sought to protect the interests of the State vis a vis the individuals. This was more recently seen in the case of PUCL v. Union of India[1]where the Court upheld the validity of the Prevention of Terrorism Act (POTA). Contrasting this with the time of Earl Warren in the 1960s and 70s in the United States, we see that individuals rights were always sought to be preserved. Somewhere in there we see Justice Krishna Iyer seeking to do the same but not being given due regard. If terrorism must be stopped, proper measures that do not violate due process must be used. This was also emphasized in the UN Resolutions with regard to terrorism, where it was stated that in the prevention of terrorism the fundamental human rights of the individual must not be compromised.[2] If democracy needs to survive, rights of the individual must never be compromised. I would like to stress upon once again that terrorism’s greatest victory is shackling the very foundations of our democracy that is built upon rights and principles of natural justice. Our compromise is their victory.

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[1] People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.

[2] GA Resolution 1373/2001, Adopted during the 4385^th meeting of the United Nations on 28^th September 2001.

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The complete project is uploaded here - Document

FIVE YEARS OF GUJARAT CARNAGE: AN OVERVIEW

Asghar Ali Engineer *Article here

ive years have past since the Gujarat carnage of February 28 2002 which lasted over six months. The carnage followed the burning of S-6 at Godhra on 27th February. It is great mystery as to who set fire to S-6 or was it an accidental fire? Before even news spread all over India of this ghastly incident at Godhra in which 59 persons were burnt, Ahmedabad city started burning on the morning of 28th February. In the post-Godhra carnage in central and north Gujarat more than 2000 persons, mostly of minority origin, were killed most brutally. Several women were raped and weapons inserted in their private parts.

The then NDA Government at the Centre and Modi in Gujarat maintained that S-6 was set afire as a result of conspiracy hatched by the ISI of Pakistan with the help of some Muslims in Godhra. The Modi Government arrested about 100 persons under POTA which was then in force. However, during last five years the Modi Government has not been able to produce an iota of proof against the accused in the 'Godhra conspiracy case.'

The POTA review committee opined last year that there are no substantial grounds for keeping the accused under the POTA but even then the Modi Government refused to release these accused.

It is real mystery as to who set fire to the coach S-6 or was it an accidental fire. The Banerjee Commission set up by Shri Lalu Prasad, the Railway Minister in the UPA Government concluded that the fire was result of short circuit inside S-6 and there is no evidence for setting fire from outside. Mr. Mukul Sinha, the defense lawyer thinks that fire was result of bursting of cooking stove carried by karsevaks had gone on long tour to Ayodhya. The Shah-Nanvati Commission, which is also probing in the train burning at Godhra has still not published its report. One wonders what conclusion it would draw.

Before even the cause of fire was known Modi pronounced the theory of 'equal and opposite reaction' and justified the carnage in Gujarat on the very first day the carnage began. Modi also insisted on carrying the dead bodies of Godhra train tragedy in procession in Ahmedabad thus providing direct provocation for the carnage. No administration, let alone a chief minister, would permit dead bodies of those killed in any sensitive communal incident to be taken out in procession as it acts as direct provocation for more violence. But Modi wanted precisely that.

The Gujarat carnage of 2002 was very different from other riots in post-independence India for following reasons:

1. In no other riot in post-independence period chief minister directly provided justification for massacre as Modi himself did. There have been instances of chief minister not effectively quelling the riots but never of justifying them.
2. In no other riot ministers and police officers led the marauding mob. In case of Gujarat carnage many eye witnesses named two ministers including Mr. Zadaphiya, the then Minister of state for Home involved in directing the marauding mobs. He even entered the police control room and directed the police what to do. His cell numbers also have been recorded. No outsider is ever allowed in police control rooms.
3. In no other riots police officers have been transferred for effectively controlling communal violence. In Gujarat 2002 several honest and committed police officers were transferred on this ground and soon after their transfer riots broke out in that region.
4. In no other riots refugee camps were suddenly closed without providing either alternate accommodation or allowing the refugees to return to their homes and hearth. Modi Government closed the camps without any justification and without providing refugees any alternate accommodation or making arrangements to return to their homes and hearths. Modi while closing down the camps even derisively remarked that I cannot allow 'baby-producing factories' to go on, simply because few Muslim women who were pregnant at the time of riots gave birth to babies in refugee camps.

Not only that the refugee camps were closed down even today i.e. five years after the carnage more than 5000 families are rotting in horrifying conditions in various refugee camps. Not only this Modi recently returned more than Rs.19 crore to Central Government saying funds are no more needed as all have been 'settled'. The victims of Gujarat carnage are unable to return to their original homes as they are still threatened by the VHP activists of the affected villages.

They say that victims would be allowed to return only if they agree to withdraw all cases against the perpetrators of carnage in the village and on condition that they will live in separate quarters like the apartheid and would not give azan on loud speakers. Naturally many victims have refused to agree to these humiliating conditions and are living in most despicable conditions.

What is most shocking is that the Gujarat society is still completely polarised and one sees no signs of repentance among those who indulged in most brutal violence against fellow human beings. They still feel the violence against Muslims was justified. The Sangh Parivar has been carrying on high-pitched hate campaign against minorities even today. Modi needs this campaign to go on as it be used a s political capital in coming assembly elections.

In fact the Gujarat carnage, as it is well known was carried out with the sole purpose of winning the 2002 assembly elections in Gujarat. When the Modi Government won the elections with two-third majority the BJP functionaries celebrated the victory by saying we have found a 'model' to win the elections and we will repeat it in other states. Even Mr.Vajpayee, the then Prime Minister of India when asked for his reaction as to the winning model, he replied 'will Muslims burn train in other place?' In other words even Vajpayee found the 'model' acceptable.

However, the BJP lost general elections of 2004 and Mr. Vajpayee accepted that NDA Government was defeated mainly because of Gujarat carnage. The people of India who are basically peace-loving and secular rejected the BJP-led NDA Government lest other states should experience such carnage. The BJP is in disarray ever since and has not been able to find yet its political bearings. The BJP and Shiv Sena are the two political parties which, thrive on anti-minority hate campaign. They want to base their victory in elections on hatred against minorities. The Sena Chief Bal Thackaray again made sharp attack on Muslims during the Mumbai Municipal Corporation elections.

Is there any way out? In Gujarat one does not find any way out as of now. What Gujarat needs in healing touch and only civil society can provide it. But as pointed out above, the civil society itself is deeply polarised on communal lines. In South Africa the blacks and coloured had suffered immensely under the White Government. When Nelson Mandela could establish government of people of African origin, he did not seek any revenge and instead set up a truth and justice commission. Bishop Desmond Tutu played very vital role in functioning of the commission. It provided the healing touch.

But one does not see any Desmond Tutu in Gujarat. The civil society is badly divided. In democracy civil a vibrant society can play very important role but when it is itself polarised on communal lines how can it intervene to set things right? Harsh Mandar, who himself is not from Gujarat, but is extremely sensitive soul, is trying his best to bring about some reconciliation is few villages of Gujarat. But it is only a lonely battle of an outsider.

Why the Gujarat society is so polarised today? The BJP has won over dalits, backwards and tribals in its political fold and thus Hindus, despite deep internal cleavages appear to be united. There has never been a strong dalit movement in Gujarat emphasising their own separate identity like in Maharashtra and other states. There has been no reform movement either. Thus in absence of such a movement dalits, backwards and tribals find it politically beneficial to be part of Hindutva parivar.

Only in 1985 the then chief minister of Gujarat Mr. Solanki had made a feeble attempt to unite weaker sections of Gujarat society by forming a KHAM alliance. KHAM stood for kshatriya, harijans, adivasis and Muslims. He gave them reservations as per Bakhshi Commission recommendations and won 1985 assembly elections with two-third majority. However, the BJP saw the red and launched an aggressive movement against KHAM alliance and succeeded in toppling Solanki Government. Solanki also unfortunately did not stand up firmly with the alliance and suspended reservations to save his government.

However, that knocked the ground off the KHAM alliance and except Muslims, other weaker sections sought refuge under the Sangh Parivar. That is the main reason why Sangh parivar has been able to successfully create the illusion of 'Hindu unity' and Hindu rashtra. The Congress after Solanki could not stand up and almost willingly conceded ground to the Sangh Parivar. Most of the Congressmen themselves subscribe to Hindutva ideology in Gujarat. It has rightly been described the B-party of BJP.

The BJP has been further helped by the identity crisis among the Gujarati NRIs living in U.K. and USA. They help the Hindutva movement in Gujarat generously through their financial contributions to compensate for their identity crisis. Most of the Gujaratis have struck it rich in USA and satisfy their conscience by supporting the Hindutva movement back home. Taking all this into account there is very little hope in Gujarat for the time being. Let us hope for better days in future.

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