THE SOCIAL BLOG

We Have Moved

2008-11-16T07:35:00.000-08:00

Please Note:

We have now moved to http://thesocialblog.wordpress.com

India Shining III: Land Rights!

2007-10-30T00:18:00.000-07:00

There is an apparent irony in today's paper. On the front page you have a half page story talking about India's investment and how Mukesh Ambani is the world's richest man (63 billion $ is a lot). On how the sensex has risen 1000 points in 14 days and the top 5 companies have contributed to it.

A few pages afterwards we have a story about 25,000 people marching to the capital to demand land rights and stressing that they have been betrayed by corporates, rich landlords and the likes of them. I was aware that this march was being organised during my stay in the Gandhi Peace Foundation. This march is no joke and I was witnessed the people at ekta parishad planning out everything to the detail.

The above above two instances tell us the story of the Indian Nation. Those who get rich do so at the cost of thousands of others. The Planning commission has released a document stating that the issue of naxalism is directly linked to land rights of the poor. Helloo!!!!! "did you take that long to realise it?". The Prime Minister says that he shall form a committee to look into this land issue. Now that he's made the statement the poor will be 'packed off'. That's how diplomacy works in this country. Give them an assurance, a ray of hope and there shall be no issue in the future. The same was with the Gujjars too. Ah well! nobody seems to realise the gravity of the situation. I can just imagine 25000 people coming from gwalior to Delhi on foot just to hear this statement without understanding that 7 Race Course Roadmight hardly do anything. They have bigger things to do; remember the Nuclear deal and saving the coalition!

That is the irony of India Shining. We see it, we know it, but most of us don't raise a voice about it.

The reality of free speech: The Gujarat episode

2007-10-28T04:34:00.000-07:00

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Now playing: Neil Young - We r in control
via FoxyTunes

The recent events in Gujarat are tattering to an Indian's heart. It's not just the Tehelka tapes that have come out in the open; the banning of TV news channels in Gujarat, disgusting comments by the Press and politicians are all a consequence of it which further saddens me.

Mirza in an wonderful read pens down the responses,

BJP spokesman Prakash Javadekar said “This sting has rendered Tehelka as the investigative wing of the Congress”. BJP leader Rajiv Pratap Rudy said “Definitely the sting operation and its content are suspect, because we are aware for sometime that there are detractors against Modi in Gujarat and there is the Congress party, which has lost all ground in the state.” They talk about everything but not about the inhuman brutality. Vir Sanghvi wrote very aptly regarding this in 2002 “I was not surprised when the political establishment scrambled to look for conspiracies: the CIA was behind it, the ISI sponsored Tehelka…My point then, as now, was simple enough: let us first deal with the revelations and then worry about Tarun’s so-called backers.”

Today Chandan Mitra, the editor of the 143 year old newspaper Pioneer and a BJP supported Rajya Sabha MP, invoked the third and the fifth point; Modi has won various elections and why do you take out dead issues now. This is the editor of one of the oldest national newspapers of India! In which moral system and when was justice decided by the street? If someone wins elections does it exonerate them? Mr. Mitra, is the state of journalism going down to this level in India? And since when did we start forgetting about injustices on the pretext of moving ahead? Should we have said the same to the Sikhs who were hounded in 1984? Should we have said the same to the utterly vulnerable Jews who were brutalized and killed in millions by the Nazis? That it will be all decided in the court of law and forget about it in the social aspect.

When I myself went to Ahmedabad last december, I was shocked to learn about and see the ghettoization of the Muslims; rich and the poor in the officially put 'world class city'. But the other issue was, whoever I met (hindus only), were sort of equating Modi to Gabriel as a messenger of god.

And what about free speech? The governments decision to ban all the TV channels that showed the news clip is now a rider to the free speech clause in the Constitution. Hah! gone are the days when Article 19 1(a) was the ultimate sword for the press. If my readers are interested, I'd request you to read Express Newspapers v. Union of India; an amazing case that exposed the link between Gov action and free speech in 1985 and the Delhi riots. (A related article here)

We seem to live in a world of our own. Assuming time and again that Governmental action is free from violence, where as it is so evident in such situations. Those who know that law or are learning it, refuse to budge a little and understand it in terms of its impact on the society. The incidents show a fallacy in the law. That rights in India are only meant to be in thick Constitutional law books and when it comes to situations like Gujarat and media exposes, they seem to vanish into thin air.

There are means that cannot be excused. And I should like to be able to love my country and still love justice. I don’t want just any greatness for it, particularly a greatness born of blood and falsehood. I want to keep it alive by keeping justice alive.

That was Albert Camu, from Resistance, Rebellion and Death on the French conduct in Algeria. The Indian Express in an editorial writes,

What a sting operation in 2007 says has been in the public sphere since 2002. We have always known that the state in Gujarat allowed the gruesome violence to play out, when it didn’t actively collude in the killings. But there is more to this moment than just that. It frames the special resonance of Gujarat 2002 in the nation’s consciousness. In a country where outbreaks of communal violence have been much too frequent — the anti-Sikh violence in Delhi 1984 ranks among the most shameful — the post-Godhra carnage will not allow us to move on. The evidence of state culpability and the absence of reparation is far too insistent. It calls for some form of accountability to be enforced, before any possibility of closure.

There should be an end to this. My heart goes out to all the victims of such actions.

Live Strong!

Bobby's Won !!

2007-10-21T03:35:00.000-07:00

Bobby Jindal has one! He is now officially the new governor of Louisiana.

Think I'm writing this for the main fact that he's an Indian and has won in a once segregated state. Born of native Indians in New Orleans, this guy has actually come up the ranks the hard way to win and become the top man in a US State.

NYT reports,

The ascendancy of the Brown- and Oxford-educated Mr. Jindal, an unabashed policy wonk who has produced a stream of multipoint plans, is likely to be regarded as a racial breakthrough of sorts in this once-segregated state. Still, it is one with qualifiers attached.

And yes, like always, the sirens have started hounding louder in India than in the US of his victory. Indian news channels have already started showing videos of Bobby's Indians home and lineages in his town. Similar instances happened when Sunita Williams went to space and when she came to India after that, not one day did i not see her photograph with some school children on the cover page talking about their future.

Bobby Jindal is a nice man. Deserves the credit. But do we Indians always have to make big issues about such instances as if History would never witness them again?

Democracy and Pakistan

2007-10-19T01:13:00.001-07:00

Is democracy a hard thing to achieve? Pakistan Preseident Pervez Musharaff surely knows how to get away with things in the name of democracy. This time, all the pieces fit in the puzzle.

When Nawaz Shariff wants to come back to his homeland, the moment he lands at the ariport he is packed off to political asylum.

Now Benazir Bhutto comes home and there is a blast with 136 dead and still counting. Solicited Pakistani media was quick to react and put the blame on Al- Qaida who allegedly don't approve of Bhutto's support for the US 'War on Terrorism'. But that does not and should not remove the slight possibility that the President had a hand in this incident. And the motive; to keep his political rivals away in the coming elections.

What baffles me more is the utmost disregard to human life in the midst of political conflict. That democracy has turned out to be a notion of multiple political parties vying for power rather than concern for the people themselves. To be noted is that Pakistan is not the only playground for such antics and this seems to be observed everywhere, be it the USA or even Gujarat. Surely Modi's supposed 'Ram Rajya' is a trick in this regard (To the english media he says its the Gandhian notion of a welfare state, but the common gujarati believes it to be a Hindu state).

I am certain that the coming pakistani elections would be an interesting event to read about.

Indian at the Nobel

2007-10-18T02:42:00.000-07:00

How many of us know that Al Gore has won the Nobel Peace Prize for his contributions to the environment this year?

- All of us do. :)

How many of us know that he has shared that prize with the UN's Intergovernmental Panel of Climate Change ?

- Most of us do.

Now how many of us know that the head of the IPCC is an Indian who was instrumental in the Panel getting the award ?

- Uhh ! well, not many of us I'm sure.

Dr. Rajendra Pachauri has, as the head of the IPCC become the seventh Indian to become a recipient of the Nobel Prize. Though I don't know if officially the credit would go to him or the organisation, but it still is an achievement. :) And yes, he formerly worked with the Tata Energy Research Institute, was born in Nainital and works out of New Delhi.

“I am only a symbolic recipient but it is the organisation which has been awarded,” Dr Rajendra Pachauri says. But then, didn’t Tagore and Mother Teresa get the award for the achievements of Shanti Niketan and Missionaries of Charity?

....

Although Al Gore was reportedly unhappy with the choice of the Indian, who he feared would be a drag on the organisation because of his strident criticism of the United States, Pachauri won him over with his total dedication to the cause of ecology, which is dear to Gore as well.

Common Men, Uncommon Law : Exploring the links between disciplinary proceedings and criminal law

2007-10-16T06:51:00.000-07:00

My latest paper. Suggestions invited.

Introduction

Equality in administrative law and procedure is a Dicean concept. It delves into the fact that there must be equality in treatment between public servants and the ordinary citizen. The State- citizen divide in the legal system has always been a debatable issue that only some have sought to address. This issue also comes to the fore in the area of criminal law.

With its roots in the French droit administratif, the system of having disciplinary proceedings for certain crimes conducted by public servants is a facet of the Indian administrative system. It marks the diversion from the old common law system. That however is not the problem. The problem arises when there is a difference in the punishment meted out to these persons for the crimes they have committed that are way different from those meted out to the ordinary citizen for the same crime. Section 197 of the Code of Criminal Procedure still remains as a bar to prosecuting government servants with the latest case being that of UP Chief Miniser Mayawati where the Governor refused to give a sanction under Section 197. This despite a SC decision in Prakash Singh Badal v. Union of India, in December 2006 stating that no sanction is required in corruption cases.

It is observed that the Indian legal system is one bridled with impunity and looks at placing the State above the law. This, despite very well knowing that the state is the creation of the law and consists of the ordinary man itself.

In light of the above theoretical framework, this paper would like to explore the diverse link between disciplinary proceedings and ordinary criminal law. Along with analyzing the laws relevant, the researchers would also be looking at the collection of data concerning the punishments to public servants and finally presenting an argument as to why such a system must not be present today.

................ Download full paper .

Masooda Parveen's review petition dismissed

2007-10-14T13:53:00.000-07:00

Dear Friends,

It is with regret that I inform you that the review petition which was filed by Masooda Parveen against the judgment dated 2.5.2007 passed by the Supreme Court came up before Justices Dalaveer Bhandari and H.S. Bedi today (11/10/07), and has been dismissed.

I may remind you that Masooda Parveen had filed a writ petition under Article 32 and 21 for compensation for the death of her husband, an advocate, in the custody of 17 Jat Regiment in Pulwama, Kashmir, as far back as February 1998. While initially the petition was for compensation and for compassionate employment to the wife, later its scope had been expanded to get the court to lay down some safeguards from the army that enjoys "special powers" in J&K under the J&K Armed Forces Special Powers Act. It was hoped by us that the Supreme Court would use this opportunity to apply the safeguards in the Naga People's Movement for Human Rights case to J&K.

In the judgment dated 2.5.2007 handed down after nearly 9 years of its filing (reported in 2007(6) SCALE 447; copy enclosed) the Supreme Court has inexplicably overlooked crucial facts which pointed to glaring inconsistencies and contradictions in the version of 'accidental death' put forward by the state. It also ignored the fact that despite the closure report in an investigation under s. 174 CrPC being rejected by the District Magistrate, Pulwama, and Rule Nisi being issued by the Supreme Court, the local administration "lost" the inquest file and all the critical documentation contained in it.

In the judgment, the Supreme Court has unquestioningly accepted the army's bald version that the deceased had been a 'militant', when not a scrap of evidence exists for such a serious allegation. It has further observed that the petitioner has not been able to show her version of events was true. Placing the burden of proof squarely on the petitioner, the judgment contradicts the body of existing law where the burden lies on the state to show how the death occurred in incidents of custodial death. Such burden must for obvious reasons be even higher where death occurs in Army custody in a disturbed area where the Armed forces are, theoretically, operating under the supervision of the 'civil authorities'.

A further disturbing aspect of the judgment is that it proceeds to carve out an exception to directions made by a 5 judge Constitution Bench in the NPMHR judgment ((1998) 2 SCC 109). According to that judgment, the Army is bound by the Constitution of India as well as by the provisions of the Armed Forces Special Powers Act to produce any person arrested by it before the nearest police station with "least possible delay". In that judgment the Supreme Court had also observed that "least possible delay" could not exceed 2-3 hours, since after being handed over at the nearest police station, the arrestee has to be produced before the Magistrate within 24 hours of arrest in accordance with Article 22 of the Constitution.

However, the judgment in Masooda Parveen's case chose to ignore evidence before it that the deceased was in illegal Army custody for at least 30 hours before his death, and instead observes:

" We are also not un-mindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in the leakage of information which would frustrate the very purpose of the army action."

The Government of India had attempted to get just such an exemption in the petition seeking clarification of the NPMHR judgment, and this had been negatived by a 5 judge bench of the Supreme Court by order dated 7.8.2001.

The petitioner widow who has in the intervening years raised her children single-handedly and also been under surveillance by the state, is heartbroken to get this verdict that labels her husband a militant, and therefore by extension herself and her children as well.

But the implications of the judgment go far beyond the private heartbreak of one family. This is probably the first judgment of the Supreme Court interpreting the provisions of the Jammu and Kashmir Armed Forces Special Powers Act. Not only has the Supreme Court lost an opportunity to hold the Armed forces accountable for increasingly heinous excesses against the Kashmiri people, the Supreme Court has also sent out a message virtually endorsing the impunity of the Armed Forces for such acts.

All this, and more, had been placed before the Supreme Court in the Review Petition filed by the petitioner-widow in July 2007 (copy attached), in the hope that the Court would recognise the impact of the judgment dated 2.5.2007 on the petitioner, as well as its larger implications for the people of Kashmir, and therefore reverse it. The Supreme Court has, however, chosen today to dismiss the review petition filed by the petitioner.

With regards,

Shomona Khanna

Advocate

We love Torture

2007-10-12T00:11:00.000-07:00

I got hold of a BBC survey on Torture and how people understand it around the world. Actually Time has an article on civil liberties and I read it there.

More importantly, I was shocked to see the statistics on India.

For Indians, (atleast a majority of them), torture is good. I think this very statistic justifies the reason as to why despite various court rulings and laws, torture still exists in India. Ha... the governance in this country is surely going down the drain.

2007-10-11T10:21:00.000-07:00

In the last post I had displayed this cartoon from the Times of India,

xntricpundits commented the following on it,

Brilliant cartoon.Look at the way the cartoonist sketched it.You can see convoy of cars to your top left,ropes hanging to trees to your top right.Politician wearing goggles..mota golmatol babu in sharp contrast with lean thin frames of farmers and the dog by the side of cot.Politicians PA holding a file named SEZ.
The irony in the carton hits the solar plexus.
Truly India is shining.

Some more facts and figures to add to the previous post,

$ 41.2 billion is the total money earned by the top 5 rich people, India's budget for the health sector is only 4.2% of the GDP.. i.e. around $17 billion.

47% of the population of the city of Mumbai still lives in slums. Plans are underway to make Mumbai Shanghai. Wonder what would happen to the slum dwellers.

Only 7% of the Indian population holds a graduate degree.

In as much as more than $ 40 billion have been poured in the various poverty schemes since 1982, none of them have been successfully implemented.

PS: readers may also see my post on ' How the Other India Lives'

The Terror Presidency

2007-10-08T10:59:00.000-07:00

The Book I so want to read now; Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration.

In October 2003, President Bush appointed Goldsmith, a self-described conservative who proudly proclaims that he is not a civil libertarian, head of the Justice Department's Office of Legal Counsel, thus making him chief adviser to the president about the legality of presidential actions. Ten months later, Goldsmith resigned because he could not endorse the unlawful policies the administration had implemented in the war on terror.
Shortly after taking office, Goldsmith reviewed a series of highly confidential opinions written by his predecessors in the Bush administration that defended the legality of "some of the most sensitive counterterrorism operations in the government." To Goldsmith's shock and dismay, he found that some of these opinions "were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President." What was going on?

Continue reading this review.....
Another review from International Herald Tribune reads,

As Goldsmith recounts in his chilling new book, "The Terror Presidency," he and his Justice Department colleagues (in consultation with lawyers from the State Department, the Defense Department, the CIA and the National Security Council) reached a consensus in 2003 that the Fourth Geneva Convention (which governs the duties of an occupying power and the treatment of civilians) affords protection to all Iraqis, including those who are terrorists. When he delivered this decision to the White House, he recalls, Addington exploded: " 'The president has already decided that terrorists do not receive Geneva Convention protections,' he barked. 'You cannot question his decision.' "

India Shining

2007-10-08T05:21:00.000-07:00

The Times of India cartoon below aptly describes the title of my post.

Truly we are shining. Newspapers report that the ten richest people in the Country have increased their net worth by 51% in the past seven months. That amounts to roughly $ 41.2 Billion. And yes, people still die.

Capitalism seems to have taken a new course in this Country. the rich become richer and the poor don't seem to be a priority anymore. The left seems to have become a shadow party and the Congress's AAM AADMI seems to be the rich man who wants to make his millions.

Traffic jams still occur; the cities still have bad infrastructure. I still hate Bombay because of the traveling hassles. So the question is; Where does all the money go? Surely not only into the pockets of the top 10. :)

Blogbharti

2007-10-06T05:00:00.000-07:00

I would now also be blogging and posting at Blogbharti.com

Scandal in the Palace

2007-10-06T04:53:00.000-07:00

By Arundhati Roy

25 September, 2007

Outlook India

Scandals can be fun. Especially those that knock preachers from their pulpits and flick halos off saintly heads. But some scandals can be corrosive and more damaging for the scandalised than the scandalee. Right now weâre in the midst of one such.

At its epicentre is Y.K. Sabharwal, former Chief Justice of India, who until recently headed the most powerful institution in this countryâthe Supreme Court. When thereâs a scandal about a former chief justice and his tenure in office, itâs a little difficult to surgically excise the man and spare the institution.

But then commenting adversely on the institution can lead you straight to a prison cell as some of us have learned to our cost. Itâs like having to take the wolf and the chicken and the sack of grain across the river, one by one. The riverâs high and the boatâs leaking. Wish me luck.

The higher judiciary, the Supreme Court in particular, doesnât just uphold the law, it micromanages our lives. Its judgements range through matters great and small. It decides whatâs good for the environment and what isnât, whether dams should be built, rivers linked, mountains moved, forests felled. It decides what our cities should look like and who has the right to live in them. It decides whether slums should be cleared, streets widened, shops sealed, whether strikes should be allowed, industries should be shut down, relocated or privatised. It decides what goes into school textbooks, what sort of fuel should be used in public transport and schedules of fines for traffic offences.

It decides what colour the lights on judgesâ cars should be (red) and whether they should blink or not (they should). It has become the premier arbiter of public policy in this country that likes to market itself as the Worldâs Largest Democracy.

Ironically, judicial activism first rode in on a tide of popular discontent with politicians and their venal ways. Around 1980, the courts opened their doors to ordinary citizens and peopleâs movements seeking justice for underprivileged and marginalised people. This was the beginning of the era of Public Interest Litigation, a brief window of hope and real expectation. While Public Interest Litigation gave people access to courts, it also did the opposite. It gave courts access to people and to issues that had been outside the judiciaryâs sphere of influence so far. So it could be argued that it was Public Interest Litigation that made the courts as powerful as they are. Over the last 15 years or so, through a series of significant judgements, the judiciary has dramatically enhanced the scope of its own authority.

Today, as neo-liberalism sinks its teeth deeper into our lives and imagination, as millions of people are being pauperised and dispossessed in order to keep Indiaâs Tryst with Destiny (the unHindu 10% rate of growth), the State has to resort to elaborate methods to contain growing unrest. One of its techniques is to invoke what the middle and upper classes fondly call the Rule of Law. The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who theyâre designed to protect. For instance, from the early â90s, we have seen the systematic dismantling of laws that protect workersâ rights and the fundamental rights of ordinary people (the right to shelter/health/education/water).

International financial institutions like the IMF, the World Bank and the ADB demand these not just as a precondition, but as a condition, set down in black and white, before they agree to sanction loans. (The polite term for it is structural adjustment. ) What does the Rule of Law mean in a situation like this? Howard Zinn, author of A Peopleâs History of the United States, puts it beautifully: âThe Rule of Law does not do away with unequal distribution of wealth and power, but reinforces that inequality with the authority of law. It allocates wealth and poverty in such indirect and complicated ways as to leave the victim bewildered.â

As it becomes more and more complicated for elected governments to be seen to be making unpopular decisions (decisions, for example, that displace millions of people from their villages, from their cities, from their jobs), it has increasingly fallen to the courts to make these decisions, to uphold the Rule of Law.

The expansion of judicial powers has not been accompanied by an increase in its accountability. Far from it. The judiciary has managed to foil every attempt to put in place any system of checks and balances that other institutions in democracies are usually bound by.

It has opposed the suggestion by the Committee for Judicial Accountability that an independent disciplinary body be created to look into matters of judicial misconduct. It has decreed that an FIR cannot be registered against a sitting judge without the consent of the chief justice (which has never ever been given). It has so far successfully insulated itself against the Right to Information Act. The most effective weapon in its arsenal is, of course, the Contempt of Court Act which makes it a criminal offence to do or say anything that âscandalisesâ or âlowers the authorityâ of the court. Though the act is framed in arcane language more suited to medieval ideas of feminine modesty, it actually arms the judiciary with formidable, arbitrary powers to silence its critics and to imprison anyone who asks uncomfortable questions.

Small wonder then that the media pulls up short when it comes to reporting issues of judicial corruption and uncovering the scandals that must rock through our courtrooms on a daily basis. There are not many journalists who are willing to risk a long criminal trial and a prison sentence.

Until recently, under the Law of Contempt, even truth was not considered a valid defence. So suppose, for instance, we had prima facie evidence that a judge has assaulted or raped someone, or accepted a bribe in return for a favourable judgement, it would be a criminal offence to make the evidence public because that would âscandalise or tend to scandaliseâ or âlower or tend to lowerâ the authority of the court.

Yes, things have changed, but only a little. Last year, Parliament amended the Contempt of Court Act so that truth becomes a valid defence in a contempt of court charge. But in most cases (such as in the case of the Sabharwalâ¦erâ¦ shall we say âaffairâ) in order to prove something it would have to be investigated. But obviously when you ask for an investigation you have to state your case, and when you state your case you will be imputing dishonourable motives to a judge for which you can be convicted for contempt. So: Nothing can be proved unless it is investigated and nothing can be investigated unless it has been proved.

The only practical option thatâs on offer is for us to think Pure Thoughts.

For example:

a. Judges in India are divine beings.

b. Decency, wholesomeness, morality, transparency and integrity are encrypted in their DNA.

c. This is proved by the fact that no judge in the history of our Republic has ever been impeached or disciplined in any way.

d. Jai Judiciary, Jai Hind.

It all becomes a bit puzzling when ex-chief justices like Justice S.P. Bharucha go about making public statements about widespread corruption in the judiciary. Perhaps we should wear ear plugs on these occasions or chant a mantra.

It may hurt our pride and curb our free spirits to admit it, but the fact is that we live in a sort of judicial dictatorship. And now thereâs a scandal in the Palace.

Last year (2006) was a hard year for people in Delhi. The Supreme Court passed a series of orders that changed the face of the city, a city that has over the years expanded organically, extra-legally, haphazardly. A division bench headed by Y.K. Sabharwal, chief justice at the time, ordered the sealing of thousands of shops, houses and commercial complexes that housed what the court called âillegalâ businesses that had been functioning, in some cases for decades, out of residential areas in violation of the old master plan.

Itâs true that, according to the designated land-use in the old master plan, these businesses were non-conforming. But the municipal authorities in charge of implementing the plan had developed only about a quarter of the commercial areas they were supposed to. So they looked away while people made their own arrangements (and put their livesâ savings into them.) Then suddenly Delhi became the capital city of the new emerging Superpower. It had to be dressed up to look the part. The easiest way was to invoke the Rule of Law.

The sealing affected the lives and livelihoods of tens of thousands of people. The city burned. There were protests, there was rioting. The Rapid Action Force was called in. Dismayed by the seething rage and despair of the people, the Delhi government beseeched the court to reconsider its decision. It submitted a new 2021 Master Plan which allowed mixed land-use and commercial activity in several areas that had until now been designated âresidentialâ. Justice Sabharwal remained unmoved. The bench he headed ordered the sealing to continue.

Around the same time, another bench of the Supreme Court ordered the demolition of Nangla Macchi and other jhuggi colonies, which left hundreds of thousands homeless, living on top of the debris of their broken homes, in the scorching summer sun. Yet another bench ordered the removal of all âunlicensedâ vendors from the cityâs streets. Even as Delhi was being purged of its poor, a new kind of city was springing up around us. A glittering city of air-conditioned corporate malls and multiplexes where MNCs showcased their newest products. The better-off amongst those whose shops and offices had been sealed queued up for space in these malls. Prices shot up. The mall business boomed, it was the newest game in town. Some of these malls, mini-cities in themselves, were also illegal constructions and did not have the requisite permissions.

But here the Supreme Court viewed their misdemeanours through a different lens. The Rule of Law winked and went off for a tea break. In its judgement on the writ petition against the Vasant Kunj Mall dated October 17, 2006 (in which it allowed the construction of the mall to go right ahead), Justices Arijit Pasayat and S.H. Kapadia said:

âHad such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money.

The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the present cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise.â

Itâs a bit complicated, I know.

This was exactly when his sons went into partnership with two mall developers. Sealing helped malls; Sons & Co raked in the bucks.

A friend and I sat down and translated it into ordinary English. Basically,

a. Even though in this present case the construction may be unauthorised and may not have the proper clearances, huge amounts of money have been invested and demolition is not the only option.

b. Unlike private individuals or private limited companies who have been allotted land and may have flouted the law, these allottees are corporate bodies and institutions and there is no question of their having indulged in any malpractice in order to get sanctions or approval.

The question of corporate bodies having indulged in malpractice in getting approval or sanction does not arise. So says the Indian Supreme Court. What should we say to those shrill hysterical people protesting out there on the streets, accusing the court of being an outpost of the New Corporate Empire? Shall we shout them down? Shall we say âEnron zindabadâ? âBechtel, Halliburton zindabadâ? âTata, Birla, Mittals, Reliance, Vedanta, Alcan zindabadâ? âCoca-Cola aage badho, hum tumhaare saath hainâ?

This then was the ideological climate in the Supreme Court at the time the Sabharwal âaffairâ took place.

Itâs important to make it clear that Justice Sabharwalâs orders were not substantially different or ideologically at loggerheads with the orders of other judges who have not been touched by scandal and whose personal integrity is not in question. But the ideological bias of a judge is quite a different matter from the personal motivations and conflict of interest that could have informed Justice Sabharwalâs orders. That is the substance of this story.

In his final statement to the media before he retired in January 2007, Justice Sabharwal said that the decision to implement the sealing in Delhi was the most difficult decision he had made during his tenure as chief justice. Perhaps it was. Tough Love canât be easy.

In May 2007, the Delhi edition of the evening paper Mid Day published detailed investigative stories (and a cartoon) alleging serious judicial misconduct on the part of Justice Sabharwal. The articles are available on the internet. The charges Mid Day made have subsequently been corroborated by the Committee for Judicial Accountability, an organisation that counts senior lawyers, retired judges, professors, journalists and activists as its patrons. The charges in brief are:

1 That Y.K. Sabharwalâs sons Chetan and Nitin had three companies: Pawan Impex, Sabs Exports and Sug Exports whose registered offices were initially at their family home in 3/81, Punjabi Bagh, and were then shifted to their fatherâs official residence at 6, Motilal Nehru Marg.

2. That while he was a judge in the Supreme Court but before he became chief justice, he called for and dealt with the sealing of commercial properties case in Delhi. (This was impropriety. Only the chief justice is empowered to call for cases that are pending before a different bench.) .

3. That at exactly this time, Justice Sabharwalâs sons went into partnership with two major mall and commercial complex developers, Purshottam Bagheria (of the fashionable Square 1 Mall fame) and Kabul Chawla of Business Park Town Planners (BPTP) Ltd. That as a result of Justice Sabharwalâs sealing orders, people were forced to move their shops and businesses to malls and commercial complexes, which pushed up prices, thereby benefiting Justice Sabharwalâs sons and their partners financially and materially.

4. That the Union Bank gave a Rs 28 crore loan to Pawan Impex on collateral security which turned out to be non-existent. (Justice Sabharwal says his sonsâ companies had credit facilities of up to Rs 75 crore.)

5. That because of obvious conflict of interest, he should have recused himself from hearing the sealing case (instead of doing the oppositeâcalling the case to himself.)

6. That a number of industrial and commercial plots of land in NOIDA were allotted to his sonsâ companies at throwaway prices by the Mulayam Singh/ Amar Singh government while Justice Sabharwal was the sitting judge on the case of the Amar Singh phone tapes (in which he issued an order restricting their publication.)

7. That his sons bought a house in Maharani Bagh for Rs 15.46 crore. The source of this money is unexplained. In the deeds they have put down their fatherâs name as Yogesh Kumar (uncharacteristic coyness for boys who donât mind running their businesses out of their judge fatherâs official residence.)

All these charges are backed by what looks like watertight, unimpeachable documentation. Registration deeds, documents from the Union ministry of company affairs, certificates of incorporation of the various companies, published lists of shareholders, notices declaring increased share capital in Nitin and Chetanâs companies, notices from the Income Tax department and a CD of recorded phone conversations between the investigating journalist and the judge himself.

These documents seem to indicate that while Delhi burned, while thousands of shops and businesses were sealed and their owners and employees deprived of their livelihood, Justice Sabharwalâs sons and their partners were raking in the bucks. They read like an instruction manual for how the New India works.

When the story became public, another retired chief justice, J.S. Verma, appeared on India Tonight, Karan Thaparâs interview show on CNBC.

He brought all the prudence and caution of a former judge to bear on what he said: ââ¦if it is true, this is the height of improprietyâ¦every one who holds any public office is ultimately accountable in democracy to the people, therefore, the people have right to know how they are functioning, and higher is the office that you hold, greater is the accountabilityâ¦.â Justice Verma went on to say that if the facts were correct, it would constitute a clear case of conflict of interest and that Justice Sabharwalâs orders on the sealing case must be set aside and the case heard all over again.

This is the heart of the matter. This is what makes this scandal such a corrosive one. Hundreds of thousands of lives have been devastated. If it is true that the judgement that caused this stands vitiated, then amends must be made.

But are the facts correct?

Scandals about powerful and well-known people can be, and often are, malicious, motivated and untrue. God knows that judges make mortal enemiesâafter all, in each case they adjudicate there is a winner and a loser. Thereâs little doubt that Justice Y.K. Sabharwal would have made his fair share of enemies. If I were him, and if I really had nothing to hide, I would actually welcome an investigation. In fact, I would beg the chief justice to set up a commission of inquiry. I would make it a point to go after those who had fabricated evidence against me and made all these outrageous allegations.

What I certainly wouldnât do is to make things worse by writing an ineffective, sappy defence of myself which doesnât address the allegations and doesnât convince anyone (Times of India, September 2, 2007).

Equally, if I were the sitting chief justice or anybody else who claims to be genuinely interested in âupholding the dignityâ of the court (fortunately this is not my line of work), I would know that to shovel the dirt under the carpet at this late stage, or to try and silence or intimidate the whistle-blowers, is counter-productive. It wouldnât take me very long to work out that if I didnât order an inquiry and order it quickly, what started out as a scandal about a particular individual could quickly burgeon into a scandal about the entire judiciary.

But, of course, not everybody sees it that way.

Days after Mid Day went public with its allegations, the Delhi high court issued suo motu notice charging the editor, the resident editor, the publisher and the cartoonist of Mid Day with Contempt of Court. Three months later, on September 11, 2007, it passed an order holding them guilty of criminal Contempt of Court. They have been summoned for sentencing on September 21.

What was Mid Dayâs crime? An unusual display of courage? The high court order makes absolutely no comment on the factual accuracy of the allegations that Mid Day levelled against Justice Sabharwal. Instead, in an extraordinary, almost yogic manoeuvre, it makes out that the real targets of the Mid Day article were the judges sitting with Justice Sabharwal on the division bench, judges who are still in service (and therefore imputing motives to them constitutes Criminal Contempt): âWe find the manner in which the entire incidence has been projected appears as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members.

The nature of the revelations and the context in which they appear, though purporting to single out former Chief Justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself. The Supreme Court sits in divisions and every order is of a bench. By imputing motive to its presiding member automatically sends a signal that the other members were dummies or were party to fulfil the ulterior design.â

Nowhere in the Mid Day articles has any other judge been so much as mentioned. So the journalists are in the dock for an imagined insult. What this means is that if there are several judges sitting on a bench and you have proof that one of them has given an opinion or an order based on corrupt considerations or is judging a case in which he or she has a clear conflict of interest, itâs not enough. You donât have a case unless you can prove that all of them are corrupt or that all of them have a conflict of interest and all of them have left a trail of evidence in their wake. Actually, even this is not enough. You must also be able to state your case without casting any aspersions whatsoever on the court. (Purely for the sake of argument: What if two judges on a bench decide to take turns to be corrupt? What would we do then?)

So now weâre saddled with a whole new school of thought on Contempt of Court: Fevered interpretations of imagined insults against unnamed judges. Phew! Weâre in La-la Land.

In most other countries, the definition of Criminal Contempt of Court is limited to anything that threatens to be a clear and present danger to the administration of justice. This business of âscandalisingâ and âlowering the authorityâ of the court is an absurd, dangerous form of censorship and an insult to our collective intelligence.

The journalists who broke the story in Mid Day have done an important and courageous thing. Some newspapers acting in solidarity have followed up the story. A number of people have come together and made a public statement further bolstering that support. There is an online petition asking for a criminal investigation. If either the government or the courts do not order a credible investigation into the scandal, then a group of senior lawyers and former judges will hold a public tribunal and examine the evidence that is placed before them. Itâs all happening. The lid is off, and about time too.

Selecting the right Oscar Entry :)

2007-10-01T10:20:00.000-07:00

The movie Eklavya was selected by the Film Federation of India for an entry to the Oscars. The nearest competitor of a movie 'Dharm' has alleged bias and the Bombay High Court has decided to intervene. On the 30th of September, a division bench of the Court passed a order stating prima facie bias in the selection.

Hell! What's happening to our judiciary? The very idea of separation of powers seems to be getting diluted. I can just imagine if the matter goes ahead; the judges infront of a 70mm screen watching the movies and deciding the selection. :)

I have not seen Eklavya. I dont see many of these hindi movies. But I still don't think the Court should interfere in deciding whether an organisation's choice is right or not.

- Eklavya choice for Osacrs biased : HC- The Economic Times

- Eklavya for Oscars? Court to decide - The Hindu

Contempt of Court: The Mid-day case

2007-09-28T05:51:00.000-07:00

The Supreme Court has stayed the Contempt of Court sentences of the four mid-day journalists. This comes as good news to those who thought the Delhi High Court acted in a hasty manner in passing sentences on those who published allegations against former Chief Justice YK Sabharwal once he had retired from office, even still when they had proof of the same.

The Delhi High Court judgment is a fascinating read. It is evident of the extent to which our Courts can go to protect themselves from any allegations. The judgment may be seen here

I wonder what is going to happen to free speech in this Country with the Courts taking such a stand.

Secrecy and Free Speech

2007-09-25T09:22:00.000-07:00

On the 22nd of September, the Central Bureau of Investigation (CBI) raided the house of Maj Gen VK Singh, a retired RAW agent and his publishing agency for publishing his book, India's External Intelligence : Secrets of the RAW Revealed. The retired general has now been booked for violation of the Official Secret's Act. (See news clip)

The book spoke about alleged political interference and corruption in the intelligence agency, including claims about the purchase of sub-standard telecom equipment meant for VVIP security. The book claimed there were severe lapses on part of the government that facilitated the escape of senior RAW official Rabinder Singh, who is believed to have fled to the US.

The incident raised various questions about the boundaries of free speech in this Country. Infact, I just remembered reading a similar case in Alan Dershowitz's book, THE BEST DEFENSE. I read about an CIA Agent named Frank Snepp who published a book exposing the fallacies in Vietnam for which he was booked by the US Government. Dersh was to defend him in the case. The case is very very similar to the one that's come up in out Country. Unfortunately in this case, the US Supreme Court in US v. Snepp ruled against Snepp and secrecy has not become an anti-thesis to free speech there. I's afraid that if this case goes to Court then the Indian Supreme Court would do something like the same which would set a bad precedent in regard to cases of free speech and the right to privacy.

The following is a narrative given in Frank Snepp's site,

The narrative...

Among the last CIA agents to be airlifted from Saigon during the closing moments of the war, Frank Snepp returned to CIA headquarters in the summer of 1975 haunted by the loss of his Vietnamese son and lover—and determined to force his colleagues to assist other Vietnamese left behind. But this was the Season of the Reckoning with the CIA under investigation by Congress and unwilling to admit any more transgressions, least of all its final ones in Vietnam. So when Snepp attempted to prompt an internal after-action report to generate support for the abandoned, his colleagues resisted and reviled him, and finally hounded him out of the Agency in an effort to keep a lid on the truth. But Snepp would not be cowed, and for the next eighteen months, with the help of brave friends who risked both career and welfare for him, he carefully and discreetly assembled the report the CIA didn’t want, even as former fellow agents pursued him like a fugitive on the run, attempting to intimidate him into silence.

His expose, "Decent Interval", was published by Random House in total secrecy—the first American book to be brought out this way. But the firestorm of publicity it ignited, including a 60 Minutes exclusive and front-page coverage in The New York Times, drove the CIA and the White House to launch a campaign of retaliation unparalleled in the annals of American law.

While acknowledging that Snepp’s book had had compromised no secrets, the government’s lawyers insisted that its unauthorized publication alone had “irreparably harmed” the nation’s security by creating an impression of a breakdown in CIA internal discipline that could frighten off intelligence sources abroad. They also claimed that it violated an invisible trust and a secrecy agreement Snepp had signed with the Agency, and demanded, as penalty, that he be gagged for life and deprived of all his “ill-gotten gains,” every cent he had earned from his act of “faithlessness.”

They offered no proof to support their allegations of harm, ignored inconsistencies in the six secrecy agreements Snepp had signed, and glossed over the fact that other ex-agents, friendlier to the CIA, had routinely been allowed to publish unapproved books and articles without protest or censure. Even so, a scandalously prejudiced Federal judge succumbed to the CIA’s extravagant national security claims and ruled against Snepp at every turn, reducing him to an American version of Colonel Alfred Dreyfus, the Frenchman ruthlessly martyred for his beliefs.

Along the way an outraged U.S. Senator took further vengeance on the ex-agent-turned-author by blocking his father’s appointment to the federal bench, thus effectively stalling his judicial career and forever souring his relations with his son.

But young Snepp’s ordeal wasn’t over. Months later, in late February 1980, the U.S. Supreme Court took up his case on appeal—and used it to savage both the defendant and the First Amendment.

While upholding the most draconian of the earlier rulings against Snepp—a lifetime gag and confiscation of every penny he’d made from "Decent Interval"—the Court lowered the standard by which the government can gag you or any other American in the name of national security. With its landmark ruling in The United States v. Snepp, the nation’s highest tribunal made it possible for the CIA or any other government agency to silence critics simply by convincing a court that they’re imperiling the “appearance” of airtight official secrecy, whatever that means.

And don’t suppose that genuine national security interests need be at stake. Remember: Frank Snepp was persecuted, prosecuted, gagged and wrecked financially even though the CIA conceded in court that nothing he had made public exposed any official secrets.

Reverberations from the ruling quickly spread through the government and private industry and continue down to the present. Successive presidents from Ronald Reagan to Bill Clinton have used it to justify placing millions of government workers, from FBI agents to park rangers, under censorship rules that prevent them from writing even novels without official approval. The Reagan administration invoked it to limit the reach of the Freedom of Information Act. The Bush administration used it to discourage government workers from blowing the whistle on bureaucratic waste and abuse, claiming that any such disclosure violates an implicit obligation of trust. The Clinton White House relied on the Snepp to try to squelch an early expose of the president’s romantic peccadilloes and to keep criticism of its mid-east policies out of print. The cigarette maker, Brown & Williamson, turned Snepp against whistleblower Jeffrey Wigand and CBS’ 60 Minutes to discourage them from airing the firm’s dirty secrets.

“An unprecedented vote for censorship” is how The Los Angeles Times described the ruling against Snepp. “No court decision in our history,” observed columnist Nat Hentoff, “has so imperiled whistleblowers and thereby the ability of all citizens to find out about rampant ineptitude.”

Gaza Burning

2007-09-21T00:46:00.000-07:00

Israeli authorities have declared Gaza a 'hostile area'. For those who read the papers they would know that the reason is the activities of the Hamas in that area. Israel has totally cut of fuel supplies to gaza and people in the area are not allowed to leave even if they go for medical reasons. Condolezza Rice on the other hand promises to keep supplying aid to the Palestinians there. As a result of no fuel, there is not power in 80% of the city and people are dying in the hospitals because of the impossibility of performance of surgeries and medical attention. The action to allegedly tackle the Hamas, is one that affects the common gazan population. I am myself touched to read and get to know the ground story of such action. Dr. Mona El Farra writes;

Gaza today
I am extremely worried about the power cut off . more than 50%of Gaza electricity is paralysed.at AlAwda hospital , we have enough of fuel to run our alternative electrical generators for one week . all hospital are threatened to stop of its surgical operations and diffrent medical services .if the situation will continue .Many essential medications are lacking on the hospital shelves, I expect the poverty level to increase to unprecedented level. Ordinary Palestinian people pay the price of the occupation , their democratic choice and bewilderment of their leaders.

I promise u that i shall work hard with my team to help people . with your support and solidarity we can do a lot.

Mona elfarra

I recommend all of my readers to read her blog. It's touching. Every time I read it my heart goes out to the palestinians and support for their struggle.

Elie Wiesel, a jew himself commented in 1986 that to be indifferent then is a sin. The greatest concern that one can have is not of security but that of humanity. While the above is preached to the whole world, Israel certainly doesnt seem to be following that. When can we realise the man can live together in harmony and peace rather than fighting over land occupied by themselves.

The problem I have with Israel is that in the 1950's they asked for the sympathy of the world to what Hitler did to them and now seem to be doing the same to the Palestinians. It is a struggle against suppression that the Palestinians pursue and what we can best do is to support people like Dr Mona Elfarra and others in their endeavour.

Quote

2007-09-18T08:27:00.000-07:00

My friend Kruttika had the following signature attached to her email;

“After the war, there is a plan to divide Iraq into three parts: regular, premium and unleaded. “
Jay Leno.

The Iraq war has raised eyebrows of many around the world. Won’t comment about it. Just was amused to see it in her email.

State Sponsored Armed Conflict: The Salwa Judum and the State of Chattisgarh

2007-09-13T10:49:00.000-07:00

STATE SPONSORED ARMED CONFLICT :

THE SALWA JUDUM AND THE STATE OF CHATTISGARH[1]

Joseph Stalin once said, “One death is a tragedy, a million is a statistic”. Human emotion does not seem to ponder about the deaths occurring in numbers but seems highly passionate about the death of one being. The story of the Salwa Judum in the State of Chattisgarh is no different. Every month more than 300 people die as a result of fighting between two groups and till date more than 40,000 are displaced. The idea of violations and crimes in numbers just seems to baffle us.

The ‘Salwa Judum’ in Chattisgarh is termed by the government to be an anti- maoist force formed by the common man himself. For those sitting in the seats of government power, it is an alternative to tackling the Maoists and anti- naxalite factions in the state. But there is something more to it. In December 2005, a fourteen member team from five organizations all over the country conducted an investigation and the revelations were shocking. What the Chattisgarh government calls an anti- naxalite force seems to be more of a state sponsored private army supplied with guns, ammunition and basic supplies to deal with the Maoists.[2] On the basis of the fact-finding, three facts stood out strongly, First, that the Salwa Judum is not a spontaneous people's movement, but a state-organized anti-insurgency campaign. Second, the situation is not one where the ordinary villagers are caught between Maoist- State clashes. Rather than questioning its own nonperformance on basic development, the government has resorted to clearing villages on a large scale. Tens of thousands of people are now refugees in temporary roadside camps or living with relatives with complete disruption of their daily lives. Prospects for their return are currently dim. Third, the entire operation, instead of being a peace mission as it is claimed, has escalated violence on all sides.[3]

The Salwa Judum is a force in the State of Chattisgarh led by elitist landowners, traders and trained by State police personnel. Not only that but these personnel are paid salaries out of State funds.[4] The facts in this regard are disturbing. There are child soldiers prevalent amongst the armed people. More than 40,000 tribal people have been displaced till date and 80% of the population in DanteWara district in Chattisgarh have been victims of the clashes.

There is no doubting the fact that atrocities and human rights violations have been committed. More importantly, the problem is that it is a state sponsored armed conflict. To tackle the naxal menace, the state seems to have formed a private army and removed the burden from state forces. In most territories, civilians belonging to the Salwa Judum are seen carrying around guns and ammunition and not even a single state police group is within the area. The problem does not stop here; both the forces are known to kill civilians who should not be a part of this conflict. There is evidence of torture techniques being used, rapes and a host of other human rights violations.

Questions need to be answered. Can the state sponsor a private army to handle an internal disturbance? Can the state discharge its constitutional duty to protect, if any and hand it over to private groups? The idea of state sponsored conflicts is clearly in violation of UN principles[5] and other international obligations. Protocol II of the Fourth Geneva Convention categorically puts forward the rights of victims in non- international armed conflict. These include the provisions of basic needs, health and compensation.[6] Furthermore, without doubt, the State has a primary constitutional duty to protect its citizens from any disturbance; external or internal.[7] The maintenance of law and order in the territory of the state is a constitutional obligation that states must follow. The Supreme Court has used this explanation in the cases of terrorism as in Kartar Singh v. Union of India[8], and AN Ray C.J. in ADM Jabalpur v. Sivakant Shukla[9] used this obligation to justify the violation of rights during emergency. If such explanation has been used in these cases then certainly they are applicable in this instance too and no exceptions can be created.

The discharge of such an obligation is inherently related to the power- responsibility equation. If power is to be delegated, which in this case is to deal with naxal factions, so must responsibility and both of them can’t be separated. Not surprisingly then, no one seems to be taking responsibility for the violations and deaths of civilians in Chattisgarh while the power seems to have been conspicuously discharged and frequently used and abused.

In May, 2007, Nandini Sunder and Ramchandra Guha filed a petition before the Supreme Court challenging the Constitution of the Salwa Judum in Chattisgarh. While the case is still sub judice, I would like to put forth an observation of the Court in this regard. Initially the Bench consisting of Chief Justice KG Balakrishnan and Justice Raveendran asked counsel that when the Central Government in its assessment to control naxalites menace permitted local restraint groups to be armed, “should the court interfere in such a policy. You must understand that naxalites go on killing innocent people in villages. The police are not coming to the rescue of these people. What is wrong in arming the local people to counter the naxal menace.”[10] (Quoting the Court)

Only after the atrocities and human rights violations were bought to the notice of the Court did it issue a notice to the Government of Chattisgarh to respond it. It is interesting to note the observation of the Court in this regard. With all due respect, the Court has commented that the formation of a state sponsored army is justified to meet the end of handling the naxalites. In doing so, the Court has again given sanction to a means- end approach. That is, state action is to be held valid if it is purposeful in nature and meets a desired end. Such is the approach taken by the Court in the case of terrorism and emergency. The Naxal problem just got itself temporarily added to the list. This seems to attract Jhering’s notion of law serving as a means to an end[11]. Accordingly, in such a purposeful evaluation of law, even if it sacrifices individual liberty, it will be valid[12]. To quote from Kartar Singh’s case[13] ;

“that it has been felt that in order to combat and cope with such activities effectively, it had become necessary to take appropriate legal steps effectively and expeditiously so that the alarming increase of these activities which are a matter of serious concern, could be prevented and severely dealt with.”

With this application of this approach, the Court seems to discount the fact that rights and constitutional obligations are inalienable and cannot be discarded to meet an particular end. The point needs to be noted here that not only has the state outsourced its duty to protect its citizens but also has given them a free hand do commit human rights violations and not hold them accountable for killing people. Such state action cannot be justified at any cost. It is hoped that the Supreme Court would take note of such rights violations, disband the Salwa Judum and concentrate on the welfare of the lakhs of tribals in the State who have fallen victim to the clashes. The law has been violated and someone has to be held accountable for it and the State cannot get away with this.

[1] Aditya Swarup, B.A.L.L.B. (hons.), NALSAR University of Law, Hyderabad.

[2] The Study was conducted by People’s Union for Civil Liberties (PUCL) Chhattisgarh, People’s Union For Civil Liberties (PUCL) Jharkhand, People’s Union for Democratic Rights (PUDR) Delhi, Association for the Protection of Democratic Rights (APDR) West Bengal, and Indian Association of People’s Lawyers (IAPL). The details of the Study can be found at http://www.pucl.org/Topics/Human-rights/2006/salwa_judum.pdf (last visited 12th May, 2007).

[3] Ibid.

[4] “War in the Heart of India: An Enquiry into the ground situation in Dante Wara District, Chattisgarh”, Independent Citizen’s Initiative, 20^th July 2006.

[5] UN General Assembly Resolution 49/60 of 1995,Measures to eliminate terrorism : UN Security Council Resolution 1373/ 2001. Also to be noted is the Lockerbie Case (UK v. Libya), 1992 ICJ Rep. 3 where Libya’s sponsoring of activities was held in violation of International Law.

[6] Protocol II, Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. Though India is not a party to this Convention, it still has a customary obligation to protect such people.

[7] Article 355, Constitution of India. A reading can also be inferred from the Directive Principles of State Policy.

[8] Kartar Singh v. Union of India, (1994) 3 SCC 569.

[9] ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

[10] “Constitution of Salwa Judum Challenged”, THE HINDU, 20^th May 2007.

[11] R. Von Jhering, “Law as a Means to an End”, MDA Freeman, (ed.), Lloyd’s Introduction to Jurisprudence, 7^th Ed. 2001, p. 703.

[12] I. Jenkins, “Jhering”, (1960-61) 14 Vanderbilt L. Rev. 169.

[13] Kartar Singh v. State of Punjab, (1994) 3 SCC 596. The approach was further upheld by the Court in People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.

Salwa Judum: A State's response to Maoist Terror

2007-09-08T02:47:00.000-07:00

A year ago, the State of Chattisgarh in Central India seemed to me to be a peaceful state. Rich in minerals and a huge tribal population. Little did I know that the political situation in this State would turn out to be one of the most dreaded this country ever witnessed.

In May 2007, I had the good fortune of hearing Nandini Sinder speak at the India International Centre. She spoke about the armed conflict in the state of Chattisgarh and the ill fated consequences of forming the Salwa Judum.

Salwa Judum (translates as "peace mission") is a civil militia formed by the people to resist the Maoist violence. It was formed in 2005, to bring the area dominated by Naxalites under control .The Salwa Judum was alleged by some communist sympathisers to be a government backed organisation that it was supported by the Chhattisgarh government. Even now, the State of Chattisgarh supplies the force with guns, ammunition and basic supplies.

While she did speak of the social consequences of the movement and its impact on political governance, briefly touching upon that, I would like to emphasize its character as non- international armed conflict. What was proposed by the State to be a Counter insurgency program has now resulted in a mass humanitarian situation. In Dec 2006, more than 80 % of the residents in Dante wada distrcit of Chattisgarh were victims of the conflict between the Salwa Judum and the Maoist forces. The atrocities committed are horrifying. Apart from the rapes and indigenous torture techniques, young children are joining the forces and creating a menace of child soldiers in the State.

In the first three months of 2007, more than 280 civilians were killed as a result of the clashes and 60-70 armed personnel killed from each side. more than 48,000 tribals have been displaced from their homes with no basic facilities, education and medical needs.

From a legal point of view, this is in clear violation of the II Protocol of the fourth Geneva Conventions. Protocol II relates to the protection of victims in Non- International Armed Conflict. India, sadly is not amongst the 167 states that have signed this protocol. However, it does have a duty under International customary law not to sponsor such activities. Salwa Judum is a classic example of a situation where the State lets go of its responsibility to protect and 'out sources' it. It then results in a situation of power without responsibility into whose hands the responsibility is devolved. Such usage of power leads to rash consequences on the Rule of Law and democracy.

Prime Minister Manmohan Singh stated earlier that the Naxalite problem is one of the biggest problems the country is facing. But does the above justify the formation of a private army by the State itself? Nandini Sunder and Ramchandra Guha did file a PIL in the Supreme Court in late May and here's what happenned;

A Bench of Chief Justice K.G. Balakrishnan and Justice R.V. Raveendran issued the notice on the petition filed by Nandini Sundar, Ramachandra Guha and E.A.S. Sarma, after hearing senior counsel T.R. Andhyarujina, who brought to the notice of the court the killings and atrocities committed by the `Salwa Judum' in the guise of countering the naxal movement.
Initially the Bench asked counsel that when the Central Government in its assessment to control naxalites menace permitted local restraint groups to be armed, "should the court interfere in such a policy. You must understand that naxalites go on killing innocent people in villages. The police are not coming to the rescue of these people. What is wrong in arming the local people to counter the naxal menace."

It is but astonishing to notice that way the Court has reacted to this issue. It did however issue a notice to the Chattisgarh Government to give an answer for the atrocities that are committed. The 'atrocities being committed' are only a part of the problem in Chattisgarh. The Court did not seem to take note of the devolution of constitutional responsibilities and stuck to the age old line taken in Kartar Singh v. Union of India, that the situation calls for such action and is thus valid. The non- interference and concern shown by the judiciary towards such issues is disturbing to think of.

State sponsored armed conflict is one of the worst forms of humanitarian disasters. The Constitution of India puts a duty on the State to protect its people and in my opinion, the formation of the Salwa Judum is unconstitutional as it devolves this very primitive responsibility of the State. Not surprisingly the State of Chattisgarh is not showing any reactions to the situations prevailing in the State, however it is a shame that the Centre is not asking a reply for the same. The State has kept away from a situation that has gone out of its control.

Till the last few months, this conflict had'nt attracted much attention. It is only of late, that I see regular articles in News papers and Magazine related to the issue. The matter has gone out of control and all we can do now is to wait and see the course that it takes.

...................................................

Some articles on the issue are here;

1) The Backlash - PS Tripathi

2) When State makes war on its own people - A PUCL Report

3) Salwa Judum and International Humanitarian Law - S Varadarajan (The Hindu, 8th September 2007, Editorial)

Exit Wounds: Legacy of the Indian Partition

2007-08-19T03:40:00.000-07:00

India completed 60 years of its independence day before yesterday. Ironically, I did not feel even a bit patriotic and proud of it. The State of ours today is in shambles; impunity and violence are rampant. Machinery existent to protect and regulate the use of sovereign power seem to be fading away. Kashmir and Nagaland still burn. Hindus and Muslims still fight. The poor are still poor and we still have a distaste for the caste system. I dont feel proud of this Country.

…………………………………………..

Once in a while, I read the NewYorker online edition to be aware of US sattires and activities. This time however, I saw this article by Pankaj Mishra on the New yorker talking about the legacy of the Indian Partition.

The article starts with an anecdote which is an interesting read;

Sixty years ago, on the evening of August 14, 1947, a few hours before Britain’s Indian Empire was formally divided into the nation-states of India and Pakistan, Lord Louis Mountbatten and his wife, Edwina, sat down in the viceregal mansion in New Delhi to watch the latest Bob Hope movie, “My Favorite Brunette.” Large parts of the subcontinent were descending into chaos, as the implications of partitioning the Indian Empire along religious lines became clear to the millions of Hindus, Muslims, and Sikhs caught on the wrong side of the border. In the next few months, some twelve million people would be uprooted and as many as a million murdered. But on that night in mid-August the bloodbath—and the fuller consequences of hasty imperial retreat—still lay in the future, and the Mountbattens probably felt they had earned their evening’s entertainment.

Pankaj then proceeds to talk about how we Indians made our tryst with destiny and sought to set India free. But that, he argues, was not for the secular India but for protecting the interests of a 400 million hindus and not caring about the Muslims who stayed back in India. The article also talks about Nehru and Jinnah’s policies and actions during the brief period of finalising the partition. The idea of the article seems to be to give a brief of the partition history of India by citing incidents relevant in this regard.

Below are certain excerpts from the article;

But sectarian riots in Punjab and Bengal dimmed hopes for a quick and dignified British withdrawal, and boded ill for India’s assumption of power. Not surprisingly, there were some notable absences at the Independence Day celebrations in New Delhi on August 15th. Gandhi, denouncing freedom from imperial rule as a “wooden loaf,” had remained in Calcutta, trying, with the force of his moral authority, to stop Hindus and Muslims from killing each other. His great rival Mohammed Ali Jinnah, who had fought bitterly for a separate homeland for Indian Muslims, was in Karachi, trying to hold together the precarious nation-state of Pakistan.

……………

Trains carrying nothing but corpses through a desolate countryside became the totemic image of the savagery of partition. British soldiers confined to their barracks, ordered by Mountbatten to save only British lives, may prove to be the most enduring image of imperial retreat. With this act of moral dereliction, the British Empire finally disowned its noble sense of mission. As Paul Scott put it in “The Raj Quartet,” the epic of imperial exhaustion and disillusion, India in 1947 was where the empire’s high idea of itself collapsed and “the British came to the end of themselves as they were.”

The British Empire passed quickly and with less humiliation than its French and Dutch counterparts, but decades later the vicious politics of partition still seems to define India and Pakistan. The millions of Muslims who chose to stay in India never ceased to be hostages to Hindu extremists. As recently as 2002, Hindu nationalists massacred more than two thousand Muslims in the state of Gujarat. The dispute over Kashmir, the biggest unfinished business of partition, committed countries with mostly poor and illiterate populations to a nuclear arms race and nourished extremists in both countries: Islamic fundamentalists in Pakistan, Hindu nationalists in India. It also damaged India’s fragile democracy—Indian soldiers and policemen in Kashmir routinely execute and torture Pakistan-backed Muslim insurgents—and helped cement the military’s extra-constitutional influence over Pakistan’s inherently weaker state. Tens of thousands have died in Kashmir in the past decade and a half, and since 1947 sectarian conflicts in India and Pakistan have killed thousands more.

Many ethnic minorities chafed at the postcolonial nationalism of India and Pakistan, and some rebelled. At least one group—Bengali Muslims—succeeded in establishing their own nation-state (Bangladesh), though only after suffering another round of ethnic cleansing, this time by fellow-Muslims. Other minorities demanding political autonomy—Nagas, Sikhs, Kashmiris, Baluchis—were quelled, often with greater brutality than the British had ever used against their subjects.

Meeting Mountbatten a few months after partition, Churchill assailed him for helping Britain’s “enemies,” “Hindustan,” against “Britain’s friends,” the Muslims. Little did Churchill know that his expedient boosting of political Islam would eventually unleash a global jihad engulfing even distant New York and London. The rival nationalisms and politicized religions the British Empire brought into being now clash in an enlarged geopolitical arena; and the human costs of imperial overreaching seem unlikely to attain a final tally for many more decades.

…………..

We still suffer from the stains left by the partition of India. Communal clashes and Kashmir and the direct causes of it.

Moral Policing - All over again.

2007-08-12T23:57:00.000-07:00

Its only been a month since I wrote the article on the Vadodara art attack case. Wounds inflicted by the not-so-stray instance upon the liberal and secular sentiments of our society have still not healed completely. What has turned out to be the cynosure of all interested eyes now, is the attack on noted littérateur Taslima Nasrin. Ms. Nasrin was attending a meeting organized by the Press Club of Hyderabad to release the Telugu translation of her latest book, Shodh when she was 'roughed up' by certain members present in the audience. The contents of her speech were allegedly inflammatory to Islamic sentiments, which in turn provoked an attack from three MLAs belonging to the fundamentalist Majlis-e-Ittehadul Musalmeen (MIM) party. After taking the law into their own hands, quite ironically, MIM later decided to file a case against Taslima under S.153(a) of the IPC for hurting religious sentiments of the Muslim community.

This incident inevitably brings us to the issue of rapidly eroding liberal values in the Indian society today. The question of tolerance has always been ensconced in the larger, more volatile cover of "religious" or "moral" sentiments. What we have been witnessing over the past few years is the utter lack of concern or regard for human rights vis-a-vis such moral policing. The Constitution of India provides for certain fundamental rights, sacrosanct in nature; rights which cannot be compromised in a liberal democracy. Yet, once society is faced with sectarian and communalist notions of such religious and moral sentiments, it is always the expression of individual will that prevails. Its high time that we realize the importance of rights in the public realm; what is inflammatory cannot be contingent on the opinion of a select few, who invariably turn out to be disposed towards extremist ideologies. One cannot, in any circumstance, ignore the rule of law in a democratic polity.

The moment we are cowed down with the 'all-important' question as to whether Taslima Nasrin did actually hurt the sentiments of a certain community, we're fighting a lost battle. It is important to understand that the debate as to who's right or wrong is only secondary; rather, we should oppose all expression of fundamentalist views and action that encourages intolerance and violence in society. To reiterate, moral policing disrupts the functioning of an already established constitutional machinery, completely ignoring the rule of law; thereby throwing human rights to the winds.Whether casualties surface in the form of Chandramohans or Taslima Nasrins is quite irrelevant; the larger picture cannot be observed. Humanist tendencies are unfortunately on the wane; it takes sensitized and informed public opinion to fight divisive and fundamentalist forces.

I'd like to conclude, quoting Taslima's very own lines from her declaration during the UNESCO General Conference in 1999,

Fundamentalism is an ideology that diverts people from the path of natural development of consciousness and undermines their personal rights. Fundamentalists do not believe in liberty of personal choice or plurality of thought.They cannot be countered without a relentless and uncompromising fight. The struggle should be both theoretical and tactical. Democracy and secularism should be applied in practice and not remain a mere play of words.

Sorabjee on Sanjay Dutt's Sentence

2007-08-09T02:17:00.000-07:00

Has Judge P D Kode been fair to Sanjay Dutt? That was the key question Karan Thapar asked Soli Sorabjee, the former solicitor general and former attorney general, on CNN-IBN Devil’s Advocate.

Karan Thapar: Mr Sorabjee, let us start with the six-years rigorous imprisonment sentenced to Sanjay Dutt. Given that he and his family did face threats and that the gun was never used, is it excessive or fair?

Soli Sorabjee: The minimum sentence that could have been imposed is five years. Instead of five, he gave six. The question is not whether a family was under threat. That’s not the point. That doesn’t come in when you give the mandatory period required by the section.

Karan Thapar: But why did the judge go for rigorous imprisonment?

Soli Sorabjee: That is another point. The Section Penal Code doesn’t talk about imprisonment but there is another section in the penal code, Section 60, which says that it can be rigorous in part and simple in part. May be the judge could have done that.

Karan Thapar: So you think this is an area where the judge could have used his discretion and gone for simple punishment instead.

Soli Sorabjee: I don’t think it’s an error because the judge knows the best. He has seen the whole nature of the case, the circumstances, everything.

Karan Thapar: So in your opinion, you might have settled for a simple imprisonment sentence.

Soli Sorabjee: If I were the judge I would have settled for simple imprisonment for half the period and rigorous for other period.

Karan Thapar: What about something else. Many people say that Sanjay Dutt may be naïve, foolish, rash and impetuous but he is not a criminal. He has already served 16 months in jail. In those circumstances, six-year rigorous imprisonment seems too harsh and in fact excessive.

Soli Sorabjee: I don’t think so. Even if those circumstances were present the imprisonment could not have been for a term of less than five years. That’s clear. Whether rigorous or simple, the term could not have been less than five years. The judge can’t go against what the statute prescribes.

Karan Thapar: If public opinion widely believes that the sentencing is excessive and therefore unbalanced and unfair, would that not throw into question first of all its acceptability and secondly even raise question marks on the credibility (of the sentencing).

Soli Sorabjee: Public opinion, if it’s misinformed, I would like to ignore it. Does the public opinion know that the minimum sentence is 5-years. It cannot be reduced than that. Jude Kode would have committed an illegality if he gave him three.

Karan Thapar: So the only thing that can be questioned is the fact that the prison sentence could have been simple rather than rigorous, that’s all.

Soli Sorabjee: That’s one thing you can. There be two views on that.

Karan Thapar: And you have indicated already that you perhaps would have inclined personally towards simple rather than rigorous.

Soli Sorabjee: No, that’s not what I said. I said that it could have been simple for one period and rigorous for another. He has not held a toy gun or an air gun. This is a serious offence, though not as serious as TADA offence.

Karan Thapar: Let’s then come to some of the legal points that have been raised. To begin with Satish Maneshinde, Sanjay Dutt’s lawyer, has pointed out that even though all the TADA charges against Sanjay Dutt were dropped, the judge chose to refer to the fact that Sanjay had consorted at parties with criminal elements and took the characterization of a gun as weapon of mass destruction whilst explaining the six-year imprisonment.

In other words, facts that were left out at the stage of conviction were borne in mind at the time of sentencing, and Maneshinde concluded that as a result the judge misdirected himself and ended up with miscarriage of sentencing. How do you respond to that view?

Soli Sorabjee: To be quite frank, I have not read the judgement. I have not studied it. But if it is as Sanjay Dutt’s counsel says it is—and he is a very competent council—I would say that prima facie he has been acquitted of TADA charges doesn’t mean that the judge cannot take other circumstances into account as to how Dutt came in possession of those arms.

How did he come in possession? What did he try to do later on? He tried to destroy the evidence that he had the guns. So these are the factors, which you took into account for the purpose of determining whether the conviction was possible under the Arm’s Act.

Karan Thapar: So what you are saying is that even though these facts weren’t used for conviction, they could have been borne in mind at the stage of sentencing without the judge being guilty of either misdirection or mis-sentencing.

Soli Sorabjee: I would not like to say anything about misdirection, not having studied the judgement. But prima facie I don’t think so. By the way, Sanjay is in fact very fortunate. If he were convicted under the TADA, there could have been great problems.

Karan Thapar: Absolutely. And the point is, since the TADA charges were dropped, is it fair that the circumstances that could have applied to the TADA should now be made to apply to the Arm’s Act for the sentencing purposes only.

Soli Sorabjee: I don’t like to use the expression ‘fair,’ because I think the judge was a bit lenient towards him in the way he kept on adjourning the matter, not pronouncing the verdict, and various other things.

But I suppose in the ultimate analysis what you can say is: just look at the offence and then see whether this punishment of six-year rigorous imprisonment could not have been tempered with mercy.

You may temper justice with mercy but not by sentiment. Not by what Bollywood says.

Karan Thapar: What about something else? Judge Kode in explaining the six-year rigorous imprisonment also said that Sanjay was guilty of inducing others to commit a crime when he asked them to dispose off the gun.

Now is that fair because to begin with all that Sanjay did was to telephone from Mauritius. The people he spoke to were adults. They had the right to refuse. So where does the word ‘inducement’ come into this?

Soli Sorabjee: Let’s not stress the word ‘inducement’.

Karan Thapar: But that’s the word the judge used. ‘Inducement’ is a specific that suggests that you are goading someone in some manner.

Soli Sorabjee: Suppose he had persuaded? It’s the same thing. Why did he phone them from Mauritius?

Karan Thapar: But they could have refused? Had they refused he could have found another means but they didn’t. In a sense they willingly agreed.

Soli Sorabjee: But the fact that they willingly agreed doesn’t detract from the fact that he wanted them to do destroy evidence.

Karan Thapar: But it does suggest that he didn’t induce them to commit a crime.

Soli Sorabjee: Well, I don’t know. You are just reverting on the word ‘inducement’. He did try, he did persuade, he did prevail over them and they tried to do it, so they have suffered imprisonment.

Karan Thapar: All right. A second legal issue is to do with Judge Kode’s refusal to grant Sanjay relief under the Probation of Offenders’ Act. Satish Maneshinde points out that the judge erred in not calling for the Probation Officer’s report, because it was mandatory for him to do so. And thirdly, he should have also examined the four witnesses the defence had provided.

Soli Sorabjee: Well, I don’t want to join issues with Shinde. But as far as my reading of the Probation of Offenders’ Act is concerned, I don’t think it is mandatory for the judge to ask for a report.

The fact that he did not ask for a report, I don’t think is an illegality.

Karan Thapar: In considering the issue of probation, should the judge have borne in mind the fact that Sanjay has had a troubled childhood, that he has been a drug addict, has had two broken marriages and yet he has pulled himself together, recreated his life, reformed himself. And now all of that could be at risk if he breaks down in jail.

Soli Sorabjee: Actually, the two main considerations which should regulate judicial discretion in granting probation or not is the nature of the offence and the character of the accused.

For these other factors, I have only asked myself one question: Suppose these factors were present even in the cases of ordinary persons, say Abdul Jalani—I am just naming any person, then we must be very careful that there should be no tilting of these factors one way or the other because Sanjay Dutt is a popular star. Because Sanjay is a very important personality, because his sister is an MP, because they have Dasmunsi and Kapil Sibal speaking out in his favour.

Most important thing is, no signal should go to the people that this is celebrity justice delivery system.

Karan Thapar: And if these factors that I have mentioned have been borne in mind at the time of considering probation, you are worried that the wrong signals would have gone out.

Soli Sorabjee: No, wrong signals would have gone out just because these are factors are there in the case of Sanjay.

Karan Thapar: But just because Sanjay is a celebrity, it is not a reason to treat him the other way either. You seem to be suggesting that scrupulousness may have led to certain unfair treatment because things that could have been considered weren’t considered for all the wrong reasons.

Soli Sorabjee: You have raised a valid point. What I’m trying to say is what is really of importance is, the whole idea of Probation Act is reformation.

Karan Thapar: And here as I pointed out is that the danger that a reformed man may break because he hasn’t been granted benefit under the Probation Act.

Soli Sorabjee: But the whole question is his character in the past.

Karan Thapar: But the character that I’m talking about is that of a reformed man.

Soli Sorabjee: But that past thing that he had a broken marriage and that he was a drug addict and all that, to my mind, is irrelevant. How his behaviour for the last so many months was the thing which is certainly important. And it is a very moot point whether under these circumstances he should or should not have been granted probation.

Karan Thapar: It’s a moot point! In other words it is a questionable and a debatable issue.

Soli Sorabjee: Of course, it is.

Karan Thapar: Would you personally, if you had been the judge, knowing the background of Sanjay, knowing the manner in which he has reformed himself, have granted probation.

Soli Sorabjee: I don’t know how he has reformed himself. I wouldn’t like to hassle an opinion because I knew his father very well and him when TADA was first challenged.

Karan Thapar: Leave that apart. Be a judge, don’t be a friend. Would you have considered giving probate if you were the judge?

Soli Sorabjee: Yes, I would.

Karan Thapar: Now the prosecution have said that they are considering appealing against the fact that the TADA charges were dropped. If they do so, there is no doubt that they have a right to, would it be fair and wise and justified?

Soli Sorabjee: As I said Karan, I don’t know the grounds on which the TADA charges were dropped. Look at it this way: suppose they have been upheld in the case of others and by the same reason and the same evidence, they will interrupt the prosecution.

Karan Thapar: There is an argument that has been made in some newspapers that if Zebunisa Qaidri as well as Mahmood Asar could have been convicted under TADA for either keeping or delivering AK-56 guns, then for Sanjay to be treated differently when the accusation is virtually the same is unfair. Does that in a sense make sense to you?

Soli Sorabjee: I don’t think so, really. The judge must have seen that the circumstances in the two cases were different. One thing is certain that these lawyers have said these were no ordinary weapons but he did not use them.

Karan Thapar: Sanjay’s lawyers are ready to go to the Supreme Court next week, on Monday or Tuesday. What are the chances, given the background of what you have said to me, the court will either reduce the sentence or grant probate?

Soli Sorabjee: The best person to answer that would be Sanjay’s lawyer. I am saying this because I do not know the facts.

Karan Thapar: You just said that had you been the judge you would give him probation.

Soli Sorabjee: I said ‘I’ would. I am not sitting on the Supreme Court.

Karan Thapar: Given that Sanjay has already served sixteen-month imprisonment, I would reckon that somewhere at the end of the next 30 months he would become eligible for remission of his six0year sentence. Are those grounds for the Supreme Court to consider expeditious bail?

Soli Sorabjee: There is no doubt about it that the Supreme Court will consider his bail application expeditiously. And I’m sure that these factors will be taken into account while deciding whether to grant him bail or not, and the various other conditions.

Karan Thapar: So what you are saying to me and I’m repeating because it’s important that you can’t comment on whether the Supreme Court will actually grant probation or whether the SC will reduce the sentence. But you do believe that the Supreme Court will consider and perhaps grant bail expeditiously.

Soli Sorabjee: Oh, yes. Expeditiously and may be, that’s my hunch, that they may take these factors and it may lean in favour of granting him bail. But mind you that media hype could be counterproductive. Sanjay’s friends are not doing him any good. The people are getting put off because of this. That why all this is happening in the case of one person. What happens to others who are rotting in jail?

Karan Thapar: Is there also a danger that what you call media hype might exercise such pressure on Supreme Court judges, that to be scrupulous and ensure that they haven’t in any way wilted, they may actually tilt the other way?

Soli Sorabjee: I think the Supreme Court judges by now are used to media hype, and I think they ignore it. They judge the matter according to the records and according to the provisions of law.

Karan Thapar: So it’s the public opinion that you are saying will get put off by media hype, it won’t really affect the judges.

Soli Sorabjee: I don’t think so. I think the Supreme Court judges don’t get affected by this at least very consciously.

Karan Thapar: Let’s come to the political response to the sentencing of Sanjay Dutt.

Priya Ranjan Dasmunsi has gone on record to express his deep shock and surprise. He says that Sanjay’s fault was unintentional. He adds, “The time has come for the civil society to gauge the parameters for an unintentional fault.”

Should a senior cabinet minister speak out in this way against the court ruling?

Soli Sorabjee: I think it’s inappropriate, especially he being a senior cabinet minister. He may have his own views in the matter. But when he is expressing his views as a cabinet minister, he is actually questioning the correctness of the judgment.

Now the judgment will be up in appeal. And I don’t think it was appropriate.

Karan Thapar: Priya Ranjan Dasmunsi has described Sanjay’s fault as what he calls as an “unintentional fault.” Now I ask you, what is an unintentional fault? Sanjay acquired the gun intentionally. He disposed of the gun intentionally and as you know, ignorance is no defence against the law.

Soli Sorabjee: There is no question of unintentional here. He got them. He knew what he was doing, he knew from whom he has got them. He knew that he had the guns and that’s the reason why he phoned from Mauritius, as you say, to get rid off them.

Karan Thapar: So, not only speaking inappropriately and out-of-tongue, in addition the concept that he has devised of an ‘unintentional fault’ makes no sense.

Soli Sorabjee: Well, I think may be was an off-the-cuff remark. That’s a charitable explanation.

Karan Thapar: Let’s come to a bigger, wider issue. Last week, the courts completed the two major bomb blast cases: the Bombay blasts and the Coimbatore bomb blasts case.

And yet the 1992-93 Bombay riots have been treated very differently. In fact just a few people indicted by the Sri Krishna Commission for those riots have actually been brought to justice.

How do you view this disparity?

Soli Sorabjee: I think it’s scandalous. The recommendations of Justice Sri Krishna report have not yet been duly implemented, not been pursued with the energy that they should. The matters should have come up in the Supreme Court.

At one stage I was there, and I know that the Supreme Court asked the government of Maharashtra what you are doing about it? Then I don’t know what happened. I got off the case, was out off the office. But I think it must be, because it also shatters the people’s confidence in justice.

Karan Thapar: On that particular last point that you have made, do you get the feeling that India responds to those, accused of the bomb blasts, very differently to the way it responds to those accused of riots.

Soli Sorabjee: I won’t say it but it is all about the personalities involved in the Sri Krishna Commission report. I think that’s the reason they don’t want to take action.

Karan Thapar: So it’s politics rather than the differentiation between the two categories of accused?

Soli Sorabjee: Oh yes. Riots also kill people. But bomb blasts affects the whole community.

Karan Thapar: Let me interrupt to tell you why I made that particular point. The vast majority of those accused of bomb blasts particularly in the two cases that I have quoted, were Muslims. The large number of people accused of riots, particularly in the Bombay instance that I have quoted, are Hindus.

Even if this may not be deliberate religious discrimination, will it not appear so to many of those who feel they have been denied justice.

Soli Sorabjee: I don’t think Karan. That’s supportive to circumstances. The question is why you are taking action against those people, against whom action should be taken, on serious offenses? Because they are high political personalities or are there other reasons? I don’t think it’s really the question of Hindu or Muslim as such. I won’t even look at it that way. That’s portentous.

The question is that the two things must not be mixed up. The law must be implemented fully and evenhandedly in both the cases. It was not done in the case of the riots. It’s unfair and as I said, it’s scandalous.

And I think also the Supreme Court, I just read in the paper, have seized off the matter. Mr Yusuf Mushara has done some excellent work, bringing out these facts before the Supreme Court. And I hope the Supreme Court will give preemptory deductions in this matter.

Karan Thapar: What about something else? It’s also reported in the newspapers that of the 60 police officers indicted by the Sri Krishna Commission for their involvement in the riots, as well as the police officers who were identified by the Special Task Force for punishment, only a small number has actually been punished.

The rest have either been ignored or worst still gone scot-free, or in some cases, promoted.

Soli Sorabjee: That’s why I used the term ‘scandalous’. That has to be looked into.

Karan Thapar: But is it just scandalous? Will this sort of uneven treatment, infect this sort of discrimination, if I may use that word, breed disillusionment, disenchantment, and perhaps even dissent in Indian Muslims?

Soli Sorabjee: This is not discrimination by the judiciary. It’s not as if the court has said that those people should be let up. It is a fact that the political executive is not doing anything about it.

Karan Thapar: Absolutely. And the inefficiency deliberate or otherwise of the political executive to act, worst still, perhaps their culpable negligence—will it not breed disillusionment, disenchantment and dissent in Indian Muslims?

They look at their politicians and say, they behave very differently in one case, and very differently when it affects ‘us’.

Soli Sorabjee: But what is ‘they’ here?

Karan Thapar: The politicians and perhaps the police.

Soli Sorabjee: May be. The police could have traversed this all right. But the whole question is, now we should wait and see what happens after the matter is in the Supreme Court.

Karan Thapar: How long will they have to wait? The people have waited perhaps for as much as 16-17 years. Surely patience must be running out for those who are crying out for justice.

Soli Sorabjee: Correct, but now the Supreme Court seized off the matter. I think they should wait and see what the outcome of the Supreme Court directions are and I think that will restore their confidence.

Karan Thapar: So you are saying to those, who are disenchanted and disillusioned, “You have waited for so long. Wait just a little longer. The Supreme Court has taken the matter in its hands. It is bound to produce results.

Soli Sorabjee: Yes, that’s right.

Karan Thapar: It was a pleasure talking to you on Devil’s Advocate.

Soli Sorabjee: Thank you.

Final Solution : Bestowed the Recognition

2007-08-09T02:03:00.000-07:00

Banned by the censors, rejected by Mumbai International film festival, now being awarded by the President of India!

In the just announced 53rd National Film Awards, Rakesh Sharma's internationally-acclaimed documentary Final Solution about the Gujarat carnage has been given the Special Jury award comprising a Rajat Kamal and a cash prize of Rs Ten Thousand. The Jury awarded the film "for its powerful, hard-hitting documentation with a brutally honest approach lending incisive insights into the Godhra incident, its aftermath and the abetment of large scale violence". ( http://pib.nic.in/archieve/others/2007/aug07/53rd_nfa-2005.pdf)

Said Rakesh Sharma, "Final Solution itself is a perfect illustration of why there should be no censorship for documentaries. The President of India is now recognizing the film for its merit and excellence. Curiously, in sharp contrast to the National Film Award Jury, the CBFC (censor board), while banning the same film in 2004 had observed that the film "promotes communal disharmony among Hindu and Muslim groups and presents the picture of Gujarat riots in a way that it may arouse communal feelings and clashes among Hindu Muslim groups." According to the CBFC, the film "attacks the basic concept of our Republic i.e. National Integrity and Unity. Certain dialogues involve defamation of individuals or body of individuals. Entire picturisation is highly provocative and may trigger off unrest and communal violence. State security is jeopardized and public order is endangered if this film is shown.... " Widespread public outcry and protest campaigns led the CBFC to clear the film without a single cut in Oct 2004. Both the ban and CBFC's subsequent clearance came during the UPA's regime.

Ironically, the government-run Mumbai International film festival (MIFF) rejected the same film on the grounds that it wasn't good enough, refusing even to screen the film, let alone allow it in Competition! However, the week after MIFF, Final Solution created history at Berlin by winning two awards, including the Wolfgang Statudte award, never given before to a documentary film!

Reacting to the National award itself, Rakesh Sharma said, "I am delighted and saddened at the same time. Delighted because after 30 international awards for my last two films, this is my first National Award! Delighted also as now Doordarshan will telecast the film to a wider audience in view of its policy convention and judgements by the Supreme Court and Bombay High Court. Saddened because the ugly shadow of censorship continues to mark the National Film Awards, leading to its boycott by a section of documentary film-makers."

Stressed Rakesh Sharma, "When an arm of the Government of India honours the film while another arm harasses the film-maker and then bans the film, it makes the Indian State appear schizophrenic. I hope the Government will do away with censorship for documentaries, especially in view of its stated commitment to Right to Information as well as Freedom of Expression. Documentaries should instead be brought under the purview of the Press Council of India - after all, what is the difference between an NDTV special report on Gujarat riots and Final Solution? A ban on Final Solution seems absurd! Police action to prevent screenings of documentaries seems totally farcical. There is no space for such censorship in a mature Democracy - I urge sections of civil society to join us in our campaign against censorship of documentaries."

Final Solution is a study of the politics of hate. Set in Gujarat during the period Feb/March 2002 - July 2003, the film graphically documents the changing face of right-wing politics in India through a study of the 2002 genocide of Moslems in Gujarat. Final Solution is anti-hate/ violence as " those who forget history are condemned to relive it ".

The film has over 20 international awards and has been screened at over 80 international film festivals (details below and on www.rakeshfilm.com). These include two awards at its premiere at the Berlin International film festival and the prestigious Index on Censorship award in 2005

Final Solution (India; 2004; DVD; 149 minutes)

Awards:

Wolfgang Staudte award & Special Jury Award (Netpac), Berlin International film festival (2004)

Humanitarian Award for Outstanding Documentary, HongKong International film festival (2004)

Montgolfiere d'Or (Best Documentary) & Le Prix Fip/Pil' du Public (Audience award), Festival des 3 Continents at Nantes (France; 2004)

Best Film, Freedom of Expression awards by Index on Censorship (UK ; 2005)

Silver Dhow, Zanzibar International film festival (2004)

Best documentary, Big MiniDV (USA; 2004)

Special Jury Award, Karafest (Karachi; 2004)

Special Jury Award, Film South Asia (Kathmandu; 2005)

Human Rights Award, Docupolis (Barcelona; 2005)

Special Jury Mention, Munich Dokfest (2004)

Special Jury Mention, Bangkok International filmfest (2005)

Nominee, Best Foreign Film, Grierson Awards (UK; 2004)

Best Documentary, Apsara Awards (India;2006)

Special Award by NRIs for a Secular and Harmonious India (NRI-SAHI), NY-NJ, USA (2004)

Special Award by AFMI, USA-Canada (2004)

Special Jury Award, Worldfest 2005 (Houston)

Special Jury Award, Mar Del Plata Independent film festival (2005; Argentina)

Screened at over 80 international film festivals.

Rakesh Sharma: A brief profile : Rakesh Sharma began his film/TV career in 1986 as an assistant director on Shyam Benegal's Discovery of India. His broadcast industry experience includes the set up/ launch of 3 broadcast channels in India: Channel [V], Star Plus and Vijay TV and several production consultancy assignments. He returned to independent documentary film-making in 2001. His first independent film Aftershocks : The Rough Guide to Democracy has been screened at over 100 international film festivals.

It got the Best documentary film award at Fribourg, Big Mini-DV and at Jeevika ( India) and won 8 other awards {including the Robert Flaherty prize}at various festivals in USA and Europe during 2002-03. His latest film Final Solution deals with the politics of hate. It has been screened at over 80 filmfests and has over 20 awards ( Berlin, HonKong, Karachi, Zanzibar, Index on Censorship etc). Both films were rejected by the government-run Mumbai International film festival in 2002 and 2004 respectively.

website: www.rakeshfilm.com

blog: rakeshindia.blogspot.com

A Constitutional Bench. Finally!!

2007-07-27T07:11:00.000-07:00

Great News!

The Reservations case is being transferred to a Constitutional Bench that would begin hearings on the 7th of August. Apparently 15 questions of law would be decided by the Court.

However, on the 31st of this month the Supreme Court would hear the parties on the application of the Impugned Act from this Academic year.

ps: My previous posts on reservations may seen here.

Coming to terms with reality

2007-07-24T08:53:00.000-07:00

I was talking to Rachita and Aanchal tonight at the lane (They happen to be very good friends of mine). Its just that somewhere down the line the discussion got down to humanitarian issues and my notion got affirmed.
"We live in this space surrounded by walls on all sides that in our petty existence we forget to come to terms with reality. We forget that there are 300000 people die in darfur, violations take place everyday in Kashmir, government policy seems to be a scam."

Pretty true then that someone in the Times of India wrote the other day that 'NALSAR Ideals fall to Mammon'. The institution talks of itself producing socially active lawyers when all we do is laze around within these four walls. There are times when we need to come to terms with reality. the glitzies of the corporate world then seem to attract us more while we forget to do our bit to save this world that for now seems to be running haywire.
I recommend my readers to read this letter by Dr. Elfarra. It made me understand that human relationships are totally linked to injustice in life. How politics can become an integral part of one's survival.

My mother is in her last moments and I cannot cross the borders
My mother is in the hospital at the moment. She is severely ill. She was admitted to hospital 3 days ago. I cannot reach her.

I finished my 45 day speaking tour in the USA. All across the USA and in every lecture I told the audience about our suffering, living in this big prison called Gaza. I told them about the borders closure and about the patients who passed away while waiting to cross the borders.

The borders have been closed for more than 5 weeks, 28 patients died while waiting to cross the Rafah crossing, the only crossing between Gaza and Egypt. All other exits are completely sealed by the Israeli army. The border was opened 70 times in one year.

Now it is my personal story, like the daily stories of 1.4 million people in GAZA under siege and occupation, poverty, lack of resources, killing, shooting, violence etc....

I cannot cross the borders, I cannot cross the Rafah crossing. I badly need to be next to my mother. I badly need to be there with her to help her, to do whatever I can for her. To say good bye mum.

I was always there for my patients and many people, to help and try to alleviate their suffering. In her last hours I cannot be there, my hands are tied. I am helpless, I can do nothing, I just have to wait and wait and wait. My throat is dry, my eyes are full of tears.

This is unjust, inhuman. It is the occupation. How can it come to be just and fair, when it is mainly based on injustice, aggression and cruelty?

Can somebody help me to go home? I badly need to be at home next to my mother in her last moments.

Good bye mum, I hope you rest in peace, a peace we do not enjoy in Gaza.

with love and solidarity

Mona ElFarra

Sunday 15 July 2007

The Will to Hope

2007-07-24T04:37:00.000-07:00

There is this very interesting article by Amit Sengupta in the May-June 2007 issue of Combat law. In this article titled, "The Will to Hope", Mr. Sengupta explores the diffusion of the Left in India and the rise of a new power in the form of Hindu fundamentalism. He argues that the BJP and the RSS would come down heavily and learn from their past mistakes. What would then ensue is something similar to what is happening presently in the BJP ruled states, blatant HR violations, communal clashes and prejudices in the name of religion.

"Instead, like primordial creatures of sacred cults who can undergo multiple metamorphosis, the octopus-like parivar, with its many fronts and institutions (unlike the official or radical Left), blooms and flourishes under State patronage. That is why, the Gujarat hate lab is a 100 percent success story; and Gujarat’s prototypes and microcosms are actively spreading, like slow epidemics, in all BJP-ruled or BJP-coalition states: Rajasthan, Madhya Pradesh, Uttarakhand, Chhattisgarh, Orissa, even Karnataka where they tried to communalise a site of shared, secular synthesis: Babubudangiri."

After Nandigram and incidents in Kerala, indeed the left has had to go through rough stages. They seem to be losing their identity in the States they rule. To quote Amit, "West Bengal's openly joining the race as to who owns more malls and multiplexes, big industries and factories". However, in as much as this article is written to show that the left influence is fading, the central theme in the article shifts to a vehement attack on Modi and the BJP ruled states. Amit seems to be talking more about justice to the victims of Gujarat than about Karat and his influence on the left.
True however is the premise that despite a Left backed government in our country, Leftist ideals dont seem to be followed. We looked towards the left when it came to Petrol prices and nothing happened. Nandigram is a black stain on the left that time and again talks about atrocities in Gujarat.

"Meanwhile, the 10 percent growth remains an elusive category for the 93 percent of our unorganised workforce in the informal sector, in urban and rural areas, mostly the poorest. They are compulsively isolated outside the paradigm of social safety, social security, health, education, food, drinking water, or shelter, as constitutional rights, with not even 100 days of employment in a year, despite the fudged up National Rural Employment Guarantee Act and the scrapped National Advisory Council. So what does the neo-liberal State want them to do: line up outside the SEZs and commit mass suicides?"

The above and a reference to farmer suicides seem to divert from the main issue of the article. In the end, Amit states that the UPA- Left must wake up to tackle these issues. True that they must wake up. But the reason should not be that otherwise the BJP would come to power and the consequences would be bad. In not allowing the 'devil to rise', we are asking the squirrel to gear up.
In a one liner to this article, Mr Sengupta looks at a lot of issues to adjust to the Central idea. However, the premises he uses to justify them are baseless.

Presidents to be

2007-07-22T14:27:00.000-07:00

In a continuation to my previous post, I was browsing through India Uncut when I came upon this referral to The Washington Post. The article was titled "Hillary Clinton's tentative dip into Neckline Territory". The post couldn't get any more hilarious. One of the paras says,

With Clinton, there was the sense that you were catching a surreptitious glimpse at something private. You were intruding -- being a voyeur. Showing cleavage is a request to be engaged in a particular way. It doesn't necessarily mean that a woman is asking to be objectified, but it does suggest a certain confidence and physical ease. It means that a woman is content being perceived as a sexual person in addition to being seen as someone who is intelligent, authoritative, witty and whatever else might define her personality. It also means that she feels that all those other characteristics are so apparent and undeniable, that they will not be overshadowed.

And then it goes on as to what it takes for a woman to show her cleavage. Well Pratibha Patil would make quite a contrast to this. I got a comment saying that APJ set high standards which would be difficult to compete with. Well, beat this!
Imagine that in 2008 both of them are woman Presidents and meet each other. One in a sari and the other a Donna Karan gown!!

PS: this post has nothing to do with HR or anything that this blog is meant for. Just felt like putting it up.

Celebrating Pratibha

2007-07-22T07:16:00.000-07:00

Its taken 60 years for us to elect a woman President. After a lot of lashing out by the opposition about her credentials, she finally won it fair.
But is she the right candidate for the Job? A lot of people would argue about that. I'd like to make one thing clear, "We are not America!". I say this because the President is a puppet and a representative head of our Country and in these circumstances qualifications dont matter. Shekhawat might be better for the job, but at the ceremonies and TV shows, I'd rather see my country being represented by a Woman. It is a sign of equality and that gender bias on the face of it has ended in our country.
Look at Ms. Patil. An extremely learned and spiritual lady. Its been a long way for her, standing up all for herself in the 1970's and winning an election 5 times. Then lastly becoming the Governor of a State. For someone who has to sit at Raisina Hill and pass Bills, that is more than enough. It is a sign of vigour and courage that she has put up in her life.
Kudos Ms. Patil. Enjoy your five years at Raisina.

Reserving Reservations!!!

2007-07-19T02:26:00.000-07:00

The Supreme Court vacation ended. I now get to come back to my favourite topic ‘reservations’ once again.

On the 17^th of July , a Three judge Bench of the Supreme Court sat again to decide on the next steps to be taken as regards to the Centre’s move in increasing the OBC’s by the Central Educational Institutions (Reservation in Admission) Act, 2006 to 27%. From what I heard, Solicitor General Vahanvati decided to give one last shot at asking the Court to allow the Quota to be implemented from this Academic Year itself pending a decision by a Constitutional Bench. There was a great fur ore created by this move and opposing counsels Rajiv Dhawan and Mukul Rohtagi opposed the move by stating that a three judge bench cannot have the power to review a division bench order by Justice Pasayat in May. The Court finally announced;

- That the parties are to file their replies as to the Solicitor General’s argument by the 31^st of July.

- That the decision to transfer to a Constitutional Bench however would be taken by the end of next week.

I mentioned in my previous posts that the Supreme Court seems to be inclined towards the American way when it comes to reservations. If this is true, then this is bad news for those who want reservations in the Country. In late June, the United States SC decided Seattle School Dsitrict, a judgment that has partially overruled Brown v. Board of Education. This means that discrimination on the basis of race in admission of schools is now legal in the United States, with certain checks and balances. In the case the Court presents an idea of affirmative action that is something that the Indian Court has sought to borrow. The idea first arose in Grutter v. Bollinger and California v. Allan Bakke where the Court said that affirmative action, particularly in the admission process in universities, must be “narrowly tailored” to promote diversity, but not in such ways as would discriminate against those excluded from affirmative action because they do not belong to ethnic or racial minorities.

The above makes the stance taken by the Indian courts a lot of more confusing as we don’t know which way the Courts will go when it comes to laying down its judgment. For now, Waiting for the decision as to the Constitutional Bench sitting to come out.

Looking for a Direction

2007-07-15T09:16:00.001-07:00

BRAHMA

If the red slayer think he slays,
Or if the slain think he is slain,
They know not well the subtle ways
I keep, and pass, and turn again.

Far or forgot to me is near,
Shadow and sunlight are the same,
The vanished gods to me appear,
And one to me are shame and fame.

They reckon ill who leave me out;
When me they fly, I am the wings;
I am the doubter and the doubt,
And I the hymn the Brahmin sings.

The strong gods pine for my abode,
And pine in vain the sacred Seven;
But thou, meek lover of the good!
Find me, and turn thy back on heaven.

It was one of those moments where I was lost and was looking for some direction in life. Thought processes worked and I was made to read this wonderful poem by Ralph Waldo Emerson titled BRAHMA. The poem is a miraculous in its blend of Eastern and Western thought. In the poem, Emerson assumes the role of Brahma, the Hindu God of creation. All through the poem, Emerson alludes to Hindu mythology. The knowledge of which he gained through reading the Bhagavad-Gita and other Hindu scriptures. The poem talks about Emersonâs relation with the divine and his perception of the eternal creator.

I think I now got the direction Iâm looking for. Will make a conscious effort to read the Bhagavad Gita in a few days time. and

Gone are the Rickshaws

2007-07-12T11:15:00.000-07:00

Next time you travel to Delhi and take a walk around Chandni Chowk, donât be surprised if you donât see any of three wheeled cycles around. The Delhi High Court in its archetypal style passed an order banning all cycle rickshaws on the arterial roads of Delhi and said that such roads were the main link roads and were meant for carrying vehicles.

'Carrying Vehicles'! these are again one of those times when you get thinking what's happening to our judiciary? In May 2007, the Court again had passed an order banning road side eateries. That meant the very paratha walas that we used to savour on would have had to go. Thankfully the government and SC stepped in and made certain clarifications. I remember the face that my friend Wrick made when the ITO and South Ex paratha walas had to close down for two days pending the order.

Coming back to the issue, on a petition by a like minded organisation, 'Initiative for Transportation and Developmental Programs' the Supreme Court has ordered a stay and decided to look into the matter. In what is termed as a surprising move by many people, Jusitce Balakrishnan and Justice Raveendran have issued notices to the Municipal Corpn of Delhi and will look into the SLP. Iâve just started wondering what would happen to the thousands of rickshaw owners who would be rendered unemployed if this order were to stay. Courts have started getting into this garb of elitism where they are not concerned of the consequences that would ensue to the poor of their decisions. An aspect of socialism is important to be present in this regard. Hopefully the Court should mend its ways and pass a decision that's just in this matter. Even if it were to allow the order, adequate measures for rehabilitation should be provided.

Book Review

2007-07-10T12:25:00.000-07:00

I read a Camu essay for the second time today. His "Lessons from the Guillotine' is one of the most beautiful essays Ive ever read. What differentiates the book from other Camu novels is that this is not just an emotion filled piece of his like 'The Plague' and 'The Outsider' but has a touch of rationality in it. While I have quoted from his âLetters to a German Friendâ a lot of times in my previous posts, there is a lot more to speak about this book.

The 23 political essays in the book, "Resistance Rebellion and Death" speak on a diverse range of issues from Algeria, the World War to the Death Penalty and Democracy in general. Most of these essays were written at a time when he was underground and writing for the French revolutionary papers as a secret editor.

A review from Amazon.com reads,

"Resistance, Rebellion, and Death bears witness to the passionately scrupulous sense of responsibility which made Camus the kind of man and the kind of writer he was" .

Another very important aspect of this book is that Camu makes it explicit that no democracy can function without the freedom and rights for all its citizens. Justice, he says is a trait of every successful democracy. I recommend this book for all those who would want to look at the moral and political side of Camu. The book is one of those that gives you a perspective into the human struggle for freedom and the demand for a just order.

The 'Weak End' Post

2007-07-01T06:01:00.000-07:00

There is darkness everywhere. My efforts of looking for a ray of light have turned futile. All through out the week, there have been instances of grave injustice all over the world. Electing the head of a state has turned into a political game; Brown v. Board of Education has been partially overruled; One of the worldâs greatest manipulators is now to fight for a human rights cause. What more could the world want? This is, to be succumbed by darkness.

This is for the first time I am noticing that electing a president has become more political an affair than any other process. Rather than electing non- political heads, we choose to put in those in favour of a particular party. This influx of ideas had started with Indira Gandhi putting up Giani Jail Singh as a Presidential candidate in the 1970âs and 80âs. How then can one come to terms with such incidents? This takes me back to the Constituent Assembly Debates and what Shashi Tharoor wrote in the Times of India. According to Shashi, the main reason why England chose not to remove the monarch/ royal head was that they feared that the position would become an example of political stigmata. So there was, the true West Minister model of governance.

Contrasting that with India, as smart as we Indians are (thatâs sarcasm); we chose to have a West Minister model of Government. In theory the president was suppose to be apolitical. But alas! We donât see that happening. Our âesteemedâ politicians decided to have a republic and elect a president. I think Radhakrishnan was not a victim of such policy. Neither was Rajendra Prasad. The situation however doesnât remain the same after on. Today the National Democratic Alliance (NDA) makes allegations against a nominee (Pratibha Patil) and puts her credibility to stake. Something disgraceful for someone who could be President of this country. It then was wise for President Kalam not to fall into this trap.

The Bottomline, there is politics in everything. Not to forget that my college Student Bar Council elections are around the corner and political whips are in full swing here too.

So while all this happens in India, racial segregation has got a new meaning in the USA. Brown v. Board of Education (1954) has been partially overruled. Thatâs true! A few days ago, a nine judge bench of the US Supreme Court stated that certain segregation policies in the schools of Louisiana and another state were perfectly legal. This was a 5:4 ration judgment that has now overturned every aspect of a democratic ideal. Only an idiot cannot estimate the consequences of such a ruling. A New York Times editorial reported that the US Supreme Court has gone to become a Conservative institution and Earl Warrenâs ideals no longer remain intact. At one hand where we expect the society to progress towards rationality (Russell) , we seem to be going backwards. Racially targeted recruiting strategies are now constitutionally legal in the United States.

There is also a lot of speculation about Tony Blair getting involved in the Middle east political process. Again NYT said,

âIf Blair uses his manipulative skills then a result may be achieved else we must be prepared for a faux pass.â

So darkness prevails. Earlier I wrote that I have lost hope in the system. I now would like to retract from it as I am reminded of Albert Camu. In âLetters to a German Friendâ he wrote,

âThere are means that cannot be excused. And I should like to be able to love my vcountry and still love justice. I donât want just any greatness for it, particularly a greatness born out of blood and falsehood. I want to keep it alive by keeping justice alive.â

Thatâs my stand on the system now.

Readings:

The University of Chicago on the 'School District Cases'.

The Fact that is 'Torture'

2007-06-27T06:33:00.000-07:00

Yesterday was World Torture Day. While there is no need to explain the prevalence of torture in our country, I’d like to use this opportunity to show the attitude of the Courts towards this grave violation. This I’d do by critiquing the case of Masooda Parveen v. Union of India, the judgment which was announced in May this year.

The deceased and husband of the petitioner, Ghulam Mohi-uddin Regoo was one day taken by 17 Jat Regiment soldiers an brutally tortured. The reason that the wife and most witnesses gave was because he had refuse to pay an extortion fee to the soldiers. The petitioner alleged that her husband was tortured to death by the army and later his body was returned in pieces to her. The explanation given by the Army was that he was leading them to a hideout which was blown up the moment he reached there with the soldiers. Surprisingly no soldier was injured by the blast and the only fatality was Ghulam’s death. Ghulam’s wife, Masooda filed a petition before the Court demanding compensation and a job on “compassionate grounds.”

The Army said that Ghulam was a militant so no ordinary law would apply to them in this regard. They went on further to say that since Ghulam was a militant, Masooda would have to suffer for her husband’s wrongdoing. The Army’s rationale was readily accepted by the Supreme Court which stated that since there is ‘no evidence to say that he was not a militant, so he is presumed one’. It indirectly stated that if the Army identifies a person as a militant he is one until proved otherwise. There was no evidence produced by the Army to support this notion and nothing on record about Ghulam’s mode of death. From what I understand, in a petition for habeas corpus, it is upon the state to show that death was incidental and it is all the more onerous on the state to show so. It further stated,

“We are not unmindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in leakage of information which would frustrate the very purpose of the army action.”

So the Court has violated the ruling in Naga People’s Movement v. Union of India, and given an upper hand to the Army to indulge in such nefarious activities. These are troubled times for the judiciary. An organ that is supposed to be a guardian of human rights and injustices disappoints us by relying on irrational convictions. The support of the Army by the judiciary is unprecedented as is evident in this case. The judicial sanction of torture in the name of national security is a pandora’s box in its true sense. Absolute power corrupts, its usage without any checks is the cornerstone of evil. This time Ghulam was picked up and killed, tomorrow its going to be someone else. The matter could have also been simply resolved by given compensation on compassionate grounds and not accepting guilt as asked for by Masooda. But the Army argued otherwise and now a bad precedent has been set. So we should now be prepared for more people to be branded as terrorists by the Army.

This case did not get the publicity that a situation like Jessica Lal got. It is a reflection of what we Indians think of such instances. ‘We don’t care is someone is blown up into pieces. We would like a rapist to get a death sentence. Kashmiris are likely to be terrorists so they deserve it.”

Such notions are bad publicity. Human rights concerns are non existent in a majority of Indians. For them, torture is good if a person is caught. But what if the person might not be a terrorist? I used to admire Dershowitz a lot. Lately he stated something to the effect that torture is good if it produced desired results (don’t know for sure). I am losing faith in the system. There is injustice everywhere. Right from my college to international issues. To what extent can one stand all this is the question? Do I just sit and watch or is there something I can do?

A Diatribe on Patriotism

2007-06-24T08:19:00.000-07:00

I realised that the only aspect of patriotism comes out in me when I wish “jai hind” to the security guards in my college. That’s only because they are ex-servicemen and I might require their help sometime in the near future. But apart from that, patriotism has died in me and you know what, I’m proud of it. I go to China and look at an economic marvel and here I am in a land reminiscent of poverty and corruption. Things couldn’t have been worse in this Country. This is as bad if not worse than the ‘Curse of Bambino’ which was apparently spread for the failure of the Red Sox to win a series between 1918- 2004. I make the comparison because we Indians are people of excuses. We need an excuse for failure and will never work upon it to make it a success.

Bombay witnessed another series of heavy rains today. The people of that City again started cursing the administration for the lack of any measures taken on their part. This is not new and happens every year and dies down once the rains are over. My brother missed an exam today because of the rain. There are surely thousands more who were affected in such adverse ways due to the rains. I can imagine that BMC Commissioner sitting in his chair in his office near Victoria terminus (the clean Bombay) and drinking hot tea while the rest of Bombay suffers. The excuse, “We are just too over populated to do anything. It is impossible to take any action with so many people around”. This is where I go back to China mentioned earlier and would like to credit them for the marvel they made out of Shanghai.

Poverty and red-tapism seem to have become buzzwords attached to the Indian administration and the people have ‘resolved’ not to do anything about it. I don’t want to be a part of such a Country. JFK saying “Ask not what your Country can do for you, but what you can do for your Country” is a sham. I think he was shot because of that. The Government exists for the people and only when it considers for their welfare must the people protect it. The essence of patriotism is in fighting for what you love. I’m trying too hard to love my Country, don’t think I can be a patriot anymore. Fed up of it.

The Nanda Storm

2007-06-23T06:58:00.000-07:00

It turns out to be pretty amusing when one notices the lackadaisical attitude that the judiciary is taking towards the Sunil Nanda case. For those who are not aware, the accused Sunil Nanda (happens to be the son of Admiral BL Nanda) is charged with rash driving leading to the death of 4 people in 1999. In a new twist in the case, one of the witnesses, Sunil Kulkarni was involved in a sting operation the tapes of which showed the lawyers for both sides bribing the witness to change his testimony. RK Anand is the counsel for the accused who’s now in the limelight with this incident.

Most of the people I know who have worked with RK Anand are convinced that he would easily get away with the act. If this were to be believed then it doesn’t come as a surprise that the Supreme Court Bar Association (SCBA) has allowed him to practice in the Supreme Court. The same however is not in the Delhi High Court. He is temporarily barred from practicing and the case is proceeding before the vacation bench by Justice Muralidhar. But then, what can the Court do? Can it withdraw his license to practice? I don’t think the Court can or will do that. So ultimately a lawyer would get away with a heinous act for the very fact that he is a big guy and has is contacts to get him off the hook.

How then can one ensure that the judicial process in this country comes clean in delivering justice? Lawyers and judges don’t need some sort of protection but must be made accountable for their actions that violate due process. In fact I read the other day that some lawyers feel this would become a very strong case for the admissibility of illegal evidence in Court. The present position on the law is that such evidence is admissible where as after the Katz case it is inadmissible in the USA. You never know, sometimes to hide an illegality people fight to amend a law to their advantage.

While the case is still in progress, I just hope the Court considers justice and due process in giving its decision. The lawyers may go free today, but the verdict sure would give a free hand for the ambitious to practice such acts tomorrow.

This just in

2007-06-20T09:18:00.000-07:00

This just in.

Former Customs Collector AN Thapa, one of the accused in the 1993 Bombay Blasts has challenged the Constitutional validity of the Terrorists and Anti- Disruptive practices Act (TADA). This comes in at a time when the Special tribunal is deciding on the sentencing of the accused in the case. Apparently the petition is based on an opinion by Justice Markandey Katju about how TADA is unconstitutional and obsolete in today’s system.

Would keep you all updated.

In the meantime, readers may read my earlier posts on terrorism and the validity of anti- terrorist laws in the country. link here

The Criminal Language

2007-06-19T06:19:00.000-07:00

My criminal law professor made the following statements in class today;

1) 90% of the acquittals in the country happen because of the lack of evidence even though the people have committed the crime.

2) People in the parliament bomb blast and bombay blasts are being acquitted because of the lack of evidence.

3) Jessica lal and Priay darshini Mattoo resulted in disasters at first because of the lack of evidence.

All this happened, as can be observed in the evidence class. I am in a legal institution, one of the best I must say, and am taught to believe that the law is a failure. Such teaching comes from irrelevant facts. Its not just my teacher, but distinguished law people in the Country like Madhav Menon who make such statements and the parliamentarians sitting at the centre blindly trust them and make the law.
For example: The 142 law commission report says that Convicts are acquitted because the law is not strong. This baseless statement was then used as a justification for bringing in plea bargaining in the Country. Madhav Menon states that the conviction rate in the Country for lesser crimes is as low as 40 % where as the NCRB report states it to be 73.2% in Delhi alone. The Parliament says that Convicts are roaming about freely in the Country.

If you observe the examples above, you will see the usage of the word convict by these law makers. Well, you are a convict only is you have been held guilty by a court and not when you allegedly commit a crime. Such usage has made the common man loose faith in a system that is merely applying procedure. We jump to joy to see a man being convicted but the same is not seen if an alleged convict who is innocent is acquitted. Even though Bhagwati and Krishna Iyer made statements like "its more important not to convict an innocent man than to let a criminal go free", we don't seem to follow them anymore. I sometimes feel bad for Manu Sharma. Perhaps he was really innocent and got convicted because of the role of the media and the pressure of the public.
So then there needs to be a way in which crime is reported in the Country. Be it the newspaper or teaching the law. Information must be precise and not a bundle of ridiculous statements that most people would readily believe. As I write this, I feel bad for most of my class who would now be thinking that the criminal system is 'crap' and most Convicts roam free.

Reviewing the Shah Bano legacy.

2007-06-09T23:51:00.000-07:00

On June 5, the Supreme Court of India in a significant ruling, held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 would not hinder a divorced Muslim woman's right to maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

Prior to delving into the importance of this judgment, it is imperative that the gamut of events, triggered with the Shah Bano verdict, be explained. In 1985, the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, upheld the maintenance claim of Shah Bano, a divorced Muslim woman of 60 years, under S.125 of the CrPC; the Section provides for relieft to a wife (among others), "unable to maintain herself". However, this judgment created a huge outcry from the Islamic orthodoxy in India. The Rajiv Gandhi-led Government in power, passed the Muslim Women (Protection of Rights on Divorce) Act, to appease the outraged sentiments. The Act, quite ironically, curtailed the rights of Muslim women rather than protecting them. It limited the Muslim husband's responsibility to maintain his divorced wife to the period of iddat. Over the past decade, the Act has challenged over various grounds of Constitutional validity. The apex Court's decision in Daniel Latifi v. Union of India was instrumental in clearing the fog of confusion. The Court in that instance, gave a liberal interpretation of the Act,(specifically S. 3(1)) in so far as the "fair and reasonable" provisions to the divorced Muslim woman shall include maintenance for her future extending beyond the iddat period.

Earlier this month, the two judge-bench comprising Justic Arijit Pasayat and D.K. Jain in the case of Iqbal Bano v. State of Uttar Pradesh overruled the Allahabd High Court's order on the same matter; the H.C had held that the divorced wife is not entitled to maintenance under the CrPC in lieu of the existing Act of 1986. There were questions raised as to whether the divorce effected was proper; to which the Court answered in the negative. While the Act only deals with divorced women the CrPC, in the opinion of the Hon'ble Court, is of broader ambit. A relevant passage from the judgment is quoted below:

Under the 1986 Act the husband has two separate and distinct obligations, viz. to a make a reasonable and fair provision for his divorced wife [for her residence, food, clothes and other articles], and to provide maintenance for her. Though it may look ironical that the enactment intended to reverse the decision in the Shah Bano case it actually codifies the very rationale contained therein.

A judgment is certainly a step in the correct direction to secure the rights of divorced Muslim women unable to maintain themselves, and relieve them of their plight perpetrated by legal instruments such as the Act of 1986.

Cracking the Whip on Gujjars

2007-06-06T22:26:00.000-07:00

Till a while ago, I thought that the Gujjars are going to get away with all the damage that they have caused. The railways alone have suffered losses of upto 200 crores. Rajasthan roadways of about 50 crores and not to mention the lives of about 27 people.

Col. Bainsla, the Gujjar leader may finally have to pay the price for all the damage that the community has caused.

Well not anymore! The state machinery has finally decided to crack the whip on the Gujjars by registering cases against the leaders for murder, destruction of property and conspiracy. Looks like the government was waiting for the exact moment to put these things in place. Earlier when the 'peace accord' was reached, Col. Bainsla the Gujjar leader apologised for all the damage the Gujjars had caused and stated that it was required to attain an end but meant no harm to people. Well, he just will have to pay for it now.

These are the moments I cherish the most. You finally see the law taking its course. Short lived it may though be, but it brings some satisfaction. I just hope this does'nt turn into another mockery and sham.

India's Role in Tackling Climate Change

2007-06-05T22:38:00.000-07:00

Yesterday, while observing World Environment Day, the Government announced the setting up of the Prime Minister's Council on Climate Change. The high-level advisory body has been constituted to "coordinate National action plans for assessment, adaptation and mitigation of climate change". The move comes at a crucial juncture after the Inter-Government Panel on Climate Change had submitted its Fourth Assessment Report in April, 2007; the G8 summit to be held later this month is also expected to deal extensively on the issue.

"Climate Change", a term used in the United Nations Framework on Climate Change (UNFCC), pre-supposes an involvement of the human element in contributing to, say, a specific instance like global warming. India, with its significant population count is no doubt a contributor, albeit lesser in degree, to greenhouse gas emissions, industrial and automobile fuel-pollutants and consequently, to global warming. Furthermore, it is extremely critical that the ideal of sustainable development be attained as the problem of rapidly vanishing forest belts (along with it, natural resources of water, minerals etc) in India cannot be ignored anymore.Ours being an agrarian economy, climate change is of all the more concern in that ever-rising temperatures and depleting irrigation sources can be fatal to the agro-sector.

The PM's Council, therefore, has a significant role in shaping the future course of activities to tackle the problem of climate change. GreenhouseGases Online has annexed a very informative slideshow on Climate Change Mitigation and the Kyoto Protocol on their website. The Presentation may be viewed here: http://www.ghgonline.org/sacpress2003/mitigatekyoto/sld001.htm

Caste wars and the National Security Act

2007-06-03T08:51:00.000-07:00

On Saturday night, the Government of Rajasthan enforced the National Security Act in eleven of its districts. Most of the news reporters have talked about its imposition but none about its implications. One needs to understand that the Act is basically a ‘preventive detention’ act, one of the greatest legitimate ills in our country. I use the word legitimate because it is a violation that is given sanction to in the Constitution of our country.

The National Security Act, 1980 was imposed under Section 3 (2) which says that if the State government is satisfied that with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order, it may impose the Act. In the case of Rajasthan, it was imposed to supposedly prevent the clash between the Gujjars and the Meenas.

But the point is, was the imposition of such a harsh legislation really required? Earlier the District Commissioner of Bharatpur imposed section 144 of the Cr. PC (Prohibition of an Act to prevent public order etc…). Apparently the situation was brought under control in the said district. Our governments have this knack of bringing in the harshest legislations without any understanding of its implications to personal liberty. Such actions more or less have stood the test of time and cannot even be challenged in Court. When there were other options available, then why did the Rajasthan government bring in the NSA? In SR Bommai v. Union of India, the Court held that introduction of emergency powers under the Constitution can be questioned in the Court. The same reasoning should be applied to the NSA.

Preventive Detention in India has unfortunately stood the test of time and its going to be extremely difficult for it to be repealed now. In AK Gopalan’s case, the Court justified preventive detention in the name of maintaining public order. This was later upheld in ADM Jabalpur v. Sivakant Shukla where the Maintenance of the Industrial Security Act (MISA) was upheld. But the point again to be understood is that ‘preventive detention’ under the Constitution was meant to be for the protection of the State and not against some actions ensued by caste wars. The Gujjars and the Meenas may fight, but that doesn’t mandate preventive detention. Executive action without any checks and balances is a toll for destruction of the democratic order. Unbridled powers leads to abuse that violate the very ethos within which they are framed.

I am however given to understand that there have not been many arrests under the NSA in Rajasthan. The gujjars are destroying state property in the State of Rajasthan. Perhaps starting curfews and imposing laws like Section 144 of the code of criminal procedure would have helped more than imposing preventive detention law.

There is a meeting of the Gujjar leaders with the Chief Minister Vasundhara Raje tonight. Hope the meeting ends amicably and the fighting can come to an end.

- Sachin Pilot, Gujjar leaders meet Rajnath Singh

- Gujjars call for a Delhi bandh on Monday

Exclusion of Women from Employment Guarantee: The Myth of the Able-Bodied Worker.

2007-06-02T08:48:00.000-07:00

The National Rural Employment Guarantee Programme (NREGP), formulated consequential to the NREG Act, 2005, has no doubt, been of benefit to a vast number of families from rural India. This social-welfare legislation has proved instrumental in creating employment, albeit temporary, to those lacking adequate means of livelihood. The present context upon which I wish to comment, is one that exemplifies the connection, or rather the absence thereof, in the spheres of law and society. The exclusion of single women and widows from the ambit and benefit of the NREGP is no small matter.

The background to this comment is based on P. Sainath’s article in the Hindu dated May 22, 2007 and can be read here: http://www.hindu.com/2007/05/22/stories/2007052200840900.htm

The article, in essence, deals with case-studies of single and widowed women in Andhra Pradesh who have been refused employment under this Programme on the ground that they lacked a male partner joining for work. Many of the widows’ farmer-husbands committed suicide in light of the extremely miserable conditions for agrarian production which have been long prevalent in A.P (and many other parts of the country) now. Such reports have even received confirmation from officials in the Government. Digressing slightly, it can be stated there is a complete lack of awareness as to the fact that the widowed women of farmers are all the more in need of employment as a result of the deficient means of livelihood.

If one observes the reasons for refusal to provide employment to these women, it can be noted that such employment is contingent on the presence/ absence of a male partner at work. The fundamental assumption, therefore, is that productivity and work will be compromised if single/widowed women are employed without male workers to “compensate” such depletion in productivity. In short, only male workers can be trusted, so to say, to maintain standards of efficiency at work. Inherently discriminatory in nature, such tendencies do well to perpetuate the myth of the “able-bodied worker”. It would be truistic to say that the very purpose of the NREG Act is destroyed if such notions are encouraged. If employment were to be provided on such fallacious grounds based on efficiency, rooted in gender bias, we would only be promoting discrimination; not to mention the fact that livelihood of families run by women (no meagre number, that) would be thrown into (further?) economic backwardness.

The law in its implementation has to be conscious of ground realities in society. A social welfare legislation is absolutely redundant if in practice, it encourages such myths and discriminates on the basis of norms clearly unconstitutional. An understanding of social and gender equality is critical to the benefit of its subjects in society.

“Shifting Goalposts” within the Indo-US Nuclear Deal.

2007-06-02T08:45:00.000-07:00

As negotiations on the proposed nuclear co-operation agreement between India and the United States enter a critical third day, it is extremely important to analyse and understand the impact that the deal, if it comes through, will have on the Indian civilian and strategic nuclear power programmes. The background to the present round of talks had already been sown in July 2005 when both countries had agreed to co-operate on the issue of supply and use of nuclear energy for civilian, peaceful purposes. The consensus arrived at, was hailed as historic and India was said to benefit immensely from the subsequent deal. However, later developments in this regard has witnessed a paradigm shift in the demands and objectives that the United States seeks to attain from this deal; a stand which the Prime Minister Manmohan Singh has referred to as “shifting goal-posts”.

In 2005, at the time of agreement, the U.S had agreed to a policy of non-intervention in any of India’s strategic nuclear programmes as regards the design, development or testing of any nuclear weapons. The deal focussed primarily on the issue of nuclear fuel for civilian purposes and supply from the U.S and the N.S.G (Nuclear Suppliers Group) for the same; this subject to India’s conformity to fuel and reactor norms as specified by the IAEA. However, in late 2006, the U.S. Congress passed the United States- India Peaceful Atomic Energy Co-operation Act, now popularly known as the Hyde Act. The Hyde Act, which received an overwhelming approval in the Congress, has completely redefined the context in which the deal is to be passed. The Act puts a cap on further testing of nuclear weapons by India; in the event of a breach through such testing, co-operation would be suspended. Furthermore, the question of civilian nuclear energy co-operation seems to be a half-way house. India, if one were to understand the terms of the Act, is barred from reprocessing its spent fuel; a limitation on an apparent sovereign right of the nation. Not only is it a restriction on such a right, it shall also result in the piling up of radioactive spent material.

If the 123 Agreement currently in the process of negotiation were to come through in its modified context, India would be subject to terms and conditions entailed in the Hyde Act. Already the U.S legislation has received heavy flak from various political organisations within India. Questions, even those concerning a rethinking of the entire deal has been put forth. Therefore, the present state-of-affairs are critical in shaping the future course of nuclear technology development in India.

In a forum for Greater Co-operation between India and the U.S in New Delhi, Nicholas Burns, the U.S. Under Secretary of State for Political Affairs had stressed on the isolationist policy India had adopted vis-a-vis nuclear power (civilian and strategic) and had emphasized on a “compromise” of sorts with the Hyde Act to ensure rapid development on spheres of civilian nuclear technology. What the Under-Secretary seems to forget is the fact that the isolationist stand had been thrust upon India after Pokhran in ‘74 and ‘98 by US-driven policies of sanctions and other restrictions.

As the world is gradually moving towards a dilution of polarity, with more “Superpowers” emerging in the scene, such a lop-sided agreement cannot be encouraged. To reiterate, India should push for equality within the field of nuclear co-operation and must not push through in haste with the 123 Agreement.

Lebanon Pounding

2007-06-01T09:57:00.000-07:00

Artillery shelling, tanks at the gate, missile launches; a ‘normal’ Israeli attack against another side that comprises of 400,000 Palestinian refugees, just that this time it was Lebanon. Early in the morning today, Lebanese forces entered the territory of Lebanon and attacked a Palestinian refugee camp in the Nahr- al Bared area.

This just adds to the personal anguish that I have against Israel. They always have been considered to be ‘aggressive egotist creeps’ by me. I was having a discussion the other day with Usha Ramanathan as to how the Jews have been the cause for all the major wars since 1936 (partly true you know). Domination and religious cleansing seem to be the only ideals of the semis in the middle east. Lebanon is bowing down to the pressure exerted by Israel.

I actually do not propose to write this piece pleading for the cause of Palestine even though I do sympathise for their cause. I write this as this incident is also related to a certain aspect of international law; breach of the 1969 Arab Agreement. The 1969 Agreement between Lebanon and the Palestinian Liberation Organization (PLO) says that the Army cannot enter the 12 refugee camps in the territory of Lebanon. According to Lebanon, Fatah- al Islam militants are based in the refugee camps and an ultimatum has already been issued against them. The government is demanding that the militants surrender and the authorities have already charged 20 captured members of the group with terrorism. The charges carry the death penalty.

I am not aware of the exact object and purpose of the 1969 agreement but the one thing that boggles me a lot is that since when did ‘prevention of terrorism’ become a jus cogens norm that could be used as an excuse to violate a treaty under Article 53 of the Vienna Convention? I have an issue with the word terrorism because it is a state construct (Refer to my earlier posts) and also because the Palestinian militants are not terrorists but freedom fighters in one sense.

Going back to the legal issue at hand, finding it hard to figure out if it’s possible. It’s something I need to look up, didn’t know something like this existed till now. This is also related to issues like state recognition, sovereignty and having someone to hear your voice. These three remain in the grey area for Palestine. Perhaps not now, but sometime in the future Palestine will get justice and the world will know of their misery.

Fighting for Backwardness

2007-05-31T12:41:00.000-07:00

The struggle of the Gujjars in Rajasthan to be included in the Scheduled Tribes (ST) category is nothing but their quest for being ‘backward’ in the law. Chinappa Reddy J in Vasanth Kumar v. State of Karnataka stated that never has he seen castes fighting for backwardness (in the case of ligayats and vookaligas) and this marked the state of our nation. Similar circumstances have arisen now.

The Gujjars are traditional shepherds found across many states in north and western India. They are both Hindus and Muslims. In places like Himachal Pradesh and Jammu and Kashmir, they have been given the ST identity. Haryana and Rajasthan have sought to keep them in the Other Backward Classes (OBC) category. From what I understand, the tension began when the Jats, a powerful community in Rajasthan were classified as OBCs. The Jats constitute 15% of the population in Rajasthan; their classification by the BJP Government was seen as nothing but a political move by which the BJP gained a lot of support.

The procedure for the classification of a scheduled tribe is given in Article 342 of the Constitution. It states

342. Scheduled Tribes.—(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Pursuant to this the Constitution Scheduled Tribes Order, 1950 was formed which contains the list of tribes. The Gujjars wanted to be included in that list.

But why then would someone want to be included in that list? Are reservations in educational institutions and government offices so tempting that one would sacrifice their identity and status for them? Ironic though, it’s a true state of affairs in this Country of ours. In fact, this situation is perfect for the advocates of anti- reservation to stand up and again raise hue and cry about it. While on one side some amongst us say that there must be reservation in the country to uplift the classes, on the other side we have groups fighting for recognition and that upliftment.

I went through wikipedia and the sources mentioned on Gujjars; and here’s what I could infer:-

a) that the Gujjars are not that economically backward as compared to other tribes in the ST list.

b) There is a lot of vote bank politics involved in their classification as a ST.

c) they were a ‘criminal tribe’ during the british period. (though not an issue now)

Development for certain classes of people in the country then has largely become a political issue. Not that it never was. Its just that now constitutional fundamentals and ideals are being mixed with politics. Nani Palkhivala wrote in the Times of India, (26 Jan 1992) after Indira Sawhney v. Union of India,

‘I am sure Mr. VP Singh was sincere when he said that after the Supreme Court judgment in the Mandal case he could die in peace. But his policy has ensured that the nation will not live in peace. The poisonous weed of casteism has been replanted “where it will trouble us a thousand years, each age will have to reconsider it”.

Its then time for reconsideration of the way reservation is implemented in this country. We are tired of strikes, road blocks and the deaths of people. Violence is being used as a tool for getting demands met. We do not need immediate actions but lasting solutions to such problems.

Creative Freedom v. Moral Policing: A Question of Human Rights.

2007-05-21T05:16:00.000-07:00

(By Arun Mohan)
Perhaps this post comes at a time when the Vadodara art attack controversy seems to be in the letting-off-steam stages. However, it is imperative that we address the larger, more significant question that has been churned out from the incident.

The uninitiated may read about the issue in question at “NDTV.com: Art Held Hostage in Vadodara , http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20070011802″
Incidents of such nature are not too uncommon in present day Indian society; be it the ruckus created over the Richard Gere-Shilpa Shetty incident or the commotion made over M.F Hussain’s works depicting Hindu Goddesses in the nude, or for that matter the attack made on the Tamil Daily Dinakaran’s office in Madras over a controversial opinion poll. At the onset, it is stated that I do not wish to delve into the premise of merits/demerits of moral policing and media-gagging; nor am I speaking from the standpoint of the urban, educated and liberal citizen. There are always two sides to a moral/ethical debate (irrespective of which weighs more) and to enter it would be futile.

What then am I broaching on? To reiterate, the larger perspective simply must focus on the question of human rights. We are, vis-a-vis the context of discussion, talking about the freedom of speech and expression; one that has been recognized, respected and documented since time immemorial. To quote a learned man;
“I may not agree with what you say, but I shall defend to death your right to say it” - Voltaire

Society has been stirred, revolutions have occurred and autocracies have been thrown in the fight for this mighty and noble right. Fundamental in today’s society, in both layperson and legalese terms, the Indian Constitution recognizes it under Article 19 (1) (a). However, many would surely be aware of the fact that a right in paper cannot be equated to a right in actuality. Hence, what we are all concerned with here, is the way/attitude that has been adopted towards the exercise and restraints pertaining to rights fundamental in nature. Whether the ’saffron brigade’ decided to vandalize the art exhibition at Vadodara is of no concern to me at this juncture. What is disappointing however, is the towing of a similar line by the police, very much a State appendage. A lower Court in Rajasthan decides that a display of antics by Gere and Shetty amount to gross obscenity; are we witnessing a gradual recession in freedom within the freedom given to us? perhaps, a signal to society from State machinery and guardian institutions like the Judiciary that our rights, far from being absolute, are subject to the whims and fancies of morality of those vested with power?

Questions such as these need to be raised, answered and sensitized to the populace. Only then are we realizing our ideal of political participation in the world’s largest democracy.

New Blogger

2007-05-21T05:12:00.000-07:00

Wanted to annouce a new addition ..

Arun Mohan

calls himself a communist, amongst KK's favourites... I must say he's quite involved in 'social issues'///

Why Human Rights?

2007-05-13T21:17:00.000-07:00

I write this at a very crucial time. I, a student of law have to decide which line should I go into; the corporate side and firms where there is easy money, litigation or higher studies. This also comes at a time when the student community is debating about reservations and those who recently finished 12th would soon be on the look out for the appropriate college. Over the past few days I’ve been encountering human rights to a very great extent. Interning with various NGO’s and the Poverty course at the University have been heavily responsible for it. A question that I often ponder about during these time, “Why Human Rights?” is what I’d like to write about in the next few paragraphs.

I observe that no rich man will ever talk about a violation of his human rights, plainly because he has the means to fend for it. The very fact that one of you is reading this article is proof that you know about your rights and have the resources at hand to fight for them. But the problem is that apart from us, there are 250 million in this country and another billion or so in this world who cannot. Neither do they have a preacher nor a protector. Rights exist not for the rich but the poor who are faced with their violations every minute. They are placed at the mercy of state systems that can do as they please with them. While there are 100,000 dying in Darfur, millions displaced in New Delhi as a result of demolitions, and god knows how many languishing in Indian jails without due process; we seem to be divided into three main groups. The first, that has no clue about them and doesn’t want to associate with them. They just want to go on with their so called ‘personal lives’ without even looking at them. The second, reads about them, would like to do something, but then decide that their individual careers are more important and carry on. These two constitute the majority of the population that can fend for themselves incase they are subjected to any injustice. The third group, consists of those who make a difference in this world of inequalities. The members of this group go on the presumption that they exist in this world to fight for those who are affected by human rights violations. And why so? Because the man above did not give them the means to fight for it on their own. Because they cannot stand living in this world with so much injustice going around and lastly because they love their country.

The last line in more of a rhetorical argument. Albert Camu wrote, “There are means that cannot be excused. And I should be able to like my country and still love justice. I don’t want just any greatness for it, particularly a greatness born out of blood and falsehood. I want to keep it alive by keeping justice alive.” Camu’s quote above was written in response to the French injustices in Africa but bears lot of relevance here. The future of my country today is bleak. In the garb of globalization, millions are suffering. At one place the majority poor are being killed for the expense of a few million dollars in building a Special Economic Zone. On the other hand people languish in jails without no idea what the future has in store for them. I find it hard to believe that most of us are silent on issues like Nandigram where states get away by ordering the killing of poor farmers. To add to it, most of us seem to be more interested in the profits that an Indonesian company will make than taking the lives of people.
In my studies at law school and successive internships I understood that the most important word is ‘rights’. Once my rights are secure, only then can I look at others. In as much as some activists might argue that rights are founded on concentration camps, displaced people or the poverty stricken, I stick to the belief that it is not a gift given by the state or a decree passed by the Court, but a possession that has to be won everyday. But does one be have to be an egotist and draw the line at his rights only or does he have to look beyond? History has witnessed enough of egotists and knows too much of its consequences. I could go on passionately as most activists do as to how we need to protet human rights and all that stuff but I’d like to stop here to delve upon a greater issue, “rational legal thinking”.
Within the human rights circle I observe that there are just a few who fight not for the people but for the law. They believe in the black letter of the law and abhor the twisting of the laws for some and not for others. If I were to emulate anyone in the future it would be these kind of people. They are way above the HR activists and fight for the forsaken because they believe in the strength and application of the law. Not bundled with emotions or any passion, they rationally argue for the poverty stricken and the violated and gain ground through the legal system.
So while I intern with a person who believes in the black letter above I see a sense in their struggle with returns. But I then ask myself if this is the path I want to take as financial considerations seem to take the upper hand.
I have three more years to go at law school. Enough time to decide what to do. Umm... Let's see where I eventually land up...

Debut. Of sorts.

2007-05-01T04:07:00.000-07:00

Why Skeptical Dogmatist?! As a wise man once said, We know too much to be dogmatists, and too little to be skeptics.

I follow confucsioinsim.

I assure you, it has nothing to do with Confucious. Probably, it has everything to do with Confusion. Am I a right-conservative or a left-liberal? Am I centrist? Or libertanian? Authoritarian? Or is it Liberal-Marxism, the Presi school of thought! My contributions to this blog are merely an attempt to find an answer to this question, which has often plagued my mind, since Presidency. I, for instance am dead against Reservations on basis of Castes. Does that make me a rightist?! But then, I feel Godhra was nothing less than a genocide. Oh! so am I a leftist now?!

May be my definitions of rightist/leftist are screwed. [I'm sorry, but I couldn't find a better adjective] I'll learn. Soon. Through this blog. Hopefully.

Or may be you think I'm a bored nerd who is trying to be cool. ;-)

New Blogger

2007-05-01T03:42:00.000-07:00

We just got ourselves a new blogger to write for the blog; Brajendu a.k.a. Skeptical Dogmatist.

The books list on his profile says,

I have read playboy. I have also read the new testament

I have known Skeptical Dogmatist since the age of 13. We both were together at Military School and now doing law together at Nalsar. As a condition, he has requested that his posts not be moderated and he is free to express his views on this Blog. Might I make my readers aware that he is one of the most intelligent and well read guys in my class.
The next post is yours Skeptical Dogmatist.

PS: Apologies for no posts lately. Exams are going on. Posts will be regular from the 5th of May.

The language quandary

2007-04-25T01:38:00.000-07:00

Do you know what is the national language of our Country?

a) Hindi
b) English
c) the 22 languages included in the Constitution

When this question was posed in class by Manojna the obvious choice of the majority was hindi. Little did they realise that they were wrong. This is because there is no single national language in our Country, all the 22 languages are national languages. English, is the official language and is used in the courts and Government functioning.
During the later half of the presentation a debate had started as to the usage of English as a link language. The voices were equivocal. There was a whole section belonging to hindi speaking states going against English and another section from South India and the North East for English.
Most of what is written above is merely class gossip. But the question asked by Manojna above lead me to reading Balraj Sahni's Convocation address in JNU in 1972 about the usage of English Language. In a short critique I'd say that I haven't got to read a better piece on the subject in ages.
He writes,

I was going by bus from Rawalpindi to Kashmir with my family to enjoy the summer vacation. Half-way through we were halted because a big chunk of the road had been swept away by a landslide caused by rain the previous night. We joined the long queues of buses and cars on either side of the landside. Impatiently we waited for the road to clear. It was a difficulty job for the P.W.D. and it took some days before they could cut a passage through. During all this time the passengers and the drivers of vehicles made a difficult situation even more difficult by their impatience and constant demonstration. Even the villagers nearby got fed up with the high-handed behaviour of the city-walas.

One morning the overseer declared the road open. The green- flag was waved to the drivers. But we saw a strange sight. No driver was willing to be the first to cross. They just. stood and stared at each other from either side. No doubt the road was a make-shift one and even dangerous. A mountain on one side, and a deep gorge and the river below. Both were forbidding. The overseer had made a careful inspection and had opened the road with a full sense of responsibility. But nobody was prepared to trust his judgment, although these very people had, till yesterday, I accused him and his department of laziness and incompetence. Half an hour passed by in dumb silence. Nobody moved.

Suddenly we saw a small green sports car approaching. An Englishman was driving it; sitting all by himself. He was a bit surprised to see so many parked vehicles and the crowd there. I was rather conspicuous, wearing my smart jacket and trousers. "What's happened?" he asked me.

I told him the whole story. He laughed loudly, blew the horn and went straight ahead, crossing the dangerous portion without the least hesitation.

And now the pendulum swung the other way. Every body was so eager to cross that they got into each other's way and created a new-confusion for some time. The noise of hundreds of engines and hundreds of horns was unbearable.

That day I saw with my own eyes the difference in attitudes between a man brought up in a free country and a man brought up in an enslaved one. A free man has the power to think, decide, and act for himself. But the slave loses that power. He always borrows his thinking from others, wavers in his decisions, and more often than not only takes the trodden path.

..................................................

Pandit Jawaharlal Nehru has admitted in his autobiography that our freedom movement, led by the Indian National Congress, was always dominated by the propertied classes-the capitalists and landlords. It was logical, therefore, that these very classes should hold the reigns of power even after independence. Today it is obvious to everyone that in the last twenty-five years the rich have been growing 'richer' and the poor have been growing poorer. Pandit Nehru wanted to change this state of affairs, but he couldn't. I don't blame him, because he had to face very heavy odds all along. Today our Prime Minister, Indira Gandhi, pledges herself to take the country towards the goal of socialism. How far she will be successful, I can't say. Politics is not my line. For our present purposes it is enough if you agree with me that in today's India the propertied classes dominate the government as well as society.

............................

Now, which language in your opinion would their successors, the present rulers of India, choose to strengthen their own domination? Rashtrabhasha Hindi? By heavens, no. My hunch is that their interests too are served by English and English alone. But since they have to keep up a show of patriotism they make a lot of noise about Rashtrabhasha Hindi so that the mind of the public remains diverted.

Men of property may believe in a thousand different gods, but they worship only one-the God of profit. From the point of view of profit the advantages of retaining English to the capitalist class in this period of rapid industrialization and technological revolution are obvious. But the social advantages are even greater. From that point of view English is a God sent gift to our ruling classes.

Why? For the simple reason that the English language is beyond the reach of the toiling millions of our country. In olden times Sanskrit and Persian were beyond the reach of the toiling masses. That is why the rulers of those times had given them the status of state language. Through Sanskrit and Persian the masses were made to feel ignorant, inferior, uncivilized, and unfit to rule themselves. Sanskrit and Persian helped to enslave their minds, and when the mind is enslaved bondage is eternal.

It suits our present ruling classes to preserve and maintain the social order that they have inherited from the British. They have a privileged position; but they cannot admit it openly. That is why a lot of hoo-haw is made about Hindi as the Rashtrabhasha. They know very well that this Sanskrit-laden, artificial language, deprived of all modern scientific and technical terms, is too weak and insipid to challenge the supremacy of English. It will always remain a show piece, and what is more, a convenient tool to keep the masses fighting among themselves. We film people get a regular flow of fan mail from young people studying in schools and colleges. I get my share of it and these letters reveal quite clearly what a storehouse of torture the English language is to the vast majority of Indian students. How abysmally low the levels of teaching and learning have reached! That is why, I am told preferential treatment is being given to boys and girls who come from public schools i.e. schools to which only the children of privileged classes can go.

.................

The complete speech may be read at Siddharth Varadarajan's Blog.

Darfur - Need Some Info

2007-04-23T03:04:00.000-07:00

I am pretty keen on going and spending some time in Darfur. I dont think its proper to hear about Genocide in the paper and show that you care. I would like to see Genocide.

Could anyone help me with it?

Hitler's Birthday

2007-04-20T04:52:00.000-07:00

Hitler's Birthday today.

While some people may find it ironical that this picture is appearing on this blog (for human rights). I must clarify that I do not support Hitler, I just admire him as a leader. I admire him for having the courage to lead a nation. But not because of all the atrocities that he has committed.

Before my emancipation, I had written something about Hitler that I stumbled upon the other day. The post may be viewed here.

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The holocaust archives are to be opened this year. Most likely the true picture of the holocaust would be made public to the world.

..............................................................................

On reservations Again

2007-04-19T02:41:00.000-07:00

Readers must see Law and Other Things to know about the recent debate about reservations in the Country. I can’t help but say that it is very comprehensive and the authors make it a point to inform their readers in great detail.

How the Other India Lives

2007-04-17T07:07:00.001-07:00

To be indifferent, is a sin.

Outlook India has published a Special Issue titled "How the Other India Lives". It is a series of articles that epitomise the State of the Indian nation. The quote above was said by Elie Wiesel in the context of HR vioaltions in the world (particularly the holocaust), but nevertheless holds true here. The Issue is worked up so beautifully that if after reading this we Indians behave indifferent, it is a sin in itself.

Ashok Lahiri in "Deliverance from Deprivation" writes,

It is wrong to say there has been growth without jobs; it's been without enough jobs, which is different from jobless growth. I have not seen any numbers that show jobs haven't grown. But the labour force, particularly with increasing participation, has grown even faster. So, the unemployment rate has increased. Secondly, the NREGs (National Rural Employment Guarantee Scheme) is like life insurance. Life insurance benefits a family only if the insured dies. But that may not be the outcome that the family wants. So in the ultimate analysis, we should not derive satisfaction when more people take up jobs under the NREGs. It is an interim solution until more productive and gainful employment is generated in the economy. It's very important that NREGs is mixed with creation of durable assets.
More.......

Kaushik Basu in "Let the Cream Percolate" writes,

It has to be pointed out that the connection between growth and poverty is an intricate and widely misunderstood one. Growth is essential to eradicate poverty. But growth is not sufficient. We need deliberate, complementary policies to distribute the spoils of growth wider.
more...

Ashutosh Varshney in "A pair of Bi- focals" writes,

Markets must flourish. But the masses cannot be left behind.

A booming middle class and corporate affluence alone cannot possibly run a democratic polity, when the countryside, home to over two-thirds of the country, is lagging far behind the dazzling growth of urban incomes, when the rising income disparities are obvious to the low-income households because of television. More...

Lola Nayar in "The Three Curses" (One of the best articles in the Issue) writes,

Education, Healthcare, Infrastructure.. barring stray NGO efforts, the poor in India seem condemned to Human existence.

When it comes to the public health sector, the picture is as dismal as in education. Despite increasing budgetary allocations to health, states are unable to utilise funds. In 2005-06, 18 states were able to use just 50 per cent of the funds meant for improving healthcare delivery systems. Government studies themselves point out that the bulk of the money used is spent on infrastructure development, not on improving services. This perhaps accounts for the poor outcome of the countrywide immunisation programme.

Across the country, individuals have found voices, and are using the right to information to seek efficient delivery of basic amenities and services. more...

.....................

The above are extracts from the articles in the Issue. Readers may read the issue or go through the links to know more.

Vikalp Screenings : 'My Country My Country'

2007-04-16T05:52:00.000-07:00

Dear All,

Greetings from Vikalp@Prithvi !

Vikalp@Prithvi is a monthly series of documentaries and shorts brought to you by Vikalp:Films For Freedom in Collaboration with Prithvi Theatre.

On Monday 28^th May, 2007 at 7 p.m., we show Oscar Award Nominee for Best Documentary Feature 'My Country My Country' filmed by Laura Poitras.

All are invited! Please post widely and forward to friends and colleagues!

Regards

Vikalp@Prithvi

For Screening Information Contact:

Anand Patwardhan 9819882244 Lynne Henry 9820896425

………………………………………………………………………………………………

VIKALP: Films for Freedom

In collaboration with Prithvi Theatre

Presents

MY COUNTRY, MY COUNTRY

A Film by Laura Poitras

(Nominee, Oscar Awards)

(Nominee, Independent Spirit Award)

Monday, 28 ^th May, 7 pm

At Prithvi House,

Opp Prithvi Theatre, Janki Kutir, Juhu Church Road, Mumbai 400049.

More information is available through

www.prithvitheatre.org / vikalp.prithvi@gmail.com

*ENTRY FREE, LIMITED SEATS.

*REGISTER AT CONTACT DESK BETWEEN 6 P.M and 6:45 PM.

......................................................................................................................................

MY COUNTRY, MY COUNTRY

Laura Poitras/USA/2006/90 mins

In Arabic, English, and Kurdish with English subtitles

Working alone in Iraq over eight months, director/cinematographer Laura Poitras creates an extraordinarily intimate portrait of Iraqis living under U.S. occupation. Her principal focus is Dr. Riyadh, an Iraqi medical doctor, father of six and Sunni political candidate. An outspoken critic of the occupation, he is equally passionate about the need to establish

democracy in Iraq, arguing that Sunni participation in the January 2005 elections is essential. Yet all around him, Dr. Riyadh sees only chaos, as his waiting room fills each day with patients suffering the physical and mental effects of ever-increasing violence. Dramatically interwoven into the personal journey of Dr. Riyadh is the landscape of the US military occupation, with Australian private security contractors, American journalists and the UN officials who orchestrate the elections. Unfolding like a narrative drama, MY COUNTRY, MY COUNTRY follows the agonizing predicament and gradual descent of one man caught in the tragic contradictions of the U.S. occupation of Iraq and its project to spread democracy in the Middle East.

Dr.Riyadh at the Abu Ghraib Prison

"Oh My Country"

Original Music Score by Kadhum Al Sahir

"Oh my country, may you have a happy morning.

Reunite everyone; heal your wounds.

I yearn to see you smile some day,

When will sadness set you free?..."

About the Filmmaker

LAURA POITRAS (Director / Producer / Camera / Editor) received a Peabody Award for her last documentary, FLAG WARS (2003). FLAG WARS received numerous other awards, including Best Documentary at the 2003 SXSW Film Festival, Best Documentary, Seattle Gay and Lesbian Film Festival, and the Filmmaker Award at the Full Frame Documentary Film Festival. FLAG WARS had its U.S. television premiere on PBS's P.O.V. documentary series and was nominated for both a 2004 Independent Spirit Award and a 2004 Emmy Award. Laura's past work include OH SAY CAN YOU SEE...? (2003), and EXACT FANTASY (1995). She studied filmmaking at the San Francisco Art Institute and the New School. Before making films, she worked as a chef. She currently resides in New York City

Awards

Inspiration Award, Full Frame Documentary Film Festival

Best Long Documentary, Flahertiana Film Festival, Russia

Human Rights Award, Durban International Film Festival

Henry Hampton Award, Council on Foundations Film & Video Festival

More information on the film available on

www.mycountrymycountry.com / www.zeitgeistfilms.com

......................................................................................................................................

About Vikalp:Films For Freedom

The History: In recent years we have seen riotous mobs burn books, destroy paintings, attack artists, tear down cinemas, rip apart ancient manuscripts and make a mockery of all our constitutional safeguards. The state itself has institutionalized censorship through its Central Board of Film Certification and its counterpart in the world of theatre. Documentary filmmakers have specially borne the brunt of censorship. As the Mumbai International Film Festival (MIFF) 2004 approached, the then government knew that many films on the Gujarat carnage exposing the ruling party's complicity could embarrass it on an international stage. Overnight a new clause was introduced stating that while foreign films remained exempt, all Indian films would require a censor certificate. Even as over 275 filmmakers united and threatened to boycott MIFF, official censorship was withdrawn, but a dubious backdoor selection procedure excluded some of the best new Indian films dealing with subjects like communalism, caste, gender, sexuality and the environment.

The best way to fight back was to screen the 'rejected' films. So VIKALP: Films for Freedom was born. Many filmmakers whose films were selected for MIFF withdrew their work to screen them at VIKALP. Girish Karnad stepped down from the MIFF jury. Filmmakers pooled in their resources and found a perfect venue right across from MIFF at Bhupesh Gupta Bhawan, whose solidarity was unconditional and whose hall came free. Acoustic problems were overcome by curtains and mattresses. Volunteers poured in and the buzz was electric. Despite word of mouth publicity we had packed houses every day. VIKALP opened with an excerpt from Sadaat Hasan Manto's ' Safed Jhoot', an indictment of censorship and hypocrisy, performed by Jamil Khan, directed by Naseeruddin Shah. From this high, we never came down. For 6 days rapt audiences saw and debated over 50 films and participated in panel discussions on censorship. Across the street every official MIFF bulletin and meeting denounced VIKALP and swore innocence to the charge of censorship. But we were getting across. From juries to filmmakers and audience members, the ranks of the disbelievers kept growing - as they must. For an assault on freedom of expression does not affect filmmakers alone. It is an assault on democracy itself.

The Present: Following this breakthrough we continue to do monthly screenings at Bhupesh Gupta Bhawan. This success has led to collaborations with other venues like Aavishkar in Mahim and Readers Shop in Santa Cruz for monthly screenings. Film-makers in Delhi and Bangalore organize regular screenings in their respective cities. Selections of 'Vikalp' films have traveled to other parts of the country and occasionally to other parts of the world. Now we begin a new collaboration from March 2007 to do screenings at Prithvi, Juhu, on the last Monday of each month at 7 PM.

Bhupesh Gupta Bhavan, Diagonally Opp Ravindra Natya Mandir, 85 Sayani Road, Prabhadevi. Mumbai 400025.

vikalp.prithvi@gmail.com/www.freedomfilmsindia.com

On Reservations

2007-04-15T00:01:00.000-07:00

People do not celebrate or enjoy backwardness. They suffer it and face discrimination, insult and humiliation because of it. Mocking at their aspirations to overcome backwardness betrays casteist prejudice.

The above are the ending lines of Praful Bidwai's article in the Frontline titled "tilting the balance". In the article he makes a remark to the extent that the Supreme Court's decision in Ashok Kumar Thakur is another of those instances where the judiciary seeks to undo the measures for equality proposed by the Government. Considering the amount of heat that the issue of reservations has created, it was expected for the Court to take a stand on this issue.In Ashok Kumar Thakur, the Supreme Court stayed the government order calling for an increase in the quotas for Other Backward Classes (OBCs) in educational institutions. The Courts decision is based upon Indian precedents like Vasanth Kumar v. State of Karnataka, Indira Sawhney and the US decisions of Grutter v. Bollinger and California v. Allan Bakke. In both these US decisions the Court said that that affirmative action, in particular in the admission process in universities, must be "narrowly tailored" to promote diversity, but not in such ways as would discriminate against those excluded from affirmative action because they do not belong to ethnic or racial minorities.
The attitude of the Court in the decision is something to ponder about. I am remimded of Clarence Darrow saying in henry Sweet, that the law makes everyone an equal, but the society does otherwise. Inarguably, in Ashok Thakur, the Court has done otherwise. The fact that even after 60 years of independence we have not been able to achieve our goal of a classless society shows how mindless we Indians have been. When referring to the Mandal Commission in this case, the Court refuse to recognise the findings of the Commission statting that it was based on the 1931 census which is too old to consider. The formulation of an objective criteriion for determing caste backwardness and an OBC was stressed upon.
Other than concurring with Indira Sawhney, the Court has stressed upon Vasanth Kumar, where there was a clash in the status of lingayats and vookaligas. OP Chinappa Reddy in the judgment stated that the issue was nothing but a quarrel between the castes to get the benefit of reservation. He also stated that nowhere else in the world is there competition to assert backwardness and to claim 'we are more backward than you'. Reservation then according to the Court in the case, had become a war among different backward classes.
There then also is an issue of separation of powers. The Government order no doubt is a part of the directive principles of a social order under Article 39 and the goal of a casteless society. Can then such order be challenged on the mere denial of a possiblity of opportunity in an educational instutution? In fact, the truth is, the Supreme Court in our Country has off late tried to involve itself in many executive decisions. Be it the delhi ceiling case or on reservations. A problem occurs when it tries to solve a socio-political debate in a legal manner. Annoucing a stay on the order has now resulted in many institutions with holding their seats till the decision is final. The IIM's are growing impatient. Arjun Singh is in the crow's nest and the Congress has no clue of what to do. A court's decision is suppose to solve an issue, not create so many complications.

The Communal CD

2007-04-11T04:56:00.000-07:00

The Bhartiya Janata Party released Bharat ki pukar, "call of India" as a part of its election campaign in the State of Uttar Pradesh in India. The biggest opposition party in the country came up with a CD that talks about Hindu religion in the country and how its sanctity is being destroyed by the Congress. This is happening in a state which has a history of communal violence and a population of 80 million Hindus.
Action is being taken by the Election Commission and the police. FIRs have been lodged against Rajnath Singh and Lalji Tandon. Arun Jaitley on the other hand, has launched a vehement attack as to how the congress is playing a dirty hand in this issue. All things said and done, in a country with 800 million hindus, 65% of whom are illiterate, this is nothing new from a party that has its foundation in hindu religion.
For those who thought that Final Solution was ridiculous, this could get worse.
.......................................................................................

Voiceover: Today Mother India is screaming aloud, "Oh my sons, save me from being broken into pieces again. I no longer have the strength to be enslaved another time. By using terrorists, spreading fear and dividing us, Pakistan wants to break India into pieces. Hyenas hungry for political power are egging them on. They have forgotten what the consequences of this will be. Now, ordinary people of India have to think, do they want slavery again or Ram Rajya in their independent India."
(Cut to image of Ram)
[Song — Ai Bharat ma tere charano mein... ]
.........................................................
Scene 2: `Duty of Muslim women to increase population'
Masterji stops a woman on the road.
Masterji: My child.
Woman: Yes.
Masterji: Elections are coming. Think carefully before you vote. And put your stamp only on the lotus symbol. Because if peace can come to this country, then it can come only under the BJP's rule. Congress and Samajwadi are the government of mullahs and maulvis.
Woman: Forgive me for saying so, but I am also a Muslim and Mullahs and Maulvis consider women their personal property.
[Cut to group women in black chador]
Woman 1: The duty of a woman is to produce children and increase the population.
Woman 2: What this sister says is right. Our leaders have issued an order. That those who produce more than 10 children will get economic assistance.
[Cut back to woman and Masterji]
Woman: This religion considers us as objects to be used.
Masterji: Well said, my child. If all the women become educated and wise like you, then this country's fate will improve.
[Cut to real news clip of speech by saffron-clad woman. "Hindus will produce two children and Muslims will marry five times and produce 35 pups and make this country into an Islamic state."]
..........................................................................................
Scene 3: "You will all have to grow beards"
Masterji [to group of shopkeepers]: Don't let this opportunity pass by. This time if you don't vote for the BJP, disaster will strike this country. The country will be destroyed. The BJP is a party that thinks about the country. It thinks about the Hindu religion. There is no other party like it. The other parties, they are all agents of the Muslims. What else have they done other than this? Prices have gone up. I tell you, we must vote only for the BJP.
Shopkeeper: Masterji, it's time for me to run my shop. Here Hindus and Muslims both come. What is it to me whose government is formed? You have unfurled the BJP's flag first thing in the morning. If you'd like a cup of tea, you are welcome. Otherwise, please excuse me.
Masterji: Tea? You think I am desperate for your tea? It's because I'm concerned about this country and our religion that I'm asking you to vote for the BJP. If you don't vote BJP, you will regret it. This country will be enslaved. First it was enslaved by the British, now it will be enslaved by the Muslims. Even earlier it was enslaved by the Muslims. That Aurangzeb earlier cut your choti [tuft of hair] and took off your sacred thread. And now these tikas on your forehead will have to go and in their place you will have to grow beards. That day you will repent, Panditji. And you will be destroyed and so will this country.
Shopkeeper: He is really irritating!
Friend: Panditji, you are calling the Masterji mad but everything he said is right. If today we don't take care, these tilaks will go and we will all be sporting beards and caps.
Scene 4: `You will end up in burqas'
Masterji [to group of women complaining about the price rise]: Listen, elections are coming and only by your votes can this country and the Hindu religion be saved. Otherwise we are standing in the jaws of slavery again. This time we have to make the BJP victorious and vote on the Lotus symbol.
Woman 1: Well you men know best, we will vote where you say.
Woman 2: People keep coming to ask for our votes.
Woman 3: No one is bothered about prices.
Masterji: That is why I am saying: if the BJP is in power, everything will be all right.
Woman 1: Masterji, why are you chewing your brains? People will vote for whoever they want.
Masterji: It is your brain that has been ruined! You will end up covered in burqas and eating paan!
Scene 5: Muslims abduct Hindu girl
[A social worker comes to a village looking for Chameli chachi. Chachi is lying huddled in bed.]
Social worker: Chachi, what happened?...
Chameli: A Muslim boy pretended to be a Hindu and lured my young daughter away. Fearing badnami, my husband committed suicide. If I say I am going to the police, then those people threaten me [cut to visual of a Muslim man wearing a turban and looking threateningly] that if you report us, we will kill your child. Now you tell me what should I do?
Social Worker: Don't worry, now that I am here, we will take care of you, we will solve everything.
Chameli: Please bring my daughter back. Who knows what kinds of terrible things are happening to her.
[Cut to scene of Chameli's daughter praying in front of a portrait of Krishna.]
Daughter: Om Jai Jagadish Hare!...
[A man walks up and throws the Krishna portrait on the floor.]
Man: If you perform puja in this house again, I will really fix you. Remember that.
Girl: What is this you have done, Ram? You have thrown Bhagwanji's picture! What is this you have done, Ram?
Man: Ram? Ha ha ha! My name is not Ram, it is Shehzad Ali. And I am not a Hindu but a true Muslim! Ha Ha ha ha!
Girl: What is this you are saying? You are lying.
Man: Listen carefully to what I say because from today, I am no longer Ram and you are no longer Geeta. From today your name is Fatima Begum. And tomorrow, you will be married to this boy, Yaamin, according to our rituals. [Cut to picture of an older man laughing in an evil manner.] And then you will have to live with him.
Girl: [Crying] You are lying. This can't be.
Man [slaps girl]: And don't ever utter a name that is against our Islam. What is there in these pictures? [Camera pans to portrait of Krishna on floor.]
Where is God? This is all lies. If you want to pray, pray to that Khuda who has made the whole universe.
Girl: [Breaks down, falls at his feet, and says with folded hands] Let me go back to my home.
Man: Home? Ha ha ha! Which home? This is your home and you will have to live here. And stop this puja-wuja and start namaz. Because by tomorrow, you will have become a true Muslim. Yaamin! Come here. Take this girl away. Tomorrow you will be married to her.
Yaamin: [Grabs girl's hand] Come on, begum. I will make you happy.
[Yaamin drags girl away, minus her dupatta.]
Man: Ha ha ha! When Hindu girls get ensnared by us, they scream and shout but sadly there is no one to listen to them and we have great fun. Ha ha ha ha ha!
Written text on screen: Love in Jihad, injury to Hindu religion, and forced conversion. This is the protection provided by the SP government.
[Social worker goes on a political mission, meets Samajwadi and Congress leaders, and finally decides that the BJP is the party to support.]
............................................

Wonder what the Sangh Parivar has to say about this.

Incident

2007-04-09T08:59:00.000-07:00

I was on a trip to Mysore for the past four days. While I was in the Bus stand, an interesting incident happened that kept me pondering. It is in the context of a person's right to know and not be cheated.

I enter a cold drink shop and ask for a 'minute maid' orange juice.

Shopkeeper - Here it is. That'll be 29 rupees.

Self - But it says 25 rupees on the cover. Why should I pay more?

Shopkeeper - the extra 4 rupees is a cooling/ chilling charge.

Self - But it says 25 is the MRP on the bottle and you cannot charge more that that.

Shopkeeper - Take it or leave.

Self - In fact, don't you worry, i'll do both.

I then go to the Station master and complain. He goes to them and threatens to withdraw their license. The same shop keeper later gives me my drink for 25 rupees.
I wonder how many other people would have had to pay extra for such injustice. Could they be gullible enough to fall for such acts and tolerate such nonsense? In fact, I noticed that most of them dont have the urge to stand up for their rights and beliefs. For them 4 rupees means nothing. In a concluding observation, it is difficult to stand up for rights in this country when a majority does not want to stand for their protection.

Quote

2007-04-09T08:53:00.000-07:00

"The beauty of this country is that the system is against the poor".

-Abhir Dutt

It was really amusing to hear this from a classmate of mine during a presentation.

SC on reservations

2007-04-03T06:47:00.000-07:00

The Supreme Court recently stayed the Government law on reservations for OBC's in India.

The case judgment is available here.

Here's what people are saying about it;

Bong Buzz writes ; The Supreme Court has temporarily stayed the government order of reserving seats for OBCs in higher education. However, there is nothing much to rejoice. For this is only an interim order. The court stayed the order only on the ground that there is not enough data on OBC demographics, that no data on this has been collected in the last 76 years. Now if the govt. readies a hurried report on OBCs the court will no more be able to say government has no data. Moreover the court has clarified that the benefits enjoyed by the Scheduled Castes and Scheduled Tribes can’t be withheld. So much for the Supreme Court! So much for India! Living in India, how can we expect justice? This is the land where caste-based reservation will continue and Lalu Prasads and all will continue to rip political benefits out of that. There is only one way out - leave the country!

..............................................

2paisaworth writes; If the SC's objection is that the census data on which the percentage of OBCs in the population is based on is outdated, then the OBC quota in Government jobs in the 1990s in the wake of the Mandal report also ought to have been quashed with the same argument. Karat is right because the SC's stay is over an non-issue. By questioning merely the veracity of the data, rather than the basis for reservation itself, the SC has implicitly acquiesced to the Centre's twisted logic for the implementation of quotas.

There's a strange incongruity in the rationale for celebrations in the anti-quota camp today and the SC judgment. Somehow people don't seem to get it. I've heard "anti-quota spokesmen" (where did that epithet come from?) from across the social spectrum laud the SC for recognizing that "caste-based reservations only serve to divide the country". The SC has done nothing of the sort. How long will it take for a Government hell-bent on the idea of Quota to come up with more accurate figures?

The debate ought to be on the very raison d'être of reservations, not mere technicalities like this one.

...............................

2kbloggers also has an interesting post on it.

HRW Letter to SAARC Leaders In Anticipation of Summit In New Delhi

2007-04-03T03:17:00.000-07:00

March 29, 2007

Dear SAARC Government Leaders:

As the leaders of the South Asian Association for Regional Cooperation (SAARC) meet in New Delhi on April 3 and 4, 2007, the discussions will inevitably focus upon economics and regional security. At SAARC meetings, human rights problems in each member country have usually been treated as an internal matter. However, it takes only a quick survey of the region to see that there are many human rights issues that would benefit from mutual engagement and agreement.

Apart from other serious human rights problems, Afghanistan, Pakistan, India and Sri Lanka are also dealing with situations related to armed conflicts and insurgencies. Nepal, with its numerous human rights problems, has only just emerged from a violent conflict that claimed over 13,000 lives, and violence continues in the south. Bangladesh has witnessed increased militancy and the caretaker government has detained tens of thousands, often ignoring basic due process, in its efforts to combat corruption and crime. Bhutan continues to discriminate against citizens of Nepali origin. In the Maldives, there are serious curbs on political freedom.

(the weilikanda massacre in srilanka)
In Sri Lanka, the human rights situation has deteriorated drastically since major hostilities between the government and the Liberation Tigers of Tamil Eelam (LTTE) resumed in early 2006. The LTTE has been responsible for numerous political killings and indiscriminate bomb attacks, and continues to use child soldiers and forcibly recruit adults for its forces. It has prevented civilians from fleeing areas of combat in the north and east. Government security forces have increasingly violated the laws of war by engaging in indiscriminate attacks in which civilians were killed and have also been implicated in extrajudicial executions. “Disappearances” attributable to state security forces or allied armed groups have risen sharply; hundreds of alleged “disappearances” have been reported on the Jaffna peninsula over the past 15 months. More than 15,000 refugees have fled to neighboring India and over 200,000 were internally displaced by the fighting in the north and east. The government has forced displaced civilians to return to their homes in the east despite their concerns about security and access to humanitarian aid. The Karuna group, with the open support of state forces, continues to abduct and forcibly recruit boys and young men for its forces and political work. Civil society has increasingly come under attack and national institutions involved in human rights protections have been undermined.

(Nandigram)

In India, impunity laws that protect members of the security forces from prosecution continue to fuel human rights abuses in the conflict in Jammu and Kashmir and in the northeast. Security forces have been responsible for widespread abuses including torture and arbitrary detentions. Recently, in Jammu and Kashmir, police investigations revealed that some policemen, usually in joint operations with the army, were killing civilians in faked encounters, and then claiming that they were Pakistani militants. New Delhi has failed to act on the recommendations of a government-appointed committee that said the Armed Forces Special Powers Act should be repealed. Despite encouraging disaffected groups to choose dialogue and peaceful protest in the northeast or in areas where Maoist groups have begun an armed campaign, the Indian government has failed to acknowledge or address such methods; for instance, it has failed to investigate the reasonable demands of Irom Sharmila, who has been on a seven-year hunger strike to demand an end to human rights abuses by troops in Manipur. The government’s failure to implement its laws that protect vulnerable communities received international attention in Maharashtra state recently, where four members of a Dalit family were brutally murdered, but no arrests were made until there were violent protests. Hindu extremist groups continue to threaten religious minorities, tribal groups and Dalits. Indian police have used excessive force against villagers and farmers opposing development projects. Laws to protect women and children have not been effectively implemented. India has failed to adequately acknowledge and protect refugees from Burma and Bhutan, and has provided military assistance to the Burmese army, which has frequently attacked civilians and committed other atrocities in its war against ethnic insurgents.

In Pakistan there have widespread reports of arbitrary detentions and enforced disappearances. Alleged terrorism suspects are often detained without charge or tried without proper judicial process. Human Rights Watch has documented scores of arbitrary detentions, instances of torture, and “disappearances” by the security forces in Pakistan’s major cities. The government has failed to provide the civilian population in the Federally Administered Tribal Areas adequate protection from Taliban attacks after agreements ending military operations there effectively ceded power to local tribal leaders closely allied with the Taliban. Civilians have also died in counter-terrorism operations due to the security forces’ use of excessive force. While the authorities routinely misuse counter-terrorism laws to perpetuate vendettas and as an instrument of political coercion, sectarian militants continue to target the Shia Muslim minority in Pakistan and are responsible for attacks upon civilians in Indian-administered Jammu and Kashmir. Women and girls in Pakistan confront astounding levels of violence, with hundreds of women and girls murdered each year in the name of family “honor.” Journalists and human rights defenders face frequent threats and attacks from state agents and extremists. Pakistan’s judiciary remains subservient to the military. When it does attempt to act independently, the government has intervened, as it has done recently with the arbitrary removal of the Chief Justice of the Supreme Court.

In Afghanistan, more than 1,000 civilians were killed as a result of violence related to the insurgency in 2006; 15,000 families were displaced and over 200,000 children were unable to attend school. The violence prevented reconstruction and access to clean water, education, and health care. The Taliban and other anti-government forces continue to attack aid workers, government officials, teachers, students, and schools. Regional warlords implicated in war crimes, some allied with the government, continue to perpetrate serious human rights abuses throughout Afghanistan. Afghan women and girls continue to suffer from entrenched discrimination throughout the country. They have among the highest rates of illiteracy, maternal mortality, and forced marriage in the world. There are few remedies available for gender-based violence and many women and girls confront severe restrictions on their freedom of movement. Afghanistan is again on the precipice of becoming a haven for human rights abusers, criminals, and militant extremists, many of whom in the past have severely abused Afghans, particularly women and girls.

In Bangladesh security forces have long been implicated in torture and extrajudicial killings. These have continued since a state of emergency was declared on January 11, 2007. The killings have been attributed to members of the army, the police, and the Rapid Action Battalion (RAB), an elite anti-crime and anti-terrorism force. Killings in custody have been a persistent problem in Bangladesh. To date, no military personnel are known to have been held criminally responsible for any of the deaths. There have been widespread abuses reported against Hindus and Ahmadiyya Muslims. Women continue to suffer domestic violence including acid attacks, largely with no response from the state. Most recently, under the state of emergency, the military has arrested thousands of people on allegations of corruption and other crimes, but many have been denied their due process rights. Some have been tortured. There have also been attempts by the authorities to control the media, with editors being privately summoned to impose self censorship.

Bhutan has continued its discriminatory practices to enforce a distinct national identity, in line with Bhutan’s “one nation, one people” policy. These policies are perceived as a direct attack on the cultural identity of the ethnic Nepalese living in southern Bhutan. The government forcibly evicted tens of thousands of ethnic Nepalese in 1990 and 105,000 still remain in seven refugee camps in Nepal. Nearly 50,000 Bhutanese refugees live outside the camps in India and Nepal. Bhutanese Nepali speakers who managed to avoid expulsion and still live in Bhutan remain very insecure. Some have been denied citizenship cards following the latest census in 2005 and so they are now effectively stateless in their own country.

In the Maldives, citizens continue to face restrictions on political freedom. Security forces have been implicated in torture and arbitrary detention, among other abuses. There are severe limitations upon the rights to freedom of the press, assembly, association, and religion. Unequal treatment of women continues, as do restrictions on workers’ rights.

In Nepal, the November 21, 2006 agreement between Nepal’s coalition government and the Communist Party of Nepal (Maoist) ended ten years of fighting that killed an estimated 13,000 people. The deal included compliance with an armed management pact, under which each side would put away most of its weapons and restrict most troops to a few barracks, under the supervision of monitors from the United Nations. Both parties agreed to end all forms of feudalism and promote greater inclusion of marginalized groups. However, ethnic, linguistic and regional tensions continue, with increasing violence in the south where ethnic minorities are demanding equal representation in determining Nepal’s future. Women are yet to be an equal part of the peace process. Impunity remains a problem, with little urgency in investigating and prosecuting those responsible for atrocities during the conflict. The army was responsible for enforced disappearances, torture and mistreatment of detainees, while the Maoists recruited children into armed conflict and punished civilians that they deemed as insufficiently committed to their cause with executions, mock executions, cutting body parts, and severe beatings. Meanwhile, trafficking of Nepali women and children into India as domestic labor or sex workers continues, particularly because thousands remain internally displaced due to the conflict.

Human rights abuses such as those listed above are often the cause and fuel of conflict. A failure by the state to provide and protect economic, social and cultural rights and civil and political rights, including ensuring the rights of marginalized groups such as ethnic and religious minorities, can lead to discontent that eventually turns violent.

Militants and armed groups, such as Kashmiri, Maoist and northeastern militants in India, the LTTE in Sri Lanka, and Islamist groups in Pakistan and Bangladesh, often commit human rights abuses and violations of international humanitarian law, including indiscriminate bomb attacks, extortion, killings and abductions. Security forces deployed by the state for counter insurgency operations, unless properly checked, have in turn become responsible for abuses including torture, extrajudicial killings, arbitrary detentions and enforced disappearances.

Regional security and economic progress cannot be achieved unless every citizen is provided with a secure environment to enjoy their civil, political, economic, social and cultural rights. This is especially true for groups historically discriminated against, like women and children. Half of the world’s poor live in this region. Policies and laws to help them will be useless unless effectively implemented.

SAARC represents a sixth of the world’s population and plays a significant role in global affairs. It is crucial that SAARC adopt measures that provide good governance standards for the region, including respect for fundamental human rights. If it does so, it could become a beacon for the rest of the world. Unfortunately, to date SAARC has not taken human rights seriously. Instead it has been largely a talk shop and a photo opportunity for its members’ leaders.

Human Rights Watch encourages SAARC members to:

Ensure the protection of vulnerable communities including religious and ethnic minorities, Dalits and tribal groups. Governments should repeal all laws that lead to discrimination against minorities such as citizens of Nepali origin in Bhutan, Tamils in Sri Lanka or the Ahmaddiyas and Hindus of Bangladesh. Instead, laws designed to protect these groups should be properly implemented, such as in the case of Muslims, Christians, tribal groups and Dalits in India.
End specific legal, cultural, or religious practices by which women are systematically discriminated against, excluded from political participation and public life, segregated in their daily lives, raped in armed conflict, beaten in their homes, denied equal divorce or inheritance rights, killed for having sex, forced to marry, assaulted for not conforming to gender norms, and sold into forced labor. Arguments that sustain and excuse these human rights abuses - those of cultural norms, “appropriate” rights for women, or western imperialism - barely disguise their true meaning: that women’s lives matter less than men’s.
Implement laws to end human rights abuses against children including the use of children as soldiers; the worst forms of child labor; torture of children by police; police violence against street children; conditions in correctional institutions and orphanages; corporal punishment in schools; mistreatment of refugee and migrant children; trafficking of children for labor and prostitution; discrimination in education because of race, gender, sexual orientation, or HIV/AIDS; and physical and sexual violence against girls and boys.
Build strong international human rights norms and institutions to create a successful, rights-respecting counter-terrorism policy. Protection of human rights should be treated as an essential tool in the fight against terrorism, not as an obstacle.
End state participation in enforced disappearances, torture, arbitrary arrest and detention, and extrajudicial executions, which are often masked as armed encounters.
Prosecute and punish those responsible for human rights abuses, including persons implicated as a matter of command responsibility when superiors knew or should have known of ongoing crimes but failed to take action. These include high-ranking and powerful individuals, including those holding government positions.
Stop supplying weapons to governments likely to use them to commit violations of international human rights and humanitarian law. India supplies weapons to Burma, and Pakistan has provided weapons to Sri Lanka. SAARC member states , have also provided weapons to abusive opposition groups.
Tie military aid to fellow SAARC members and other countries to strict human rights compliance.
Prohibit the use, production, and trade of antipersonnel landmines and cluster munitions that cause unacceptable harm to civilians.
Adopt multilateral labor agreements to protect workers from Bangladesh, Pakistan, Sri Lanka, Nepal, and India who migrate to the Middle East and Asia. These workers, especially those in construction and domestic service, regularly suffer unpaid wages, confiscation of their passports, hazardous working conditions, and sometimes physical abuse. High recruitment fees and deception during recruitment have led many workers to be trapped in situations amounting to debt bondage and human trafficking. Labor-sending governments should regulate and monitor labor recruitment agencies by placing caps on recruitment fees, providing clear information in enforceable employment contracts, and strengthening support services in embassies abroad for abused workers.
Provide proper protection and access to humanitarian assistance for refugees and internally displaced persons. No one should be returned to a place where their life or freedom would be threatened. The groups at risk today in the SAARC region include Afghan refugees in Pakistan, Rohingyas in Bangladesh, Burmese and Sri Lankan refugees in India, and Tibetan and Bhutanese refugees in Nepal. The internally displaced include tens of thousands who fled from armed conflicts in Nepal, India, Sri Lanka and Pakistan as well as those displaced due to natural disasters such as the Indian Ocean tsunami and the Kashmir earthquake.

We look forward to discussing these issues with each of you in both a bilateral and multilateral context.

Thank you for your consideration.

Yours sincerely,

Brad Adams

Executive Director

Asia division

Quotes

2007-04-01T00:27:00.000-07:00

There are means that cannot be excused. And I should like to be able to love my country and still love justice. I don’t want just any greatness for it, particularly a greatness born of blood and falsehood. I want to keep it alive by keeping justice alive.

Albert Camu, from Resistance, Rebellion and Death on the French conduct in Algeria.

Defining Modesty

2007-03-31T23:50:00.000-07:00

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'

2007-03-31T00:50:00.000-07:00

(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

2007-03-30T13:46:00.000-07:00

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.

UN on Extra Judicial killings

2007-03-29T12:44:00.000-07:00

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

2007-03-26T13:05:00.000-07:00

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-

2007-03-26T11:48:00.000-07:00

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

2007-03-24T22:57:00.000-07:00

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

2007-03-24T07:10:00.000-07:00

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.