India Shining III: Land Rights!

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

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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 !!

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

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.

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

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 .

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'

Contempt of Court: The Mid-day case

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

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.”

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

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.

Exit Wounds: Legacy of the Indian Partition

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.

The language quandary

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.

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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.

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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.

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

SC on reservations

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!

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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.

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2kbloggers also has an interesting post on it.

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

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

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

An Interesting read:

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

Heidelberg, 15 November 2006
Dr. Silja Vöneky2

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

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

Full paper available here

Bong Hits 4 Jesus

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

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

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

Justices hear ‘Bong Hits 4 Jesus’ case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A decision is expected by July.

The Right to Die (IHT)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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