Scandal in the Palace

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 we’re 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 country—the Supreme Court. When there’s a scandal about a former chief justice and his tenure in office, it’s 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. It’s like having to take the wolf and the chicken and the sack of grain across the river, one by one. The river’s high and the boat’s leaking. Wish me luck.

The higher judiciary, the Supreme Court in particular, doesn’t just uphold the law, it micromanages our lives. Its judgements range through matters great and small. It decides what’s good for the environment and what isn’t, 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 judges’ 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 World’s 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 people’s 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 judiciary’s 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 India’s 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 they’re designed to protect. For instance, from the early ’90s, we have seen the systematic dismantling of laws that protect workers’ 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 People’s History of the United States, puts it beautifully: “The 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.”

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 “scandalises” or “lowers the authority” 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 “scandalise or tend to scandalise” or “lower or tend to lower” 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 Sabharwal…er… shall we say “affair”) 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 that’s 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 there’s 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 ‘illegal’ businesses that had been functioning, in some cases for decades, out of residential areas in violation of the old master plan.

It’s 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 lives’ 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 ‘residential’. 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 “unlicensed” vendors from the city’s 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:

“Had 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.”

It’s 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 ‘Enron zindabad’? ‘Bechtel, Halliburton zindabad’? ‘Tata, Birla, Mittals, Reliance, Vedanta, Alcan zindabad’? ‘Coca-Cola aage badho, hum tumhaare saath hain’?

This then was the ideological climate in the Supreme Court at the time the Sabharwal “affair” took place.

It’s important to make it clear that Justice Sabharwal’s 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 Sabharwal’s 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 can’t 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. Sabharwal’s 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 father’s 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 Sabharwal’s 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 Sabharwal’s sealing orders, people were forced to move their shops and businesses to malls and commercial complexes, which pushed up prices, thereby benefiting Justice Sabharwal’s 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 sons’ 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 opposite—calling the case to himself.)

6. That a number of industrial and commercial plots of land in NOIDA were allotted to his sons’ 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 father’s name as Yogesh Kumar (uncharacteristic coyness for boys who don’t mind running their businesses out of their judge father’s 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 Chetan’s 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 Sabharwal’s 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 Thapar’s interview show on CNBC.

He brought all the prudence and caution of a former judge to bear on what he said: “…if it is true, this is the height of impropriety…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 accountability….” 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 Sabharwal’s 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 enemies—after all, in each case they adjudicate there is a winner and a loser. There’s 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 wouldn’t do is to make things worse by writing an ineffective, sappy defence of myself which doesn’t address the allegations and doesn’t 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 ‘upholding the dignity’ 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 wouldn’t take me very long to work out that if I didn’t 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 Day’s 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): “We 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.”

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, it’s not enough. You don’t 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 we’re saddled with a whole new school of thought on Contempt of Court: Fevered interpretations of imagined insults against unnamed judges. Phew! We’re 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 “scandalising” and “lowering the authority” 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. It’s all happening. The lid is off, and about time too.

Gone are the Rickshaws

Next time you travel to Delhi and take a walk around Chandni Chowk, don’t be surprised if you don’t 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. I’ve 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.

The 'Weak End' Post

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 world’s 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 1970’s and 80’s. 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 (that’s sarcasm); we chose to have a West Minister model of Government. In theory the president was suppose to be apolitical. But alas! We don’t see that happening. Our ‘esteemed’ 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 doesn’t 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. That’s 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 Warren’s 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,

“If Blair uses his manipulative skills then a result may be achieved else we must be prepared for a faux pass.”

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 “Letters to a German Friend” he wrote,

“There are means that cannot be excused. And I should like to be able to love my vcountry 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.”

That’s my stand on the system now.

Readings:

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

India's Role in Tackling Climate Change

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

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

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

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.

Amnesty's Letter to Bush

I just got hold of an interesting document.
Below is Amnesty International's letter to George Bush ahead of his visit to India is 2006. A good read.

USA: Letter from Amnesty International to President Bush on His Upcoming Visit to India

The Honorable George W. Bush
President of the United States
The White House
Washington, DC 20500

Dear Mr. President,

Amnesty International welcomes your visit to India during the first week of March. Your visit represents a rare opportunity for you to directly communicate your concerns about human rights in India. While you discuss economic cooperation and civilian nuclear partnership with the Indian Prime Minister, it is vital that you also raise human rights concerns affecting large numbers of Indian citizens. Amnesty International strongly urges you to include Indian human rights concerns in your joint communiqué with the Indian Prime minister Manmohan Singh.

Even though India is the world’s largest democracy, there remain serious and disturbing human rights practices, including “disappearances”, rape, extrajudicial executions, deaths in police and military custody, torture, cruel, inhuman, and degrading treatment, arbitrary arrests, dowry deaths, and numerous other human rights abuses.

The Government of India not only fails to prevent these abuses, but also shelters members of security forces from facing justice. People living in several of the northeastern states of India, Kashmir, religious minorities, those belonging to the lowest social order called “dalits”, and indigenous communities called “adivasis” face the brunt of these abuses. Other socially and economically marginalized groups including women face discrimination at the hands of the police and criminal justice system. While some laws were passed to address some of the human rights abuses; serious concerns remain about the implementation of such laws.

There are numerous human rights violations taking place in India. Following are some of the abuses and concerns:

Massacre of Sikhs: Over three thousand Sikhs were massacred when the governing Congress Party incited mob violence targeting Sikh civilians in reaction to the 1984 assassination of Prime Minister Indira Gandhi by her Sikh bodyguards. Scores of women were gang raped and some were burnt alive. After two decades, a judicial commission concluded that members of the governing Congress party were involved. Several belonging to the same party were cleared of charges, which led to criticism from several civil society and Sikh organizations and opposition political parties. Twenty years have passed since the massacre, but only a few have been brought to justice for this mass killing.

Massacre of Muslims: In 2002, over 2,000 Muslims were massacred in Gujarat as a reaction to a train fire that killed 59 Hindus. This train fire was blamed on Muslims. Hindu mobs allegedly incited by state Bharatiya Janata Party members went on a killing spree targeting Muslims. Several hundred Muslim women and girls were gang raped and some were burnt alive. Pregnant women and children were also targeted. After three years, very few individuals have been brought to justice.

Bhopal tragedy: Several thousand people have died and many more continue to die from a 1984 gas leak at Union Carbide’s pesticide plant in Bhopal in 1984. Twenty years have passed since the leak occurred, but the plant site has not been cleaned up and toxic wastes continue to pollute the environment and ground water. Tens of thousands continue to live with debilitating illnesses. Despite numerous efforts, survivors continue to be denied adequate compensation, medical help, rehabilitation, and justice.

Armed Forces (Special Powers) Act of 1958: The Armed Forces (Special Powers) Act of 1958 has remained in effect in “disturbed areas,” including Kashmir and large parts of the northeastern states of India for over forty years. This act is a major contributor to massive human rights abuses in these areas of India. This law protects Indian Security forces from prosecution by requiring permission to prosecute from India’s Central Government--permission which is rarely given. As a result, security forces often take the law into their own hands and commit massive human rights abuses against the civilians. This law has facilitated grave human rights abuses, including “disappearances,” rapes, extrajudicial executions, and deaths resulting from torture. This law also gives the security forces power to shoot to kill anyone even without any threat to the lives of security forces.

Northeastern States: One of the areas “hidden” from international attention is the region of northeast India. A reign of terror is prevailing in this area, which is largely facilitated by the above mentioned Armed Forces (Special Powers) Act of 1958. Security forces kill, rape, “disappear” and commit other gross human rights abuses with virtual impunity. Amnesty International has never been permitted to visit the northeastern states of India.

Kashmir: The Indian side of Kashmir is another area where Indian Security forces commit massive human rights abuses with impunity. This is once again facilitated by the Armed Forces (Special Powers) Act of 1958 and other similar laws. Indian Security forces “disappear,” rape, extra-judicially execute, torture people to death, and commit other severe human rights abuses. Authorities arbitrarily detain people and use preventive detention to stifle political dissent. The civilian population of Kashmir has paid a high price for the conflict. Thousands have disappeared and the total casualties since 1989 are believed to be around 38,000.

One example of impunity in Kashmir is that of a human rights lawyer and activist Jalil Andrabi. Nine years after the “disappearance” and killing of Jalil Andrabi, an army major identified as responsible by a special investigation team had still not been brought to justice. Army representatives asserted that they have not been able to locate him. Amnesty International has never been permitted to visit Kashmir.

Abuses against “Dalits”: India’s caste system involves a social hierarchy and individuals are considered to be born into a particular caste and remain in the caste throughout their lives. Outside these caste categories are the “untouchables,” now commonly known as “dalits”, whose occupations – sweepers, tanners, sanitation workers, etc – were viewed as “polluting” the community. Nearly 200 million people in India belong to this category and this system has been called India’s “hidden apartheid.” Abuses against “dalits” are numerous and take many different forms including: parading of naked dalit women through the streets, socioeconomic discrimination, killings, arson-burning of dalit communities, gang rape, bonded labor, denial of land rights, and many more. The police and the criminal justice system also discriminate against dalits. Though important strides have been made, much remains to be done.

Abuses against Adivasis: The indigenous communities called adivasis face immense pressure from dam and mining development projects and settlements. Adivasis face socioeconomic discrimination as well as discrimination by the police and the criminal justice system. For example, recently police used excessive force during a protest against the construction of a steel plant on traditional adivasi land in the state of Orissa. At least twelve adivasis, including three women and a twelve year old boy, were reportedly killed in the police firing.

Abortion of female fetuses: Traditional preference for boys has led to thousands of female fetuses being aborted despite the prohibition of pre-natal sex discrimination for the purpose of the abortion of female fetuses. In May, the Health Minister stated that there had not been a single conviction for breaking the ban since it was introduced eight years earlier.

Mr. President, Amnesty International urges you to secure a meaningful commitment from Prime Minister Manmohan Singh to improve India’s human rights situation. It is essential that human rights be treated as an important issue like trade and civilian nuclear partnership.

We urge you to include human rights as part of your overall discussion with the Prime Minister and that you demand the following:

1) Abolition of the Armed Forces (Special Powers) Act of 1958 and other similar laws.
2) Immediate release of those held under such laws.
3) That those involved in the massacres of Sikhs and Muslims be brought to justice.
4) Immediate resolution to the Jalil Andrabi case.
5) Adequate compensation, medical help, rehabilitation, and justice to those who were affected by the Bhopal tragedy, including full cooperation to bring Dow Chemical in compliance with their responsibility.
6) An immediate investigation into the abuses happening in northeastern India.
7) That Amnesty International and other human rights organizations be allowed access to Kashmir and to all northeastern states.

Mr. President, we urge you not to miss this opportunity to speak for those whose rights have been violated in India. They need your help.

Sincerely,

William Schulz
Executive Director

The Search for Accountability in securing justice.

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

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

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

European Parliament passes a motion to end Dalit Discrimination in India

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

EUROPEAN PARLIAMENT RESOLUTION ON THE HUMAN RIGHTS SITUATION OF THE DALITS IN INDIA

P6_TA-PROV(2007)0016

The European Parliament ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) Texts Adopted , P6_TA(2006)0388

(2) Derived from figures provided in Crime in India 2005 , http://ncrb.nic.in/crime2005/home.htm and

http://ncrb.nic.in/crime2005/cii-2005/CHAP7.pdf

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

Sage Publications, India, 2006.

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

1998-99 (last survey available), Chapter 6, p. 187, http://www.nfhsindia.org/data/india/indch6.pdf

(5) 2001 Census of India.

India: ‘Hidden Apartheid’ of Discrimination Against Dalits

Taken from Human Rights Watch

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

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

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

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

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

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

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

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

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

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

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

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

The Center for Human Rights and Global Justice and Human Rights Watch call on CERD to scrutinize the gap between India’s human rights commitments and the daily reality faced by Dalits. In particular, CERD should request that the Indian government:

• Identify measures taken to ensure appropriate reforms to eliminate police abuses against Dalits and other marginalized communities;
  
  
• Provide concrete plans to implement laws and government policies to protect Dalits, and Dalit women in particular, from physical and sexual violence;
  
  
• Identify steps taken to eradicate caste-based segregation in residential areas and schools, and in access to public services; and,
  
  
• Outline plans to ensure the effective eradication of exploitative labor arrangements and effective implementation of rehabilitation schemes for Dalit bonded and child laborers, manual scavengers, and for Dalit women forced into prostitution.

“International outrage over the treatment of Dalits is matched by growing national discontent,” Smita Narula said. “India can’t ignore the voices of 165 million citizens.”

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

Background

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