[sacw] sacw dispatch #1 (19 May 00)

[Harsh Kapoor]

South Asia Citizens Web - Dispatch #1
19 May 2000
________________________________
#1. India: powerful men who instigated the killings remain protected
#2. London Seminar: South Asia: Communalism, Militarism & Restructuring of
Capital
#3. India: Aids activists locked up under the National Security Act
________________________________

#1.

Rediff on the Net
15 May 2000

Laughing All The Way to the Inquiry

by Dilip D'Souza

In the card catalogue of the Asiatic Library in Bombay, you can find
drawers-full of cards for reports of inquiries into something or the
other. There's the report of the Shah Commission which investigated the
1975-77 Emergency; the report of the Madon Commission that looked into
the 1970 Bhiwandi riots; Justice Srikrishna's report about the 1992-93
riots in Bombay. There is even a report of an inquiry into an Alitalia
plane crash in 1962 and one on -- this is true -- the improvement of
marketing of fruits and vegetables in Bombay in 1932.

I found all these cards while searching for a report I need for
something I am writing. When I asked for it at the desk, I got a
surprised look from the man there. "You want an inquiry report?" he
asked. I nodded. Some minutes later, it was in my hand: dusty, but in
perfect condition. I was the first borrower -- the first, I am not
making this up -- of a report issued in 1950.

OK, so this was at a public library. Perhaps members of the public are
not interested in reading such reports, or at least the one I had to
refer to. But do you doubt that there are more copies of all these
government-ordered inquiry reports sitting on shelves in government
offices somewhere, much as they do at the Asiatic: unread and getting
dustier by the day? In other words, is there a single report of any
inquiry that has been read and acted on, not left to rot?

And if you answered that as I suspect you did, try this: do you even
want to believe that a new inquiry into 16-year-old events will be any
different from those that have gone before? That it will succeed where
eight previous inquiries have failed: to bring justice to the families
of 3000 Indians slaughtered in 1984?

So when I read the news announcing this new inquiry, I could only
conclude that the government authorities who ordered it must just be
laughing at us. There is no other explanation. They are laughing at the
gullible fools they have turned us into. They are laughing, because in
response to our longing for justice, they can simply announce an inquiry
-- yet another one, at least the ninth one by my reckoning. And while
doing so, they even drum up the gall to say it was done in response to
"widespread demand."

The widespread demand is for justice. An inquiry is what we get.

So prepare yourself for one more farce masquerading as justice for the
families of those 3000 Indians murdered purely because they were Sikh.
It's 16 years since they died so horribly. If that massacre shames us
all, it must shame us even more that in 16 years we haven't been able to
hand out even one significant punishment for it. Not even after previous
inquiries have told us in no uncertain terms who the powerful men were
who instigated the killing. Yes, we know from those inquiry reports just
what men like HKL Bhagat, Sajjan Kumar, Lalit Maken and Jagdish Tytler
were up to in November 1984. We know it, too, from the few private cases
against some of these men that have made it to courtrooms.

Yet all these years later, Bhagat, Kumar and Tytler are not only free
and unpunished, with no prospect of that changing anytime soon, they are
even protected by taxpayer-paid squads of gunmen. And now we will have
yet another inquiry, this one by ex-Justice of the Supreme Court GT
Nanavati, to tell us what we already know.

By "widespread demand", if you please.

By now, surely, anybody who is so much as awake in India knows just what
an inquiry is: something the government institutes when it does not want
to actually act. Commissions of inquiry are long, expensive exercises in
futility and distraction, that's all. That's precisely why governments
so like to order them: because they give the rest of us the illusion
that they are taking action where there is none. Where governments fully
intend to take none.

The Commissions of Inquiry Act, 1952, is itself the source of the
futility, though I doubt its drafters could have expected governments to
abuse its spirit so cavalierly. The Act gives commissions "the powers of
a Civil Court" in various respects. Except for two. As a 1983 judgment
commented: A "commission is only fictionally a Civil Court ... there is
no accuser and no specific charges for trial [and] the government [is
not] required to pronounce ... on the findings of the commission."

In other words, commissions of inquiry cannot prescribe punishment
(though they can recommend it), and the government can ignore their
findings.

So what purpose does an inquiry serve anyway? The Act tells us that it
is supposed to restore "public confidence."

Try telling that to those 3000 shattered families. I'm sure they are
feeling extremely confident today, and more so now that Justice Nanavati
will conduct another inquiry.

Perhaps there was a time, many years ago, when they and all of us had
faith that an inquiry would lead to penal action against those it found
guilty. But today? After hundreds of inquiries have come and gone and
been ignored? Only an idiot would keep that faith.

There's at least one reason the law has never caught up with Bhagat,
Kumar and company: they are all powerful Congress leaders. Naturally,
Congress governments were never interested in actually punishing them.
Naturally, those governments were happy to order meaningless inquiries.
Even if the inquiries recommended prosecution, which they did, they
could be ignored. This protection of men who should be on trial is one
reason for the massive disillusionment with the Congress that is so
evident in the country today. As it should be. No party that shields
such goons deserves a single vote.

But today, our government is decidedly not a Congress one. Over the
years, the BJP has been among the loudest critics of the Congress
failure to bring justice to bear on Bhagat and gang. Yet in power, they
are exactly as uninterested in punishing them. Worse, they resort to the
same ruse we have suffered for years: they order an inquiry.

Why this universal fondness for sidestepping actual punishment? Well,
there's at least one reason for that, too. The BJP is acutely aware of
the findings of still another inquiry: the one Justice Srikrishna
conducted into the Bombay riots. In it, he is sharply critical of the
Congress. But he is also critical of the BJP. And he leaves you in no
doubt about the riot-time misdeeds of another powerful man and his
party: Bal Thackeray and his Shiv Sena, Prime Minister Vajpayee's
coalition ally.

All of which produces a fine quandary indeed. If this government
actually initiates penal action, based on the earlier inquiries, against
men like HKL Bhagat, there will be immediate questions about why there
is no action, based on Srikrishna's inquiry, against Thackeray and his
cronies. On the other hand, if this government's political predilections
prevent it from bringing Thackeray to justice, how can it demand that
Bhagat and Kumar and Tytler must be?

The answer to this conundrum? Simple: yet another inquiry. Which is what
we have got. I tell you, they must really be laughing at us.

Meanwhile, the government has managed to get a man called Ranjit Singh
Gill extradited from the USA to face trial here in India. Gill is wanted
for the 1985 murder of Lalit Maken. And why did he murder Maken? Because
like Kumar and Bhagat, Maken was also seen egging on mobs to slaughter
Sikhs in 1984. Unlike them, Maken paid for his crimes with his life.

=46or that revenge, we call Ranjit Singh Gill a terrorist and have spent
years trying to bring him to trial. Fine. But I cannot help wondering:
what did men like Bhagat and Thackeray spread, but terror? Yet they are
not in Canada or the USA. They don't need complicated extradition
procedures to run their torturous course. These men are right here,
right now, among us. Unrepentant and unpunished.

And guarded by heavy security at our expense. Oh yes, they are laughing
at us. I have no doubt.
_______

#2.

Historical Materialism: research in critical marxist theory

invites you to a seminar on

"South Asia: Communalism, Militarism and the Restructuring of Capital"

with Achin Vanaik, Praful Bidwai, Jairus Banaji and Dilip Simeon

on Tuesday 30 May
at 19.45
in Room A144
London School of Economics
Houghton Street
London WC1

---------
[...]
=46or more Information contact:
The Editors
Historical Materialism
London School of Economics
Houghton Street
London WC2A 2AE
UK
<mailto:hm@l...>

_______

#3.

The Hindu
19 May 2000
Op-Ed.

The Sahayog affair

By Rajeev Dhavan

SAHAYOG IS an organisation working on `AIDS' education in the Kumaon
Hills of Uttar Pradesh. In September 1999, it published a pamphlet
called `AIDS aur Hum' (AIDS and us) which described sexual acts
explicitly. It also portrayed, what it, perhaps wrongly, believed to be
the licentious social sexual practices of the area. For seven months,
nothing happened. Then, all hell broke loose. By April 20, 2000, fuelled
by both politics and anger, Sahayog's offices in Almora and Jageshwar
were attacked. Members of the Uttarakhand movement, who had themselves
been victims of outrage, joined the merciless chorus of indictment.
Little was done to protect Sahayog. Instead, 11 staff members and some
trainees of Sahayog, who had nothing to do with the publication or its
aftermath, were arrested - five for `breach of peace' and six more
substantively for `obscene publications' and `public mischief'. After
this, nothing was easy for Sahayog or its workers. The Sub-Divisional
Magistrate increased the bail amounts for the breach-of-peace arrestees
to make it more difficult for them to be `bound over' on their own
recognisance. The Almora Bar Association announced that no one should
represent the accused; and jeered at the four courageous lawyers who did
so. On April 22, a show cause notice was issued to the organisation. An
apology and withdrawal of the pamphlet by Sahayog on April 26 was of no
avail - even though this was the equivalent of a self-imposed forfeiture
order. Faced with this kind of pressure, on May 1, the application for
bail was rejected for the alleged offenders. Then, needless public
humiliation was added to the brazen denial of civil liberties. On May 4,
the four men in judicial custody were handcuffed and paraded with
medieval cruelty through the market along with the women.

Instead of being released the remaining six (including five staff and a
visitor), who were accused of substantive offences, were remanded to
judicial custody. High Court proceedings continue. But there was no
respite for the social worker activists. The Union Minister, Mr. Murli
Manohar Joshi, who comes from the Kumaon areas, spoke publicly and
angrily against Sahayog and asked for strong measures to be taken
against them. A supine administration obliged. On May 9, the National
Security Act was invoked on Jasodhara Das Gupta (Secretary), Dr. Abhijit
Das (Coordinator), Ms. Subita Shah and Mr. Surendra Dhapola (both
Sahayog staff). All of a sudden, respected activists were treated as
goondas, porn- pushing criminals and, to top it all, a security risk and
threat to the nation - after being handcuffed, humiliated and jailed.

This sequence of events must give us pause. In 1996, the then Chief
Justice of India, Mr. Venkatachalaiah, incisively observed that ``(t)he
quality of a nation's civilisation can be largely measured by the
methods it uses in the enforcement of its criminal law''. By this test,
Mr. Joshi, the State of Uttar Pradesh, the Kumaon officials and the
leaders of the Uttarakhand movement fail miserably. They have been
uncivilised. Everything they have done is contrary to law on at least
six major counts.

=46irst, let us take handcuffing. In 1980, the Supreme Court (speaking
through Mr. Justice Krishna Iyer) categorically prohibited handcuffing
unless there was a clear and present danger of violence or escape. This
was reiterated in several cases including a remarkable case from Assam
in 1995. In 1996, the Supreme Court indicted police and judicial
officers of Punjab and Madhya Pradesh of having violated its general
directions on handcuffing. In the Sahayog case too, the police and the
magistracy of Uttar Pradesh have violated civil liberties and committed
contempt.

Second, the rule is `bail not jail'. In the `breach of peace' cases, it
is difficult to comprehend why the Magistrate did not follow the routine
procedure of releasing the detenus on their own recognisance. Instead,
the surety amount was increased. There was little reason to deny bail to
those accused of `obscenity' and `public mischief'. The Supreme Court
decrees that bail is to be denied only if the accused might abscond,
tamper with evidence or is accused of a serious offence. None of these
conditions exist. The activists continue to languish in jail.

Third, the seven-month-old pamphlet on AIDS may have ruffled
sensitivities, but the `breach of peace' was by the protesters who
attacked Sahayog's premises, intimidated the staff and made them feel
like hunted animals in a lynch-mob atmosphere in which neither the
police nor the magistracy acted with fairness.

=46ourth, the local Bar seems to have forgotten the long line of cases -
including the Bihar Blinding's cases (1979), Khatri (1978) and later
cases - which not only guarantee a right to legal services but repose a
proactive duty in the state and providers of legal aid to ensure that
legal services are available to all - especially to those who are
arrested and incarcerated. For a Bar to deny such legal services, and
jeer at the lawyers who did provide them, is in the worst traditions of
civil liberties lawyering and violative of the Bar's `conduct of ethics'
rules and its constitutional obligations.

=46ifth the `obscenity' charges seem overwritten. Everything that is in
bad taste and hurts sensitivities is not obscene. From at least 1951,
there are several decisions of various High Courts which pay due
attention to the need for not just medical education but also sexual
education. In 1970, the Allahabad High Court stressed the importance of
family planning and sexual education as along as it did not become
pornographic.

The dividing line is delicate - even more so in Hindi and its colloquial
variations (as is amply demonstrated by so many legal aid pamphlets on
rape and sex offences). In the Sahayog case there was no calculated
pandering to the prurient interest, no intent to hurt social
sensitivities and no commercial exploitation of sex. On the contrary,
there was an apologetic withdrawal of the pamphlet, precisely because
its authors contritely agreed they had made a mistake in their use of
language and in the description of local sexual relationships.

Sixth - and, this is the crowning insult to civil liberties - there was
the preventive detention order under the National Security Act (NSA).
The administration seems to have gone overboard to please Mr. Joshi, who
thundered on this subject, and the members of the Uttarakhand movement,
who have tried to make political capital out of these incidents. The NSA
is meant for terrorists, smugglers and goondas. Even against them, it is
to be sparingly used. Ironically, according to cases successfully argued
by the Union Law Minister, Mr. Ram Jethmalani, preventive detention has
a protective due process of recall and review which the U.P. authorities
have not chosen to use.

In the Sahayog cases, the detentions must be cancelled. The activists
released. The charges withdrawn. The peaceful and beautiful region of
Kumaon is in ferment not because of Sahayog's pamphlet, but because of
its prime political importance. The impending creation of the State of
Uttarakhand, which is to be carved out of Uttar Pradesh, makes it a
political prize. Apart from his ancestral links with the area, Mr. Joshi
recognises this as a power base.

The leaders of the Uttarakhand movement are no less ambitious for
profile and power. There is a considerable flexing of political muscle -
no less from the BJP Governments in Lucknow and Delhi. The result is the
scapegoating and humiliation of Sahayog which has gracefully withdrawn
its publication and apologised. The Uttarakhand movement which were
brutally treated by the administration in its struggles seems to have
forgotten Brecht's evocative advice that those who fight for kindness
must themselves be kind. They should strive in Sahayog's favour, not
against them.

Every little blow to civil liberties hurts democracy. Every political
misuse of power is despotic. Every activist who is needlessly jailed is
a martyr. But, is this the shape of things to come in India?

__________________________________________
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