SACW | Oct. 18, 2006 | Fundamentalists, rights defenders and the left / India: Who attacked the Parliament ?; Death Penalty; Hindutva infiltration in the administration
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Tue Oct 17 20:12:34 CDT 2006
South Asia Citizens Wire | October 18, 2006 | Dispatch No. 2305
 The enemy of my enemy is not my friend (Marieme Helie-Lucas)
 India: Attack on India's Parliament : Last Chance To Know What
Really Happened (Nirmalangshu Mukherji)
 India: Retributive Violence by the State (Prashant Bhushan)
 India - Madhya Pradesh: [RSS in the Administration]
Politicisation of the services (RS Khanna)
THE ENEMY OF MY ENEMY IS NOT MY FRIEND
Fundamentalist Non State Actors, Democracy and Human Rights
by Marieme Helie-Lucas
6 September 2006
(Contribution presented at the sixth Asia Europe People's Forum,
Helsinki September 3-6, 2006, <plenary of cluster 3 : Democracy and
The world has changed since the first international human rights
organizations developed as we know them today : most conflicts do not
any more occur between two armies of two nation states, hence most
armed conflicts involve one or more non state actors and many human
rights violations are committed by non state actors.
Among these non state actors are political movements, ranging from
very conservative to extreme right, aiming at political power but
working under the cover of religion, that are known as
These movements exist on all continents and use all religions to
disguise their political agenda, and they have been steadily growing
since the end of World War II.
Just to give a few examples at random :
- the Christian Right in the US, which assassinated, for instance,
the pro abortion doctors and assaulted the clinics are the same
people that also back and inspire Bush's program against social
welfare, reproductive rights, gays, etc. . . , and promote war,
teaching of 'creationism' in schools, etc...
- The Hindu Right, which assassinated Gandhi in 1948, perpetrated
mass massacres of Muslims ( the latest in Gujarat in 2002), as well
as assassinations of Christians and burning of churches and convents,
also inspires and manages the RSS that serves the electoral ambitions
- the Orthodox Church has led a successful offensive in Central
Europe in the past few years, putting an end to secularism in Croatia
three years ago and in Serbia this year, by gaining a specific
political representation, while, for instance they forced the
teaching of religion into schools in Russia, eliminated sex education
from the curriculum in Lithuania and secured in Slovenia and in
Poland, the right for medical professionals to refuse assistance for
services deemed immoral.
- Buddhists groups, rarely talked about, who were behind the
assassination of the Prime Minister by a monk in 1959 to oppose an
agreement with the Tamil dissidents that was leading to more
autonomy, managed to obtain recognition for Buddhism as the first
religion of Sri Lanka in the 1972 constitution and now push for
communal war in Sri Lanka.
- Better known are the Orthodox Jewish forces that support the
aggressive military occupation policy of Israel in the Middle East
- and Muslim fundamentalists, - pointed at the world over in all
international media for their bloody bombings in Europe and North
America- who, in Muslim countries, not only decimated left opponents,
intellectuals, artists and the Muslim masses that they call
'unbelievers' (kofr) when they do not abide by their political
program, as they did in Afghanistan, Sudan, Iran, Algeria, etc...,
but also put an end to democracy and imposed (or attempted to impose)
It is important to note that, although i am deeply convinced that
fundamentalism is now a shared disgrace all over the world which
operates through various religions, most of the examples I use
involve Muslim fundamentalists : the only reason for it is that, as
an Algerian citizen now living in Europe, it is the one form of
fundamentalism I know best, from many years of living experience as
well as as a researcher and as an activist.
In all cases, what we see at work is by no means religious movements,
but political extreme right forces that manipulate religions to
further their political agenda and to gain political power.
Ambiguities and cowardice in the Left, Far Left and progressive
forces at large - whether in the West or in the Third World -, in
condemning fundamentalist forces, stem from this confusion they
entertain between religion and politics.
Human rights concepts and instruments designed for other times often
prove inefficient when applied to present day rise of fundamentalism.
If the responsibility of fundamentalists as perpetrators of human
rights violations may be addressed, their identity as extreme right
political forces is not unveiled, while the unholy alliances they
knit across religions and across nations should be a first indicator
of their political nature.
We saw these unholy alliances at work, for instance, during the UN
World Conference on Population in Cairo (1993), when the Vatican and
Al Azhar publicly allied against reproductive rights ; and again
during the UN World Conference on Women held in Beijing in 1996.
But even more telling is the verbal support that Le Pen, leader of
the extreme right national Front Party in France, and Haider, leader
of the extreme right Freedom Party in Austria, lent to the
fundamentalist FIS (Islamic Salvation Front) of Algeria in 1995, i.e.
at the peak of the massacres they perpetrated against the civilian
population during that decade. This reminds us of the inspiration and
support given by the German Nazi Party to the emerging Hindu Right.
The failure to recognize the political nature of fundamentalisms,
regardless of their political agenda, ultimately benefits
fundamentalists : they often enjoy the protection of human rights
organizations, in the name of religious rights, minority rights,
cultural rights, etc...
It is even more so in situations where fundamentalists claim to
represent an oppressed minority, when they face repression by their
own governments, or when they are under threat of imperialist powers.
This is now in full bloom, due to the U.S. attacks on the Middle East
and the war on terrorism : it has devastating consequences on
democratic anti fundamentalist forces in Muslim countries and
communities as well as on the citizens of migrant descent in Europe.
Let us look at some of these consequences on human rights and on democracy.
- The exclusive focus of human rights organizations on state
responsibility and accountability, frees non state actors of any
responsibility and accountability for the crimes and violations they
commit. Fundamentalists end up being seen exclusively as victims -
which they may be in some cases, while they are, also and primarily,
violators. If and when they are persecuted by states, they definitely
should enjoy protection of their basic human rights ( such as : no
arbitrary detention, protection against torture, fair trial, etc...)
; but as perpetrators of many crimes and violations, they should not
enjoy some of the provisions designed for victims only ( such as
asylum), and they should not be given a political platform from which
to propagate their views. Their double identity, as victims and as
perpetrators, is overlooked by most human rights organizations, who
fail to face the consequences of such a situation.
- Moreover, seeing fundamentalists exclusively as victims induces a
hierarchy among victims.
As an example, Algerian fundamentalists benefited from political
asylum in many European countries, on the ground that they would be
persecuted by the state in their own country ; meanwhile, their
victims were denied asylum and were slaughtered in Algeria by the
Islamic Armed Groups ( GIA), on the ground that they were not
persecuted by states but by non state actors. Moreover, as victims of
state repression, fundamentalists were repeatedly invited by human
rights organizations, and their views on violence in Algeria were the
only ones represented at their gatherings.
- The plight of democratic forces struggling for survival under both
undemocratic states and neo fascist fundamentalist forces is ignored
by the very progressive forces that should be their allies, and their
struggles and resistance are made totally invisible. As if some
victims ( for instance, of imperialism) were more legitimate victims
than others (for instance, of extreme right fundamentalist forces).
- Fundamentalists launch an attack on democracy, in the literal sense
of the word : they want to impose on all citizens what they claim is
The Law of God ( as interpreted by them), by definition a-historical
and unchangeable, i.e. a theocracy ; and to eradicate the laws of the
people, by definition changeable according to the will and vote of
the people, i.e. the essence of democracy.
- Further, they want to impose a religious identity on all citizens,
by virtue of their birth place rather than by choice, thus denying
freedom of thought, freedom of religion, freedom of consciousness.
This is an insult to both believers, whose personal faith is reduced
to fate, and to unbelievers whose rights as free thinkers is totally
denied. As an example, Muslim fundamentalists have successfully
induced Europe to label " Muslims" all immigrants and even the second
and third generations of migrant descent from Muslim countries,
regardless of their individual religious beliefs. A faith is slowly
being turned into a "race" - the only historical precedent being the
Jews during World War II.
- In Europe as well as in our countries of origin, we witness the
erosion of secular space, under the huge pressure of fundamentalists
to introduce religious laws for minorities.
Muslim fundamentalists make similar demands in different countries in
Europe : all of them revolve around gender apartheid ( separate
schools with different curriculum for boys and girls, in particular
no teaching of biology, art, music, sports, and teaching of
creationism ; separate wards and women-only personnel in public
hospitals for men and women (a real joke in France for instance,
where public hospitals cannot afford enough medical personnel, let
alone female ones) ; separate swimming pools for men and women ; the
introduction of Muslim Personal Law ( or Family Code) for presumed
"Muslims", i.e. laws that affect primarily women insofar as they
regulate marriage, divorce, polygamy, repudiation, custody of
children, inheritance, etc...to the benefit of men.
After the hierarchy of victims, we are now confronted with a
hierarchy of rights in which women's rights come last, after minority
rights, after religious rights.
- Governments are generally prepared to trade women's rights for
social rest, - this is no surprise ; but human rights organizations
and the Left at large also trade with fundamentalists, in the name of
tolerance and cultural relativism. They do so despite the outcry by
migrant women, many of whom have fled from such an oppressive
situation in their own countries, or women of migrant descent who are
accustomed to more freedom and equality.
They do so despite the outcry of all secularists from migrant
descent, believers and unbelievers alike. They do so for fear of
being accused of 'Islamophobia', a concept coined by fundamentalists
in order to silence dissent. As if fundamentalist neo fascists were
the only legitimate true representatives of 'Islam', and of all
citizens whose parents once migrated from Muslim countries.
- This situation leads to the erosion of citizenship to the benefit
of 'communities'. It raises a number of questions : who speaks for
the so-called community ? who speaks in the name of religion ? who
speaks in the name of culture ? Generally it is male conservative
religious self appointed 'leaders'. This is a highly undemocratic
process of representation.
Why should religion represent a whole population ? I can see no other
example in the present European context, where religious men are
called to solve social problems, except when ' Muslims' are
concerned. Do governments call on the Vatican when there is a miners'
strike ? or do they negotiate with unions ? !
- With the erosion of the notion of citizenship comes a growing
fragmentation of the people into smaller and smaller entities. While
a few decades ago, migrants in Europe united and organized for their
rights with vigor and success, it is now "Muslims", "Sikhs",
"Hindus", etc... who seek separate rights, status and representation
and make varied demands. How to ignore the fact that this
fragmentation of the people weakens struggles and ultimately serves
That could well explain the tolerance that fundamentalists in Europe
enjoy from governments. But what of the Left with its short sighted
defence of fundamentalists ?
These are frightening consequences of the lack of political analysis
When the Left supports fundamentalist movements and parties on the
ground that they are popular forces oppressed by undemocratic states
or by imperialism, they are blind to their political program and to
their societal project.
Popular they are. And populist too. So were fascists, and Hitler
indeed was elected by the people.
To a situation of oppression, exclusion, marginalization, racism,
etc... there are responses from the Left at large, from progressive
or revolutionary forces ; and there are responses from the Right,
there are fascist responses. Fundamentalism is a response from the
Extreme Right, it is not a legitimate answer that can or should be
Progressive secular oppositions to undemocratic states, imperialism
and capitalism exist in all Muslim countries and they exist among
migrants and citizens of migrant descent in Europe as well. They
exist despite fierce repression by states, despite physical
elimination by fundamentalist non state actors and despite
abandonment by those who should be their natural allies : democrats,
progressive, secular, human rights people in Europe.
Progressive forces in Muslim countries warned the world for the past
few decades already, regarding the fascist nature of fundamentalism.
Largely in vain, it seems.
We feel as lonely as must have felt the anti nazi Germans in the
early thirties, when those who should have listened to their warning
were busy compromising in Munich, supposedly for keeping peace in the
world, with a Frankenstein monster that was soon to impose its rule
over many peoples and nations.
Give us visibility. Give us a voice. We are the alternative.
* Algerian sociologist, Marieme Helie Lucas is a founder of the
'Women Living Under Muslim Laws' international solidarity network.
Former International Coordinator of WLUML.
October 17, 2006
ATTACK ON INDIA'S PARLIAMENT :
LAST CHANCE TO KNOW WHAT REALLY HAPPENED
The attack on Parliament on December 13, 2001 was a major event in
contemporary India. As the judicial procedure into this case nears
its end, with Mohammed Afzal to be hanged on October 20, our effort
to get at the truth as to what really happened is about to be
scuttled. Who attacked Parliament and what was the conspiracy? On
what basis did the NDA government take the country close to a nuclear
war? What was the role of the State Task Force (J and K) on
surrendered militants? What was the role of the Special Cell of Delhi
Police in conducting the case?
by Nirmalangshu Mukherji
A sessions court in Delhi has announced that Mohammed Afzal,
sentenced to death by the Supreme Court of India on August 4, 2005,
is to be hanged on October 20, 2006. While the judicial procedure is
nearing its end in the Parliament attack case, have we under- stood
one of the major events of contemporary India? More importantly, will
the said completion of the judicial process in fact scuttle our
effort at understanding the event?
Limits of Judiciary
The questions just asked presuppose that the judgment of the Supreme
Court failed to provide the required understanding. Why? As a court
of law, it is bound by a structure of responsibilities. In the
present case, the court was faced with four appeals: two by the Delhi
Police and one each by Afzal and Shaukat. To that end, it exam- ined
the evidence produced before the trial court and the subsequent
judgments by the trial court and the high court. The evidence was
produced by an authorised investigating agency, namely, the Special
Cell of the Delhi Police, with its ACP Rajbir Singh as the
investigating officer. The evidence was presented in the trial court
with supporting materials and witnesses. Most of the evidence,
especially in Afzal's case, went unchallenged. The trial court
provided Afzal with an accredited lawyer who chose to remain largely
inactive. In fairness, we must note that whenever the defence -
especially Gilani's and Shaukat's eminent team of lawyers - was able
to question some evidence success- fully, the high court and the
Supreme Court did take notice of that and set the evidence aside.
This is particularly true of the confessions obtained from Afzal and
Shaukat; setting them aside created a huge dent in the case, as the
Supreme Court noted. The high court in fact reprimanded the police in
fairly strong terms for fabricating the arrest memos and for keeping
people under illegal confinement. In each case, Gilani's defence team
successfully produced counter-evidence. As for the overwhelming
evidence produced against Afzal, al- most nothing was challenged at
the trial court, making the task virtually insurmountable for his
defence in the appeal courts. Looking at this evidence, therefore,
the Supreme Court was obliged to conclude that Afzal was guilty of
aiding and abetting the attackers.
To emphasise, although each of these have been fully documented
(December 13: Terror over Democracy, 2005 and reports by PUDR) the
Supreme Court was not seized of the role of the media in fanning
pre-trial hysteria, the notorious character of the investigating
agency, the mindset of the trial judge, and the role of Afzal's trial
lawyer. We have shown earlier (EPW, September 17, 2005) how these
factors might have contaminated the evidence against Afzal and its
judicial examination. By design, the limited legal window through
which the court examined the In particular, the court was not endowed
with the task of explaining the attack. Nonetheless, as noted, when
presented with credible arguments by the defence, the court did take
the bold step to set aside the confessions. Since the confessions
carried the only story of the conspiracy to attack the Parliament,
the court's story of the attack was swift and short. What we learn
from the judgment is that five persons with sundry names attacked the
Parliament, killed some people, and died. And Mohammed Afzal aided
these attackers. Period.
The wider issues that surround the case - including the role, if any,
of Mohammed Afzal in it - can then be addressed in forums other than
a court of law. A large number of writers, academicians and lawyers
have raised a number of grave issues concerning the Parliament attack
case to which the judgment of the court provided no answers.
Importantly, as we will sample below, many of these concerns were
raised while the court deliberated on the case, and the concerns
continued even after the judgment was delivered. What are these
issues? While the hearing in the court was nearing its end, lawyer
Usha Ramanathan wrote (Frontline, May 6, 2005), "the court, will not,
and is not expected to, concern itself with aspects that are not
directly relevant to the case of the accused before it. So, many
questions will inevitably, and predictably, remain uninvestigated in
the court's docket." One of the questions Ramanathan asked was: "Was
it an act of war? Or was it a terrorist act? Or perhaps a protest
employing extremist methods? We don't know. But, on the presumption
that it was an act of war, the troops were massed along the border,
Indian and Pakistani soldiers glowered at each other for nearly a
year, enormous resources were sunk into aggressive posturing,
soldiers lost their lives, over a hundred children reportedly fell
prey to land mines, and many farmers along this mined, potential
battlefield were left without a livelihood."
Noting that Mohammed Afzal, the prime accused, was a surrendered
militant in regular contact with the State Task Force (STF) in
Kashmir, Ramanathan observed, "a surrendered militant is no longer a
militant but one who has chosen to return. The surrendered militant
is in the uneasy zone where he is suspect on both sides of the
divide. The militants see in him a turncoat. The security forces and
the Special Task Force (STF) hold him in their thrall, while viewing
him constantly with suspicion." Specifically, "If a person under the
watchful eye of the STF could be part of a conspiracy to wage war
against the state, how can anything less than a public inquiry do?
For this is not about the guilt or innocence of one man, but about
how a system works and what it means, to democracy, sovereignty and
the security of the state."
Yet, the "astonishing fact", Ramanathan suggested, was that "there
has never been a public inquiry into the attack on Parliament: not by
a parliamentary committee, not by the media, not an expanded search
by the police, nor even a commission of inquiry. When we picture the
parliamentarians huddled inside Parliament as the sounds from the
battleground outside told them of their narrow escape, it is
difficult to understand why no one, not in the ruling coalition, not
in the opposition, not in the secretariat of Parliament, thought
there should be an immediate and deep-reaching inquiry." Elsewhere
(The Book Review, May 5, 2005), Ramanathan wrote, "the only inquiry
of which the public has knowledge has been translated into criminal
proceedings in the court. The micro- scopic nature of a trial in
court, however, means that it is only the accused whose conduct will
be interrogated and judged." About the failure of the media to
initiate a deep-reaching inquiry, Gouri Chatterjee wrote (The
Telegraph, June 30, 2005), "the media's unquestioning acceptance of
whatever the police fed them, no, directed them to say, their
complicity in the government's scheme of things are downright
embarrassing". Rajat Roy (Anandabazar Patrika, July 16, 2005)
illustrated the complicity of the media with the police by recounting
the event of Afzal's forced confession before the media. Subhendu
Dasgupta (EPW, July 22, 2006) summed up the complicity as follows:
"The truth that the media presented was incomplete, partial,
truncated, engineered and designed, and the judgment was made on the
basis of this truth. The media came to its judg- ment before the
judicial process started. The administrative truth was passed on to
the media; the media took the official truth and transformed it into
'media truth'." Notice that Dasgupta maintained this nearly one year
after the judgment of the Supreme Court. Commenting on the entire
episode, Gouri Chatterjee observed that "the greater tragedy is, we
are condemned to repeat all this the next time round too". One year
after the judgment, Sukumar Muralidharan expanded on these themes
(Biblio, September-October 2005). "The December 13 event",
Muralidharan observed, "proved the pivot from which momentous
consequences followed. These involved issues of war and peace, the
security and well-being of the peoples of India and Pakistan, and the
posture that national governments in the two countries would adopt
towards the global struggle being waged between what was
'civilisation' and its supposed antithesis." Need- less to say, none
of these momentous issues can be addressed without ascertaining the
facts surrounding the event. More specifically, "a well-informed
citizenry obviously owes itself the duty of unravelling the facts
behind the attack on a central institution of its democracy. And an
indispensable part of the process of ascertaining facts would be to
establish the motivations that led the Delhi Police into its sordid
saga of fabrication." After describing Afzal's predicaments as a
surrendered militant, Muralidharan observed, "any Indian citizen with
a basic level of civic involvement would be assailed by a number of
questions if she were to take the statements by Afzal in their
entirety". "Indeed", Muralidharan went on to observe, "the
conclusions that any observer who has not surrendered his critical
faculties to the cult of the nation state would be impelled to" are
"fraught with immensely disturbing consequences for the functioning
of the Indian state and, hence, for the health of Indian democracy",
quoting from a recent book on the topic.
Appeal for Inquiry
Going beyond printed words in the margins of the media, a group of
citizens consisting of writers, academicians, lawyers, and
journalists have publicly appealed for a parliamentary inquiry into
the entire episode. A committee chaired by Nirmala Deshpande with
Mahasweta Devi, Rajni Kothari, Prabhat Patnaik, Ashish Nandy,
Prashant Bhushan, Sumanta Banerjee, Mihir Desai, and others as
members, held a press conference within a week of the judgment by the
Supreme Court. In its press statement the committee noted, "Afzal has
been convicted of conspiracy primarily on the basis of statements of
police witnesses and seizures of materials from
him shown by the police, which went un- rebutted during trial,
because Afzal was practically unrepresented in the trial. Be that as
it may, the fact remains that the court has acquitted three of the
four persons charged of conspiracy and has held that the manner and
circumstances in which the confessions were obtained, makes them
unreliable. However, it is only on the basis of these unreliable
confessions that the then government immediately committed the
country to a full-scale war mobilisation against Pakistan with the
possibility that it might have escalated to a nuclear war. The
mobilisation was used by the NDA government for political purposes.
POTA was immediately enacted, and anti-Pakistan as well as communal
feelings were whipped up in the war hysteria which was drummed up
taking advantage of the attack on Parliament." Soon after, the
committee appealed to the members of Parliament in the following
words, with supporting documentation:
Members of the Committee as well as reputed human rights
organisations have been raising serious questions on the con- duct of
the previous NDA government, especially the functioning of the
investiga- ting agencies, in the Parliament attack case. In the
light of the Supreme Court judgment of August 4, 2005, we wish to
draw your attention to these apprehensions.
(1) The NDA government initiated a full- scale mobilisation for
war against Pakistan, saying that the terrorists were Pakistanis
sponsored by the Pakistan govern- ment. The war-effort, which was
sustained for nearly a year, had very serious con- sequences. We have
mentioned them in our public appeal located at Appendix 1. The only
evidence of terrorist conspiracy originating from Pakistan is
Mohammed Afzal's confessional statement. The Su- preme Court has held
that the confession is unreliable. With the confession set aside, we
do not know who attacked Parliament and what was the conspiracy.
(2) Mohammed Afzal, the only person found guilty of conspiracy by
the Apex Court, is a surrendered militant, who was not only supposed
to report regularly to the Special Task Force of J and K, but was
also under their surveillance. How could such a person mastermind and
execute such a complex conspiracy? How could a terrorist organisation
rely upon such a person as the principal link for their operation? On
whose behest was he acting? Is there some credibility to Afzal's
statement, noted at Appendix 2, that both the leader of the attack,
Mohammed, and that one of the masterminds in Kashmir, Tariq actually
belonged to the Special Task Force? What is the significance of the
press report that 4 terrorists including one Hamza - the same name as
one of the terrorists killed in the Parliament attack and supposedly
identified by Afzal - had been arrested by the Thane police in
November 2000 and handed over to the J and K police for further
investigation? The press report is located at Appendix 3. It will
be a travesty of justice to hang Mohammed Afzal without ascertaining
answers to these questions.
(3) With the acquittal of three out of four persons from the
charge of conspiracy, it is clear that the investigating agency tried
to frame at least three innocent persons. The high court had found
the agency guilty of producing false arrest memos, doctoring
telephone conversations, and illegal confinement of people to force
them to sign blank papers. It is also clear that false confessions
were extracted by torture.
In the absence of alternative explanations, it seems that the NDA
government was massively fooled by its own police. The country must
learn the truth behind the attacks. Responsibility must be fixed for
those guilty of negligence, concoction of evidence, and propagation
of deliberate falsehood. Above all, those who almost took the country
to war in such a reckless manner must be made accountable. To that
end, the Committee has already issued an appeal for Parliamentary
inquiry. Some press coverage of the appeal is shown at Appendix 4.
There have been other recent appeals for a public inquiry on the
case, shown at Appendix 5. We urge you to institute a Parliamentary
inquiry at least on the following questions:
(1) Who attacked Parliament and what was the conspiracy?
(2) On what basis did the NDA government take the country close
to a nuclear war?
(3) What was the role of the State Task Force (J and K) on
(4) What was the role of the Special Cell of Delhi Police in
conducting the case?
(5) What institutional and legal changes are required to prevent
a government from going to war unilaterally without the consent of
Parliament as in this case?
The political system has failed to take the steps to answer the grave
questions raised at length by eminent citizens. And the time is
running out for initiating any fruitful inquiry on these questions.
From what we can see through the restricted legal window of the
Supreme Court, just six persons are in view, five attackers and
Mohammed Afzal, as noted. Since the attackers died on the spot,
Mohammed Afzal is the only living soul who, according to the Supreme
Court, might know something of what really happened. Mohammed Afzal
has not been heard yet(Nandita Haksar, Indian Express, September 30,
(Published earlier in The Economic and Political Weekly, October 7, 2006)
Outlook - Web | Oct 17, 2006
RETRIBUTIVE VIOLENCE BY THE STATE
Capital punishment is no deterrence for those who are prepared to die
anyway for a cause. This is in fact likely to create more such
militants. One can deal with such people only by trying to address
their sense of grievance.
by Prashant Bhushan
The fixing of the date for Mohammad Afzal's execution for his
conviction in the Parliament attack case has triggered a lively
debate on the desirability of the death penalty and whether Afzal's
sentence should be commuted by the President in the exercise of his
prerogative powers under Article 72 of the Constitution. The Supreme
Court's recent judgement quashing the exercise of this power by the
Governor of Andhra (who remitted the 10 year sentence to a Congress
party activist for murdering a political opponent), has added further
fuel to this fire. What then is the scope of the Presidential power
of pardon and when can it be judicially reviewed?
Article 72 provides that
"The President shall have the power to grant pardons, reprieves,
respites and remissions of punishment or to suspend, remit or commute
the sentence of any person convicted of any offence-
(a) In all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an
offence against any law relating to a matter to which the executive
power of the Union extends;
(c) in all cases where the sentence is a sentence of death."
This power has been examined in a number of cases by the Supreme
Court prior to the recent Andhra judgment. It has been consistently
(1) The President in the exercise of this power is bound to act on
the advice of the Cabinet;
(2) That the exercise of this power is subject to judicial review;
(3) However, the scope of the judicial review is limited to only
examining whether there has been application of mind by the
government and whether the power has been exercised on extraneous or
(4) Once it is found that the there has been application of mind and
there are no extraneous or malafide considerations, the court will
not interfere with the government's prerogative power by substituting
its own judgment over the government's.
So the crux of the issue is: What are extraneous or malafide
considerations? In this, the recent Supreme Court judgement in Gowra
Venkat Reddy's case essentially does not depart from previous
judgements. Considerations of caste, religion or political loyalty
would be clearly extraneous considerations. In Venkat Reddy's case,
the court came of the conclusion that the pardon was granted for
malafide considerations of political loyalty. However, it has been
held earlier that the government can examine the evidence afresh and
can exercise this power even on the ground that in its opinion
justice has not been done, or that the sentence is unduly harsh. But
what about a case where the government comes to the conclusion that
the execution of the sentence of death would create a strong sense of
alienation among a significant section of people or that it will
encourage and provoke several others to take to militancy? Would that
be a relevant consideration for granting clemency or commuting a
These are the precise questions which will arise in Mohammad Afzal's
case when the government considers the clemency plea on his behalf.
The issues are: Did he get a fair trial and, in particular, did he
have a proper defence lawyer in the trial? Is the death sentence
unduly harsh, considering that he was not guilty of any violent act?
Will his execution seriously alienate people in the Kashmir valley
and push some towards militancy? Will the grant of clemency to him
encourage militancy and inflame feelings of people outside the
valley? These are all relevant considerations for the government.
It would have to decide by taking all this into account.
Afzal in fact did not have a proper defence lawyer. Since the lawyers
that he had wanted refused to appear on his behalf, he was provided
with a novice by the trial court who hardly cross examined any
witness against Afzal. Given the amount of fabrication of evidence
and forced confessions obtained by the police in this case, which has
been found even by the Supreme Court, it is not impossible that the
evidence on which Afzal was convicted may have been rubbished if he
had a proper lawyer in the trial court. Moreover, Afzal has not been
convicted for any overt act of violence but only for providing help
to the terrorists. A court which normally does not award death
sentence in such cases awarded it "to satisfy the collective
conscience of the nation". The government can certainly take the view
that this is not appropriate or that this would alienate and inflame
the collective conscience of the people of Kashmir.
From the opinion polls and the reactions of the people in the Valley
and that of the rest of the country, it is clear that there is a
complete disconnect between the valley and the rest of the country.
The majority of the people outside the valley have no idea of the
level of alienation and anger against India. Far from containing
militancy, the presence of a 6,00,000 strong security forces in the
Valley is only fuelling the militancy. Hanging Afzal is likely to
further fuel the militancy, just as the hanging of Maqbool Bhat did
so earlier. These are all valid and germane considerations for the
I however feel that the death sentence should be commuted in such
cases because the crimes of Afzal or even the terrorists who attacked
Parliament are not committed for personal gain but because they nurse
a strong sense of grievance against the perceived injustice done to
them by the Indian State. Their crime was seen by them as a cause for
which they were prepared to die. Such people can not be deterred by
hanging them. This is in fact likely to create more such militants.
One can deal with such people only by trying to address their sense
More fundamentally, however, capital punishment is a form of
retributive violence by the State which only increases the culture of
violence in any society. This culture has been promoted by B and C
grade Bollywood films which romanticize violence and in particular
retributive violence. That is why, on the basis of deep sociological
analysis, capital punishment, has been abolished in 129 countries of
the world. Violent crimes have decreased in the Countries where it
has been abolished. Even in the US, the incidence of violent crimes
is more in the States which have opted to continue with the death
There are many reasons therefore for commuting Afzal's death penalty.
But given the charged opinions on this issue and with the BJP
threatening to make this a national issue, I doubt that this
government would have the courage to decide this matter on rational
and relevant considerations.
Prashant Bhushan is a senior Supreme Court lawyer.
16 October 2006
POLITICISATION OF THE SERVICES
The propagation of establishment of Hindu Rashtra is a political
activity and attacks the basic structure of the Constitution
by RS Khanna
In India's Parliamentary democracy, the Ministers are accountable to
the lower house of Parliament and continue in office so long as they
enjoy its confidence. The political executive may change with the
party in power losing its majority even before the five yearly
elections. The executive power of the Union and the states vests in
the President and the Governors respectively. This power is to be
exercised by the President or the Governor directly or through
officers subordinate to him.
These officers constitute the permanent civil service or permanent
arm of the executive and are governed by Part XIV of the
Constitution. Perhaps no other constitution has such provision and
this makes our Constitution unique. The civil service and the staff
working under them have to be politically neutral and owe their
loyalty to the Constitution which is secular in nature and based on
the principles of rule of law and equality before law.
Keeping this in view the Central Government and the State Governments
have framed Civil Services (conduct) Rules in accordance with the
powers conferred by Article 309 of the Constitution. Rule 5 of MP
Civil Service (conduct) Rules 1965 states, "No Government servant
shall be a member of or be otherwise associated with any political
party or any organisation which takes part in politics, nor shall he
take part in, subscribe in aid or, assist in any other manner, any
political movement or activity."
This does not however prevent the Government servant from exercising
his right to vote, but where he does so he shall give no indication
of the manner in which he has voted. Rashtriya Swayamsevak Sangh
(RSS) was banned after Mahtama Gandhi's assassination on 4th February
1948 but this ban was removed after it prepared a Constitution which
forsake all political activities and confined itself to purely
religious or cultural activities. But very soon it revived its
ambition of participating in political activities and gave birth to
Bhartiya Jan Sangh and later on to the BJP. In fact the Morarji Desai
Janata Government fell in 1979 on the issue of the then Jan Sangh
members not severing their connection with the RSS. The dual
membership of Jan Sangh members was not acceptable to the other
constituents of the Janata Party. In April 1979 the RSS swore an
affidavit before the Joint Charity Commissioner, Nagpur, in which it
denied being a Charitable Trust or a Religious Trust and stated that
its work is "Cultural and Patriotic" and its object is to create
cultural unity of Hindu Samaj and inspire them to become patriotic
and create a strong Hindu Rashtra for all sided development of Bharat
So far as politics is concerned it clarified that it does not indulge
in politics that is day-to-day politics, though the Sangh has a
political philosophy within its wide sweep of cultural work. It is
possible for the Sangh to change this policy and even participate in
politics. The policy can be changed at any time. It has not yet
started participating in politics openly though it is doing so
clandestinely through BJP. In the affidavit sworn before the Joint
Commissioner it states that its activity is "akin to politics". It
deputes its Pracharaks in the apex bodies of the BJP on deputation.
BJP cannot have its President or other office-bearers unless they
enjoy the confidence of the RSS. Advani had to relinquish
presidentship of the BJP (2005) under pressure from the RSS.
The MP Government had imposed a ban on Government servants
participating in RSS activities in 2000. It has now repealed the ban
by its order dated 14th August 2006. The repeal of the ban permits
the Government servants to clandestinely participate in the
activities of the RSS which are not purely cultural and/or religious.
The propagation of establishment of Hindu Rashtra is a political
activity and attacks the basic structure of the Constitution, which
is secular in character. The Gujarat government was compelled to
revoke repealing the ban under pressure from the Vajpayee government.
Another problem in continuing with the repeal of the ban is that the
Central Government would always take it as a negative point for
promoting state government officers to All India Services, as the
officers of the State Government would be regarded with suspicion of
being participants in RSS activities. This order is also contrary to
the Supreme Court's judgement in September 2006 asking the State
Governments to enact legislation for apoliticising the working of
Police personnel. In order to restore the neutrality and the
impartiality of Government servants in Madhya Pradesh it is necessary
to reimpose the ban.
Buzz on the perils of fundamentalist politics, on
matters of peace and democratisation in South
Asia. SACW is an independent & non-profit
citizens wire service run since 1998 by South
Asia Citizens Web: www.sacw.net/
SACW archive is available at: bridget.jatol.com/pipermail/sacw_insaf.net/
DISCLAIMER: Opinions expressed in materials carried in the posts do not
necessarily reflect the views of SACW compilers.
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