SACW | March 13, 2007 | Pakistan judges's sacking; Sri Lanka human rights monitoring; Bangladesh: Justice for Noorjahan; India: Free speech, gujarat and communal terror

[Harsh Kapoor]

South Asia Citizens Wire  | March 13, 2007 | Dispatch No. 2376 - Year 9

[1]  Pakistan : The Big Chief and the Chief Justice
   i)  Price of 'clinging to power' (Editorial, Daily Times)
   ii) Beware the ideas of March (Editorial, The News)
[2]  Sri Lanka: Once More, The Need For International Human Rights 
Monitoring (Rohini Hensman)
[3]  Bangladesh: Justice for Nurjahan (Shahidul Alam's Blog)
[4]  India: Freedom of expression and Gujarat - Through the smoke 
screen (AG Noorani)
[5]  India: Communalism
  -  A Communalised Gujarat, Modi and Civil Society (Achut Yagnik Interview)
  -  Terrorism: Biased Investigation (Ram Puniyani)

____


[1]

Daily Times
March 12, 2007

EDITORIAL: Price of 'clinging to power'

President General Pervez Musharraf recently explained to a 
Canada-based South Asia analyst why he wanted to stay in office for 
another five years. Simple, as he would say, "to roll back religious 
extremism, ensure political stability and sustain economic growth". 
He wanted to see those who supported moderation win at the federal 
and provincial levels, and his "key concern", he insisted, was 
preventing the Talibanisation of his country, especially the Pushtun 
areas along the Afghan border. General Musharraf repeated his dream 
of converting Pakistan into an "energy and trade corridor" and denied 
vehemently that elements from within the army were sympathetic to the 
Taliban and Talibanisation.

The analyst reached this conclusion: "In his eighth year of rule, 
Musharraf remains very much secure in his position; no domestic 
political force has been able to oust him from power".

The above interview was reported a day ago, at a time when many in 
Pakistan were anguishing about General Musharraf's latest action of 
sacking the Chief Justice of Pakistan in a ruthless, even brutal, 
manner.

The Supreme Court Bar Association (SCBA) and Pakistan Bar Council 
(PBC) have both loudly rejected his "way" of seeking the ouster of 
the Justice Iftikhar Muhammad Chaudhry. They have also disbarred the 
lawyer who had sent his letter of indictment to the chief justice, 
ostensibly prompting the primer minister to advise the president to 
file a reference against the CJP. Editorially, the national press has 
excoriated the government on various counts, including for not 
waiting till the elections had been held and scuttling the good 
impression that it was willing to face litigation at the apex court 
about the matter of President Musharraf's dual office and re-election 
as president of Pakistan.

The truth of the matter is that, notwithstanding the point of law, 
the lawyers' protests are undermining the popular trust reposed in 
the government. As they marched on the roads of the High Court seats 
in the provinces, and in some cases even in the districts, the 
"moderate" lawyers even questioned the wisdom of passing over the 
senior-most judge after the chief justice, Justice Rana Bhagwan Das, 
and instead allowing the second most senior judge to take over. 
Senior retired judges have protested at the way the chief justice was 
called to the Army House and asked to resign with President Musharraf 
sitting imperiously in front of him in military uniform.

If the "moderates" of President Musharraf were fearing the possible 
mobilisation of the masses under the APC call later this month, they 
are now condemned to see a much more ominous foretaste of it among 
the educated class. The lawyers have never accepted governance under 
General Musharraf. While in some cities they have been mobilised 
effectively by the rightwing and religious opposition, now there is 
protest in the length and breadth of Pakistan among a very 
significant segment of society. The more rough-edged political 
mobilisation is yet to come.

Justice Chaudhry may have erred temperamentally when faced by a 
widespread dereliction of the state machinery. One could say that he 
lost his patience when confronted with the complaints and reports 
appearing in the national press about how the state was remiss in its 
duties and how the outlaws were defying its writ. He may have become 
isolated in his unrealistic passion to set things right, but the 
challenges he presented to the government were popular with the 
people. How can we blame the people if they desire extremism also in 
the act of correction, since that extremism has now become endemic in 
Pakistan.

In a way, Justice Chaudhry fell to the conditions that might soon 
challenge President Musharraf himself. There are large chunks of 
territory where there is no law, and instead of being rolled back 
this territory is spreading like a stain of blood and swallowing up 
the areas under law. In Balochistan, instead of ending the "area B" 
conditions of lawlessness, the province is in the grip of insurgency 
and terrorism. In the Tribal Areas, President Musharraf's "peace 
agreements" have actually worsened the social conditions and the 
population is now looking more for security - which may come from the 
Taliban - than the writ of the Pakistani state.

In his 8th year, President Musharraf must realise that he has not 
succeeded in achieving what he had promised to the nation in 1999 and 
2002. He had also made pledges to the international community which 
the international community increasingly feels he has not been able 
to fulfil. What should his response be to this situation? Should he 
acknowledge and leave - and he will be remembered for what he has 
achieved in many aspects of governance - or should he be spurred by 
his failure to insist on staying on?

Anybody looking at the developing scenario in Pakistan and abroad 
would say he should democratise Pakistan and let Pakistanis decide 
his case. He should allow the assemblies to be elected in a free and 
fair election - and that will mean restoring the confidence of a 
rejectionist opposition with certain electoral reforms - and then let 
the new legislatures re-elect him in accordance with the 
Constitution. After eight years in power, it is also time that he 
retired from the army and became a civilian president, if the 
parliament so agrees. *

o o o


Editorial, The News, March 11, 2007

BEWARE THE IDEAS OF MARCH

To say that the 'suspension' of the Chief Justice of Pakistan, 
Iftikhar Mohammad Chaudhry, upon the filing of a reference by 
President Pervez Musharraf under Article 209 of the Constitution is a 
controversial move would be an understatement. The chain of events 
set in motion on Friday by the filing of the reference is only going 
to further exacerbate the rocky relationship between the executive 
and the judiciary. First the facts as they stand: the president does 
have the constitutional right to file a reference under Article 209 
with the Supreme Judicial Council (SJC) if he receives "information" 
that a judge of the Supreme Court or the High Court "may be incapable 
of properly performing the duties of his office by reason of physical 
or mental incapacity or may have been guilty of misconduct". The 
chief justice was, according to several news reports, summoned to 
meet the president at the latter's camp office where he was asked to 
explain the allegations in the letter. Accord
ing to the official APP news agency, he failed to give a satisfactory 
defence and was told that a reference was being sent to the SJC 
against him on the grounds contained in the letter (this was also 
corroborated by the minister of state for information in his 
appearance on a TV show). The SJC comprises the chief justice of the 
Supreme Court, the next two most senior judges of the Court and the 
two most senior chief justices of the high courts. Since Justice 
Chaudhry himself would be heading the SJC in normal circumstances, 
his place will be taken by the Acting Chief Justice of the Supreme 
Court, Javed Iqbal. However, it is unclear whether Justice Rana 
Bhagwandas, next in seniority after Justice Chaudhry and reported to 
be presently on leave abroad, will be included in the SJC when it 
takes up the presidential reference this coming week. Of course, all 
this may come to naught -- the hearing of the reference by the SJC, 
that is -- if Justice Chaudhry chooses to resign.

The facts, however, do not end there. The basis of the reference, 
according to the minister of state for information who said this to a 
private television channel on Friday, seems to be a letter written by 
a Supreme Court advocate and otherwise well-known personality which 
contained allegations that Justice Chaudhry had turned his courtroom 
into a "slaughterhouse", that he was seeking protocol over and above 
that due to someone holding his post, that he used his influence to 
get his son posted in the police after he failed to qualify and that 
he would announce short orders but would change the verdict in the 
written judgement. There were other allegations as well but these 
seemed the more substantive ones. However, no allegations of 
financial impropriety have been laid in the letter (the text of the 
reference, though, has not been made public). As far as the issue of 
appointment of the acting CJ is concerned, the ministers of the 
government have been saying that the next mos
t senior judge, Justice Rana Bhagwandas, who should have been 
appointed according to the Constitution, was on leave and outside the 
country. Given this peculiar situation with a reference filed against 
the chief justice himself, if the reference is indeed heard by the 
SJC there may arise the possibility that one of its members benefits 
from its eventual outcome.

It would be fair to assume that many people will see this run of 
events with suspicion. In fact, some have linked it to a statement 
made by a leading politician recently linking a possible declaration 
of a state of emergency as a justification for extending the National 
Assembly by one year. Many will also link the action taken by the 
government with the fact that the chief justice was a strong 
proponent of judicial activism and that some of this may have stepped 
on powerful toes. For example, the Supreme Court struck down the 
Pakistan Steel Mills privatisation deal which was an embarrassment 
for the government, took strong note of the New Murree project which 
had strong vested interests backing it, and of late had been 
regularly hearing petitions filed by relatives of citizens claiming 
that the latter had been detained incommunicado by government 
intelligence agencies. During the course of these hearings, 
revelations came to light which again caused some embarrassment for t
he government because some of the disturbing allegations seemed to 
have been correct.

As already pointed out earlier, the Supreme Judicial Council is to 
meet this coming week and has invited Justice Chaudhry to present his 
side of the story. Pending that hearing and pending the SJC's 
examination of the said reference, and upon receipt of its 
recommendations by the president, Justice Chaudhry will not perform 
his duties as Chief Justice of Pakistan. Because this hearing is yet 
to take place, it is premature to comment on this aspect of the 
matter. However, questions are bound to (and should) be asked, 
especially about the manner in which the chief justice was summoned 
and the reference against him filed on the basis of a single letter 
(so far we have been made to understand that this is the case). Some 
jurists, among them former Supreme Court judges and lawyers of 
considerable standing, have questioned the government's decision to 
suspend the chief justice: they say that while the filing of the 
reference is very much within the president's powers under Article
  209, the matter of suspending the highest judicial officer in the 
land is not. The argument -- a cogent one -- runs along the following 
lines: it is a canon of justice that no one should be condemned 
unheard and that suspension is not something envisaged under the said 
article. Of course, common sense would require that any judge against 
whom a reference has been filed with the SJC and if he is eligible to 
be a member of the SJC should himself step aside. However, so the 
argument goes, this is not something that Article 209 is categorical 
about. Of course, there is also the general observation -- being made 
across the board -- that the allegations mentioned in the letter may 
be difficult to prove other than the posting of Justice Chaudhry's 
son for which there may well be documentary evidence (such evidence, 
however, may well implicate the government itself, since it would 
show that it acquiesced to the request). Further, should a request 
for protocol be held against any pa
r
ticular government officer given that it is now the norm for senior 
state functionaries to expect such treatment? These arguments and 
counter-arguments are bound to go on and may well intensify in the 
coming days but one thing is for sure: what happened in Friday is 
certainly not a red letter day as far as the state and its 
relationship with the judiciary is concerned. One now waits anxiously 
for the SJC's meeting scheduled for this Tuesday -- provided nothing 
further happens before that.


______


[2]

The Lanka Academic
March 12, 2007

ONCE MORE, THE NEED FOR INTERNATIONAL HUMAN RIGHTS MONITORING

by Rohini Hensman

The recommendations of Allan Rock to the UN Security Council on 9 
February show that the issue of the Sri Lankan government's 
complicity in the conscription of child soldiers has to be addressed. 
There have been two responses to this charge. The Sinhala 
nationalists have shouted themselves hoarse, proclaiming this is a 
smear propagated by pro-LTTE institutions.  (Apparently they have not 
noticed that Mr Rock made even harsher criticisms of the LTTE.) And 
the President has promised an enquiry into the charge, even as other 
members of the government dismiss it as false.
Neither of these responses carries any conviction. When US government 
spokespeople deny that their forces have killed thousands of innocent 
Iraqi civilians, no one who is intelligent and well-informed believes 
them, because all the evidence points to the truth of the 
allegations.  When the LTTE denies having killed Rajiv Gandhi, 
Lakshman Kadirgamar and Hindu priest Selliah Parameswara Kurukkal, no 
one believes them either, because the evidence goes against them. 
Similarly, convincing evidence has been presented demonstrating that 
children have been abducted by Karuna's forces in the East with the 
collusion of the armed forces. Why should we believe the denials of 
the Sinhala nationalists rather than the human rights activists and 
organisations making the allegations?

Those making the allegations are charged with supporting the LTTE, 
but it is surely the Sinhala nationalists themselves who are boosting 
the credibility of the LTTE by misrepresenting Sinhalese people as 
power-hungry maniacs, and thus reinforcing the argument that Tamils 
need a separate state. They have not contributed an iota to defeating 
the LTTE, although Sinhala nationalists in the state security forces 
and the JVP certainly proved their ability to massacre tens of 
thousands of Sinhalese between 1987 and 1991 - far more than the LTTE 
has killed!

It is precisely the people they vilify who have worked tirelessly to 
defeat the LTTE. It is Tamil human rights activists who exposed the 
human rights violations of the LTTE at the risk of their own lives, 
and in many cases paid a heavy price for their courage, getting 
killed or driven into exile. Along with Tamil politicians opposed to 
the LTTE, they have performed the almost impossible task of shifting 
the international perception of the LTTE as the sole representative 
of Tamils in Sri Lanka, exposing the totalitarian, murderous methods 
by which they sought to project themselves in this role. If anti-LTTE 
Tamils are today saying that government forces are implicated in the 
abhorrent practice of child conscription, then we certainly have to 
take them seriously.

The UN and organisations like Human Rights Watch also played a 
crucial role in the set-backs suffered by the LTTE. The Sri Lankan 
armed forces have fought equally well in the past, and have been 
defeated. If today the LTTE is unable to retaliate with the same 
ferocity, it is in large measure due to pressure from these 
international bodies on various governments to clamp down on the 
LTTE's acquisition of funds and military supplies in their countries. 
If the UN and Human Rights Watch are accusing government forces of 
aiding and abetting the conscription of children and abduction of 
young men, then we have to take them seriously too.
Given the seriousness of the charges, a promise by the government to 
look into the matter is a totally inadequate response. How can anyone 
take a criminal investigation seriously if it is conducted by the 
institution accused of the crime, especially when the institution 
denies that the crime was committed at all? This example also exposes 
the limitations of the Commission of Enquiry into Extrajudicial 
Killings and Disappearances, and the International Independent Group 
of Eminent Persons (IIGEP) appointed as observers of its work. While 
the setting up of these bodies is a welcome move, their terms of 
reference are far too narrow.  Restricting the coverage of the 
enquiry to a small number of cases, in most of which there has been 
ample opportunity for the perpetrators to cover their tracks, destroy 
evidence and terrorise witnesses, makes it useless as a means of 
preventing the gross violations of human rights taking place every 
day. And lack of capacity to carry out rigorous criminal 
investigations makes it unlikely that successful prosecutions would 
follow.

There is an Alternative

There is an alternative, which has been proposed repeatedly by human 
rights groups and activists, and that is UN-backed international 
human rights monitors who would have the capacity and authority to 
investigate allegations of human rights violations on the spot, and 
report their findings directly to the public as well as to the 
government. If the TMVP and the government are sincere about wanting 
to end abuses like child conscription, abductions and extrajudicial 
killings, they would welcome such a body. It would confirm their 
claimed innocence, and allow them to prosecute individuals who might 
be involved in such activities.

The SLMM has discredited international monitoring by turning a blind 
eye to gross human rights abuses by the LTTE, but this would be 
different. The SLMM was not set up to monitor human rights, nor did 
it have the expertise to do so; its task was to monitor violations of 
the 2002 CFA, which had an inbuilt bias towards the LTTE. 
UN-appointed human rights monitors would have a different agenda, and 
would be qualified to monitor human rights.  Not being tied to the 
2002 CFA, they would have no reason to ignore or downplay abuses by 
the Tigers.

If, then, the government refuses to request an international human 
rights monitoring mission to work in Sri Lanka, we can only conclude 
that it is perpetrating and/or complicit in human rights violations 
which it wants to hide. In the absence of any neutral body capable of 
investigating and reporting on violations, it is only too easy to 
claim that all the rampant abuses taking place are the work of the 
LTTE. The Tigers are happy with this arrangement too, because it 
allows them to do exactly the same thing, attributing their own 
crimes to the government and TMVP. The general public and 
international community, unable to find out which crimes were 
committed by whom but able to see quite clearly that both sides are 
lying, can only conclude that both are equally guilty.

Thus the government becomes an accomplice in covering up the LTTE's 
crimes, and simultaneously tars itself with the same brush that it 
uses to blacken the LTTE. This is not very intelligent behaviour, and 
could have disastrous consequences if similar sanctions to those that 
have been enforced against the LTTE are also enforced against the 
government, on the grounds that it and its allies are committing the 
same war crimes (attacks on civilians, child conscription, etc.) as 
the LTTE.

What is to be Done?

While only the Norwegian mediators could be foolish enough to suggest 
that the government open a second front in the war by attacking 
Karuna, the government's current course of action is equally 
dangerous. The president's military and civilian advisors seem to 
have suggested handing over the East to Karuna as a de facto separate 
state governed by different laws from the rest of Sri Lanka, in order 
to get his assistance in defeating their common enemy the LTTE, just 
as Premadasa armed the LTTE in order to get Prabhakaran's assistance 
in getting rid of their common enemy, the IPKF. No doubt they think 
that Karuna can be deprived of power once the LTTE is defeated, just 
as Premadasa may have thought he could contain the LTTE once the IPKF 
had gone, but this could be a suicidal strategy, as Premadasa found 
to his cost.

A more sensible course of action would be to tackle the problem while 
Karuna is as dependent on the GOSL as the government is dependent on 
him, and negotiate a human rights agreement with him which binds both 
sides to renounce human rights violations such as abductions, attacks 
on civilians and child conscription. There would not be any need for 
a mediator in these negotiations, but Ian Martin, the human rights 
expert earlier involved in the peace process, and/or Professor Philip 
Alston, could be consulted about formulating the agreement. This can 
then be monitored by an independent international human rights 
monitoring mission. Karuna has already pledged to release all the 
child soldiers in his forces, stop recruiting children in the future, 
and provide the UN with access to his military camps, so this would 
merely be a means of verifying that he is complying with his 
commitments. If he wishes to displace the LTTE in the East, he must 
prove to the people there that he is better than Prabakaran.  The 
government, in return, should provide security to TMVP cadre and 
offices, and funds to pay adult, voluntary recruits, so that the 
temptation to kidnap people, as fighters and labourers or for ransom, 
is removed.

It would help the government to avert a potentially embarrassing 
situation if it were to offer the new human rights agreement to the 
LTTE as well.  That would also appease members of the international 
community like the British Foreign Minister, who are putting pressure 
on the government to resume negotiations with the LTTE. A proposal 
for a human rights agreement that would end the most evil 
consequences of the war would have to be taken seriously by the 
international community as a valid way to push the peace process 
forward.

It may be difficult for the government to rein in war criminals in 
its own ranks and in its armed forces, having given them a free run 
for far too long. Yet it is absolutely vital that it should do so, if 
it wishes to preserve any semblance of credibility among Tamils and 
the international community. Here, again, the presence of 
international monitors would ameliorate the difficulty, by 
constituting a neutral body which can be presumed to be free from the 
factional conflicts and paranoid accusations currently plaguing even 
the ruling party.

The Importance of Command Responsibility

Sri Lanka's legal system too would need to be overhauled in order to 
deal with the problems it now faces, bringing it into line with 
international law. The importance of the doctrine of command 
responsibility can be assessed from the fact that in its absence, it 
would not be possible to convict Prabakaran in a court of law for any 
of the countless crimes committed by the LTTE, since it would be 
impossible to prove that he even commanded them, much less that he 
was physically present when they were committed or played any part in 
them. It is only through the doctrine of command responsibility - 
according to which a person who is in command of a military force is 
held to be responsible for war crimes committed by them if he knew, 
or should have known, of them, and did not prevent them or punish 
those responsible for them - that he could be found guilty of these 
crimes.

This is an integral part of the Rome Treaty of the International 
Criminal Court, which Sri Lanka should sign and ratify. But even 
without doing so, it can bring its legal system into line with the 
provisions of international law. This would ensure that in future, 
war criminals can be brought to justice, instead of being allowed to 
get away scot free as they have in the past. The late 1980s showed us 
where the culture of impunity can take us if it is allowed to grow 
unchecked, and that is not a place which any sane person would want 
to revisit.

Racism, Communalism and Small Brains

Some years ago, an anti-racist poster in Britain consisted of a large 
rectangle divided into four quarters. In the first three quarters 
were identical large brains, labelled something like 'European,' 
'African' and 'Asian'. In the last quarter was a tiny brain, labelled 
'Racist'. We could adapt this poster for use in Sri Lanka, by 
labelling the first three brains 'Sinhala,' 'Tamil' and 'Muslim'. But 
we would need two peanut-sized brains in the last quarter, labelled 
'Sinhala nationalist' and 'Tamil nationalist'. Not only are the 
brains of these people too small to grasp notions of equality, 
justice and democracy, they are not even capable of acting in their 
own strategic interests. In the 1980s, the LTTE had the sympathy of 
the majority of Tamils and the international community. If they now 
seem to be limping along, it is largely a consequence of Prabakaran's 
propensity to shoot himself in the foot by alienating Tamils, the 
international community, and even his own second-in-command, Karuna. 
On the other side, the Sinhala nationalists seem to be trying to do 
the same thing, alienating all the support successive governments 
have managed to garner over the past decade.

Instead of allowing itself to be pushed into this suicidal course, 
the government should be retaining its supporters and disarming its 
critics among Tamils and the international community by inviting an 
international human rights monitoring mission to investigate and 
report on violations on an ongoing basis, and prosecuting those who 
are found guilty of such violations. It is only such measures, along 
with maximum devolution within a united - not unitary - Sri Lanka, 
which can defeat the separatist struggle of the LTTE politically. 
There is no other way in which a victory can be won.

Fortunately, small-brain disease is not congenital, but seems to be 
the result of an attack by the lethal virus of racism/communalism. 
Children can be protected from this disease and it can be prevented 
from spreading by putting those who suffer from it in quarantine. 
Isolating ethnic nationalists of all varieties and combating their 
violent and undemocratic agendas are crucial elements of a strategy 
to restore to health the body politic in Sri Lanka.

______


[3]

http://shahidul.wordpress.com/2007/03/10/

JUSTICE FOR NURJAHAN

Photographs Shahidul Alam
Text Rahnuma Ahmed

It was reported in the papers as suicide. On 10 January 1993 
Nurjahan, a woman in her twenties from a struggling peasant household 
from the Maulvi Bazar district of north-east Bangladesh, was found 
dead from poisoning at her parents' house in the village of 
Chattokchara.

Nurjahan's death has raised many issues for the Bangladeshi women's 
movement. Her tragedy has highlighted the manifold forms of women's 
subordination within marriage, the family  and within the community. 
First, Nurjahan was abandoned by her husband. Then it was the imam 
who held the knowledge about whether she was free to marry, and he 
misled her. Finally, it was the members of the shalish, all men, who 
judged and punished her.

There are few reminders of Nurjahan herself. Of her belongings, a 
torn corner of a shari, and a shawl she was wearing when she died, 
have been put aside. Her few remaining clothes were being worn by 
women in her family. Her only other belongings, a pot and two pans. 
were being used by her mother.
The family has no photographs. Her grave, like that of the shordar is 
a small clearing on a hillock near the village, scarcely recognisable 
as such. The district commissioner promised that the site will be 
named "Nurjahan tila".

The government, in turn, announced that a road would soon be built to 
Chattokchara. However, in all likelihood, this is probably more 
significant for visiting journalists and officials, than for her 
family.

The exhibition is being held to commemorate International Women's Day 
and staged in collaboration with Ain O Shalish Kendro (ASK), a legal 
rights organization and Drik's long standing partner. Dr. Hameeda 
Hossain, co-founder of ASK will speak on the occasion.

The exhibition will be inaugurated at 5:00PM on Monday, March 12th, 
2007 at the Drik Gallery in House 58, Road 15A, Dhanmondi, Dhaka 
-1209. The show will remain open till 22 March 2007 everyday 3 pm to 
8 pm. Free Admission.

Vellore
11th March 2007

______


[4]

http://communalism.blogspot.com/2007/03/through-smoke-screen.html

Hindustan Times

THROUGH THE SMOKE SCREEN

AG Noorani

March 12, 2007

'How can Parzania ever be shown [in Gujarat] without our approval?" 
Babu Bajrangi claimed. Who is he and what is the film about?

Bajrangi is the principal accused in the Naroda Patiya massacre case, 
where more than 100 people were killed during the Gujarat pogrom of 
2002. He has two other claims to fame: involvement in a project to 
kidnap Hindu girls married to non-Hindus and force them to divorce 
their husbands and the bashing up of young couples on college 
campuses or gardens. For one such act, he was arrested on December 12.

What is the film about? On February 28, 2002, Azhar Mody went missing 
from Gulberg Society in Ahmedabad. The family had taken refuge in the 
home of Ehsan Jaffri, who himself was the one the mob was after. Many 
were killed besides him. Azhar got separated in the chaos and has not 
been found since. The film is about his parents' desperate search for 
him. His father, Dara Mody, had hoped that after watching the film, 
"Amdavadis would be sensitised to our plight. But it seems one 
powerful person decides which films people can watch". Bajrangi could 
not have gone so far unless he had the tacit support of Chief 
Minister Narendra Modi, judicially called the Neo of our times.

The film's director, Rahul Dholakia, scion of an eminent Gujarati 
family, belongs to the city and has known the family since 1996. He 
shared their grief. "Most of all, I felt the pain of a mother's 
heart." The film is not about the pogrom. It is about "the trauma and 
anguish of a simple Parsi family which calls Ahmedabad its home, got 
caught in the 2002 riots, and which lost a young son... I decided to 
make a film to tell the world about their search. No person involved 
in this film is expecting monetary benefits". It stars Naseeruddin 
Shah and Sarika.

Dholakia was flatly told by everyone, including the president of the 
Gujarat Multiplex Owners Association, Manubhai Patel, that the film's 
release needed Bajrangi's consent. On February 6, Patel, after 
meeting Bajrang Dal activists and Dholakia, said, "As of now, we have 
taken a decision not to show the film. Though the police have 
promised protection to multiplexes, we don't want to take any 
chances." Neither he, nor Bajrangi, nor any of the Bajrang Dal 
members who sat at the meeting had seen the film. Bajrangi declared, 
"I will not disclose my strategy but I will certainly do something to 
ensure that the film is not shown here."

Dholakia disclosed that one of the theatre owners was tipped off that 
the state government "had taken a decision on not showing Parzania"; 
not by this devious stratagem. Dholakia asks, "If Amu, a film based 
on the anti-Sikh riots of 1984, or Black Friday, on the Mumbai serial 
blasts of 1993, could be screened, why not Parzania?"

The question, though legitimate, is pointless in the face of 
officially-supported mob terror. As businessmen, theatre owners 
submit. Mahesh Bhatt's film Zakhm  suffered this fate and so did 
Fanaa. In Gujarat, the real issue is whether the law is powerless to 
foil unofficial bans by the State, using or condoning the mob.

It is not. The fundamental right to freedom of speech and expression 
implies the right to receive information and the business of running 
the 13,500 theatres in the country is, in the words of the US Supreme 
Court in a different context, a business "affected with a public 
interest". It involves not only the owners' right to exhibit but also 
those of the viewers to watch films. Some nuances and concepts on the 
right, while well-known abroad, are little developed in India.

Free speech involves pluralism, democracy and the public good in free 
debate. Theatre owners' rights are not absolute. As our Supreme Court 
ruled, they "have no unrestricted right" to exhibit films. "They are 
carrying on the business under a licence containing the terms and 
conditions" prescribed by law. The court has upheld S.12 (u) of the 
Cinematograph Act, 1952, which empowers the Government of India (GOI) 
to issue directions to licensees to exhibit films which are or 
intended for educational purposes, or deal with "news and current 
events", documentaries or "indigenous films". They are produced by 
the Films Division of the GOI.

This law is aimed at "promoting dissemination of ideas, information 
and knowledge to the masses so that there may be an informed debate 
and decision-making on public issues". It is designed "to further 
free speech and expression and not to curtail it". It would be 
another matter if "a propaganda film" is imposed on the owner or "a 
film conveying views which he objects to". It noted that films play 
an important role in a country where illiteracy is widespread and 
access to knowledge is limited.

Since none of the theatre owners had seen Parzania, the question of 
it "conveying views which he objects to" does not arise. What is in 
issue is the collective decision made under coercion not to exhibit a 
particular film and, relatedly, the state government's tacit support 
to Bajrangi. This affects the people's fundamental right to watch the 
film. The US Supreme Court's ruling is decisive: "The people as a 
whole retain their interest in free speech by radio and their 
collective right to have the medium function consistently with the 
ends of purposes of the First Amendment (Guarantee of Free Speech). 
It is the right of viewers and listeners, not the right of 
broadcasters, which is paramount." This applies to theatre owners, no 
less.

It ruled later that the goal is to achieve "the widest possible 
dissemination of information from diverse and antagonistic sources". 
The public interest is harmed by a system "heavily weighted in favour 
of the financially affluent or those with access to wealth" - or 
those who enjoy official support to terror, one might add.

Our Supreme Court has agreed with both these rulings. Relevant is the 
analogy of picketing; permissible as an "expression" of protest; not 
as "action" that obstructs others.

Professor Eric Barendt asks: "What if the principle media of 
expression are controlled by particular individuals or corporations 
and they deny members of minority groups the opportunity to express 
their views... should or may government intervene to promote freedom 
of expression in the interests of pluralism." The French Conseil 
ruled that the right to free speech conferred on readers a right to 
choose. "Media pluralism is a constitutional value." Our Supreme 
Court has, however, repeatedly drawn a distinction between the print 
media and TV and films. Some curbs on the latter are permissible.

The Supreme Court has ruled that "the State cannot plead its 
inability to handle the hostile problem. It is its obligatory duty to 
prevent it and protect the freedom of expression". In Gujarat, the 
State has itself supported, if not created, the forces of 
intimidation.

The court can do two things - order Modi to prosecute Bajrangi and 
associates and pay damages for violating Dholakia's right to screen 
films. The theatre owners should be given an option to respond. They 
did not object to the contents of the film. If they do on the merits 
they should be heard. But if their refusal is capricious, they can be 
ordered to screen the film. The citizen's right to see Parzania must 
be upheld.

The case is a challenge not only to the legal system but to India's 
artistic and intellectual community and its plural polity. Centuries 
ago, Solon, when asked how a people could preserve their liberties, 
replied, "Those who are uninjured by an arbitrary act must be taught 
to feel as much indignation at it as those who are injured."

______


[5]  [Among other additions at Communalism Watch]


A COMMUNALISED GUJARAT, MODI AND CIVIL SOCIETY

[This is a two part interview with Achut Yagnik. Part I: 'There is no 
civil society in Gujarat'; Part II 'The Congress is No Match for 
Modi']
http://communalism.blogspot.com/2007/03/communalised-gujarat-modi-and-civil.html


TERRORISM: BIASED INVESTIGATION

by Ram Puniyani
http://communalism.blogspot.com/2007/03/terrorism-biased-investigation.html

_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/

Buzz for secularism, on the dangers of fundamentalism(s), on
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