SACW | May 14-15, 2008 / Sri Lanka: custodial violence / Nepal in the woods / India - Pakistan How Many More Bombs ? / India: Citizens statement on Jaipur blasts / Set Binayak Sen Free

Harsh Kapoor aiindex at gmail.com
Wed May 14 17:49:57 CDT 2008


South Asia Citizens Wire | May 14-15, 2008 | 
Dispatch No. 2516 - Year 10 running

[Please note, SACW dispatches are going to remain 
interrupted between 16 May - 1 June 2008] 

[1]  Sri Lanka: The long shadow of custodial abuse (Kishali Pinto Jayawardena)
[2]  Nepal: Not out of the woods yet (Editorial, Nepali Times)
[3]  Pakistan: Security state syndrome (Javid Husain)
[4]  India - Pakistan Nuclear bombs: 10 years ago 
they tested them - Now, they are training to use 
them
      (i) Ten Years of the Bomb  (Zia Mian)
     (ii) A negative balance sheet (Praful Bidwai)
[5]  India: Jaipur Serial blasts - Statement by Concerned Citizens
[6]  India: Seeking freedom for Binayak Sen - Editorials from the Indian Press
      (i) Set Binayak free (The Hindu)
     (ii) Who's afraid of Binayak Sen?
[7] Dealing with discrimination in India (Tarunabh Khaitan)

______


[1]

Sunday Times, May 11, 2008

THE LONG SHADOW OF CUSTODIAL ABUSE

By Kishali Pinto Jayawardena

The ongoing conflict in the country has often 
been ingeniously used by governments of the 
Peoples Alliance as well as of the United 
National Party to justify the most horrendous 
abuses. Clearly however, the abuse of the law is 
not limited to periods during which conflict has 
heightened in Sri Lanka. Indeed, the failure of 
constitutional guarantees and judicial 
interventions are equally apparent during those 
past rare intervals when there has been a 
cessation of hostilities and the emergency had 
been allowed to lapse.

During these intermittent periods, brutal 
practices of arrest, detention and interrogation 
by the police, particularly towards petty 
criminal offenders and persons mistakenly 
suspected of crime, have been well documented. 
Clearly, the long shadow cast by unlimited powers 
under the emergency has continued to encompass 
custodial abuse, even during a time when the 
normal law was in force. It was as an effort to 
meet this general situation of non implementation 
of the rule of law that the 17th Amendment to the 
Constitution was enacted by the House in 2001. 
Its negation is however, yet continuing, despite 
pious promises by the Minister of Constitutional 
Affairs who heads the Parliamentary Select 
Committee on this issue.

A practical instance of abuse

The long shadow cast by emergency law is well 
illustrated in a relatively recent instance which 
owes nothing to emergency measures taken in a 
context of conflict. This case concerned a rights 
plea filed by an Assistant Superintendent of 
Customs R.P.A.L. Weerawansa, who was arrested by 
the Criminal Investigation Department (CID) on 
30th of April, 1996 under Section 6(1) of the 
PTA. The impunity with which emergency law is 
utilized is seen by the circumstances of his 
arrest and detention. First, he was detained up 
to the 2nd May, 1996 under PTA Section 7(1). From 
2nd May to 2nd October of that year, he was 
detained by ministerial orders under PTA Section 
9(1). Thereafter, he was transferred into the 
custody of the Customs and detained from 3rd 
October to 31st December under a magisterial 
remand order.

Yet, the entire arrest and detention was ruled to 
be unconstitutional by the Supreme Court on the 
basis that there was no reasonable suspicion 
established of any unlawful activity on his part 
(Weerawansa v Attorney General ((2000) 1 SLR 
387). It was held that his arrest as well as his 
subsequent detention was unconstitutional. The 
subsequent detention in terms of PTA Section 9(1) 
by ministerial order, ostensibly on the basis 
that there was "reason to believe or suspect" 
that such person is concerned in unlawful 
activity was also ruled to be unconstitutional as 
the continued detention had been at the instance 
of the CID, which had merely informed the Defence 
Minister, (then President Chandrika Kumaratunge) 
of their willfully false and unreasonable 
conclusions, thereby misleading her. There had 
been no independent exercise of judgment by the 
Defence Minister.

Interestingly, Justice MDH Fernando writing for 
the Court, took the view that the later remand 
orders by the Magistrate, Harbour Court made 
under the ordinary law, was also in violation of 
Mr Weerawansa's rights. Several such orders of 
remand had been made even though the Magistrate 
or the acting Magistrate did not visit or 
communicate with him. This offended a basic 
constitutional safeguard in Article 13(2), that 
judge and suspect must be brought face to face 
before liberty is curtailed. This was not an 
obligation that could be circumvented by 
producing reports from the police. A previous 
judicial view expressed in Farook v Raymond 
(1996) 1SLR, 217) that such remand orders, where 
they concern a patent want of jurisdiction, 
cannot be safeguarded under the cover of being 
'judicial acts' with consequent immunity from 
fundamental rights challenge. It was the 
executive which had the custody of Mr Weerawansa 
from 3rd October, 1996 and so his detention was 
by unlawful executive or administrative action.

Revision of investigative and prosecutorial structures

Decisions such as these had powerful impact on 
individual petitioners who were given releif from 
the excesses of state officials. However, it is a 
fact that the jurisprudence of the Court did not 
lead to a noticeable reining in of the use of 
emergency powers by governments. This was due to 
several reasons, not the least of which was that 
public interest litigation asserting the rights 
of detainees was not possible within the 
restrictive provisions of Sri Lanka's 
Constitution, unlike in the Indian constitutional 
context. Thus, where arrests and detention under 
emergency law were specifically concerned, many 
of the detainees themselves, once freed from the 
shackles of unjustified detention, were reluctant 
to push the issue further in the public forum, so 
as to urge action beyond individual relief. And 
though individual decisions were many, 
particularly during the early nineties and 
thereafter, there was no collective momentum for 
a push for actual legal reform. Ideally, such a 
campaign could have positioned constitutional and 
statutory reform as its core objective, having in 
mind an overall revision of the applicable 
investigative and prosecutorial structures. 
However, this was not to be. The consequences of 
the absence of such a campaign are seen currently 
where emergency law is now being used to its 
fullest extent with the inevitable result that 
innocents are caught up in its toils.

Bypassing of the question of enforced disappearances

In the second instance, though the Supreme Court 
endeavoured to restrain state power to the 
fullest extent possible in terms of its 
constitutional powers, it signally failed to 
address the question of enforced disappearances. 
The constitutional omission of the right to life 
as well as the omission of a specific prohibition 
on disappearances meant that family members of 
the disappeared could not directly come before 
the Court.

It was only very recently that Sri Lanka's Court 
in some decisions affirming a right to life as 
negatively implied from exisiting constitutional 
provisions, held that the next-of-kin, intestate 
heirs or dependants would be able to sue the 
wrongdoers for the unlawful death so 
caused(Perera vs Iddamalgoda 2003 [2] SriLR, 63), 
Wewalage Rani Fernando case, SC(FR) No 700/2002, 
SCM 26/07/2004)..But these were recent 
developments and in any event, were restricted to 
two or three cases. It was not a principle 
applied generaly across the board. None of these 
cases moreover involved violation of rights in a 
situation of conflict. Their general 
applicability is not a matter that ought to be 
taken for granted. The legal remedy available for 
these victims was, rather, to invoke the 
jurisdiction of the Court of Appeal in writ 
applications of habeas corpus. However, this 
remedy had proved to be largely inefficacious due 
to the tremendous delay in the final 
determination of the applications.

Need for concerted legal reform

These are matters of utmost importance that need 
to be addressed by the legal community, officers 
of the Attorney General and the ministerial arms 
of the government. The many deficiencies both in 
the theoretical formulation of laws and their 
practical implementation cannot be dismissed by 
superficial legal reform or by absurdities such 
as the so called International Covenant on Civil 
and Political Rights Act No 56 of 2007.

The demonstrated non-working of the Convention 
Against Torture and other Inhuman and Degrading 
Punishment Act No 22 of 1994 is another good case 
in point as has been repeatedly pointed out in 
this column. Instead of laws with grandiose 
titles and no little impact in practical reality, 
we need to see a concerted and genuine effort by 
the government to address the implementation of 
these laws for the sake of its citizens. Most 
unequivocally, we are yet to see manifestation of 
this commitment.


______


[2] NEPAL:

NOT OUT OF THE WOODS YET

Editorial, Nepali Times, 09 May 08 - 15 May 08

Ever since the United Nations was brought in to 
be the acceptable third-party for overseeing 
Nepal's peace process, it has served as a 
convenient lightning rod for everyone with a 
gripe.

The royal right reveled in bashing UNMIN for 
being soft on the Maoists. The Maoists lashed out 
at UNMIN every time their shenanigans were 
exposed, like the time one-third of the 
combatants in the cantonments were found in the 
verification process to be underaged 
non-combatants. UNMIN, especially its chief Ian 
Martin, has come under blistering attack in New 
Delhi for overstepping the UN's mandate and for 
being too big for his boots. The Nepali media, 
including this paper, has had a periodic go at 
UNMIN for timidity and profligacy.

As the six-month extension of its term draws to a 
close in July, it is time to take stock. It can 
be said that the ceasefire and the remarkable 
political makeover of the past two years would 
not have been possible without the presence of 
UNMIN.
The Indians helped set the stage by getting the 
Maoists and the seven parties together in New 
Delhi in November 2005 to sign their 12-point 
accord. But after that they had a real struggle 
convincing their own foreign affairs bureaucracy 
to get over its NIMBY syndrome and accept the UN 
as a neutral entity.

To address the many sensitivities we resorted to 
semantics. The word 'mediator' was replaced with 
'monitor'. 'Demobilisation and disarmament' 
sounded too much like a surrender and was 
replaced with 'arms management'. 'Cantonments' 
and 'containers' were concocted.

UNMIN was often ridiculed for looking the other 
way when the YCL was formed and went on the 
rampage. So sensitive was it to safeguarding 
neutrality that UNMIN ignored many blatant 
violations of the peace accord. The Maoists 
figured out early on that they could string UNMIN 
along by its nose.

After embarrassing fiascos in other world 
hotspots, the United Nations needed a successful 
peace operation as much as Nepal did.

We all knew not all the guns were in the 
containers and not all the guerrillas were in the 
camps. We knew the YCL was a recruitment centre 
for hardcore fighters. We knew Maoists trooped 
out of cantonments during the election campaign 
to rough up other parties. The Maoists knew UNMIN 
knew and both knew we knew. But we all played 
along for the sake of peace in this country.

With their unexpected win in elections, Maoist 
hardliners have changed their minds about UNMIN 
and now want them to leave when the mandate 
expires in July.

We agree that a bulk of UNMIN can pack up. But 
perhaps a skeletal team should remain to take 
care of unfinished business. There are still too 
many things up in the air: decommissioning of 
arms, security sector reform, and the need for 
the international community's eyes and ears in 
case there is trouble from residual hardliners.

The next prime minister is going to be the 
commander of two armies. One of the parties in 
the governing alliance has an army of its own. 
Not to mention a vanguard youth wing that seems 
to be out of control. We are not out of the woods 
yet.
______


[3]

Dawn
April 30, 2008

SECURITY STATE SYNDROME

by Javid Husain

THE primary responsibility of a modern state is 
the promotion of the welfare of its people in a 
peaceful atmosphere which is free of fear and 
coercion and in which the citizens can fully 
realise their God-given potential.

The achievement of this objective certainly 
necessitates the protection of the state from 
external aggression. However, excessive focus on 
external security takes away precious resources 
from the tasks of the development and welfare of 
the people to the military sector.

Therefore, when the state leadership becomes 
obsessed with the objective of safeguarding 
external security leading to the phenomenon of 
the security state syndrome, it fails in its 
primary purpose which is the promotion of the 
welfare of the people.

Unfortunately, Pakistan, due to a variety of 
internal and external factors, has been a victim 
of the security state syndrome during most of its 
chequered history. The state machinery has been 
dominated by the military because of repeated 
military takeovers and the consequent stunted 
evolution of the political system. Even when the 
army was not at the helm of affairs, it 
manipulated the government machinery from behind 
the scenes. A hostile neighbour in the form of 
India accentuated the feeling of insecurity among 
our policymakers.

The security state syndrome from which Pakistan 
has suffered basically had five main features. 
Firstly, it resulted in the sacrificing of the 
objectives of economic development of the country 
and raising the standard of living of the people 
at the altar of state security. It is interesting 
to note that during the 1980s when a military 
dictator was ruling the country, 6.5 per cent of 
the GDP was allocated for defence as against only 
0.3 per cent of GDP for education on which the 
future of Pakistan depended. (The international 
norm for expenditure on education is four per 
cent of GDP.)

Expenditure on health was only 0.8 per cent of 
GDP during that period. Expenditure on education 
improved to 2.3 per cent of GDP during the 1990s 
when civilian governments were in place but still 
defence continued to claim a high proportion of 
national resources amounting to 5.6 per cent of 
GDP.

The situation worsened again during Musharraf's 
military rule with expenditure on education 
declining to 1.9 per cent of GDP in 2005-06 while 
3.2 per cent of GDP was diverted for military 
purposes. Defence expenditure would have been 
much higher had military pensions been added to 
it as was the practice before the military 
takeover in 1999 and the amount of Rs60bn paid 
annually by the US directly to our military 
establishment for anti-terrorism operations.

As for the current financial year, defence has 
again claimed the lion's share amounting roughly 
to Rs430bn if one adds military pensions, 
contribution by the US for anti-terrorism 
operations, etc. to the budgetary allocation of 
Rs275bn.

The neglect of economic development, particularly 
human resource development, has not allowed the 
country to realise fully its potential for 
economic growth. This factor combined with 
growing inequalities of income and wealth has 
resulted in the growing incidence of poverty in 
the country. The frequent cases of young men and 
women committing suicide because of poverty show 
the miserable conditions in which the majority of 
the people live.

Secondly, the military exaggerated the potential 
threat from India by playing up the Kashmir issue 
from time to time to justify the massive 
allocation of resources for defence. In the 
process, it led the country into a major war in 
1965 and a minor one in 1999. In retrospect, both 
failed to achieve their objectives and the latter 
unquestionably was a strategic blunder of 
monumental proportions.

Thirdly, Pakistan also presents the classic case 
of a country whose leadership, because of the 
security state syndrome, has failed to adopt a 
comprehensive approach encompassing political, 
economic, diplomatic and military elements of 
state power in right proportion in dealing with 
external threats to its security. We have 
traditionally over-emphasised the military at the 
expense of other elements of state power thereby 
neglecting the contribution that political 
stability, economic strength and pro-active 
diplomacy can make to the strengthening of the 
state's security.

Fourthly, in the long run, military power can be 
sustained only on the basis of economic strength. 
The over-emphasis on military power at the 
expense of the building up of economic strength 
in Pakistan provided for short-term security of 
the state at the expense of its long-term 
security. The net result was that Pakistan's 
overall security vis-à-vis its potential enemy 
weakened with the passage of time.

Fifthly, our leadership and policymakers failed 
to understand that the nature and intensity of 
the external security threat could be altered by 
employing the right combination of the means at 
state disposal. The case of our good friends, the 
Chinese, is particularly instructive in this 
regard. After taking a decision at the highest 
level of their leadership in 1980, China in 
pursuit of its supreme objectives of development 
at home and peace around its borders embarked 
upon a number of initiatives to engage the 
erstwhile Soviet Union and India in negotiations 
to defuse tensions in its relations with its two 
major neighbours.

As a result of these initiatives, China was able 
to transform the security environment in its 
neighbourhood and concentrate on economic 
development achieving amazingly high economic 
growth rates. Our military, on the other hand, 
vitiated the improving atmosphere of 
Pakistan-India relations following the Lahore 
Declaration by blundering into the Kargil 
adventure.

The formation of new governments at the federal 
and provincial levels after the February 
elections provides a golden opportunity to the 
new political leadership and the 
civilian-military elite to get rid of the 
security state syndrome and transform the country 
into a welfare state.

Accordingly, economic development and the welfare 
of the people should become matters of top 
priority not just in statements but also in terms 
of the allocation of resources. Our security 
planners would have to revise their thinking and 
devise a new strategy for dealing with issues of 
external security keeping in mind the resources 
available after meeting the essential 
requirements for development and public welfare.

Let us hope that our leadership demonstrates the 
wisdom to choose the right path for the long-term 
survival and progress of the country.



______


[4]  INDIA - PAKISTAN: 10 YEARS AGO THEY TESTED 
THEIR NUCLEAR BOMBS - NOW, THEY ARE TESTING HOW 
TO USE THEM

(i)

South Asians Against Nukes - Year 10
s-asians-against-nukes.org/
May 15, 2008

---

TEN YEARS OF THE BOMB

by Zia Mian
(The Economic and Political Weekly, May 10, 2008)

It is 10 years since India and Pakistan went 
openly nuclear.  The dangers of a nuclear south 
Asia are becoming more and more apparent, yet the 
governments of the two countries continue to 
build their arsenals. Both countries continue to 
produce plutonium for more and more bombs, both 
countries have been testing new kinds of delivery 
vehicles and both countries have conducted war 
games assuming the use of nuclear weapons. The 
pursuit of nuclear weapons is beginning to take, 
as elsewhere in the world, a logic of its own. 
South Asia awaits a strong peace movement that 
will make the governments of India and Pakistan 
see reason.

In the 10 years since the May 1998  nuclear 
weapons tests by India and Pakistan, the bomb has 
largely faded from view in south Asia. But the 
bomb is not gone. The nuclear logic continues to 
unfold relentlessly.

In both India and Pakistan, the nuclear tests 
were sold to the public as guaranteeing national 
security. It did not take long for both countries 
to discover that the bomb was no defence. The 
Kargil war followed barely a year after the 
nuclear tests.  The war proved that the bomb 
would not defend India from attack and was no 
guarantee of victory for Pakistan. It only showed 
that two nuclear armed countries can fight a war 
and that in such a situation leaders in both 
countries will threaten to use nuclear weapons.

But Kargil was not enough to teach caution and 
restraint. A little over two years later, India 
and Pakistan prepared to fight again. An 
estimated half a million troops were rushed to 
the border, and nuclear threats were made with 
abandon.  What lessons have been learned? None, 
other than that they need to be better prepared 
to fight a war. Both countries have carried out 
major war games that assumed the possible use of 
nuclear weapons.  effects of a Nuclear War 
Political leaders and military planners seem 
impervious to the fact that a war between 
Pakistan and India in which each used only five 
of their nuclear weapons on the other's cities 
could kill several million people and injure many 
more.  The effects of a nuclear war could be much 
worse if India and Pakistan use about 50 weapons 
each. They have made more than enough nuclear 
weapons material to do this. Recent studies using 
modern  climate models suggest that the use of 50 
weapons each by the two countries could throw up 
enough smoke from burning cities to trigger 
significant cooling of the atmosphere and land 
surface and a decrease in rainfall that could 
last for years. This could, in turn, lead to a 
catastrophic drop in agricultural production, and 
widespread famine that might last a decade. The 
casualties would be beyond imagination.  India 
and Pakistan are still producing the plutonium 
and highly enriched uranium that are the key 
ingredients in nuclear weapons. Nuclear 
policymakers in both countries obviously do not 
think they have enough weapons. They have never 
explained how they will decide how many weapons 
are enough.

For the past decade the two countries have also 
been waging a nuclear missile race. Both India 
and Pakistan have  tested various kinds of 
missiles, including ones that would take as 
little as five minutes to reach key cities in the 
other country. Some of the tests are now  carried 
out by the military, not scientists and 
engineers. These are user trials and field 
exercises. They are practising for fighting a 
nuclear war.

There is more to come. Pakistan has been testing 
a cruise missile that could carry a nuclear 
warhead. India has tested a ballistic missile 
that can be fired from a submarine. It is 
reported that the plan is eventually to have a 
fleet of five submarines, with three deployed at 
any time, each armed with 12 missiles (perhaps 
with multiple warheads on each missile) with a 
range of 5000 km. Pakistan already has a naval 
strategic command and has talked also of putting 
nuclear weapons on submarines.  It is a familiar 
logic that south Asia has still not learnt. The 
search for nuclear security is a costly and 
dangerous pursuit that will take on a life of its 
own and knows no end. It took almost 20 years to 
go from an American president declaring the bomb 
to be the "greatest thing in history", to a 
successor recognising that nuclear weapons had 
turned the world into a prison in which man 
awaits his execution. This hard-won recognition 
has still not come to south Asia.

Only when an active and sustained peace movement 
is able to awaken  people and leaders to this 
terrible truth can we move to the next stage in 
resisting and eliminating the bomb and all that 
it represents.

Zia Mian <zia (at) Princeton (dot) edu> is at the 
Woodrow Wilson School of Public and International 
Affairs, Princeton University, USA.

--

(ii)

South Asians Against Nukes - Year 10
s-asians-against-nukes.org/
May 14, 2008


--------

A NEGATIVE BALANCE SHEET

by Praful Bidwai
(The Times of India, 14 May 2008)

Ten years ago this week, India blasted its way 
into the global nuclear club by conducting five 
explosions at Pokhran. By declaring itself a 
nuclear weapons state (NWS), it joined what it 
had long described as the 'Atomic Apartheid' 
system - not to reform it, but as one of its 
hegemons.

In another policy rupture, India also embraced 
the doctrine of nuclear deterrence, which it had 
for 50 years deplored as 'morally repugnant' and 
strategically irrational.

The fateful decision to cross the nuclear 
threshold was taken in secrecy, without 
discussion in the cabinet security affairs 
committee and without even the pretence of a 
strategic review promised in the BJP manifesto.

Even the defence establishment was in the dark 
about it until May 9. But according to the 
present RSS chief, K S Sudarshan, the sangh 
parivar was privy to it and mandated it.

Former National Security Adviser Brajesh Mishra 
has since confirmed that the decision was taken 
on April 7 and 8 by just four men, only one of 
whom - Prime Minister Vajpayee - was an elected 
leader.

The others, besides Mishra, were the atomic 
energy and Defence R&D Organisation heads who had 
a partisan stake in India going nuclear.

Such opacity in respect of a momentous policy 
change is itself reason enough to question its 
false prestige-driven rationale. But 10 years 
after the tests, even stronger arguments suggest 
themselves persuasively.

Nuclearisation has created greater volatility in 
South Asia, making both India and Pakistan more 
insecure. Today, millions of their citizens have 
become vulnerable to attacks by nuclear-tipped 
missiles, which cannot be intercepted or recalled.

Missile flight-time between cities in these 
countries is as short as three to eight minutes.

Over the past decade, India has been drawn into 
not one, but two, nuclear and missile arms races 
- with Pakistan, and more ominously, with China. 
The three countries' military spending is rising 
at rates that are among the world's highest.

Since 1998, India's defence spend has nearly 
tripled to $30 billion. This makes the 
always-gross disproportion between India's 
military and social-sector budgets even more 
obscene.

This can only aggravate social insecurity, in 
addition to strategic instability. As India long 
argued, the logic of arms races is cruel: you 
don't quite decide how much more you spend on 
arms, your adversary does.

India is erasing its own memory. Nuclear weapons 
have encouraged adventurist and reckless 
behaviour in our region. Neither Pakistan's 
Kargil incursion nor Pervez Musharraf's 1999 
coup, which decisively set democracy back, can be 
understood outside the nuclear context and the 
dangerously false confidence the bomb generated 
among Pakistan's men in uniform.

In South Asia, even the comfortable assumption of 
the nuclear-deterrence theory - that nuclear 
weapons states don't go to war with each other - 
stood demolished a year after Pokhran-II. Kargil 
was a serious conflict, involving 40,000 troops 
and top-of-the-line weaponry.

The disclosures that Pakistan came close to 
readying its nuclear missiles in 1999, and that 
India and Pakistan were twice at the brink of a 
nuclear confrontation in the 10-month 
eyeball-to-eyeball stand-off after the December 
2001 Parliament attack should warn and worry all 
sensible citizens not devoted to the bomb. We may 
not be so lucky the next time around.

The heaviest component of the costs of going 
nuclear has been moral-political. India, the land 
of the Buddha and Gandhi, lost a good deal of its 
global moral stature as a force of peace and 
moderation.

This, not raw power, was long the source of the 
prestige we enjoyed. The second setback is 
India's retreat from the global disarmament 
agenda.

After Pokhran, India turned against its own 
demand for a special disarmament UN session, like 
the 1988 session where Rajiv Gandhi presented his 
thoughtful plan for global nuclear elimination.

The UPA's promise of reviving that plan sounds 
hollow. It will acquire credibility only if India 
seizes the initiative by announcing unilateral 
nuclear-restraint measures and making concrete 
proposals for complete nuclear disarmament.

(The writer is an anti-nuclear weapons activist.)


______



[5] India: JAIPUR SERIAL BLASTS: STATEMENT OF CONCERNED CITIZENS

We the undersigned strongly condemn those behind 
the serial blasts of Jaipur. We also offer our 
sincerest condolences to the victims of this 
dastardly act and urge upon the state government 
and the Central Government to take all possible 
measures for the proper compensation/ 
rehabilitation of the survivors.

These cowardly acts of terror have become a sore 
on the body politic of Indian democracy. The 
current global and local politics in the name of 
religious identity is intensifying the acts of 
terror, more so in India. The unfortunate part is 
that prevention of these acts has been 
politicized by some political parties. Some of 
them claim that the present Government is soft on 
terrorism so there is increase in these acts of 
terror. They forget that even during the NDA 
regime the frequency and intensity of these acts 
was similar. Just by making the repressive laws 
cannot curtail these acts as it is a superficial 
and wrong approach. These acts of terror have 
deeper political causes. These causes relate to 
U.S. lust for oil, its help in forming Al Qaeda 
and local rise of communal politics around issues 
of religious identity.

The worst part of handling acts of terror, which 
has a bearing on the preventive measures, is the 
prevalent theory guiding the investigation 
authorities. As per this theory these acts are 
done by some Pakistan trained groups who want to 
spread communal disharmony. On this pretext many 
Muslim youth are hauled up and investigation is 
presented as a success. So many such acts of 
terror have taken place, Malegaon, Banaras, 
Mumbai, but how many places have the communal 
disharmony erupted? Are the terrorist's fools to 
repeat the act which is not having the desired 
result? Then, the investigations done so far are 
clouded in mystery and under the cloak of 
secrecy. The social audit of these investigations 
has not taken place barring an odd exception. The 
present theory of investigating agency 
deliberately overlooks the case of two Bajarang 
Dal workers getting killed in Nanded in April 
2006. It also does not want to give serious 
thought to the narco-analysis of one of the 
survivors of the Nanded episode who said that now 
we Hindus should also do the acts of terror, in 
front of crowded mosques, else we will be 
regarded as eunuchs.

The occurrence of these acts, more often on 
Tuesdays and Fridays gives a signal which goes 
beyond the thinking of present investigation 
agencies. There is a need to have a National body 
with due representation from the socially 
concerned citizens and Human rights activists who 
can have a say in these matters and also who in 
an unbiased way can go to the truth of these 
acts, unlike the ones at present, where the 
pattern of investigation can be predicted right 
in advance due to the prevalent prejudices, which 
by now have become institutionalized.

These acts are now polarizing the society and the 
biggest beneficiary of these are the communal 
forces. In a way, now communal violence is being 
substituted by the acts of terror to consolidate 
the electoral base by communal party.

We urge upon the society at large, the ruling 
governments, the bureaucracy, police and human 
rights activists to try to go to the depth of 
this painful phenomenon and try to address the 
deeper disease which is causing the symptom of 
terrorist acts.

We Demand
- Setting up of a National Commission with 
representation of broad layers of people to 
monitor the investigations.
- This Commission gives suggestions in the 
direction of prevention of such acts.
- This commission monitors those arrested on the 
ground of suspicion and ensures that only the 
guilty are detained while innocents are released.
- This commission goes to the deeper maladies 
affecting the society leading to such acts and 
suggests the remedial measures.
- It suggests ways to strengthen the 
intercommunity bonds so that religious identity 
and terrorism are not correlated.
Sincerely

1. Asghar Ali Engineer, Chairman Center for Study of
Society and Secularism
2. Digant Oza: Senior Journalist, Ahmedabad
3. Shabnam Hashmi, Secretary ANHAD
4. Dr. M.Hasan, Academic, Writer Jaipur
5. L.S.Hardenia, Senior Journalist, Writer
6. Irfan Engineer: Institute of Peace Studies and
Conflict Resolution
7. Ram Puniyani , Secretary All India Secular Forum


______


[6]  Seeking Freedom for Binayak Sen: Editorials from the Indian Press

The Hindu
May 15, 2008

Editorial

SET BINAYAK FREE

It's been a whole year since Binayak Sen was 
arrested on charges of conspiracy to wage war 
against the Indian state and commit other crimes. 
The general secretary of the People's Union for 
Civil Liberties is being held under the Unlawful 
Activities (Prevention) Act and the Chhhatisgarh 
Special Public Security Act, which make the grant 
of bail extremely difficult. The principal case 
stems from a 'confession' made by a Kolkata-based 
businessman named Piyush Guha relating to three 
unsigned letters, purportedly written by the 
jailed Maoist leader Narayan Sanyal, recovered 
from his possession; the letters were allegedly 
handed over to Mr. Guha by Dr. Sen. This, the 
police say, is evidence of Dr. Sen's deep 
involvement with the Maoists. Mr. Sanyal has been 
in jail in Raipur since 2006. Dr. Sen visited him 
33 times as general secretary of the PUCL and in 
his capacity as a physician since the 70-year-old 
Maoist leader had a medical condition requiring 
surgery. The police accuse Dr. Sen of being a 
courier for Mr. Sanyal. Dr. Sen's lawyers 
strenuously contest this allegation and it is 
surely relevant that Mr. Guha told a magistrate 
at the first opportunity that he made no 
confession and was made to sign blank papers 
under duress.

The case throws up a number of disturbing issues. 
First, given Dr. Sen's impeccable record of 
working for and defending the health and human 
rights of the poor, especially adivasis, and the 
nature of the evidence tying him to a banned 
organisation, the authorities certainly abused 
their powers under a draconian law to object to 
the grant of bail.There was neither risk of 
flight nor any question of Dr. Sen using his 
freedom to interfere with the investigation. 
Secondly, while the Bharatiya Janata Party 
government of Chhattisgarh might have its reasons 
for wanting Dr. Sen behind bars, the reluctance 
of the judiciary, including the Supreme Court - 
the principal institutional guarantor of 
citizens' fundamental rights - to grant bail in 
this case has been disappointing. Thirdly, the 
arrest under the PSA of another PUCL activist in 
Chhattisgarh, the filmmaker Ajay T.G., suggests 
that the local authorities are gunning for those 
opposed to Salwa Judum, the brutal 
counter-insurgency campaign run by the 
authorities. The manifest injustice in Dr. Sen's 
case has triggered an international campaign 
demanding his release and also that he be allowed 
to travel to Washington to receive the Jonathan 
Mann Award for Global Health and Human Rights on 
May 29. The Chhattisgarh authorities should 
abandon their shameful vendetta and the central 
government should do whatever is in its power to 
ensure that Dr. Sen and Ajay T.G. are set free 
immediately.

o o o

Hindustan Times

Editorials

WHO'S AFRAID OF BINAYAK SEN?
May 13, 2008


It's 365 days since public health specialist and 
human rights activist Dr Binayak Sen has been 
behind bars. A critic of the Chhattisgarh 
government's Salwa Judum policy, which is now 
being investigated for excesses by the National 
Human Rights Commission after a Supreme Court 
order, Dr Sen was arrested on May 14, 2007, for 
allegedly passing letters from a Naxalite leader 
- who he had been treating - to another inside 
the Raipur jail. On April 30, almost a year after 
his arrest, six witnesses were examined. 
Considering that there are 83 witnesses and the 
pace at which our judicial system works, it looks 
doubtful that Dr Sen will be judged in a court of 
law in a hurry.

Days before he was arrested, Dr Sen had said that 
"the people who have been protesting against [the 
Salwa Judum] and trying to bring before the world 
the reality of these campaigns.... human rights 
workers like myself.... have also been targeted 
through State action". When he appeared in court 
on May 18, 2007 and asked for the FIR, the police 
'failed' to produce anything. Interestingly a day 
after, the police searched his house without 
finding any incriminating evidence. And yet he is 
still languishing in jail. There seems little 
doubt that there has been a deliberate effort on 
the part of the authorities to crack down on 
dissent or, in this case, violently silence a 
strongly variant point of view on the Salwa Judum 
policy of arming villagers in Naxal strongholds. 
It is for speaking out against this 'official' 
policy from the ground level in Chhattisgarh - as 
opposed to speaking out against the Salwa Judum 
as many other observers have while visiting the 
area - that has got Dr Sen in jail for what seems 
like an indefinite period. That the Supreme Court 
had also recently made pretty much the same 
observation that he had makes Dr Sen's 
incarceration even more unjust and bizarre.

In the course of his work as a renowned public 
health specialist in the areas of Chhattisgarh 
under Naxal control, it is only but natural that 
Dr Sen would have come in contact with what the 
State would deem 'Naxal sympathisers'. Does that 
make him a collaborator - especially in an area 
where the angelic State has been afraid to tread 
for decades? We definitely think not. But the 
State seems hell-bent on making him an example so 
that others don't go against its grain. What is 
even more appalling is the stand of the central 
government that seems to be playing Pontius 
Pilate to the whole affair. Quietly, it has 
decided to put the ball in the state of 
Chhattisgarh's court. Answer us this: what are 
the real charges against Dr Sen? If you don't 
have a good answer to that - and only a court of 
law can vouch for that - we strongly suggest that 
he be released before India starts looking like a 
tin-pot dictatorship.

______


[7]

Frontline
Volume 25 - Issue 10 :: May. 10-23, 2008

DEALING WITH DISCRIMINATION

by Tarunabh Khaitan

The Equal Opportunity Commission is an idea whose time has come.

[Photo]R.V. Moorthy

[Photo caption]Justice Rajinder Sachar presenting 
the report of the committee he headed, which 
studied the Muslim community's condition in 
India, to Prime Minister Manmohan Singh in New 
Delhi on November 17, 2006.

THE Expert Group set up by the Ministry of 
Minority Affairs "to examine and determine the 
structure of an Equal Opportunity Commission" 
submitted its report in February, in which it has 
proposed a draft Equal Opportunity Commission 
Bill (EOC Bill). The group, chaired by Professor 
Madhava Menon, was set up to suggest a workable 
institutional structure for an Equal Opportunity 
Commission as recommended by the Justice Rajinder 
Sachar Committee's "Report on Social, Economic 
and Educational Status of the Muslim Community of 
India" (November 2006). The report, while being 
rooted in Indian circumstances, has drawn from 
the experiences of countries that have had 
anti-discrimination laws for years and is an 
important and positive milestone in our 
understanding of strategies to respond to 
discrimination.

Before analysing the features of the proposed 
Bill, a brief clarification on the meaning of 
discrimination is needed. Traditionally, 
discrimination has been criticised because it 
results in inequality. However, an autonomy-based 
understanding of discrimination looks at what is 
wrong with the act of discrimination itself. This 
is a more persuasive moral foundation for 
anti-discrimination measures.

We "discriminate" in all aspects of life, and, 
most of the time, there is nothing wrong with it. 
We choose not to make friends with bullies or 
insensitive people. Few of us will want to have a 
violent person for a partner. Professor John 
Gardner explains that what sets apart legitimate 
discrimination from illegitimate discrimination 
on the basis of caste, sex, race, place of birth, 
gender identity, nationality, disability, 
religion or sexual orientation is that the latter 
unfairly impairs a person's autonomy.

A fundamental tenet of liberalism is that human 
beings are autonomous beings who have the right 
to shape their lives according to their own 
wishes so long as they do not impair the autonomy 
of others. Everyone has to author his/her own 
life and make lifestyle choices. When these 
choices are authored by someone else and imposed 
upon a person, one's fundamental right to 
autonomy is violated. All the grounds considered 
to be illegitimate bases of discrimination have a 
single thread running through them: they are 
inextricably linked to one's exercise of personal 
autonomy. The illegitimate grounds of 
discrimination are either ordinarily beyond the 
control of the individual or are such fundamental 
life choices that a non-consensual, externally 
enforced change would be imposed only at a very 
high personal and emotional cost and, therefore, 
should effectively be treated as beyond the 
control of the individual.

Now, if individuals are discriminated against on 
any of these grounds, they are being denied 
opportunities for things beyond their effective 
control. If one is denied a job because one has a 
short temper and cannot work in a team, one's 
autonomy is shaped by choices one has made 
oneself. However, if one is denied a job because 
of one's sex or caste or sexual orientation, 
one's autonomy is violated for no fault of the 
individual concerned. Clause 2(g) of the Bill, 
therefore, correctly defines "deprived group" as 
"a group of persons who find themselves 
disadvantaged or lacking in opportunities for 
reasons beyond their control". While this 
definition could be interpreted so as to include 
fundamental life choices that are effectively 
beyond the control of an individual, the Bill 
should expressly specify "fundamental choice" in 
addition to "beyond their control" in order to 
remove all doubt.

Locating illegitimate discrimination in the 
violation of personal autonomy responds to 
concerns about prohibiting discrimination in the 
private sector. When any effort is made to 
regulate behaviour in the private sector, an 
equality-versus-liberty debate is raised where 
the equality of deprived groups seems to be in 
conflict with the liberty of employers to run 
their businesses as they wish. However, with the 
explanation just provided, it is liberty at stake 
on both sides of the balance, which makes 
comparison easier.

Should a private employer's liberty to commit an 
unjust act (by illegitimately discriminating) be 
held superior to applicants' liberty to author 
their own lives without being punished for things 
that are beyond their effective control? Viewed 
in this manner, the answer is much more obvious. 
It is worth noting here that all that employers 
are being asked to do is to not take into account 
illegitimate factors, which are irrelevant from 
the business point of view anyway. Race or caste 
has no relation to one's ability to perform, and 
the private employer can still rely on the 
relevant abilities of the candidate. This is not 
an argument for providing reservation in the 
private sector although the possibility of such 
an argument being made cannot be denied either. 
The Menon Committee report is, correctly, "of the 
firm opinion that the jurisdiction of this 
Commission should not be limited to the public 
sector" (paragraph 4.6).

India has grappled with the question of 
discrimination right from the moment it started 
making its Constitution. The Constitution clearly 
prohibits discrimination by the state, and this 
is enforced directly by the Supreme Court and the 
High Courts. The success of this constitutional 
prohibition is a mixed bag, but in comparison 
with all other efforts, there is no doubt that 
this has been the best implementation strategy. 
The Protection of Civil Rights Act, 1955 (CRA), 
prohibited discriminatory acts in the private 
sector on the basis of untouchability, on pain of 
criminal punishment. Similarly, the Equal 
Remuneration Act (ERA), 1976, prohibited 
discrimination against women in employment, 
recruitment and pay. This provision is also 
backed by criminal sanction.

The Persons with Disabilities (Equal 
Opportunities, Protection of Rights and Full 
Participation) Act (PDA), 1995, is a much more 
sophisticated piece of legislation, which drew a 
lot from global experiences. The Act prohibits 
discrimination in the public and private sectors 
and demands that reasonable accommodation in 
terms of special facilities (such as wheelchair 
access) be made for disabled persons. It also 
provided for a dedicated enforcement agency.

In the 21st century, newer claimants to 
non-discrimination have emerged. A petition filed 
by the Naz Foundation, demanding that the state 
be prohibited from discriminating against gay 
people on the basis of their sexual orientation, 
is pending in the Delhi High Court. Increasing 
activism by transgender people has brought to 
light gross discrimination on the basis of gender 
identity. The culmination of this historical 
churning and the immediate catalyst for the EOC 
Bill was, of course, the Sachar Committee report, 
which detailed the widespread discrimination in 
India against Muslims.

This historical review offers several lessons. 
First, it tells us that discrimination is a 
socially contingent problem. Identification of 
groups that are seen to deserve protection 
depends on the socio-political and moral context 
of a given time, which usually results in ad hoc 
responses directed at particular groups. A 
holistic solution must, therefore, transcend this 
ad hocism by putting in place institutions that 
are resilient enough to adapt to new realities on 
a principled basis.

Secondly, the public-private divide with respect 
to the prohibition of discrimination is 
pointless. As the section above explains, 
discrimination by a private person is as wrong as 
discrimination by the state. The need to impose 
on the private sector the obligation not to 
discriminate unfairly has been increasingly 
recognised since the time of the framing of the 
Constitution - in the CRA, the ERA and the PDA.

Thirdly, the limited success of these measures 
has two further lessons. So far, Indian laws have 
only recognised direct or intentional 
discrimination. However, discrimination often 
works in subtle and unconscious ways. An 
ambitious anti-discrimination legislation must 
encompass indirect discrimination in all its 
complexities.

Finally, one has to consider the question of 
implementation. The CRA and the ERA did not go 
very far in ending discrimination on the basis of 
caste and sex. While some of the blame must be 
laid on the lack of a specialised implementation 
agency (which exists under the PDA), a more 
important reason for their failure is that their 
implementation is not victim-driven.

Contrast this with the constitutional protection 
against discrimination by the state, which gives 
agency to the victim of discrimination to take up 
the matter directly with the Supreme Court and 
High Courts. The CRA and the ERA are both 
criminal statutes where the victim has but a 
secondary role and the proof required is beyond 
reasonable doubt. So, successful prosecutions are 
rare, and immediate benefit to the victim is 
limited. It is a matter of common sense that if 
implementation is to be ensured, agency must be 
placed in the hands of those most likely to 
benefit by it.

Any effective anti-discrimination measure has to 
focus on the most intractable of problems and 
cannot spread the protection so wide that 
implementation becomes impossible. Therefore, the 
EOC Bill has envisaged the concept of a 
"deprivation index" to identify "deprived 
groups", those groups that are suffering because 
of systemic and widespread forms of 
discrimination (paragraph 1.9). Although isolated 
forms of discrimination are also wrong, because 
they are isolated and not systemic or widespread, 
the victim usually has other opportunities open 
with other employers. But deprived groups that 
are systematically discriminated against have no 
options because a significant number of employers 
discriminate against them. Members of these 
deprived groups must get priority protection, as 
envisaged by the Bill.

The Bill also recognises that the concept of 
deprivation changes with time. What is today a 
deprived group may not be so tomorrow. Protection 
will be dependent not on much-maligned "vote-bank 
politics" but on a principled demonstration of 
deprivation through the deprivation index. There 
is no permanent winner or loser in this game, 
except the idea of deprivation itself (paragraph 
4.4).

The Bill also realises that it cannot correctly 
predict all future grounds of illegitimate 
discrimination and, therefore, prohibits 
discrimination "on the basis of sex, caste, 
language, religion, disability, descent, place of 
birth, residence, race or any otherŠ". The final 
residual clause, "or any other", is a 
place-holder for other analogous 
autonomy-infringing grounds that may be filled in 
later. Although this foresight is commendable, it 
will be a good idea to expand the list to include 
currently known analogous grounds, such as 
"sexual orientation, marital status, food 
preference, age, dress preference, gender 
identity, pregnancy", while still retaining the 
residual clause.

Finally, the Bill recognises the multiple 
identities of people by moving away from 
focussing on single interest groups and arriving 
at the generic idea of "deprived groups".

One may be rich, male and able but may be 
discriminated against nonetheless on the grounds 
of being Muslim. Again, a Dalit lesbian woman 
carries several depriving identities, the 
totality of which cannot be captured by a 
single-issue-oriented law. This design is not 
only morally better but also has a more universal 
appeal - with the rich and complex diversity of 
human identities, most of us are more likely to 
see ourselves as potential victims of 
illegitimate discrimination rather than as 
perpetual non-beneficiaries. This generates the 
hope of greater possibility of empathy with 
victims of discrimination rather than with 
empathy-failure caused by divisions between "us" 
and "them".
Indirect discrimination

RAJEEV BHATT [Photo]

At a protest against the non-inclusion of Dalit 
Christians and Muslims in the Scheduled Castes 
list, in New Delhi on March 14. Identification of 
groups that are seen to deserve protection 
against discrimination depends on the 
socio-political and moral context of a given time.

The EOC Bill seeks to prohibit not just direct 
(or intentional) discrimination but also 
"indirect" discrimination (clause 2(k)). Although 
the concept of indirect discrimination is well 
established in countries such as the United 
Kingdom, the United States (where it is called 
"disparate impact"), South Africa and Canada, it 
has been introduced into the Indian discourse for 
the first time.

The Menon Committee report explains that indirect 
discrimination is an unintentional or unconscious 
act that results in systematically disadvantaging 
a deprived group (paragraph 2.9). An example 
should make the concept clear. Let us take a 
housing society that does not discriminate (or 
intend to discriminate) on the grounds of 
religion or caste. But it has a firm policy of 
not selling or renting any accommodation to 
non-vegetarians. Here, the intention may not be 
to discriminate against certain religious or 
caste groups, but the result of the policy has a 
disproportionate impact on certain religious and 
caste groups. Such a policy will, therefore, 
amount to indirect discrimination on the grounds 
of religion and caste.

To take another example, an employer does not 
intend to discriminate against women but is 
worried that pregnancy will result in the 
employee taking leave. With this motivation, he 
does not hire women of a particular age group.

Now, he discriminates indirectly on the basis of 
sex even though there is no intention to do so 
because the policy has a disproportionate impact 
on women. As already discussed, the EOC Bill 
applies to the public sector as well as the 
private sector. However, citing resource 
limitations and other practical matters, the 
Menon report recommends that the initial focus 
should only be on the employment and education 
sectors, whether public or private (paragraph 
4.7).

While this argument has some currency and the 
proposed Equal Opportunity Commission should not 
be overwhelmed with more work than it can handle, 
there is a strong case for including housing in 
the priority sectors. Housing discrimination, 
especially against Muslims and certain castes, is 
rampant, especially in some western states. 
Housing decisions are made very few times in an 
individual's lifetime and the impact is felt for 
a long period of time. From the societal point of 
view, housing discrimination creates ghettos 
where people only interact with their own kind. 
This is certainly bad news for social inclusion.

Now, to the enforcement model envisaged in the 
Bill. The proposed Equal Opportunity Commission's 
main role will be to research and analyse the 
concept of discrimination, to recommend policy, 
lobby and advocate reform and to monitor concerns 
related to equality. It has some limited powers 
of direct enforcement as well, but the report is 
clear that grievance redressal shall not be the 
primary function of the commission (paragraphs 
5.2 and 5.7).

An enforcement model that does not try to deal 
with every case of enforcement but rather plans 
to create sporadic and spectacular examples of 
enforcement with the hope that the effects will 
trickle down is not a bad model to start with. 
This is India's first comprehensive experiment 
with anti-discrimination. It is a good beginning 
given the peculiarities of the country, 
especially when it comes to enforcement. The 
important thing is to recognise it only as a 
beginning where lessons should be learnt and 
improvements made at a later date.

However, one important flaw in the Bill is that 
it gives very little agency to members of the 
deprived groups themselves. At the most, they can 
complain (as a group) to the proposed commission. 
We have seen that except for the constitutional 
prohibition on discrimination by the state, all 
other models in India suffer from this flaw. A 
good remedy will be to give a limited right to 
information to citizens against private 
employers, educational institutions and housing 
societies only on matters related to their 
discriminatory policies. This decentralised 
method of information gathering should complement 
the task of the commission while ensuring that 
those discriminated against at least have proper 
information before they raise their voice. But, 
most important, if the experience of the Right to 
Information Act, 2005, is anything to go by, very 
often a mere demand of information is sufficient 
to remedy the problem at hand. Many private 
bodies will be spurred into amending their 
discriminatory policies by such demands.

The Bill is on the whole a good idea whose time 
has definitely come. Four minor changes may be 
considered: (i) including the phrase "fundamental 
choice" alongside "beyond their control" as 
autonomy-impinging reasons in clause 2(g); (ii) 
expanding the list of prohibited grounds in 
clause 2(k) to include analogous grounds such as 
"sexual orientation, marital status, food 
preference, age, dress preference, gender 
identity, pregnancy"(iii) expressly including the 
housing sector in clause 22(i); and (iv) 
providing a limited right to all citizens to 
demand discrimination-related information from 
public and private bodies.

Tarunabh Khaitan researches on 
anti-discrimination law at the University of 
Oxford.


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

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