SACW | June 12, 2008 / Globalisation and Talibanisation / Armed Forces Special Powers Act - 50 years / Nuclear Weapons Free World
Harsh Kapoor
aiindex at gmail.com
Wed Jun 11 21:21:14 CDT 2008
South Asia Citizens Wire | June 12 , 2008 | Dispatch No. 2523 - Year 10 running
[1] Pakistan's worrisome pullback (Ahmed Rashid)
+ Globalisation and Talibanisation (Editorial, Daily Times)
[2] Afghanistan: Nato's lost cause (Tariq Ali)
[3] Sri Lanka: A Culture Worth Defending (Rohini Hensman)
[4] Indian Vice President's Address To
International Conference - 'Towards A World Free
Of Nuclear Weapons'
[5] India, Pakistan must overcome bias and mistrust (Kuldip Nayar)
[6] India: Editorial: 'SLAPP'ed but will not submit (Sunita Narain)
[7] India: The Supreme Court's order in the
Shaukat case represents a complete miscarriage of
justice (Shanti Bhushan)
[8] Impunity Institutionalized, Armed Forces
Special Powers Act completes 50 years as Indian
law (Jagmohan Singh)
[9] Announcements:
(i) Citizens Demo for Freedom of Press (New Delhi, 12 June 2008)
(ii) Ten-Day Fast in Protest Against Black
Laws and For Release of Dr. Binayak Sen, Ajay T G
and Others (Raipur, 16 - 26 June 2008)
______
[1]
The Sacramento Bee
June 8, 2008
PAKISTAN'S WORRISOME PULLBACK
by Ahmed Rashid
KABUL, Afghanistan -- Relations between the U.S.
military and the Pakistani army, critical allies
in the "war on terror," are at their worst point
since Sept. 11, 2001, senior Western military
officers and diplomats here say, as Pakistani
troops withdraw from several tribal areas
bordering Afghanistan that are home to Taliban
and al-Qaida leaders and thousands of their
fighters.
Gen. Ashfaq Kiyani, chief of the Pakistani army,
has told U.S. military and NATO officials that he
will not retrain or re-equip troops to fight the
counterinsurgency war the Americans are demanding
on Pakistan's mountainous western border.
Instead, the bulk of the army will remain
deployed on Pakistan's eastern border and prepare
for possible conflicts with traditional enemy
India -- wars that have always been fought on the
plains of Punjab. More than 80 percent of the $10
billion in U.S. aid to Pakistan since the Sept.
11 attacks has gone to the military; much of it
has been used to buy expensive weapons systems
for the Indian front rather than the smaller
items needed for counterinsurgency.
Click to learn more...
There are also signs that Washington is delaying delivery of U.S.
arms meant for the eastern front and is asking Western allies to do the same.
In recent weeks, Islamic militants in Indian
Kashmir, restrained by Islamabad since Pakistan
and India conducted peace talks in 2004, have
revived their attacks against Indian forces.
Extremist bombings in Jaipur, India, on May 14
killed more than 80 people. Relations between
India and Pakistan have improved dramatically in
recent years, but tensions could again escalate.
Pakistani army officials have told Washington
that they will continue to deploy the Frontier
Corps and other paramilitary units along the
long, porous border with Afghanistan, but they
are poorly equipped, badly trained and have lost
every major engagement with militants so far. The
U.S. military is training and equipping these
nearly 100,000 troops but has rejected Pakistani
requests to equip four to five new units.
The Taliban virtually rules the seven tribal
agencies that make up the Federally Administered
Tribal Areas (FATA). Growing frustration among
U.S. and NATO forces in Afghanistan has led to a
crescendo of calls by U.S. and Afghan officials,
NATO officers, European leaders and the United
Nations urging Pakistan to continue supporting
the fight against extremism.
But the Pakistani army is shaken. It has lost
more than 1,000 paramilitary and other soldiers
since its first offensive against the Taliban in
2004. Recently, it has reached unofficial peace
deals with Pakistani and Afghan Taliban leaders
in the tribal areas in which they have promised
not to attack Pakistani forces.
These deals do not stop the Taliban from
attacking NATO and Afghan forces in Afghanistan.
Taliban attacks from Pakistan into Afghanistan
have risen dramatically this spring; in April,
incidents spiked to more than 100 a week, up from
about 60 a week in March.
Attacks probably rose in May, according to NATO
officials, who report a sharp increase in the
number of Pakistanis, Arabs and those of other
nationalities fighting alongside the Taliban in
Afghanistan.
One effect of the peace deals became clear last
month, when 30 journalists were invited to an
unprecedented news conference in South Waziristan
with Baitullah Mehsud, leader of the Pakistani
Taliban and the main host for Afghan Taliban and
al-Qaida leaders in the tribal areas. Journalists
saw few signs of the military, with the Taliban
occupying army posts that had been abandoned.
Mehsud vowed that "jihad in Afghanistan will
continue" and declared that "Islam does not
recognize any man-made barriers or boundaries."
Last month, a Taliban Web site called for a
general uprising in Afghanistan "till the
withdrawal of the last crusading invader." Early
victims of the Pakistani army's strategic shift
are the civilian governments of Pakistan and
Afghanistan. Afghan President Hamid Karzai, who
is under severe international pressure to improve
governance and fight corruption, told me during a
long conversation that he was deeply frustrated
by Pakistan's attitude. "We have to succeed in
convincing the world to end the sanctuaries for
terrorism," Karzai said.
The stepped-up Taliban insurgency in southern and
eastern Afghanistan, he said, makes it difficult
to provide the security needed for improved
governance and faster reconstruction.
In Peshawar, the largest city in northwest
Pakistan, senior government officials said that
the army has not shared details of the peace
deals or intelligence information but that they
were not in a position to contradict the army or
the deals. Peshawar is virtually besieged by
Taliban-style militias to its north, south and
west, which carry out bombings and kidnappings,
despite the agreements.
It was hoped that after elections in February
ended nine years of military rule, Pakistan's
civilian government would take charge of foreign
policy and persuade the army to share national
security policy toward India and Afghanistan. But
the government has been plagued by problems and
is paralyzed on several fronts.
The major powers should engage Pakistan's army to
learn whether its new policy represents a
strategic shift away from the international fight
against terrorism. India must be persuaded to do
more to resolve the Kashmir issue, and the world
must help strengthen Pakistan's civilian
government, especially in the face of its severe
economic problems. Getting the army back on track
to fight extremism is vital if Pakistan is not to
be swamped by Taliban-style rule and become a
haven for al-Qaida.
---
Daily Times
June 12, 2008
EDITORIAL: GLOBALISATION AND TALIBANISATION
The latest group of youths caught near Islamabad
with enough explosives to destroy a whole sector
of residences in the city point to a campaign
that regards the "culture" of the capital city as
hostile to Islamic ideology. The use of terror,
underpinned by ideology, goes back to the French
Revolution when the word was first coined and
used positively. "Ideology" too was a coinage of
the French Revolution. And the slogan was:
"Terror without virtue is evil; virtue without
terror is helpless". The Islamic Revolution in
our case has come from outside and it is "virtue
with terror". We call it Talibanisation and see
our cities falling to it one by one. The warriors
of this revolution come from the Tribal Areas
which have already been "conquered" and
transformed into a mini-state or emirate of the
Taliban Tehreek.
Scholars studying the phenomenon tell us that it
is a spin-off of globalisation and its free
movement of capital, ideas and enterprise. When
jihad was inaugurated in Pakistan against the
Soviet invasion of Afghanistan it was a
globalised war attracting warriors from as far
west as Algeria and as far east as Indonesia.
Money moved from the United States and Saudi
Arabia and weapons were purchased in the open
global market and sent to Pakistan. This created
what many scholars have described as the first
Islamist International. In the nineties, the
Internet helped the Islamist cause further.
Programmes not only revisited the Soviet invasion
of Afghanistan and Moscow's humiliation there at
the hands of the mujahideen but also pointed to
the US injustices when they talked of the
Palestinian tragedy. Madrassas had earlier been
empowered with Saudi money which matched the
Americans dollar for dollar. Thus was born the
idea of a new hard Islam which clashed with
Pakistan's more liberal Muslim culture.
Globalisation of capital has been studied more
critically - thanks to the surviving Left
ideologues in the world - than the phenomenon of
the globalisation of Islam. The foremost
"non-economic" objection to globalisation has
been its "monoculture" of the free market, which
is really the imposition of an American
capitalist way of life. Many writers in the Third
World have written cautionary literature on this
"foreign onslaught" against local cultures. Even
the Planning Commission of Pakistan last year
discussed the importance of culture in economic
development, especially in terms of the "soft
image" needed to attract foreign investment
through indigenous culture. The term used was the
"monoculture" of globalisation acting adversely
on local cultures of tolerance.
But it should be clear to all Pakistanis that
Talibanisation is also a "culture-killer", the
only difference being that under the threat of
suicide-bombing what is produced is a non-culture
of coercion. On the other hand, capitalist
globalisation is based on the "pleasure
principle", seducing the cities into adopting a
uniform "monoculture" to the detriment of the old
culture. Capitalist globalisation affects the
entire world. Even Europe feels itself
Americanised despite the fact that,
civilisationally, America is an extension of
Europe. But Talibanisation is effective only in
the Islamic world. In the non-Islamic world it
arouses hatred and hostile legislation, making
the life of the expat Muslims difficult. Why does
Talibanisation succeed so well in Muslim
societies?
If in the West, a terrorist act of Al Qaeda
produces fear and loathing, in the Muslim world
it produces sympathy. This "sympathy" has its
psychological origin in the use of intimidation
in the face of a state with weakened territorial
control. (The weakened writ of the state in the
case of Pakistan has been caused by twenty years
of jihad through non-state armed warriors who
were made a part of civil society, thus creating
parallel centres of power.) Thus, for example,
citizens threatened with the "divinely" ordained
punishments of warlords like Mangal Bagh in the
Khyber Agency react in two ways: under
"intimidation" when they want to save their
lives; and under "empowerment" which makes them
participate in Talibanisation. The "kibitzing"
population in the rest of the country supports
Talibanisation and deprecates the efforts of the
state to retrieve its lost sovereignty.
Al Qaeda has not been able to attack America
after 9/11. Its sleeper cells in Europe are being
uncovered and prosecuted. But its success in
Pakistan is shockingly evident. Killing Muslims
is easier and even brings Muslim support in its
wake. Al Qaeda talks vaguely of a global khilafat
but remains essentially an anarchist
organisation, more geared to destroying the
"unjust international order presided over by
America", than to creating a new order. The
Taliban elements in the Tribal Areas pretend to
have an order in mind but it mostly centres on
the culture of punishments created by the Taliban
government in Afghanistan under Mullah Umar. A
majority of the population in Pakistan believes
in this culture as sharia and assumes that
coercion and violence will go away once an
Islamic utopia is created.
What Pakistan is moving towards is not an Islamic
utopia but a process of retribalisation of the
more diversified urban culture under the
Constitution. Just outside the big cities jirgas
and panchayats are taking over the authority of
the state. Somalia was more suited for an Al
Qaeda emirate simply because it was
quintessentially tribal. Pakistan has however
proved an easier choice and can be tribalised to
suit the blue print of terror.
______
[2]
The Guardian
June 11, 2008
NATO'S LOST CAUSE
The west's 'good war' in Afghanistan has turned
bad. A local solution, rather than a neocolonial
one, is what's needed
by Tariq Ali
In the latest clashes on the Pakistan-Afghan
border, Nato troops have killed 11 Pakistani
soldiers and injured many more, creating a
serious crisis in the country and angering the
Pakistan military high command, already split on
the question.
US failure in Afghanistan is now evident and Nato
desperation only too visible. Spreading the war
to Pakistan would be a disaster for all sides.
The Bush-Cheney era is drawing to a close, but it
is unlikely that their replacements, despite the
debacle in Iraq, will settle the American giant
back to a digestive sleep.
The temporary cleavage that opened up between
some EU states and Washington on Iraq was
resolved after the occupation. They could all
unite in Afghanistan and fight the good fight.
This view has been strongly supported by every US
presidential candidate in the run up to the 2008
elections, with Senator Barack Obama pressuring
the White House to violate Pakistani sovereignty
whenever necessary. He must be pleased.
That the "good war" has now turned bad is no
longer disputed by a number of serious analysts
in the US, even though there is no agreed
prescription for dealing with the problems. Not
least of which for some is the future of Nato,
stranded far away from the Atlantic in a
mountainous country, the majority of whose
people, after offering a small window of
opportunity to the occupiers, realised it was a
mistake and became increasingly hostile.
The "neo-Taliban" control at least 20 districts
in the Kandahar, Helmand and Uruzgan provinces
where Nato troops replaced US soldiers. It is
hardly a secret that many officials in these
zones are closet supporters of the guerrilla
fighters. As western intelligence agencies active
in the country are fully aware, the situation is
out of control. The model envisaged for the
occupation was Panama. The then US secretary of
State, Colin Powell, explained that: "The
strategy has to be to take charge of the whole
country by military force, police or other
means". His knowledge of Afghanistan was limited.
Panama, populated by 3.5 million people, could
not have been more different to Afghanistan,
which has a population approaching 30 million and
is geographically quite dissimilar. To even
attempt a military occupation of the entire
country would require a minimum of 200,000 troops.
A total of 8000 US troops were dispatched to seal
the victory. The 4000 "peacekeepers" sent by
other countries never left Kabul. The Germans
concentrated on creating a police force that
could run a police state and the Italians,
without any sense of irony, were busy "training
an Afghan judiciary" to deal with the drugs
mafia. The British were in Helmand amidst the
poppy fields. As for the new satellite states
involved - Czechs, Slovenes, Poles, Estonians,
Slovakians and Romanians - it was useful training
for the future.
Five years later, in September 2006, an attempted
bombing of the US embassy came close to hitting
its target. A CIA assessment that same month
painted a sombre picture, depicting Karzai and
his regime as hopelessly corrupt and incapable of
defending Afghanistan against the Taliban. Ronald
E Neumann, the US Ambassador in Kabul supported
this view and told an interviewer that the US
faced "stark choices" and defeat could only be
avoided through
"multiple billions" over "multiple years".
The repression, striking blindly, leaves people
with no option but to back those trying to
resist, especially in a part of the world where
the culture of revenge is strong. When a whole
community feels threatened it reinforces
solidarity, regardless of the character or
weakness of those who fight back.
Many Afghans who detest the Taliban are so
angered by the failures of Nato and the behaviour
of its troops that they are hostile to the
occupation. Nato itself has stopped pretending
that its occupation has anything to do with the
needs of the Afghan people and acknowledge it as
an open-ended American military thrust into the
Middle East and Central Asia. As the Economist
summarises, "Defeat would be a body blow not only
to the Afghans, but" - and more importantly, of
course - to the Nato alliance". As ever,
geopolitics prevail over Afghan interests in the
calculus of the big powers.
The basing agreement signed by Washington with
its appointee in Kabul in May 2005 gives the
Pentagon the right to maintain a massive military
presence in Afghanistan in perpetuity. That
Washington is not seeking permanent bases in this
fraught and inhospitable terrain simply for the
sake of "democratisation and good governance" was
made clear by Nato's secretary general Jaap de
Hoop Scheffer at the Brookings Institution in
February this year: the opportunity to site
military facilities, and potentially nuclear
missiles, in a country that borders China, Iran
and Central Asia was too good to miss.
More strategically, Afghanistan has become a
central theatre for uniting, and extending, the
west's power-political grip on the world order.
On the one hand, it is argued, it provides an
opportunity for the US to shrug off its failures
in imposing its will in Iraq and persuading its
allies to play a broader role there. In contrast,
as one report (pdf) suggests, America and its
allies "have greater unity of purpose in
Afghanistan. The ultimate outcome of Nato's
effort to stabilise Afghanistan and US leadership
of that effort may well affect the cohesiveness
of the alliance and Washington's ability to shape
Nato's future."
There are at least two routes out of the Khyber
impasse. The first and the worst would be to
Balkanise the country. This appears to be the
dominant pattern of imperial hegemony at the
moment, but whereas the Kurds in Iraq and the
Kosovans and others in the former Yugoslavia were
willing client-nationalists, the likelihood of
Tajiks or Hazaris playing this role effectively
is more remote in Afghanistan.
The second alternative would require a withdrawal
of all US/Nato forces, either preceded or
followed by a regional pact to guarantee Afghan
stability for the next ten years. Pakistan, Iran,
India and Russia could guarantee and support a
functioning national government, pledged to
preserving the ethnic and religious diversity of
Afghanistan and creating a space in which all its
citizens can breathe, think and eat every day. It
would need a serious social and economic plan to
rebuild the country and provide the basic
necessities for its people.
Nato's failure cannot be simply blamed on the
Pakistani government. It is a traditional
colonial ploy to blame "outsiders" for internal
problems. If anything, the war in Afghanistan has
created a critical situation in two Pakistani
frontier provinces and the use of the Pakistan
army by Centcom has resulted in suicide terrorism
in Lahore with the federal intelligence agency
and a naval training college targeted by
supporters of the Afghan insurgents.
The Pashtun majority in Afghanistan has always
had close links to its fellow Pashtuns in
Pakistan. The present border was an imposition by
the British empire, but it has always remained
porous. It is virtually impossible to build a
Texan fence or an Israeli wall across the
mountainous and largely unmarked 2500km border
that separates the two countries. The solution is
political, not military. And it should be sought
in the region not in Washington or Brussels.
______
[3]
Lakbima News
8 June 2008
A CULTURE WORTH DEFENDING
by Rohini Hensman
The bombing of a public transport bus at
Katubedda and mine attack on a passenger van near
Kilinochchi add two more cases to the gruesome
catalogue of civilian killings in Sri Lanka.
While the former was almost certainly the work of
the LTTE, the latter has been blamed on the
Government.
Given the involvement of state security forces in
terrorist attacks on civilians in the past - for
example, the murder of the five students in
Trincomalee and seventeen humanitarian workers of
ACF in 2006 - the possibility that they were
responsible for the carnage in Kilinochchi cannot
be ruled out. These heinous crimes took place
against the backdrop of the Rajapaksa regime's
ignominious defeat in its effort to retain Sri
Lanka's place on the UN Human Rights Council.
An important reason why the 192-member UN General
Assembly rejected the bid was likely to have been
the appeals issued by Nobel laureates Archbishop
Desmond Tutu of South Africa and Adolpho Perez
Esquivel of Argentina calling on them to do so,
in the light of egregious human rights violations
by the Government of Sri Lanka. As Hassan Shire
Sheikh of the East and Horn of Africa Human
Rights Defenders Project in Uganda put it, "—The
Human Rights Council must stand with the victims,
not become an abusers' club". It is significant
that such negative opinions of Sri Lanka's record
were expressed by human rights defenders from
other Third World countries.
Head in the sand
Instead of using this event as a wake-up call to
improve its human rights record, the Government
of Sri Lanka stubbornly kept its head buried in
the sand, and refused to face reality. Foreign
Minister Rohitha Bogollagama attributed the
defeat to a campaign by international NGOs
representing the LTTE. In that case, why did
these very same NGOs wage a campaign against the
LTTE, helping to ensure that it was not only
banned in several countries, but that action was
taken to block its funding and arms supplies?
What about the Nobel laureates: is it plausible
that they opposed Sri Lanka's membership of the
Human Rights Council because they supported the
LTTE? Isn't it much more likely that they saw
parallels between the atrocities perpetrated by
government forces in Sri Lanka and the torture,
disappearances and killings by the brutal regimes
they faced in their own countries? As usual, the
Government position defies both logic and
well-known facts.
Bogollagama also reiterated the Government's
opposition to UN human rights monitoring, despite
the fact that it would go a long way towards
preventing war crimes like the Dehiwela train
bombing: just one more example of this
Government's callous disregard for the suffering
of innocent civilians.
Abiding by our own standards
We may have had authoritarian rulers in the past,
wielding power similar to those of the Executive
President or Prabhakaran, but the barbarism of
deliberately directing attacks at helpless
unarmed civilians represents a degradation of our
culture which surely cannot be found in our
pre-modern history. Why are we allowing our
country to descend to such depths, when high
ethical standards have been elements of our
culture in the past? Sri Lanka has a rich and
diverse culture, nourished by inputs from a
variety of sources. As an important entrepot in
the ancient world, traders and migrants from
South, East and West Asia visited and settled in
our country, bringing their cultures and mingling
with the indigenous population and each other.
Over two-and-half millennia ago, the Buddha was
teaching his followers in India to abstain from
taking life, from taking what has not been given
to one, and from lying, and to have compassion
for all living beings.
Some five centuries later, Jesus was teaching his
followers in Palestine to love their neighbours
as themselves, and telling the story of the Good
Samaritan to illustrate his point that a
"neighbour" was anyone in need of help,
regardless of ethnicity or religion.
Mahatma Gandhi, a devout Hindu, deployed
satyagraha "the truth-force of non-violent
resistance to oppression" to fight for freedom
from British rule, arguing that it was
contradictory to use unjust means to achieve
justice, or violence to obtain peace. Khan Abdul
Ghaffar Khan, also known as "Badshah Khan" or
"the Frontier Gandhi", was a devout Muslim who
formed a non-violent army of 100,000 in the
North-West Frontier Province (now part of
Afghanistan) - the Khudai Khidmatgar or Servants
of God - to fight against British rule. All these
influences are part of our heritage.
As these examples show,while the language of
human rights may have originated in the European
Enlightenment, this does not mean our Asian
cultures did not have their own notions of
humanity, humanitarianism, and respect for human
beings. The Buddha and Jesus were revolutionaries
in their own way, rejecting oppressive social and
religious structures and practices such as the
caste system, subordination of women, and
oppression of the poor. Mahatma Gandhi and
Badshah Khan were freedom fighters who succeeded
in their struggle against the most powerful
empire of their time.
The standards of conduct they set were, if
anything, higher than those set by international
humanitarian and human rights law: not just
avoiding attacks on civilians, but practising
non-violence; aiming not only for justice, but
also for compassion and love.
If we had been true to these ethical standards,
neither the UN nor international and local NGOs
would have had any cause for complaint, and Sri
Lanka would have been a valued member of the UN
Human Rights Council. It is only because the
self-appointed guardians of "Tamil" and
"Buddhist" culture have debased our indigenous
culture so grievously that we fail even the lower
standards set by international law. While our
political leaders are largely to blame for this,
all citizens share responsibility for the
failure. It is up to us to demand and insist on
political leaders who come up to the highest
standards, as measured both by international law
and by all that is best in our own culture, and
to protest when they fall short of them.
_______
[4] [India's and world's nuclear lobbyists (both
military and civil) would'nt bat an eyelid
listening to the anti nuclear noise from the
India's vice president. Once upon a time such
talk was standard fare by India's foreign policy
makers. Today such talk seems out of place for a
country going whole hog to develop missiles to
deliver its Nuclear weapons and pushing an
untenable civilian nuclear deal with the US as
the answer to India's energy needs. -SACW]
o o o
Press Information Bureau
Government of India
Tuesday, June 10, 2008
Vice President's Secretariat
http://pib.nic.in/release/rel_print_page1.asp?relid=39505
VICE PRESIDENT GIVES VALEDICTORY ADDRESS TO
INTERNATIONAL CONFERENCE ON 'TOWARDS A WORLD FREE
OF NUCLEAR WEAPONS'
11:10 IST
The Vice President of India Shri Mohd. Hamid
Ansari gave Valedictory address to International
Conference on 'Towards a World Free of Nuclear
Weapons' jointly organized by Centre for
Strategic and International Studies and Indian
Council of World Affairs today.
Following is the text of his Valedictory address on the occasion:
"I Any discussion necessitates clarity about
concepts. In terms of the theory of statecraft,
war has always been considered an instrument of
policy. Pursuit of war necessitates weapons,
defined as tools to gain advantage over an
adversary. Improvement in the quality of weapons,
and invention of new ones, is a logical outcome
of the human trait to seek excellence, for
success in subduing a political and military
adversary by inflicting unacceptable damage.
The impulse to invent weapons of mass
destruction, including nuclear weapons, was part
of this process. Each new weapon system also
propelled assessment of its implications in
tactical and strategic terms. Both processes were
accelerated in the second half of the 20th
century.
Every invention, apart from its novelty, has to
prove its utility. Mass destruction in the
Spanish civil war was vividly depicted by
Picasso's Guernica; less than a decade later, it
was typified by London and Dresden. In the case
of the nuclear weapon, the utility was brutally
demonstrated at Hiroshima and Nagasaki. The scale
of destruction there propelled consideration of
the implications of the new weapon.
An early recognition came in the shape of the
Baruch Plan of June 1946. It was rejected by the
Soviet Union for reasons that were evident. In
1948, General Omar Bradley told an American
audience that "the only way to win an atomic war
is to make certain it never starts".
None appreciated the implications better than the
scientists. In July 1955 the signatories of the
Russell-Einstein Manifesto spoke "not as members
of this or that nation, continent, or creed, but
as human beings, members of the species Man,
whose continued existence is in doubt".
The venue of this conference is important; so is
its timing. India has been an ardent advocate of
prohibition on the production and use of nuclear
weapons. Jawaharlal Nehru in 1954 spoke of the
fear that "would grow and grip nations and
peoples and each would try frantically to get
this new weapon or some adequate protection from
it." Prime Ministers of India proposed
prohibition in 1978 and again in 1982. In 1988
Rajiv Gandhi sought "not a marginal adjustment in
the machinery of nuclear confrontation, nor a
partial or temporary scaling down of the arms
race", but "a world which is rid of nuclear
weapons". His Action Plan for a World Free of
Nuclear Weapons was comprehensive in its scope,
passionate in its appeal, and clinical in its
reasoning and analysis.
The idea was considered utopian. Despite this,
and in the initial euphoria at the end of the
Cold War, the global momentum for a less
unpleasant world led to the conclusion of the
universal and non-discriminatory Chemical Weapons
Convention, with its intricate and intrusive
verification mechanism. Significantly, however,
the argument for outlawing it was not extended to
nuclear weapons.
In regard to matters nuclear, the world has
witnessed changes over the past decade and a
half. This audience is knowledgeable about it.
India herself has emerged as a nuclear weapons
state.
On one side it is argued that the imperative of
realism leaves no option but to accept the
reality. On the other, those distressed over the
fraying of world order and apprehensive of the
"normative cost of silence" advocate a more
assertive approach. "This is a time", writes
Professor Richard Falk in his recent book The
Costs of War, "when realism and idealism are
increasingly fused in their call for a future
world order based on law and justice, but this
cannot be made to happen without the engagement
of the peoples of the earth acting as
detribalized citizens without borders."
Three questions arise:
* Is the logic of 'realism' unassailable?
* Does it hold good for the world of tomorrow?
* Has the argument for disarmament, and
particularly for nuclear disarmament, ceased to
be relevant for the survival of the human species?
The case for the possession of nuclear weapons
needs to be assessed in strategic, legal,
political, financial, developmental and
environmental terms. This would unavoidably widen
the ambit of discourse.
In the first place and according to the
Federation of American Scientists, the global
stockpile of nuclear warheads today remains at
more than 20,000. Of these, more than 10,000
warheads are considered operational, of which a
couple of thousand are on high alert, ready for
use on short notice. The approach is premised on
the doctrine of deterrence; the latter, however,
remains inherently unstable, prone to human error
or folly; the probability of the annihilation of
the human race through the use of these weapons
thus remains high, and must be considered
unacceptable.
Secondly, nuclear armament ends up being, in its
implications, anti-poor and anti-development.
Stephen Schwartz, in his 1998 book 'Atomic Audit'
on the comprehensive cost of the US nuclear
weapons programme, has estimated that the US
spent around $6 trillion in total. The arms race
led the former Soviet Union to the point of
exhaustion and disintegration. The resource drain
of other nuclear-weapon states would be equally
high in proportionate terms. This level of
spending by nuclear weapon states cannot but deny
national resources for developmental or other
purposes for public welfare.
Thirdly, the development, production, stockpiling
and use of nuclear weapons results in immense,
irreversible and unforeseen damage to the
environment. As far back as 1987, the Report of
the World Commission on Environment and
Development, (known as the Brundtland Report),
affirmed that "among the dangers facing the
environment, the possibility of nuclear war is
undoubtedly the gravest". It noted that the
"whole notion of security as traditionally
understood in terms of political and military
threats to national sovereignty must be expanded
to include the growing impacts of environmental
stress"; it concluded that "there are no military
solutions to 'environmental insecurity'."
Fourthly, there have been fundamental changes in
the nature of conflict and of the structure of
international relations. Conflict in the
post-Cold War era has acquired new
characteristics: it is not classical inter-state
conflict; it is fuelled by identity based factors
and issues of economic and social justice; and
there is a drastic increase in the role of
non-state actors. Weapons of mass destruction
that were fashioned for inter-state conflict and
their associated strategic deterrence doctrines
premised on state behaviour have little relevance
for the new reality.
The case for possession and use of nuclear
weapons stands dented and lends credence to the
need to re-think its fundamentals. Any endeavour
on this basis must necessarily be rooted in
legality and morality and be capable of
demonstrating the advantages emanating from it.
How is this elusive goal to be attained? In
exploring options, we need to remember that the
community of nations has put in place agreements
to outlaw chemical and biological weapons.
The question of legality poses problems. On a
reference from the UN General Assembly on "threat
or use of nuclear weapons", the International
Court of Justice gave an Advisory Opinion in July
1996. It decided that in customary or
conventional international law there is neither
an authorisation nor a prohibition of the threat
or use of nuclear weapons. While it opined that
such a threat or use would be contrary to the
rules of international law applicable to armed
conflicts, it noted that the current state of
international law does not permit the Court to
conclude definitively whether such threat or use
would be lawful or unlawful in an extreme
circumstance of self-defence, in which the very
survival of a state would be at stake.
The distinguished audience here is cognizant of
the UN General Assembly resolutions passed each
year by a large majority reaffirming that "any
use of nuclear weapons would be a violation of
the Charter of the United Nations and a crime
against humanity" as declared in its resolution
1653 (XVI) of 24 November 1961.
This reveals the desire of a very large section
of the international community to move forward
along the road to complete nuclear disarmament.
On the other hand, we have the annual
re-affirmation of the Chapter VII Security
Council Resolution 1540 of 2004 stating that
proliferation of nuclear weapons "constitutes a
threat to international peace and security".
Put together, we get two sets of assertions:
1. use of nuclear weapons is a crime against humanity;
2. proliferation of nuclear weapons is a threat
against international peace and security.
Between the two ends of this spectrum, falls the
question of production, possession and threat to
use of nuclear weapons. It is an irony of
Realpolitik that these have so far not been
perceived to constitute a threat to international
peace and security.
The ICJ addressed but did not resolve a critical
question: Would a higher priority be accorded to
the survival of the state if the survival of
humanity itself were at stake?
A Dissenting Opinion summed up the legal dilemma:
"The case as a whole presents an unparalled
tension between State practice and legal
principle". "When it comes to the supreme
interests of State", it noted, 'the Court
discards the legal progress of the Twentieth
Century, puts aside the provisions of the United
Nations Charter of which it is the principal
judicial organ, and proclaims, in terms redolent
of Realpolitik, its ambivalence about the most
important provisions of modern international law".
This impasse was reflected most recently in the
Report of the UN Disarmament Commission on April
25, 2008 at the end of its Three Year Cycle of
Deliberations. Releasing the Report, the Chairman
of the Commission said that even set against the
relatively low expectations, the results were
meagre. "There was a stark contrast between the
state of the world and the cooperation of the
United Nations Member States in the Commission.
Therefore, the credibility question is
inescapable, and in time, each and every one of
us should be able to answer it".
The only way to resolve the impasse is to do it
on a different plane. The modern state system is
premised on the model emanating from the Peace of
Westphalia. The reality of the sovereign state
today, however, is very different from its
theory. In 1991 Javier Perez de Cuellar had
called upon the international community to help
develop a "new concept, one which marries law and
morality".
Such an effort of bringing together law and
morality would help initiate the process of
resolving the dilemma highlighted by the ICJ in
its Advisory Opinion. The process would then take
us back to the Russell-Einstein Manifesto's focus
on the human being: "Remember your humanity, and
forget the rest. If you can do so, the way lies
open to a new Paradise; if you can not, there
lies before you the risk of universal death."
To transform vision into reality, a plan and a
timetable on the pattern of the Rajiv Gandhi
Action Plan would be essential. We have seen
that, hitherto, nuclear disarmament has become
almost synonymous with nuclear non-proliferation.
A change would be possible only through such an
Action Plan.
For much too long, ladies and gentlemen, the
question of disarmament has remained in the
exclusive domain of states and their experts. Is
it not time now to open a window or two to let in
the fresh breeze of global public opinion? We are
aware of the beneficial results produced by such
an approach in other areas that transcend state
sovereignty.
Given the immobility of the current disarmament
process, a new methodology may be worth a try".
_______
[5]
The Tribune
June 12, 2008
People power can force change
INDIA, PAKISTAN MUST OVERCOME BIAS AND MISTRUST
by Kuldip Nayar
A seminar took me to Lahore. The topic was:
'Rapprochement between India and Pakistan.' Among
the participants were scholars and retired
diplomats from Germany and France. Their
experience of striking a friendship after
hundreds of years of war was the basis of their
contribution to the seminar. They argued that
certain members of the government elite had to
undergo a personal 'conversion.' Public opinion
followed later.
With India and Pakistan, it is different.
Bureaucrats who formulate and execute policy for
a détente between the two countries constitute
the 'mindset' and they are far from converted.
The initiative here has been by the people.
Whatever progress has been made to lessen
tension, it is because of them. They, too, have
their eyes fixed on how France and Germany
reached the equation.
This example was cited by Quaid-e-Azam Mohammed
Ali Jinnah two years before the creation of
Pakistan. He came to the Law College at Lahore
where I was studying. In reply to a question
expressing fear over the hostility between Hindus
and Muslims, he said: "Some nations have killed
millions of each other's people and yet an enemy
of today is a friend of tomorrow. That is
history."
I find his prophecy coming true when I see
people-to-people contact not only spreading but
also strengthening. Yet the attitude of the
bureaucracy and politicians on both sides leaves
me cold. That a visa is hard to get is no more
news. The news is that the intelligence agencies
are the ultimate arbiter.
One glimmer of hope is that India has proposed to
Pakistan to abolish visas for people above 65.
Islamabad, which had once rejected the proposal,
is reconsidering it after the advent of the new
government. Still, the grievance of New Delhi is
that it is doing its best, but Islamabad is not
cooperating. The Indian High Commission at
Islamabad claims that it has issued more than one
lakh visas last year as against Islamabad's
35,000.
However adamant the governments on both sides
are, the people will make a difference to any
sterile exercise that both sides carry out
periodically. The world is replete with examples
where people have forced events.
Poland is thousands of miles away from the
subcontinent. Yet, this European country has a
lesson for people living in the two countries.
Europe asserted itself against the dictating of
who will meet whom and under what circumstances.
The common man was only a tool in the hands of
some faceless Communist party bureaucrats wanting
to control him. Suddenly, from among the people,
rose an ordinary worker - with the same failings
as others - to ignite the desire to overcome
individual differences and stand together, to
defeat those who sowed separateness.
This man was Lech Walesa, head of the ship
workers' union at Gdansk and later the first
President of a free Poland. To the world he gave
an idea, the idea that people who join hands for
a common cause are a power to be reckoned with.
They can remove any impediment, any wall and any
border.
Before I crossed into India, after traveling some
250 kilometers in a jeep from my hometown,
Sialkot, on September 13, 1947, I saw a column of
Muslims coming from India stopping near us,
outside Lahore. None spoke - neither them nor us.
But we understood each other; it was a
spontaneous kinship.
Both had seen murder and worse; both had been
broken on the rack of history; both were
refugees. The emotional bonds between peoples of
the two countries had not died even after the
holocaust when at least one million people were
killed and 20 million uprooted.
After staying for some time on the outskirts of
Lahore, they went their way and we ours. I told
myself that someday we must create conditions
where we could meet, the friends I had left
behind, or their children. I do not like gates at
the border, nor barbed wires. Jinnah did not want
it that way. He said that Pakistan and India
would settle down as America and Canada had.
A candlelight vigil at the Wagah border or a
busload of women from Lahore to Delhi, or a lorry
of passengers traveling between Muzaffarabad and
Srinagar, are by themselves not great events. But
they signify the breaking of the crust of
hostility between the two countries.
'Composite dialogue' and 'confidence building
measures' may be overused phrases. But what they
mean is that the era of hostilities is over and
the era of sitting across the same table has
come. The basic problem between the two countries
is how to have faith and confidence in each other.
I suggest that the Punjab assemblies on both
sides pass a resolution offering apologies for
the killings, looting and the like during
partition. This may have a psychological effect.
There are a few relentless optimists who have
prepared the ground. They had to confront nearly
implacable opposition, vested interests and
extremism of the worst type.
The task in Pakistan was still more Herculean
because the openness of India's democracy does
help to an extent. Pakistan believed that India
was out to undo it. Yet India, however
democratic, did not learn how to live with an
intransigent neighbour. There was so much tension
that one could taste it. Even the best of
friendships were under strain.
Things have changed now to a large extent.
Cricket teams and film stars have done a
tremendous job. They are heroes on both sides.
People applaud good cricket, whichever team wins.
Cassettes of Indian music and films are popular
all over Pakistan. This has helped lessen
bitterness. Information and Broadcasting Minister
Sherry Rehman told me that Pakistan had
unilaterally lifted the ban on screening Indian
films.
I personally think that such praiseworthy efforts
get embroiled in preconceived notions of the
'mindset' - bureaucrats and politicians of
limited vision. Some activists, already engaged
in the process of people-to-people contact, know
this from their experience at the grassroots.
Governments at New Delhi and Islamabad have to
realise that it is really the people who have the
power to change and if they are kept at a
distance the process itself will get defeated.
Politicians have certain pulls and compulsions,
but the people are their masters and, if allowed,
they can change the course of history. Witness
the popular revolutions in France, China and,
most recently, Iran, where the tide of public
opinion swept away the established order.
The people in those countries realised the folly
of tolerating rule by those who did not represent
the popular mood. Have Pakistan and India reached
that stage? Ultimately, their understanding will
count. Kashmir is a symptom, not the disease. The
disease is the bias and mistrust in each other.
If you do not remove that, you will have another
Kashmir after solving this one.
_______
[6]
Dawn to Earth
June 11, 2008
PESTICIDES, PUBLIC RELATION COMPANIES & PROTESTS
Editorial: 'SLAPP'ed but will not submit
In the first week of April this year, a group of
men came and stood outside the Centre for Science
and Environment (CSE), New Delhi. They carried
placards with offensive slogans directed at me.
We understood the 'protesters' were ostensibly
from an NGO we believed was a front for the
pesticide industry. We also understood the picket
to be the latest in a dangerous pesticide
industry mindgame.
Let me explain. For the past few years, the
pesticide industry, represented by its rich and
powerful owners, has held press conferences
across the country slamming CSE's research on
pesticide residues in food, in the blood of
farmers in Punjab and in the soil, water and food
of diseased and deformed villagers of Padre in
Kerala. During this period, we have received
dozens of legal notices from this industry,
threatening dire consequences. Every time we have
replied to these notices, stating the facts,
there has never been a follow-up. Instead,
another notice for some other frivolous reason
gets sent, threatening dire consequences.
Initially, the industry targeted our research.
The focus then moved to us -- to CSE -- before
settling on me.. A year ago, they hit a real low
when they began circulating obscene cartoons of
me that Rajju Shroff, owner of a leading
pesticide company, had drawn.
In all this time, even as we refused to give in
to the threats, we also respected their right to
protest. This time, too, we decided to leave the
picket alone. Then, a few days into the
'protest', a journalist with a city daily visited
and recognised one of the protesters outside our
gate. This was not an employee of the aggrieved
pesticide company or a protesting NGO, he said.
This man was a representative of a public
relations company who had met him, on behalf of
biscuit manufacturers, to make the case that
government should allow processed food, instead
of cooked hot meals, in the multi-crore school
meal programme.
We were puzzled. Surely, Indian industry was too
proud or forthright to hire protesters? Why would
reputed public relations companies engage in
dirty tricks and intimidation? We knew this kind
of thing happened in the US, where corporations
hired lobbyists and white collared goons. But was
this now happening in India? We decided to
investigate.
When we checked with all known names in the
public relations business, nobody had heard of
this company-Media Expressions Consortium.
Finally, when my colleagues tracked it down to a
small office based in a Mumbai suburb, a sinister
canister of worms leaked out. The company, we
learnt, represented the biggest of the polluters
-- the plastic industry and pesticide industry --
as well as others, like the biscuit
manufacturers, to defend their interests. The
company boss proudly told my colleague he was out
demonstrating in front of our office. But in the
same breath he told her he had nothing to do with
the protest. We realised why. His was a 'shadow'
affair. This was the new face of Indian business
-- the hidden lobbyist who could skilfully make
out cases for clients in different ways, from
power-point presentations to physical protest,
all on hire, for a price.
Clearly this is now the toolkit of industry to
deal with dissent-to suppress public opinion and
to subvert decision-making via a fine public
relations makeover. If you don't believe me just
consider how, in this same period, the pesticide
industry through its associations has filed
countless cases against activists and scientists,
but with an important difference. These cases
derive from what is known in the US as SLAPP --
acronym for 'strategic lawsuits against public
participation'. These are 'different' because the
corporation (or its front organisation or lawyer)
uses it not to get justice, but to threaten,
intimidate and gag. The cases are filed not
against institutions that can defend their
interests but carefully target individuals and,
in particular, professionals who refuse to
prostitute their science to suit industry. The
companies who file SLAPP cases rarely win in
court, but make the defendants spend a huge
amount of time and money running to the courts to
fight the case. This harassment discourages
others from petitioning government on public
issues. Industry's business is served.
A few years ago, the Pesticide Association of
India, now called the Crop Care Federation of
India, sent Y S Mohana Kumar, the lone doctor in
Padre, a strong legal notice threatening massive
damages. His crime? He had worked tirelessly
among villagers afflicted with terrible mental
and physical ailments that pesticide residue
poisoning had caused, and had raised the issue
publicly. Padre is a village devastated by the
spraying of endosulfan; every house has a victim
crying for justice. The industry continues to
deny its shame. Instead, it continues to threaten
and abuse. The latest victim is a retired
government scientist who undertook the research
that indicted pesticides for the ailments in
poisoned Padre. Till she worked with the
Ahmedabad-based National Institute of
Occupational Health, industry and its agents did
nothing. But the moment she retired, the attacks
began. She has already received two legal
notices, and more threats, we know, will follow.
Industry wants to ensure that others learn from
her example -- do not 'dare' to do science that
works for public good.
Even as I write this, I know that the dirty
tricks department of the pesticide industry is
working over-time to find innovative ways to
attack. Last week they decided to up the ante --
to target my house so that they can harass my
80-year old mother. But we all know there is too
much at stake here to let a few sticks and stones
break our bones.
-- Sunita Narain
______
[7]
Tehelka Magazine,
Vol 5, Issue 23, Dated June 14, 2008
NOT SO WORTHY, MY LORD
The Supreme Court's order in the Shaukat case
represents a complete miscarriage of justice
by Shanti Bhushan
Former Law Minister and legal luminary
DURING THE Emergency in 1976, the Supreme Court
(SC) delivered a shocking judgement in the habeas
corpus case known as ADM Jabalpur, which stunned
the whole country. In its judgement, the SC
declared that during the Emergency nobody had any
right to life or liberty. On May 14, 2008, the
Supreme Court delivered another horrifying
judgement in another habeas corpus case, that of
Shaukat Hussain Guru. Can we imagine any
civilised country where an apex court can
sentence a person to imprisonment without framing
a charge, without giving him any opportunity to
present evidence in his defence, when the offence
of which he is convicted puts the burden of proof
on the accused?
Sounds incredible, but it is true. This is the
precise reason why people need to sit up and take
notice. What has been done to Shaukat today can
be done to any of us tomorrow. A careful reading
of the Supreme Court judgement of May 14 itself
would bear this out. The facts are totally beyond
dispute.
The Supreme Court in an admirable judgement (P.
Venkatarama Reddy & PP Naolekar) of August 4,
2005, decided the POTA case relating to the
Parliament attack on December 13, 2001. In a
careful and wellreasoned judgement, written by
Justice Reddy, the court acquitted Shaukat of all
the 12 charges, which had been framed against him
in the special court. It was expressly held that
Shaukat was not a party to the conspiracy to
attack Parliament. No charge had been framed
against Shaukat in the special court under
Section 123 IPC, which read with Section 39 CrPC,
requires a person who becomes aware of the
intention of any other person to commit certain
offences, to give that information to a police
officer, unless he has a reasonable excuse. The
burden of proving the reasonableness of the
excuse is on the accused.
In the absence of a charge under Section 123 IPC,
the question of Shaukat producing evidence of
whether he had any reasonable excuse for not
reporting this to a police officer did not arise.
In fact, even if he had informed a police
officer, who did not take him seriously, he could
have led that evidence to that effect only if he
was charged for that offence. No argument was
made by the public prosecutor during the
protracted hearing in the SC that even if no
charge of conspiracy was proved against Shaukat -
and he had to be acquitted of all the 12 charges
against him - he could still be convicted for an
offence under Section 123 IPC with which he had
not been charged.
If he had raised any such argument and asked for
a conviction under Section 123 IPC, the judges
would have been confronted by the threejudge SC
decision in Shamsaheb Multani's case (2001) 2 SCC
577. In this case a husband was charged under
Section 302 IPC for the murder of his wife. The
High Court had acquitted him of that charge but
convicted him under the offence of "dowry death"
under Section 304-B, and imposed life
imprisonment. The SC formulated the question
before them thus: "The question raised is this:
Whether an accused who was charged under Section
302 IPC could be convicted alternately under
Section 304-B IPC without the said offence being
specifically put in the charge."
The SC pointed out that unlike an offence under
Section 302, where the burden of proof was on the
prosecution, for an offence under Section 304-B,
it shifts to the accused and it laid down: "If
that be so, where an accused has no notice of the
offence under Section 304-B IPC, as he was
defending a charge under Section 302 IPC alone,
would it not lead to a grave miscarriage of
justice, when he is alternately convicted under
Section 304-B IPC and sentenced to the serious
punishment prescribed thereunder."
The SC further said, "the above illustration
would amplify the gravity of the consequence
befalling an accused if he was only asked to
defend a charge under Section 302 IPC and was
alternately convicted under Section 304-B IPC
without any notice to him, because he is deprived
of the opportunity to disprove the burden cast on
him by law." The principle laid down is clearly
applicable to Shaukat's case. I have no doubt
that if the point had been raised by the public
prosecutor, during the hearing or even if the
judges had raised it, the bench of Justices Reddy
and Naolekar, would not have convicted and
sentenced Shaukat under Section 123 IPC after
seeing the judgement in Shamsaheb Multani case.
However, this idea occurred to the judges after
the judgement was reserved, and they never heard
the accused or his counsel on Section 123 IPC. By
their judgement of August 4, 2005, while
acquitting Shaukat of all the charges framed
against him, the court convicted and sentenced
him under Section 123 IPC in the following words:
"Thus by his illegal omission to apprise the
police or magistrate of the design of Afzal and
other conspirators to attack Parliament, which is
an act of waging war, the appellant Shaukat has
made himself liable for punishment for the lesser
offence under Section 123 IPC." To err is human
and judges are indeed human. If judges decide a
question without hearing, they may make mistakes.
This is why the principle of natural justice
requires a hearing before any judicial decision.
In a seven-judge judgement in Antulay's case
(1988) 2 SCC 602, the SC has held that "violation
of a fundamental right itself renders the
impugned action void. So also the violation of
the principles of natural justice renders the act
a nullity".
IN THAT case, the SC by an earlier order had
transferred a trial from a special judge to the
high court. This order of the SC was held to be a
nullity on two grounds, one that it had been made
in contravention of the principles of natural
justice and secondly this order was also in
contravention of a fundamental right. Article 21
of the Constitution confers the most important
fundamental right in these glowing words: "No
person shall be deprived of his life or personal
liberty except according to the procedure
established by law". The procedure is prescribed
by the CrPC. It requires the framing of a charge,
an opportunity to the accused to lead defence
evidence on that charge and an oral hearing
through counsel.
The SC not only contravened this fundamental
right of Shaukat but also convicted and sentenced
him without hearing him or his counsel on this
new charge under Section 123 IPC. The SC's
conviction and sentence were therefore clearly a
nullity as laid down by the seven-judge bench in
Antulay's case. However, instead of rushing to
file a habeas corpus petition straight away,
Shaukat first filed a review petition, so that
the judges themselves could correct their error.
The senior judge, P. Venkatarama Reddy, who had
otherwise written an admirable judgement has
since retired. The review petition was dismissed
in the chambers without any hearing.
A curative petition was then filed by Shaukat was
also dismissed in the chambers without any
hearing. It was only then that a habeas corpus
petition was filed. When Antulay's judgement,
Rupa Hurra judgement and Shamsaheb Multani
judgement were shown to a bench of Justice
Naolekar and Justice Ravindran, they issued a
notice and put up the matter for a final hearing.
The petition was finally heard for two days
before Justice Naolekar & Justice Sirpurkar,
after which the infamous judgment was delivered
on May 14, 2008. The court's attention was drawn
to the five-judge Constitution bench judgement in
Rupa Ashok Hurra case (2002) 4 SCC 388 in which
the court had observed: "Almighty alone is the
dispenser of absolute justice - a concept which
is not disputed but by a few. We are of the view
that though judges of the highest court do their
best, subject of course to the limitation of
human fallibility, yet situations may arise, in
the rarest of rare cases, which would require
reconsideration of a final judgement to set right
miscarriage of justice complained of. In such
cases, it would not only be proper but also
obligatory both legally and morally to rectify
the error."
Only great judges admit to making mistakes and
correct it. Evidentially, these two judges did
not prove themselves to be so worthy.
______
[8]
Kalingaonline.com
June 12, 2008
IMPUNITY INSTITUTIONALIZED, ARMED FORCES SPECIAL
POWERS ACT COMPLETES 50 YEARS AS INDIAN LAW
by Jagmohan Singh
While people couldn't care less and the State
continues to revel in the impunity granted to the
armed forces, well-meaning social activists,
journalists, academicians and young human rights
activists demand the repeal of the Armed Forces
Special Powers Act, 1958 at a Seminar held in New
Delhi on 22nd May 2008 -marking the 50 years of
the legislation. The event went totally
unreported in the Indian media. The author files
this report and comments on various aspects of
the draconian law.
50 years ago, on 22nd May 1958, in the face of
rising political dissent in the North-east, India
decided to add fiction to its laws -the Armed
Forces Special Powers Act. Though enacted only
for a year, it has continued since. It
contravenes the fundamental principles of
jurisprudence, Indian law, particularly the right
to life and right to a fair trial and
international standards, particularly the
derogable and non-derogable provisions of the
International Covenant on Civil and Political
Rights to which India is a signatory.
Though meant to be a tool for restoring public
order by aiding civil authority, the AFSPA
empowers the State governor to subsume the powers
of the State government to declare "undefined"
disturbed areas. It also empowers
non-commissioned officers of the armed forces to
arrest without warrant, to destroy any structure
that may be hiding absconders without any
verification, to conduct search and seizure
without warrant and to shoot causing death. No
legal proceeding against abuse of such arbitrary
powers can be initiated without the prior
permission of the federal government. Various
interpretations of the provisions of this Act by
various Indian courts have seriously undermined
the role of the judiciary while adjudicating upon
the validity of this law.
This legislation has been used as an instrument
to deal with the people of the North-east
militarily and not politically. While the people
of Punjab had a brief taste of the Act in the
1980s, the people of Kashmir continue to be
subjected to the same Act since 1990.
Families of victims have lost count of the
various times that the provisions of the Act have
been used to crush all forms of dissent
-political, social and even personal. In the name
of keeping the high morale of the "protectors of
the country-the armed forces" a free-run has been
given to the Indian Armed Forces for far too long
in this part of the Indian territory, which
according to the dissenters has been "illegally
occupied" by the Indian state.
The Armed Forces Special Powers Act, 1958 must be
repealed and there is no further argument on it.
To unnerve a brutal power regime and to awaken it
from its slumberous torpor, something major had
to happen. The continuity of the Act in "far off"
North-east has simply gone unreported in the
Indian mainstream media. The death of one woman
-Manorama Devi and the steadfastness of another,
who is on fast unto death for the past eight
years -Ms. Sharmila, have brought the issue into
focus. The numerous acts of human rights abuses
under the Act came to the fore after the gruesome
murder of Manorama by the security forces
operating under the Act in 2004. The people of
Manipur rose up not only against the murder but
also against the Act. Civil liberties
organizations and concerned citizens from across
the country and world joined in the chorus of
protest. Documentaries were made. People from all
walks of life sat on protest demonstrations and
candle light vigils. Womenfolk resorted to the
extreme step of a "nude protest" to shame the
armed forces and the government.
The government relented, but in its typical way
of "setting up of a committee". The Prime
Minister's Office constituted the Justice B. P.
Jeevan Reddy Committee to look into the matter
and explore the possibility of substituting the
AFSPA with a "more humane" Act. The Committee
submitted its report on 6 June 2005 and
recommended that the Act be repealed. Similarly
the Administrative Reforms Committee headed by
Veerappan Moily also recommended on 26 June 2007
that the Act be repealed.
Earlier, in February 2007, the United Nations
Committee on the Elimination of Racial
Discrimination had also recommended that the
Indian Government immediate repeal the AFSPA. So
far the federal and Manipur governments have
failed to meet many a promise made for repeal of
the Act. Even the Jeevan Reddy Committee's report
has not officially been made public, though The
Hindu newspaper managed to leak its contents.
The Act is discriminatory no doubt and the
alienation issues flowing from the misuse of the
provisions make it more symptomatic of the
malafide intent of the State.
Dr. Bimol Akoijan, a researcher at the Centre for
the Study of Developing Societies, in the course
of the recent conference in Delhi, remarked that
"this Act is not an Act but legal fiction.
Discussing public interest litigation of civil
societies, the Supreme Court of India, accepts
that the conditions are not "disturbed" and that
"armed rebellion does not constitute threat to
national security". And then goes on to uphold
the constitutional validity of the Act, which it
did in 1997.
to be continued
Senior Editor of the acclaimed Indian newspaper,
The Hindu, Sidharth Vadarajan pointed out that
the new phenomenon of arming civilians in Manipur
is going to have serious repercussions. "It is a
dangerous experiment and all those engaged in
armed resistance must keep away from these
non-state actors" he said. He also commented that
the use of National Security Act is yet another
aspect which has not received much attention as
there are cases of people being charged under
sedition charges and then detained under NSA.
Ravi Himadri the Director of The Othermedia
outlined that the ill as a matter of policy and
governance. He said that "the larger policy of
the government of India seems to be about dealing
with militarization. The state is unwilling to
have a peaceful dialogue with what it conceives
as 'small groups', for example the people living
in Garo Hills. The law/army/ ministry have a big
influence on the 'system' which is why repealing
the Act is quiet improbable."
"The Jeevan Reddy Committee report has not been
implemented clearly under army influence." He
further said. He expressed the need to assess the
social and psychological trauma undergone by the
people.
Going into the question of institutionalizing the
illegal methodologies adopted under the statute,
a member of the Justice Jeevan Reddy Committee
and renowned columnist, Sanjoy Hazarika, said
that "one of the key questions is the prolonged
imposition of the Act. 50 years of militarization
is far too long and clearly exposes the lack of
resolve, insecurity and failure of the government
of India in handling the political questions of
the region. The Act must be repealed and there is
no further argument on it." He further said that,
"A new set of legal structure is needed and
mutual understanding evolved to ease the problem
and undo the damage done to the Indian army which
is seen as a villain of the State."
A lady activist, Ninglun Hanghal of the Indian
Social Action Forum suggested that the government
of India should scrap the Act, atleast on an
experimental basis and monitor the results. She
said that serious problems like unemployment may
soon spawn an era of social unrest. Pointing out
at the other side of the picture, she said that
with an increase in the number of insurgent
groups, the problems have further escalated.
Like Sidharth Vadarajan, the Coordinator of
Reachout, Kshetrimayum Onil also stressed upon
the emerging problems which may set off as a
result of the arming of civilians. He said that
"Already there are over 50,000 armed forces so
where is the necessity to arm small pockets of
civilians. This shows complete irresponsibility
of the government. The neutrality of civilians
will be weakened and it may degenerate into
"organized crime". Urging the government to look
at the problem as a political issue, he said that
there is need for a solution through dialogue and
not gun power. The Act is discriminatory no doubt
and the alienation issues flowing from the misuse
of the provisions make it more symptomatic of the
malafide intent of the State, he further said.
Though the saner voices in India are becoming
increasingly muted, it is satisfying to note that
a number of organizations, namely the National
Alliance of Peoples Movements, Asha Parivar ,
North East Dialogue Forum, Open Space
(Bangalore), People's Watch, Drik India, MASUM,
Jagori, Secular Alliance for Harmony among Youths
of Grassroots (SAHYOG), Shwe Gas Campaign
Committee, Human Rights Alert, Association for
Protection of Democratic Rights, North East
Network, Human Rights Forum (AP) supported the
event which revived the demand for annulment of
the anti-people legislation.
To follow the UN call of "All Human Rights for
All" in this sixtieth year of the UN Declaration
for Human Rights, India will do well to recall
the words of Mary Robinson, the UN High
Commissioner for Human Rights in her report to
the 58th Session of UN Human Rights Commission.
She had said, "An effective international
strategy to counter terrorism should use human
rights as its unifying framework. The suggestion
that human rights violations are permissible in
certain circumstances is wrong. The essence of
human rights is that human life and dignity must
not be compromised and that certain acts, whether
carried out by State or non-State actors, are
never justified no matter what the ends.
International human rights and humanitarian law
define the boundaries of permissible political
and military conduct. A reckless approach towards
human life and liberty undermines
counter-terrorism measures".
A Sikh soldier (name withheld), now in his
eighties, who had served in the Indian army some
decades ago, upon reading of a report of the
violations under the Act, called up a political
activist and said, "today, I am ashamed of what I
did as a soldier longtime back while serving in
Nagaland and Manipur." I wish even India says the
same.
Jagmohan Singh is a political commentator based
in Ludhiana. He may be contacted at
jsbigideas at gmail.com
______
[9] Announcements:
(i)
Freedom of Press in Danger
Join Us to Protest Against the Sedition Charges
filed by Police Commission , Ahmedabad against
Resident Editor Times of India, Ahmedabad- Bharat
Desai and correspondent Prashant Dayal. Mathur
lodged a complaint under Sections 124A
(sedition), 120B (criminal conspiracy) and 34
(common intent) of IPC by publishing reports
against him.
Date: June 12, 2008
Time 11 am
venue: In front of Gujarat Bhawan, Kautilya Marg, Chanakya Puri, New Delhi
OP Mathur is the same police officer about whom
Mr Sreekumar had submitted in his petition the
following:
"A significant enclosure in the petition is the
official register of verbal instructions received
by Mr. Sreekumar from Mr. Modi and senior
bureaucrats and police officers. This register
has been numbered and certified by the then IGP
(Administration & Security), SIB, O.P. Mathur.
Mr. Sreekumar has alleged that these verbal
directions were in the nature of "illegal and
unconstitutional" directives. These alleged acts
include tapping the phone of the former Chief
Minister, Shankarsinh Waghela; asking him to
desist from collecting intelligence about the
sangh parivar and its activities; throwing
Muslims out of relief camps; tracking the mobile
number of Haren Pandya, then a Minister in the
Modi Government, and the history of calls made
from that number; and asking Mr. Sreekumar not to
offer a correct assessment to the Central
Election Commission on the communal situation in
Gujarat. "
The Hindu, Thursday, Apr 14, 2005
"Sedition is a charge which was slapped on the
Indian media by the colonial rulers during the
freedom struggle. Abuse of the sedition provision
against the media negates the freedom granted to
the citizens by the Constitution," Editor's Guild
of India
ANHAD
ASHRAYA ADHIKAR ABHIYAN
BAHROOP
DEMOCRATIC JOURNALIST UNION
HUMAN RIGHTS LAW NETWORK
INSAAF
INSTITUTE FOR SECULAR DEMOCRACY
MOEMIN
NATIONAL CAMPAIGN FOR DALIT HUMAN RIGHTS
NIRANTAR
PEACE
PEOPLE'S MOVEMENT OF INDIA
SRUTI
---
(ii) [For more information see: www.freebinayaksen.org / www.binayaksen.net/ ]
o o o
SOLIDARITY FAST IN SUPPORT OF BINAYAK SEN
TEN-DAY FAST IN PROTEST AGAINST THE BLACK LAWS
AND FOR RELEASE OF Dr. BINAYAK SEN, AJAY T G AND
OTHERS
(16th to 25th June, 2008)
Dear friends,
A 10-day Fast beginning 16th June, 2008, is being
organized at Raipur in Chhattisgarh to express
solidarity with Dr. Binayak Sen (Medical Doctor),
Ajay T G (Film Maker) - both members of the
People's Union for Civil Liberties (PUCL), and
many others detained under the draconian
Chhattisgarh Special Public Security Act 2005,
and the Unlawful Activities Prevention Act (1967)
amended in 2004.
These draconian laws sanction the violation of
due process by the state, and thus contravene
internationally accepted norms of jurisprudence
as well as democratic governance. As Senior
Advocate K G Kannabiran, National President of
PUCL, India, argues in his letter to the National
Human Rights Commission (NHRC), the CSPSA and
UAPA operate by criminalizing the very
performance of civil liberties activities, and
culpability is decided upon not by direct proof,
but through guilt by association.
The PUCL-Chhattisgarh Unit, with Dr. Binayak
Sen's active leadership as its General Secretary,
had exposed the government sponsored so-called
campaign Salwa-Judum in Chhattisgarh which
legitimizes extra-constitutional violence and
pits adivasis against adivasis.
The Fast is to ensure that human rights of
marginalized people are not trampled upon and
human rights defenders continue to work
fearlessly. The Fast will end on 25th June, the
day Emergency Rule in India was declared in 1975,
followed by a National Convention on Repressive
Laws & Human Rights on 25th & 26th June 2008 at
Raipur.
We invite you to join the campaign to end
arbitrary abuse of state power and protect
democratic rights of ordinary citizens by joining
in the fast for any number of days either in
Raipur or at your own place.
Love,
Rajendra Sail (9826804519),
Gautam Bandopadhyay (9826171304),
Ilina Sen (9425206875),
Kavita Srivastava (9351562965),
Faisal Khan (9313106745),
Sandeep Pandey (ashaashram at yahoo.com)
For more information, please see:
About Binayak
Ajay T G arrest
Amnesty Int. on Ajay T G arrest
Analysis of Binayak's case by PUCL
On Chhattisgarh Special Public Security Act 2006
On Unlawful Activities (Prevention) Act 2004
Salwa Judum : PUCL report Online petition to free Binayak
Status of Binayak's trial
Solidarity with Binayak
Jonathan Mann Award Announcement for Binayak
Human Rights Watch Statement
Medico Friend Circle Brochure on Binayak
_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/
Buzz for secularism, on the dangers of fundamentalism(s), on
matters of peace and democratisation in South
Asia. SACW is an independent & non-profit
citizens wire service run since 1998 by South
Asia Citizens Web: www.sacw.net/
SACW archive is available at: http://insaf.net/pipermail/sacw_insaf.net/
DISCLAIMER: Opinions expressed in materials carried in the posts do not
necessarily reflect the views of SACW compilers.
More information about the SACW
mailing list