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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

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  • Harsh Kapoor
    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 -
    Message 1 of 1 , May 14, 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
      (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)



      Sunday Times, May 11, 2008


      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:


      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

      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
      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


      April 30, 2008


      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

      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

      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

      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.




      South Asians Against Nukes - Year 10
      May 15, 2008



      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.



      South Asians Against Nukes - Year 10
      May 14, 2008



      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

      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

      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

      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

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

      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.)



      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.

      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



      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

      o o o

      Hindustan Times


      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.



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


      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

      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

      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

      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

      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


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