The following is a statement issued by the Asian Legal Resources Centre (ALRC), Hong Kong:
The opinion expressed by Justice K. G. Balakrishnan on encounter killings - a euphemism for extrajudicial executions in India - that 'encounter killings' are sometimes unavoidable is condemnable. That the former Chief Justice of India, now heads the National Human Rights Commission (NHRC), paints a depressing picture for the victims of extrajudicial executions since the Chairperson has spoken his mind.
Addressing the press earlier this week, Justice Balakrishnan said that "... encounters are unavoidable sometimes ... the law and order problem is increasing. Criminals are taking law into their hands, attacking even the police. Police have to take control of the situation." Indeed he offered a concession by adding that there must be checks and balances to ensure that fake encounters do not take place.
To justify his position and elaborating his argument that extrajudicial executions could solve law and order issues, the Chairperson cited examples of the extrajudicial executions of persons suspected to be involved with the Mumbai underworld gangs and those alleged as Naxalites in Andhra Pradesh. Least to say, these comments are irresponsible and unbecoming of a judicial officer and public servant mandated to chair the NHRC, an institution that hundreds of victims approach seeking redress in cases of extrajudicial executions.
Certainly, the Chairperson of the NHRC is oblivious about the global condemnation of the summary execution policies followed by the US and the UK - two countries he quoted as having successfully implemented similar policies - and the draconian laws these countries have legislated to justify the killing of foreigners in alien soil in their fight against terrorism. Justice Balakrishnan is certainly unaware that states like Manipur and Kashmir have nothing in common with the UK or the US. Nor has he cared to understand the universal jurisprudence behind the strong views taken by the House of Lords in R v. Magee against draconian legislations and arbitrary methods that deny fair trail even against the most dreaded suspect. For sure, Justice Balakrishnan has not come across the words of US Supreme Court Justice Robert H. Jackson, who served as chief prosecutor at the Nuremberg War Crimes Tribunal, convincing President Harry Truman that '(w)e could execute or otherwise punish (the Nazi leaders) without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would ... not set easily on the American conscience or be remembered by children with pride." What justifies Justice Balakrishnan's departure from this universal norm of justice and fairness or is he proposing that Indians disserve a lower standard of justice than the Europeans and the Americans or suggesting India to follow the so-called Sri Lankan model?
The comment by Justice Balakrishnan, condoning extrajudicial execution makes a travesty of the country's justice framework. It is a challenge and insult upon the intellect of the average Indians who are apparently more informed about the country's police and the manner in which they operate than their former Chief Justice. The country's media is filled with news of the arrest and questioning of the former home minister of Gujarat state who is accused to have ordered extrajudicial executions of his former partner in an extortion syndicate and his wife. If it is for the country's police to decide who is a convict, who must be punished and by what means, then the institution Justice Balakrishnan led prior to assuming office at the NHRC, the Supreme Court of India and its subordinate courts, and the NHRC itself must be closed down.
Justice Balakrishnan's understanding about the Mumbai killings and the Andhra Pradesh Naxalite killings is seriously flawed. Extrajudicial executions are not a solution to law and order issues. Had it been so, Mumbai must have been free from criminal gangs and Naxalism should be history. States like Manipur and Jammu and Kashmir where extrajudicial executions happen routinely should have been a safe place to live in.
It is important for Justice Balakrishnan to introspect about how much does he know regarding the extent of extrajudicial executions happening in the country each year; as a former judge, the current Chairperson of the NHRC and above all as an Indian who is offered information through various means concerning what is daily happening in the country. Can Justice Balakrishnan guarantee that the government will follow the instructions issued by the Supreme Court of India and the NHRC concerning arrest, detention and extrajudicial executions?
Forget about extrajudicial executions. While Justice Balakrishnan was the Chief Justice of India in how many cases did he initiate suo motu actions against the police officers who were reportedly engaged in open violation of the directives issued by the Court in the D. K. Basu case? In how many cases did the NHRC demand from the government the report the governments are mandated to file in each case of extrajudicial execution? The Asian Legal Resource Centre (ALRC) is aware that the NHRC has done so only in a very few instances.
What proof does the Chairperson have to form an opinion that in 'those cases that he considers are unavoidable' the victims were shot dead as an absolute necessity? In how many cases did the Chairperson have the opportunity to adduce evidence and adjudicate as a judge concerning the 'essentiality of a murder committed by a police officer to maintain control' and in how many of these cases did the Chairperson find that the officer was discharging his lawful duty by killing a suspect? To say the least, based on what statistics, study or information does the Chairperson advocate that extrajudicial execution is sometimes necessary?
The comment demonstrates a way of thinking. It is the mindset prevalent among the country's ruling and the educated classes. They think of serious abuses of human rights like extrajudicial executions, disappearances and torture as unavoidable. This mentality allows the police and other law enforcement agencies to engage in these acts with the excuse that these are unavoidable evils. This outlook demonstrates the lack of appreciation and the understanding of law, the inability to grasp the requirements of a strategy that is required to create a framework of rule of law and constitutionality; and also the absence of the commonsense to realize that to say something is unavoidable is to make it permissible.
That it should come from the former Chief Justice and the present Chairperson of the NHRC explains the reasons for India's failure to eradicate the deep evils that obstructs its constitutional system. Replacement of persons who possess this kind of mindset with a new leadership that is suitable for the challenges faced by India is a requirement for the very survival of the country as a law-abiding nation.
Justice Balakrishnan owes an apology to the country. His statement condoning extrajudicial execution negates the premises of the constitution that he has sworn allegiance to protect and fulfil. Through the statement he has proved that his legal intellect is unfit of leading a national institution that is mandated to protect, promote and fulfil human rights.
The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organization of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.
29 July, 2010
Because Khairlanji is not just another murder story!
AVINASH PANDEY
The recent verdict of the Bombay High Court in the Khairlanji massacre case convicting all the accused to life imprisonment could have been a welcome one and gone a long way in restoring ordinary people's faith in the country's justice system and its rule of law framework. It could have marked a historic juncture in the life of the nation announcing that the rule of law has firmly established itself despite all the inadequacies the country's justice system demonstrates both in crime investigation and in trial. It could have ensured that Dalits and the other underprivileged groups will face no discrimination at least within the judicial system.
For these reasons, the verdict was long awaited. And in its final coming, it proved highly inadequate and farcical, rightfully outraging the civil society. The outrage, though, is highly misplaced. The failure of justice is not rooted in the commuting of the death sentence of six convicts into life terms for 25 years, as capital punishment is unacceptable in any civilized society. It is indeed painful to see some of the most genuine civil society members decrying the commuting and demanding death sentence for the accused.
Retributive justice is no justice and no studies have confirmed any 'deterrence effect' of capital punishment. Rather any statics bears out the fact that it is used mostly against the poorest and the weakest sections of the society. In that it emerges as an official version of mob-lynching with the poorest of the Indian society often being the worst victims.
For the same reason, the death sentence announced by the session's court in this case was no victory for social justice. The judge has held the case as 'revenge murder' and citing the same, had refused to invoke the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The judge, seemingly, was convinced by the prosecution's poor case augmented by shoddy investigation with arguments to pass off the case as one of mere revenge killing.
The travesty of justice lies here. The 2006 massacre was not just another among 32481 reported cases of murder tucked in the pages of the statistical records of the National Crime Records Bureau. Nor was it just one of 19348 reported cases of rape (though the charges of rape were not invoked by the court). The gravity of the case did not lie in its being a gory instance of a mob bludgeoning a full family to death while also raping women and mutilating their bodies.
It was a massacre to uphold the feudal values in a modern, democratic India. The perpetrators had not massacred the family in a fit of rage. Their anger was not momentary. It did not emanate from any personal enmity. The family had not done anything to provoke or to tick them off. The only 'crime' the Bhotmanges had committed was making efforts to escape the low social status ascribed to their earlier untouchable caste. The fact that they were trying to come out of the dehumanised existence Dalits have been condemned to for centuries was a provocation enough for the killers belonging to the dominant castes.
That the prosecution tried its best to destroy the evidences concerning caste based atrocities and did not press the PoA Act shows the systematic and institutionalised nature of casteism. Further, the fact that the massacre took place in full public view and yet there was no opposition to the killings shows how deeply ingrained the ideology of caste is.
Further not bringing these spectators, complicit in the crime by acts of omission at least if not commission, to books show how state institutions tolerate caste-based atrocities or actually are conduit with them. The case proves that it is in fact the pre-modern, barbaric and regressive social structure of caste that rules under the democratic facade of the Indian nation and that the idea of modernity is a mere superimposition upon this primitive mode of social organisation. It reminds us that Indians are decades, if not centuries, away from achieving the goals we had set for ourselves on the night we made a tryst with destiny, the goal of becoming a sovereign, secular, socialist and democratic republic.
In this sense, Khairlanji is a negation of the very idea of India and its democracy. It is an assault on the basic principles the country is based upon. It shows what kind of a decayed and deficient democracy we have evolved into.
Unfortunately, Khairlanji is no isolated case of some rogue elements in Indian society going insane. Rather it is just one among many like Jhajjar, Haryana where five Dalits were lynched on the suspicion of trading in cows to Patan, Gujrat where a Dalit girl was gang raped and put into submission in the teacher's training school.
But then, till now the response of the Indian state and its civil society too has remained the same. Of getting outraged, making lot of noises and then forgetting the issue till another such gory incident occurs. And precisely because of that, Khairlanji should shake us out of the deep slumber and make us introspect, and act, to put an immediate end to caste based atrocities. By dealing not only with the perpetrators, but also silent spectators approving the incident, cracking down on illegal institutions like Khap panchayats legitimising caste. That would serve as a bigger deterrence than death sentence, as the caste communities will get to know that all of them would be punished and not only the 'heroes' carrying out their dictats!
Killing the demon of caste was the primary wish and clarion call of Dr BabaSaheb Ambedkar, the father of our Constitution, lest we forget.
Avinash Pandey alias Samar is a research scholar from India, currently stationed in Hong Kong at the Asian Human Rights Commission. He can be contacted at samaranarya@gmail.com
This article has been distributed by the Asian Human Rights Commission.
The recent verdict of the Bombay High Court in the Khairlanji massacre case convicting all the accused to life imprisonment could have been a welcome one and gone a long way in restoring ordinary people's faith in the country's justice system and its rule of law framework. It could have marked a historic juncture in the life of the nation announcing that the rule of law has firmly established itself despite all the inadequacies the country's justice system demonstrates both in crime investigation and in trial. It could have ensured that Dalits and the other underprivileged groups will face no discrimination at least within the judicial system.
For these reasons, the verdict was long awaited. And in its final coming, it proved highly inadequate and farcical, rightfully outraging the civil society. The outrage, though, is highly misplaced. The failure of justice is not rooted in the commuting of the death sentence of six convicts into life terms for 25 years, as capital punishment is unacceptable in any civilized society. It is indeed painful to see some of the most genuine civil society members decrying the commuting and demanding death sentence for the accused.
Retributive justice is no justice and no studies have confirmed any 'deterrence effect' of capital punishment. Rather any statics bears out the fact that it is used mostly against the poorest and the weakest sections of the society. In that it emerges as an official version of mob-lynching with the poorest of the Indian society often being the worst victims.
For the same reason, the death sentence announced by the session's court in this case was no victory for social justice. The judge has held the case as 'revenge murder' and citing the same, had refused to invoke the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The judge, seemingly, was convinced by the prosecution's poor case augmented by shoddy investigation with arguments to pass off the case as one of mere revenge killing.
The travesty of justice lies here. The 2006 massacre was not just another among 32481 reported cases of murder tucked in the pages of the statistical records of the National Crime Records Bureau. Nor was it just one of 19348 reported cases of rape (though the charges of rape were not invoked by the court). The gravity of the case did not lie in its being a gory instance of a mob bludgeoning a full family to death while also raping women and mutilating their bodies.
It was a massacre to uphold the feudal values in a modern, democratic India. The perpetrators had not massacred the family in a fit of rage. Their anger was not momentary. It did not emanate from any personal enmity. The family had not done anything to provoke or to tick them off. The only 'crime' the Bhotmanges had committed was making efforts to escape the low social status ascribed to their earlier untouchable caste. The fact that they were trying to come out of the dehumanised existence Dalits have been condemned to for centuries was a provocation enough for the killers belonging to the dominant castes.
That the prosecution tried its best to destroy the evidences concerning caste based atrocities and did not press the PoA Act shows the systematic and institutionalised nature of casteism. Further, the fact that the massacre took place in full public view and yet there was no opposition to the killings shows how deeply ingrained the ideology of caste is.
Further not bringing these spectators, complicit in the crime by acts of omission at least if not commission, to books show how state institutions tolerate caste-based atrocities or actually are conduit with them. The case proves that it is in fact the pre-modern, barbaric and regressive social structure of caste that rules under the democratic facade of the Indian nation and that the idea of modernity is a mere superimposition upon this primitive mode of social organisation. It reminds us that Indians are decades, if not centuries, away from achieving the goals we had set for ourselves on the night we made a tryst with destiny, the goal of becoming a sovereign, secular, socialist and democratic republic.
In this sense, Khairlanji is a negation of the very idea of India and its democracy. It is an assault on the basic principles the country is based upon. It shows what kind of a decayed and deficient democracy we have evolved into.
Unfortunately, Khairlanji is no isolated case of some rogue elements in Indian society going insane. Rather it is just one among many like Jhajjar, Haryana where five Dalits were lynched on the suspicion of trading in cows to Patan, Gujrat where a Dalit girl was gang raped and put into submission in the teacher's training school.
But then, till now the response of the Indian state and its civil society too has remained the same. Of getting outraged, making lot of noises and then forgetting the issue till another such gory incident occurs. And precisely because of that, Khairlanji should shake us out of the deep slumber and make us introspect, and act, to put an immediate end to caste based atrocities. By dealing not only with the perpetrators, but also silent spectators approving the incident, cracking down on illegal institutions like Khap panchayats legitimising caste. That would serve as a bigger deterrence than death sentence, as the caste communities will get to know that all of them would be punished and not only the 'heroes' carrying out their dictats!
Killing the demon of caste was the primary wish and clarion call of Dr BabaSaheb Ambedkar, the father of our Constitution, lest we forget.
Avinash Pandey alias Samar is a research scholar from India, currently stationed in Hong Kong at the Asian Human Rights Commission. He can be contacted at samaranarya@gmail.com
This article has been distributed by the Asian Human Rights Commission.
21 July, 2010
Assault on Professor Joseph: an ode to Indian democracy
AVINASH PANDEY
Rarely do individual tragedies reflect all that is wrong in a society. Even rare are occasions where their implications go beyond the lives of the individual, his family, or the neighborhood. But, when they do, they assume a significance that has bearings on the history of the community and the society.
The recent attack on a college professor in Kerala comes under the category. The attack is no doubt tragic. The fact that it happened in front of his family is worse. The brutality of chopping the palm off the teacher has scarred the psyche of the family, scars that will probably never be erased. The significance of the event, however, does not lie in the personal tragedy inflicted upon the family by a gang of criminals. It goes much beyond the family, the town where they live, and the state of Kerala.
The attack, rather, is a marker of the times to come in India. Times when freedoms guaranteed by the constitution will cease to be guarantees and convert into empty words devoid of any meaning, buried deep down the pages of a book no one uses anymore.
Or these dark undemocratic times have already descended and the attack is just a grim reminder of that?
The details of the case point to nothing if not this. The attack did not emanate from any personal enmity. The intent was not only to hurt, or to kill, but also to terrorize everyone. That is why the assailants decided to attack him in full public view. The most bizarre thing about the attack, however, is the motive and not any of the above. The assailants allegedly belonged to the Popular Front of India, a fundamentalist Islamic political organization. They were incensed at a paper allegedly having a blasphemous conversation between God and Muhammad, set by the professor for the examinations of the private missionary run college.
Just that nothing in the conversation pointed to the Muhammad being referred to as the Prophet Muhammad. Yet, there was a boycott of the papers and protest rallies were promptly organized. Realizing the electoral ramifications of the controversy, the state government sprung into action and directed the college administration to suspend him. It goes without saying that the government did it without any proper inquiry. Yet the real question is a little more startling, that in what capacity a secular and socialist (literally as Kerala is ruled by an alliance led by the Communist Party of India Marxist) state directed a private institution to suspend a professor in absence of any enquiry, internal or by the state agencies.
The travesty of the justice and abuse of state institutions did not stop at that. The suspension of the professor was followed by a police case against him for 'hurting religious sentiments' and death threats issued by fundamentalist Islamic groups. Further, the police issued 'wanted' posters against the professor who had gone into hiding precisely because of the reluctance of the police to provide him with security in the face of death threats. But maybe we are just cribbing too much. Maybe it is the discretion of the police whether to provide security to a person or not, especially if the person is accused irrespective of the facts of the case.
Just when we might think that things could not go worse than this, they went. As if failing to provide security to professor and bringing the culprits to books was not enough, the police did go all the way wrong, post attack as well. The first thing the police did, as per media reports was convincing the Church leaders about their earnest pursuit of the attackers. The Hindu, one of the most respected news papers of India quoted T. Vikram, the Superintendent of Police, Ernakulam Rural, saying: "We have talked to church leaders to convince them that an all-out effort is being made to nab the culprits."
A person like me with limited understanding of democracy may wonder how the Church leaders enter the scene and why exactly a senior ranking police officer was trying to convince 'them' about the 'all-out efforts' the police was making to nab the culprits. This was a criminal assault after all and the police are required to do their job. To gather the evidence and produce the suspects for trial is in essence what policing is. Further, they should investigate the attack in all details, including the role of instigators and not only the perpetrators. They should have done all this, further, without even thinking of the identity of the victims and that of the perpetrators.
Is not the political identity of being a 'citizen' the crucial and decisive one in a democracy? Does not the Indian constitution guarantees the same while criminalizing any kind of discrimination based on any of the exclusive innate identities attached to a person, like those of caste, religion or ethnicity? And does not the very act of convincing church leaders in this case prove that the trail must have been going cold more often than not in cases where neither the victim nor the case has high profile.
The question what the police will do after nabbing the suspects and getting them convicted comes up here. Will the police apologize to the leaders of Muslim community in case all the accused happen to be Muslims, as is most likely? This sounds absurd but then this very absurdity is the hallmark of the Indian criminal justice system. Where a criminal is not just a criminal, but has an identity to invoke and dodge the law.
The legal course-of-action should be very clear. Anyone, and just about anyone, violating the law of the land should be dealt with firmly. Further, citizenship should be the only identity recognized by the law, accepting none other barring those of deprived sections constitutionally mandated for positive discrimination.
The case, therefore, should have been treated as an outright case of criminal and murderous assault and investigated like that only. Further, the investigation should have tried investigating the roles of instigators as well and to bring the whole ring of such exclusivist and fundamentalist religious fanatics to books as they pose a grave threat to the very ethos of the country.
All this discussion makes it very clear that the police had no business of convincing the religious leaders. But they did it. So, the question arises whether they are, in fact, responsible or at least answerable to religious leaders? De facto if not de jure. And if they are, leaders of which religion are they answerable to? Or, are they answerable to leaders of all religion? They are, or at least seem to be. In that case what will be the line of action in cases of communal/ religious riots?
There was nothing new in the Kerala police's action. Police forces across the country have done the same. Right from being biased in favour of one particular religion, they have presided over the genocidal attacks of one religion on another. The way Delhi police acted in 1984 when murderous Hindu crowds butchered Sikhs, in the name of taking revenge for the killing of Indira Gandhi, the then prime minister, by her Sikh bodyguards. The government in charge of Delhi police was led by Indian National Congress, the party the slain prime minister belonged to.
Disgusting it may sound, but that was still better than what Gujarat police did in 2002 pogrom of Muslims by murderous Hindu crowds belonging to the Rashtriya Swayamsewak Sangh(RSS) and its affiliates. This time they did not assist the pogrom just by looking away. Rather, they actually supported it by stopping the Muslims from trying to escape the attacks. They did this by firing, actually firing, at Muslim victims running for their lives. Bhartiya Janata Party (BJP), the political arm of the RSS, was in the government.
The Orissa police did this in 2008. Christians were the target this time though the perpetrators remained the same. The riots took place apparently for revenging the killing of a Hindu sadhu belonging to the Vishwa Hindu Parishad, another RSS affiliate, allegedly by the Maoists. The police looked the other way again. Rather as per several victims, the police were quite friendly with them. The province was being ruled by an alliance of BJP and Biju Janata Dal, a regional political party.
These cases are just the tip of the iceberg. The gross ones. In all of these cases, the riots were led by the ruling party itself, which controls the police. Apparently, the police cannot go against their political bosses. For every riot this huge, there are hundreds if not thousands of small localized attacks on minorities.
Most of these attacks are supported, if not organized, by the local government and the police. And that is done for a simple reason, for democracy. This may sound weird to untrained ears but then this is it. These riots are organized to mobilize communal passions. The communal passion in turn animates communities herding together. And that translates into votes for the leadership of 'democratic' parties.
The governments, therefore, need the religious leaders, especially of the highly sectarian nature as mobilizing communal passion will be very difficult without them. And the numbers would follow the age-old dictum, the more the merrier, as there would be as many fault lines to play with as there are religions/sects/denominations. What else can explain the best political scientists of the country explain every election in the biggest democracy of the world, right from the village council to the parliamentary ones, in terms of caste, sect and religious and ethnic breakups of the constituencies. Forget that these were precisely the identities that should play no role in any democratic process, leave aside elections.
But then, India is a democracy more than half of whose parliamentarians have serious criminal charges against them. Where a chief minister of a rich state organizes and presides over a pogrom of Muslims to win an election and retains his chair. It is a democracy where the same chief minister mocks the commission appointed by the Supreme Court of the country for looking into the pogrom. It is a democracy where half of the top leadership of the main opposition party would have been behind the bars for inciting communal frenzy and destabilizing peace.
The systemic and systematic cultivation of mechanisms to find loopholes in the legal system and exploit them to escape punishment for one's crimes makes the flawed democracy India has evolved into. The failure of the system has resulted in the police evolving as the extra arm of the ruling parties which is often used to terrorize the opposition. The injustices committed by the police lead to the alienation of whole communities from the system, leading to their taking recourse to extremism. Can one forget incidents like the Mumbai police lining up more than a thousand Muslim youth immediately after the blasts that rocked the city? Or the fact that there had been no action or even an inquiry against officers of the Uttar Pradesh state police who killed the alleged masterminds of the bomb blasts in Varanasi almost a year before the Delhi police killed a completely different set of people for being the masterminds of the same blast?
This is what leads to a situation where extremist groups belonging to all religions play victims and emerge as the saviours of their communities. The clash of these fundamentalist groups with the state placating the needed one on that hour becomes the inevitable consequence of such an unjust system. A system where murderers of Muslims and Christians take oath in the name of the Indian constitution and run governments, and where no action is taken against Muslim legislators even when they assault and incite their supporters to kill Taslima Nasreen.
Evidently, cracking down on the religious fanatics does not make sense in a democracy of the Indian kind. Neither does secularism. Rather, it does. Not in the Nehuruvian sense though which defined secularism as 'equal state protection to all religions'. It makes sense in its current form, equal state protection and immunity to the highly organized and institutionalized, rogue fundamentalist fanatics of all religions. The fanatics then, of course, can protect the followers of their religion.
Avinash Pandey alias Samar is a research scholar based in New Delhi. Currently Samar is in Hong Kong on an assignment with the Asian Human Rights Commission.
Rarely do individual tragedies reflect all that is wrong in a society. Even rare are occasions where their implications go beyond the lives of the individual, his family, or the neighborhood. But, when they do, they assume a significance that has bearings on the history of the community and the society.
The recent attack on a college professor in Kerala comes under the category. The attack is no doubt tragic. The fact that it happened in front of his family is worse. The brutality of chopping the palm off the teacher has scarred the psyche of the family, scars that will probably never be erased. The significance of the event, however, does not lie in the personal tragedy inflicted upon the family by a gang of criminals. It goes much beyond the family, the town where they live, and the state of Kerala.
The attack, rather, is a marker of the times to come in India. Times when freedoms guaranteed by the constitution will cease to be guarantees and convert into empty words devoid of any meaning, buried deep down the pages of a book no one uses anymore.
Or these dark undemocratic times have already descended and the attack is just a grim reminder of that?
The details of the case point to nothing if not this. The attack did not emanate from any personal enmity. The intent was not only to hurt, or to kill, but also to terrorize everyone. That is why the assailants decided to attack him in full public view. The most bizarre thing about the attack, however, is the motive and not any of the above. The assailants allegedly belonged to the Popular Front of India, a fundamentalist Islamic political organization. They were incensed at a paper allegedly having a blasphemous conversation between God and Muhammad, set by the professor for the examinations of the private missionary run college.
Just that nothing in the conversation pointed to the Muhammad being referred to as the Prophet Muhammad. Yet, there was a boycott of the papers and protest rallies were promptly organized. Realizing the electoral ramifications of the controversy, the state government sprung into action and directed the college administration to suspend him. It goes without saying that the government did it without any proper inquiry. Yet the real question is a little more startling, that in what capacity a secular and socialist (literally as Kerala is ruled by an alliance led by the Communist Party of India Marxist) state directed a private institution to suspend a professor in absence of any enquiry, internal or by the state agencies.
The travesty of the justice and abuse of state institutions did not stop at that. The suspension of the professor was followed by a police case against him for 'hurting religious sentiments' and death threats issued by fundamentalist Islamic groups. Further, the police issued 'wanted' posters against the professor who had gone into hiding precisely because of the reluctance of the police to provide him with security in the face of death threats. But maybe we are just cribbing too much. Maybe it is the discretion of the police whether to provide security to a person or not, especially if the person is accused irrespective of the facts of the case.
Just when we might think that things could not go worse than this, they went. As if failing to provide security to professor and bringing the culprits to books was not enough, the police did go all the way wrong, post attack as well. The first thing the police did, as per media reports was convincing the Church leaders about their earnest pursuit of the attackers. The Hindu, one of the most respected news papers of India quoted T. Vikram, the Superintendent of Police, Ernakulam Rural, saying: "We have talked to church leaders to convince them that an all-out effort is being made to nab the culprits."
A person like me with limited understanding of democracy may wonder how the Church leaders enter the scene and why exactly a senior ranking police officer was trying to convince 'them' about the 'all-out efforts' the police was making to nab the culprits. This was a criminal assault after all and the police are required to do their job. To gather the evidence and produce the suspects for trial is in essence what policing is. Further, they should investigate the attack in all details, including the role of instigators and not only the perpetrators. They should have done all this, further, without even thinking of the identity of the victims and that of the perpetrators.
Is not the political identity of being a 'citizen' the crucial and decisive one in a democracy? Does not the Indian constitution guarantees the same while criminalizing any kind of discrimination based on any of the exclusive innate identities attached to a person, like those of caste, religion or ethnicity? And does not the very act of convincing church leaders in this case prove that the trail must have been going cold more often than not in cases where neither the victim nor the case has high profile.
The question what the police will do after nabbing the suspects and getting them convicted comes up here. Will the police apologize to the leaders of Muslim community in case all the accused happen to be Muslims, as is most likely? This sounds absurd but then this very absurdity is the hallmark of the Indian criminal justice system. Where a criminal is not just a criminal, but has an identity to invoke and dodge the law.
The legal course-of-action should be very clear. Anyone, and just about anyone, violating the law of the land should be dealt with firmly. Further, citizenship should be the only identity recognized by the law, accepting none other barring those of deprived sections constitutionally mandated for positive discrimination.
The case, therefore, should have been treated as an outright case of criminal and murderous assault and investigated like that only. Further, the investigation should have tried investigating the roles of instigators as well and to bring the whole ring of such exclusivist and fundamentalist religious fanatics to books as they pose a grave threat to the very ethos of the country.
All this discussion makes it very clear that the police had no business of convincing the religious leaders. But they did it. So, the question arises whether they are, in fact, responsible or at least answerable to religious leaders? De facto if not de jure. And if they are, leaders of which religion are they answerable to? Or, are they answerable to leaders of all religion? They are, or at least seem to be. In that case what will be the line of action in cases of communal/ religious riots?
There was nothing new in the Kerala police's action. Police forces across the country have done the same. Right from being biased in favour of one particular religion, they have presided over the genocidal attacks of one religion on another. The way Delhi police acted in 1984 when murderous Hindu crowds butchered Sikhs, in the name of taking revenge for the killing of Indira Gandhi, the then prime minister, by her Sikh bodyguards. The government in charge of Delhi police was led by Indian National Congress, the party the slain prime minister belonged to.
Disgusting it may sound, but that was still better than what Gujarat police did in 2002 pogrom of Muslims by murderous Hindu crowds belonging to the Rashtriya Swayamsewak Sangh(RSS) and its affiliates. This time they did not assist the pogrom just by looking away. Rather, they actually supported it by stopping the Muslims from trying to escape the attacks. They did this by firing, actually firing, at Muslim victims running for their lives. Bhartiya Janata Party (BJP), the political arm of the RSS, was in the government.
The Orissa police did this in 2008. Christians were the target this time though the perpetrators remained the same. The riots took place apparently for revenging the killing of a Hindu sadhu belonging to the Vishwa Hindu Parishad, another RSS affiliate, allegedly by the Maoists. The police looked the other way again. Rather as per several victims, the police were quite friendly with them. The province was being ruled by an alliance of BJP and Biju Janata Dal, a regional political party.
These cases are just the tip of the iceberg. The gross ones. In all of these cases, the riots were led by the ruling party itself, which controls the police. Apparently, the police cannot go against their political bosses. For every riot this huge, there are hundreds if not thousands of small localized attacks on minorities.
Most of these attacks are supported, if not organized, by the local government and the police. And that is done for a simple reason, for democracy. This may sound weird to untrained ears but then this is it. These riots are organized to mobilize communal passions. The communal passion in turn animates communities herding together. And that translates into votes for the leadership of 'democratic' parties.
The governments, therefore, need the religious leaders, especially of the highly sectarian nature as mobilizing communal passion will be very difficult without them. And the numbers would follow the age-old dictum, the more the merrier, as there would be as many fault lines to play with as there are religions/sects/denominations. What else can explain the best political scientists of the country explain every election in the biggest democracy of the world, right from the village council to the parliamentary ones, in terms of caste, sect and religious and ethnic breakups of the constituencies. Forget that these were precisely the identities that should play no role in any democratic process, leave aside elections.
But then, India is a democracy more than half of whose parliamentarians have serious criminal charges against them. Where a chief minister of a rich state organizes and presides over a pogrom of Muslims to win an election and retains his chair. It is a democracy where the same chief minister mocks the commission appointed by the Supreme Court of the country for looking into the pogrom. It is a democracy where half of the top leadership of the main opposition party would have been behind the bars for inciting communal frenzy and destabilizing peace.
The systemic and systematic cultivation of mechanisms to find loopholes in the legal system and exploit them to escape punishment for one's crimes makes the flawed democracy India has evolved into. The failure of the system has resulted in the police evolving as the extra arm of the ruling parties which is often used to terrorize the opposition. The injustices committed by the police lead to the alienation of whole communities from the system, leading to their taking recourse to extremism. Can one forget incidents like the Mumbai police lining up more than a thousand Muslim youth immediately after the blasts that rocked the city? Or the fact that there had been no action or even an inquiry against officers of the Uttar Pradesh state police who killed the alleged masterminds of the bomb blasts in Varanasi almost a year before the Delhi police killed a completely different set of people for being the masterminds of the same blast?
This is what leads to a situation where extremist groups belonging to all religions play victims and emerge as the saviours of their communities. The clash of these fundamentalist groups with the state placating the needed one on that hour becomes the inevitable consequence of such an unjust system. A system where murderers of Muslims and Christians take oath in the name of the Indian constitution and run governments, and where no action is taken against Muslim legislators even when they assault and incite their supporters to kill Taslima Nasreen.
Evidently, cracking down on the religious fanatics does not make sense in a democracy of the Indian kind. Neither does secularism. Rather, it does. Not in the Nehuruvian sense though which defined secularism as 'equal state protection to all religions'. It makes sense in its current form, equal state protection and immunity to the highly organized and institutionalized, rogue fundamentalist fanatics of all religions. The fanatics then, of course, can protect the followers of their religion.
Avinash Pandey alias Samar is a research scholar based in New Delhi. Currently Samar is in Hong Kong on an assignment with the Asian Human Rights Commission.
13 July, 2010
Rev. M. J. Joseph, social activist, passes away
Rev. M.J. Joseph passed away early hours of July 12, after a brief hosipitalization for respiratory ailments, in Thirualla, Kerala, according to a message from the Centre for Social Studies and Culture (CSSC), Kottayam. He was 78. He leaves behind his wife Annamma Joseph, and children Asha, Shobha and Vijayan. Funeral will take place on July 14.
The following is an obituary prepared by ‘Friends of MJ’
The Rev. M. J. Joseph (“MJ”) was one of those rare individuals who combined deep spirituality with radical social and political action. In the current Indian context, the combination of religion and politics has often deadly consequences. MJ, however, believed and practiced a brand of spirituality that was self-critical of the institutionalization and hypocrisy of his religion and by extension, other religions as well. He also believed that the primary purpose of religion is to strive for a better world where justice and peace would prevail. He advocated a form of spirituality, not transcendental, but that transcends religion and acquires a secular character deeply rooted in the struggles of the people for justice, peace and a meaningful life. He found this spirituality in the struggles of the dalits, adivasis, women, fisherpeople and in the art forms and songs of the oppressed. He advocated “peoples’ theology” as an empowering and liberating tool for action and reflection.
In the idealism that prevailed in the post-independence period of the 1960s, MJ as a young man chose the vocation of a Christian priest. At a time when the response of not only the Church but also the State to social problems was “developmental work”, MJ and others raised fundamental questions. They argued that such acts would make the people more dependent on the benevolence and goodwill of others and instead, what was needed was radical social action where the people are not mere recipients of charity but define their own destinies. As the Development Secretary of the National Council of Churches in the 1970s, MJ put his vision into practice even as the traditional leadership of the Church frowned upon these “radical” ideas.
The National Emergency (1975-’77) was a turning point in the lives of MJ and several others of the period. They felt that democracy and civil liberties cannot be taken for granted - even in India - and that there is the need to be eternally vigilant against all threats to basic human and political rights. MJ, however, went beyond most others and argued that the denial of basic necessities - such as food, decent habitat and employment - to a vast section of the people too is a scandal to democracy. As such, political action cannot be separated from radical social action. He also believed that what the poor need are not charities bestowed on them by the State or the rich but rights to be wrestled by prolonged struggles. The Dynamic Action, Programme for Social Action and several other organizations MJ spearheaded bear witness to his passionate commitment to such the vision of a new social order. He was among the founder editors of “Dynamic Action”, a Malayalam monthly, which developed into a medium that debated issues of political economy and politics of development from the perspectives of the poor and the oppressed. While “Programme for Social Action” promoted and knit together faith inspired radical voices in different parts of India, “Navchethna” became the abode of experimentations in cultural and artistic articulations of resistances.
Another defining moment in his life has been in his active involvement in the mobilization of dalits in a high caste dominated Church. The formation, in the late 80’s and early 90’s , of “People’s Movement of Faith for Liberation” and representative democracy in the Central Kerala Diocese of Church of South India brought him into direct confrontation with the vested interests, which eventually led to he being ostracized by the Church.
As a Christian priest and as a fellow-traveller of the Left, MJ repeatedly challenged both the Church and the political apparatus to keep in focus the struggles of the people. He often paid a heavy price for his uncompromising positions. As a priest ostracized by the Church for his radical views and as a leftist who was suspect in the eyes of the party leadership, MJ was permanently in the opposition. Through the long decades of his life and service he, however, was consistent in arguing that the primary task of religion and politics is to strive for a world of justice and peace.
MJ is last to leave among trio visionaries – Dr. M. M. Thomas and Bishop Paulose Mar Paulose being the others - who worked together and challenged and influenced the thinking processes of generations of youth.
An avid reader of books, MJ authored many books, articles and songs, and in the last few years, took up painting and held exhibitions in many places. Friends from different walks of life, civil society organizations and people’s movements in different parts of the country would miss his compassion, camaraderie, counsel, and gentleness.
Contact address:
Centre for Social Studies and Culture (CSSC)
Thaiparambil
Sachivothamapuram PO
Kottayam- 686532
Ph. 0481 2430597
Mob. 9446201659, 8089520220
Email- indiacssc@gmail.com
09 July, 2010
Plea to end Kashmir killings and order impartial probe
Over 100 concerned citizens have appealed to the Chief Justice of India, the National Human Rights Commission and the National commission for Protection of Children to ensure that the Centre and the Jammu and Kashmir government take immediate action to prevent further loss of life and property in Jammu and Kashmir. They have also sought an impartial inquiry into the recent killings in the region.
Copies of the appeal have been sent to the Union Home Ministry, the Chief Minister of Jammu and Kashmir and the Planning Commission.
The following is the text of the appeal:
Dear Sir,
We, the undersigned, as a vigilant group of citizens submit our concerns regarding the prevailing situation in Jammu and Kashmir and urge your immediate assistance in ensuring that the Government of India and the state government takes immediate action to prevent further loss of life and property and initiate an impartial investigation into the recent killings in the region.
The political situation in Jammu and Kashmir has worsened over the last few weeks, which has in turn strengthened the existing culture of impunity in the region. The current crisis also has serious humanitarian consequences.
On June 29, 2010 at least three persons were killed in indiscriminate firing and excessive use of force by the police in Anantnag district of the Kashmir Valley. Four persons were killed in firing on 5-6 July, 2010. It is estimated that more than 15 civilians have been killed and several others injured in the unprecedented use of force by the J & K police and paramilitary, especially the Central Reserve Police Force (CRPF) in a span of two-three weeks. Several of those killed were children: Tufail Matoo (17), Javid Ahmad Malla (18), Shakeel Ahmad Ganai (14), Firdous Ahmed Kakroo (17), Asif Hasan Rather (9), Ishtiyaq Ahmad Khanday (15 from Anantnag), Imtiyaz Ahmad Itoo (17, from Anantnag), Muzaffar Ahmad Bhat (17), and Abrar Ahmad (17). Several protest marches organized across the Valley in response to the killings were met with indiscriminate firing by the security forces deployed in the region. We condemn the recent killings of children in Kashmir.
Over the past few days, the response by the security forces has been such that, on available accounts, even ambulances have not been spared. Media reports state that at three places, including at Safakadal and at Sangam on the Srinagar- Jammu highway, the CRPF fired on ambulances. Moreover, due to the imposition of curfew in the Valley, paramedics have been unable to reach hospitals as a result of which the existing hospital staff have been working over 36 hour shifts to tend to the injured. Even journalists with valid curfew passes have also been attacked. On June 28, 2010 a group of journalists belonging to local and national media organizations were attacked by the CRPF in the Qamarwari area of Srinagar.
Yet again, the recent events highlight the impunity with which the security forces in the region continue to operate. One of the emblematic cases that highlight the legal impunity is that of the enforced disappearance and murder of noted human rights activist, Jalil Andrabi by the Rashtriya Rifle, an army unit deployed in the Valley. In March 1996, Andrabi was illegally detained by security force personnel while returning from work. Three weeks later his mutilated body was found on the banks of the River Jhelum. International and national pressure culminated in the filing of a charge sheet by the police against the five accused in the Sessions Court, Budgam. However, the main accused in the Andrabi murder, Major Avatar Singh remains free to this day. The case of Jalil Andrabi is merely one example of the ongoing human rights violations. Many local and international human rights organizations, including Human Rights Watch, Amnesty International and Physicians for Human Rights have documented the systematic violations of human rights by state and non-state actors and the entrenched culture of impunity.
The promulgation of special laws in the state of Jammu and Kashmir provides legal immunity to the armed forces. Under the Armed Forces Special (Jammu and Kashmir) Special Powers Act, 1990, armed forces personnel of the rank of a commissioned officer, warrant officer, non commissioned officer or of an equivalent rank have been granted extraordinary powers such as the authority to shoot and kill suspected lawbreakers. Further, the Act in requiring prior sanction for prosecution acts as shield for impunity for the non-prosecution of security force personnel involved in egregious human rights violations, including enforced disappearances and torture. Thus far, sanction for prosecution has been granted only in a handful of cases, and perpetrators remain free. Therefore, in the least the procedure for granting sanction for prosecution should be at least be made more expeditious, effective, and equitable.
In this context it is even more necessary to seek accountability of the actions of the security forces in the region. Under applicable national and international law, the killing of children and attacks against hospital and medical infrastructure is strictly prohibited.
In fact, in its Eleventh Plan, the Planning Commission of India outlined special measures for women in from conflict zones within India, which would imply that there are conflict zones within India. The ongoing situation so far mentioned is in contravention of International law, humanitarian law as well as fundamental guarantees provided by the Indian Constitution, including the right to life (Article 21). As concerns the former, we seek to bring to you attention principles enshrined in Common Article 3 of the Geneva Conventions; the International Covenants for Civil and Political Rights, 1976, and the Additional Protocols thereto; the Convention of the Rights of the Child, 1990 and its Optional Protocol; and the UN Security Council Resolution 1882 (2009) on the protection of children.
Regarding constitutional and national laws and adjudicatory policies, we may here refer to the following:
* The guidelines prescribed by the National Human Rights Commission (NHRC) on police action (of 12 May 2010) and in the police manual should be respected
* The Supreme Court decisions in D.K. Basu v. State of West Bengal (AIR 1997 SC 610) and Rajesh Gulate v. Government of Delhi (SCC 7 2002 129)
*The Supreme Court of India guidelines to check arbitrary police action and ensure punishment of perpetrators.
Given the use of unprecedented force, we urge that the security forces exercise restraint and refrain from firing at unarmed protestors. The Central and state governments must ensure that arbitrary and disproportionate use of force against civilians ends immediately and an impartial investigation is initiated into the killing of civilians. We urge the Government of India and the Chief Minister of Jammu and Kashmir, Shri Omar Abdullah to take immediate steps to:
• Put an immediate end to the violence perpetrated by the security forces
• Prevent attacks against civilian infrastructure, including hospitals and ambulances
• Ensure that the security forces respect the principle of proportionality while responding to civilian protests
• Initiate an independent and impartial investigation into the killings of peaceful protestors, several of whom were children
• Initiate an inquiry into instances of attacks on ambulance services
• Ensure that inquiries are conducted in a time bound manner and the report is made public
• Initiate legal and punitive action against persons who are found responsible for the killings of civilians
• Establish an independent inquiry commission to investigate the allegations of serious human rights violations, including enforced disappearances, killings, torture, rape and sexual violence in the region
• Invite and permit the relevant UN Rapporteurs, UN Special Representatives and members of the UN Working Group on Enforced Disappearance to investigate the allegations of human rights abuses in the region
• Initiate a general debate involving members of the Kashmiri civil society and others on impunity and AFSPA, and possible mechanisms to respond to the prevailing impunity
Constitutionally Yours,
List of signatories
1. Professor Upendra Baxi, Emeritus Professor of Law, University of Delhi
2. Dr Mallika V. Sarabhhai
3. Mrinalini V. Sarabhai
4. Navsharan Singh
5. Bhagat Oinam, Jawahar Lal Nehru University
6. Alternative Law Forum
7. The Patna Collective
8. Uma Chakravarti, Historian
9. Anuradha Bhasin, Kashmir Times
10. Prabodh Jamwal, Kashmir Times
11. Laxmi Murthy, Consulting Editor, Himal SouthAsia
12. Sahba Hussain
13. Shahrukh Alam
14. Trideep Pais, Advocate
15. Tenzing Choesang, Advocate
16. Tahseen Alam
17. Anouhita Majumdar, Senior Journalist
18. Anant Nath, The Caravan
19. Vasuman Khandelwal, Advocate
20. Bipin Aspatwar, Advocate
21. Shabnam Hashmi, Anhad
22. Ashok Agrwaal, Advocate
23. Prof. Sitaram Kakarala, CSCS
24. Ved Bhasin, Chairman Kashmir Times group of publications
25. Rajeev Dhavan
26. Kanak Mani Dixit, Himal South Asia
27. Professor Sushil Khanna, Indian Institute of Management, Kolkata
28. Rajashri Dasgupta, Journalist
29. Ram Puniyani, All India Secular Forum
30. Jashodhara Dasgupta, SAHAYOG, Lucknow
31. Warisha Farasat, Advocate
32. Jyoti Punwani, Journalist, Mumbai
33. K. Lalitha, Researcher, Hyderabad
34. Nitya Vasudevan, Research Scholar
35. Randhir Singh, Professor (retd.), Delhi University
36. Priyaleen Singh
37. Abid Mir
38. Areet Kaur
39. Anand Bala
40. Shahla Raza
41. Hafeez Khan
42. Paray Hilal
43. Dr. Pritam Singh
44. Dr. Meena Dhandha, Philospher
45. Dinesh Sharma, Bangalore
46. Dr Atul Sood, Jawaharlal University
47. Gursharan Singh, Convenor against Democratic Front Against Operation Green Hunt
48. Chakraverti Mahajan, Doctoral Student, Punjab University
49. Kavita Pai
50. Sheba George, Sahrwaru
51. Prof. Ranabir Samaddar, Director, Mahanirban Calcutta Research Group
52. .Rita Manchanda, Safhr
53. Zakia Jowher, Action Aid
54. Roop Rekha Verma
55. Pushkar Raj, General Secretary PUCL
56. Binu Mathews,Editor, Counter Currents
57. Indian Social Action Forum (INSAF)
58. Dr. Kaveri Rajaraman
59. Partho Sarathi Ray, Sanhati
60. Pyare Shivpuri
61. Humra Quraishi, Freelance columnist
62. Haley Duschinski, Assistant Professor of Anthropology, Department of Sociology and Anthropology, Ohio University
63. Sahana Basavapatna, Advocate
64. Sukla Sen, EKTA (Committee for Communal Amity), Mumbai
65. Zainab Bawa, Ph.D. student and independent researcher
66. Chetna Kaul, filmmaker
67. Manish Kumar Tipu, music composer
68. Javed Naqi, Senior Research Fellow, Jawaharlal Nehru University, New Delhi
69. PUCL (Andhra Pradesh)
70. Harsh Kapoor, South Asia Citizens Web
71. Naga People's Movement for Human Rights (NPMHR)
72. Badri Raina
73. Manasi Pingle, Filmmaker
74. Pushpa Achanta (Independent writer, Bangalore)
75. Navaid Hamid, Member National Integration Council
76. Aamir Bashir, Actor and film-maker
77. Dipti Gupta, Professor, Media Studies.
78. Santanu Chakraborty (Student - Christ University)
79. Madhuri, Jagrit Adivasi Dalit Sangathan, Madhya Pradesh
80. Rosemary Dzuvichu, Nagaland University,Kohima
81. Vidyarthi Yuvjan Sabha
82. Uma V Chandru, Peace and Human Rights Activist, Bangalore
83. Advocate Narjees, Human Rights Law Network, Kashmir unit
84. AIPWA
85. Shoma, CAVOW
86. Geeta Charusivam, Social Activist Tamil Nadu
87. Arati Chokshi, Member – PUCL (Bangalore- Karnataka)
88. Dr Ritu Dewan, Professor, University of Mumbai
89. Dr Lena Ganesh, Mumbai
90. Pooja Sharma, cinematographer
91. Sajid Iqbal Khandey
92. Vrijendra
93. Sundera Babu
94. Aamer Trambu, Reporter, Press TV Iran
95. Saamer Mansoor, Student, University of Texas, Dallas
96. Nashwa Mansoor, Student of Medicine, Sangli
97. Dr Ben Rogaly, University Lecturer, UK
98. Meher Engineer, Teachers & Scientists Against Maldevelopment
99. Asish Gupta, Journalist, New Delhi
100 Ashok Choudhary, National Forum of Forest People and Forest Workers (NFFPFW)
101 dhu Bhaduri, Ambassador of India (Retd)
102 pin Kumar, AHUTTI, Patna
103 Women Against Militarization and State Violence
104 The Other Media
105 Subir Banerjee, Distinguished Professor Emeritus, University of Minnesota
106 Ram Bhat, Maraa, Bangalore
107 J. Devika, Associate Professor, CDS, Trivandrum, Kerala
108 Priya Jain
109 Jawed Naqvi, journalist
Copies of the appeal have been sent to the Union Home Ministry, the Chief Minister of Jammu and Kashmir and the Planning Commission.
The following is the text of the appeal:
Dear Sir,
We, the undersigned, as a vigilant group of citizens submit our concerns regarding the prevailing situation in Jammu and Kashmir and urge your immediate assistance in ensuring that the Government of India and the state government takes immediate action to prevent further loss of life and property and initiate an impartial investigation into the recent killings in the region.
The political situation in Jammu and Kashmir has worsened over the last few weeks, which has in turn strengthened the existing culture of impunity in the region. The current crisis also has serious humanitarian consequences.
On June 29, 2010 at least three persons were killed in indiscriminate firing and excessive use of force by the police in Anantnag district of the Kashmir Valley. Four persons were killed in firing on 5-6 July, 2010. It is estimated that more than 15 civilians have been killed and several others injured in the unprecedented use of force by the J & K police and paramilitary, especially the Central Reserve Police Force (CRPF) in a span of two-three weeks. Several of those killed were children: Tufail Matoo (17), Javid Ahmad Malla (18), Shakeel Ahmad Ganai (14), Firdous Ahmed Kakroo (17), Asif Hasan Rather (9), Ishtiyaq Ahmad Khanday (15 from Anantnag), Imtiyaz Ahmad Itoo (17, from Anantnag), Muzaffar Ahmad Bhat (17), and Abrar Ahmad (17). Several protest marches organized across the Valley in response to the killings were met with indiscriminate firing by the security forces deployed in the region. We condemn the recent killings of children in Kashmir.
Over the past few days, the response by the security forces has been such that, on available accounts, even ambulances have not been spared. Media reports state that at three places, including at Safakadal and at Sangam on the Srinagar- Jammu highway, the CRPF fired on ambulances. Moreover, due to the imposition of curfew in the Valley, paramedics have been unable to reach hospitals as a result of which the existing hospital staff have been working over 36 hour shifts to tend to the injured. Even journalists with valid curfew passes have also been attacked. On June 28, 2010 a group of journalists belonging to local and national media organizations were attacked by the CRPF in the Qamarwari area of Srinagar.
Yet again, the recent events highlight the impunity with which the security forces in the region continue to operate. One of the emblematic cases that highlight the legal impunity is that of the enforced disappearance and murder of noted human rights activist, Jalil Andrabi by the Rashtriya Rifle, an army unit deployed in the Valley. In March 1996, Andrabi was illegally detained by security force personnel while returning from work. Three weeks later his mutilated body was found on the banks of the River Jhelum. International and national pressure culminated in the filing of a charge sheet by the police against the five accused in the Sessions Court, Budgam. However, the main accused in the Andrabi murder, Major Avatar Singh remains free to this day. The case of Jalil Andrabi is merely one example of the ongoing human rights violations. Many local and international human rights organizations, including Human Rights Watch, Amnesty International and Physicians for Human Rights have documented the systematic violations of human rights by state and non-state actors and the entrenched culture of impunity.
The promulgation of special laws in the state of Jammu and Kashmir provides legal immunity to the armed forces. Under the Armed Forces Special (Jammu and Kashmir) Special Powers Act, 1990, armed forces personnel of the rank of a commissioned officer, warrant officer, non commissioned officer or of an equivalent rank have been granted extraordinary powers such as the authority to shoot and kill suspected lawbreakers. Further, the Act in requiring prior sanction for prosecution acts as shield for impunity for the non-prosecution of security force personnel involved in egregious human rights violations, including enforced disappearances and torture. Thus far, sanction for prosecution has been granted only in a handful of cases, and perpetrators remain free. Therefore, in the least the procedure for granting sanction for prosecution should be at least be made more expeditious, effective, and equitable.
In this context it is even more necessary to seek accountability of the actions of the security forces in the region. Under applicable national and international law, the killing of children and attacks against hospital and medical infrastructure is strictly prohibited.
In fact, in its Eleventh Plan, the Planning Commission of India outlined special measures for women in from conflict zones within India, which would imply that there are conflict zones within India. The ongoing situation so far mentioned is in contravention of International law, humanitarian law as well as fundamental guarantees provided by the Indian Constitution, including the right to life (Article 21). As concerns the former, we seek to bring to you attention principles enshrined in Common Article 3 of the Geneva Conventions; the International Covenants for Civil and Political Rights, 1976, and the Additional Protocols thereto; the Convention of the Rights of the Child, 1990 and its Optional Protocol; and the UN Security Council Resolution 1882 (2009) on the protection of children.
Regarding constitutional and national laws and adjudicatory policies, we may here refer to the following:
* The guidelines prescribed by the National Human Rights Commission (NHRC) on police action (of 12 May 2010) and in the police manual should be respected
* The Supreme Court decisions in D.K. Basu v. State of West Bengal (AIR 1997 SC 610) and Rajesh Gulate v. Government of Delhi (SCC 7 2002 129)
*The Supreme Court of India guidelines to check arbitrary police action and ensure punishment of perpetrators.
Given the use of unprecedented force, we urge that the security forces exercise restraint and refrain from firing at unarmed protestors. The Central and state governments must ensure that arbitrary and disproportionate use of force against civilians ends immediately and an impartial investigation is initiated into the killing of civilians. We urge the Government of India and the Chief Minister of Jammu and Kashmir, Shri Omar Abdullah to take immediate steps to:
• Put an immediate end to the violence perpetrated by the security forces
• Prevent attacks against civilian infrastructure, including hospitals and ambulances
• Ensure that the security forces respect the principle of proportionality while responding to civilian protests
• Initiate an independent and impartial investigation into the killings of peaceful protestors, several of whom were children
• Initiate an inquiry into instances of attacks on ambulance services
• Ensure that inquiries are conducted in a time bound manner and the report is made public
• Initiate legal and punitive action against persons who are found responsible for the killings of civilians
• Establish an independent inquiry commission to investigate the allegations of serious human rights violations, including enforced disappearances, killings, torture, rape and sexual violence in the region
• Invite and permit the relevant UN Rapporteurs, UN Special Representatives and members of the UN Working Group on Enforced Disappearance to investigate the allegations of human rights abuses in the region
• Initiate a general debate involving members of the Kashmiri civil society and others on impunity and AFSPA, and possible mechanisms to respond to the prevailing impunity
Constitutionally Yours,
List of signatories
1. Professor Upendra Baxi, Emeritus Professor of Law, University of Delhi
2. Dr Mallika V. Sarabhhai
3. Mrinalini V. Sarabhai
4. Navsharan Singh
5. Bhagat Oinam, Jawahar Lal Nehru University
6. Alternative Law Forum
7. The Patna Collective
8. Uma Chakravarti, Historian
9. Anuradha Bhasin, Kashmir Times
10. Prabodh Jamwal, Kashmir Times
11. Laxmi Murthy, Consulting Editor, Himal SouthAsia
12. Sahba Hussain
13. Shahrukh Alam
14. Trideep Pais, Advocate
15. Tenzing Choesang, Advocate
16. Tahseen Alam
17. Anouhita Majumdar, Senior Journalist
18. Anant Nath, The Caravan
19. Vasuman Khandelwal, Advocate
20. Bipin Aspatwar, Advocate
21. Shabnam Hashmi, Anhad
22. Ashok Agrwaal, Advocate
23. Prof. Sitaram Kakarala, CSCS
24. Ved Bhasin, Chairman Kashmir Times group of publications
25. Rajeev Dhavan
26. Kanak Mani Dixit, Himal South Asia
27. Professor Sushil Khanna, Indian Institute of Management, Kolkata
28. Rajashri Dasgupta, Journalist
29. Ram Puniyani, All India Secular Forum
30. Jashodhara Dasgupta, SAHAYOG, Lucknow
31. Warisha Farasat, Advocate
32. Jyoti Punwani, Journalist, Mumbai
33. K. Lalitha, Researcher, Hyderabad
34. Nitya Vasudevan, Research Scholar
35. Randhir Singh, Professor (retd.), Delhi University
36. Priyaleen Singh
37. Abid Mir
38. Areet Kaur
39. Anand Bala
40. Shahla Raza
41. Hafeez Khan
42. Paray Hilal
43. Dr. Pritam Singh
44. Dr. Meena Dhandha, Philospher
45. Dinesh Sharma, Bangalore
46. Dr Atul Sood, Jawaharlal University
47. Gursharan Singh, Convenor against Democratic Front Against Operation Green Hunt
48. Chakraverti Mahajan, Doctoral Student, Punjab University
49. Kavita Pai
50. Sheba George, Sahrwaru
51. Prof. Ranabir Samaddar, Director, Mahanirban Calcutta Research Group
52. .Rita Manchanda, Safhr
53. Zakia Jowher, Action Aid
54. Roop Rekha Verma
55. Pushkar Raj, General Secretary PUCL
56. Binu Mathews,Editor, Counter Currents
57. Indian Social Action Forum (INSAF)
58. Dr. Kaveri Rajaraman
59. Partho Sarathi Ray, Sanhati
60. Pyare Shivpuri
61. Humra Quraishi, Freelance columnist
62. Haley Duschinski, Assistant Professor of Anthropology, Department of Sociology and Anthropology, Ohio University
63. Sahana Basavapatna, Advocate
64. Sukla Sen, EKTA (Committee for Communal Amity), Mumbai
65. Zainab Bawa, Ph.D. student and independent researcher
66. Chetna Kaul, filmmaker
67. Manish Kumar Tipu, music composer
68. Javed Naqi, Senior Research Fellow, Jawaharlal Nehru University, New Delhi
69. PUCL (Andhra Pradesh)
70. Harsh Kapoor, South Asia Citizens Web
71. Naga People's Movement for Human Rights (NPMHR)
72. Badri Raina
73. Manasi Pingle, Filmmaker
74. Pushpa Achanta (Independent writer, Bangalore)
75. Navaid Hamid, Member National Integration Council
76. Aamir Bashir, Actor and film-maker
77. Dipti Gupta, Professor, Media Studies.
78. Santanu Chakraborty (Student - Christ University)
79. Madhuri, Jagrit Adivasi Dalit Sangathan, Madhya Pradesh
80. Rosemary Dzuvichu, Nagaland University,Kohima
81. Vidyarthi Yuvjan Sabha
82. Uma V Chandru, Peace and Human Rights Activist, Bangalore
83. Advocate Narjees, Human Rights Law Network, Kashmir unit
84. AIPWA
85. Shoma, CAVOW
86. Geeta Charusivam, Social Activist Tamil Nadu
87. Arati Chokshi, Member – PUCL (Bangalore- Karnataka)
88. Dr Ritu Dewan, Professor, University of Mumbai
89. Dr Lena Ganesh, Mumbai
90. Pooja Sharma, cinematographer
91. Sajid Iqbal Khandey
92. Vrijendra
93. Sundera Babu
94. Aamer Trambu, Reporter, Press TV Iran
95. Saamer Mansoor, Student, University of Texas, Dallas
96. Nashwa Mansoor, Student of Medicine, Sangli
97. Dr Ben Rogaly, University Lecturer, UK
98. Meher Engineer, Teachers & Scientists Against Maldevelopment
99. Asish Gupta, Journalist, New Delhi
100 Ashok Choudhary, National Forum of Forest People and Forest Workers (NFFPFW)
101 dhu Bhaduri, Ambassador of India (Retd)
102 pin Kumar, AHUTTI, Patna
103 Women Against Militarization and State Violence
104 The Other Media
105 Subir Banerjee, Distinguished Professor Emeritus, University of Minnesota
106 Ram Bhat, Maraa, Bangalore
107 J. Devika, Associate Professor, CDS, Trivandrum, Kerala
108 Priya Jain
109 Jawed Naqvi, journalist
05 July, 2010
EKTA demands inquiry into killing of Azad and journalist
The following is a statement issued by Sukla Sen for EKTA (Committee for Communal Amity), Mumbai:
EKTA hereby gravely notes that the killing of Cherukuri Rajkumar alias Azad, who reportedly stood at no. 3 in the CPI (Maoist) hierarchy, along with a freelance journalist Hemchandra Pandey, at Adilabad district in Andhra Pradesh on July 2 – coming on top of a series of killings involving civilians, security personnel and Maoist insurgents – has further vitiated the ambience. If one goes by the statement issued by the CPI (Maoist) on July 3, the prospects of peace talks, which Swami Agnivesh for a while is making serious bid to make happen, has suffered a serious jolt.
EKTA expresses its serious concern over such development, the government’s utter lack of concern in this regard and the mainstream media presenting the deaths as some sort of trophy won.
Even more disturbing is the fact that serious and credible allegations have been levelled that those two slain had actually been murdered by the AP Police and was subsequently packaged as “encounter death”. It has also been alleged that this has been done deliberately to torpedo the peace efforts.
Under the circumstances, EKTA demands that given the seriousness of the case an open judicial enquiry headed by at least a sitting High Court judge be instituted to unearth the truth without any further delay.
EKTA hereby gravely notes that the killing of Cherukuri Rajkumar alias Azad, who reportedly stood at no. 3 in the CPI (Maoist) hierarchy, along with a freelance journalist Hemchandra Pandey, at Adilabad district in Andhra Pradesh on July 2 – coming on top of a series of killings involving civilians, security personnel and Maoist insurgents – has further vitiated the ambience. If one goes by the statement issued by the CPI (Maoist) on July 3, the prospects of peace talks, which Swami Agnivesh for a while is making serious bid to make happen, has suffered a serious jolt.
EKTA expresses its serious concern over such development, the government’s utter lack of concern in this regard and the mainstream media presenting the deaths as some sort of trophy won.
Even more disturbing is the fact that serious and credible allegations have been levelled that those two slain had actually been murdered by the AP Police and was subsequently packaged as “encounter death”. It has also been alleged that this has been done deliberately to torpedo the peace efforts.
Under the circumstances, EKTA demands that given the seriousness of the case an open judicial enquiry headed by at least a sitting High Court judge be instituted to unearth the truth without any further delay.
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