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വായന

29 September, 2010

Test of honesty for the judiciary or an ode on its demise?

The following is a statement issued by the Asian Human Rights Commission, Hong Kong:

The contempt of court proceedings initiated against Advocate Prashant Bushan in the Supreme Court of India for the allegations he made against some of the former Chief Justices of the country will test the maturity of India's judicial system and that of its democratic framework. Indeed the Court has a statutory right to initiate proceedings against anyone, suo motu or through a petition presented before it. So have Prashant, and every other citizen in the country, a right to express their opinion of what they believe is to be true. Unfortunately, the tainted image of the Indian judiciary is one among them, whether the judges like it or not.

In an interview with Thelka magazine, published on 5 September 2010, Prashant alleged, "… that out of the last 16 to 17 Chief Justices, half have been corrupt". Through an Amicus Curiae petition filed by a lawyer, Mr. Harish Salve, the Supreme Court of India issued notice to Prashant asking him to show cause why his statement and opinion should not be treated as 'contempt of court'.

Prashant's affidavit filed in reply to the contempt proceedings reiterate, explain and further name some of the 'tainted' judges. All of those who have been named, to clear their name if they can, must undergo a thorough investigation and a public trial by an impartial tribunal. Indeed it is to be seen whether the Indian judiciary, or any other democratic institution worthy of its salt and name (as democratic) will be willing to take this 'risk'.

Prashant's original opinion, further reiterated and explained in his affidavit is nothing but a detailed narration of the reasons why the average Indian fear that the country's judiciary, in particular its Apex Court, has become unworthy of the maxim it claims to uphold, 'Yaddo Dharmastho Jayah', the Sanskrit equivalent of fiat justitia ruat caelum. Indeed Prashant being a lawyer, is privileged to possess 'written, documentary and oral' evidence to substantiate his apprehensions than the aam admi (ordinary person), who face the worst brunt, should the judiciary of the country, the working for which his tax money is used is indeed corrupt.

Judiciary's negation of every attempt to bring 'fresh air and light into (its) dark and dusty corridors of power' has become its deplorable character during the past decade. By preventing all attempts to bring transparency in the functioning of the court, ranging from the question of appointment of judges to the applicability of the Right to Information Act, 2005, the Indian judiciary has behaved in such fashion as if it has indeed embarrassing things to hide behind its elevated dais where the most paid and immune jurists in the largest democracy of the world are seated. These attempts have reduced the Indian judiciary into despicable situations where on one occasion it had a serving judge, transferred and later elevated to the Apex Court while unambiguous allegations of material corruption were made against him based on which there was an audit objection and an impeachment proceeding. The Supreme Court also had the unique opportunity to direct its own Registrar to file an ap peal against the order of a subordinate court, the Delhi High Court, in the Supreme Court, so that it could affirm the absoluteness of its impunity against public accountability at the expense of the taxpayer's money.

The Court has also the record of 'legally and fatally injuring' everyone who dared to suggest that the 'king is naked' using its sword of Contempt of Courts Act, 1971. This law, based on a medieval mental framework, has no place in a democracy, like a judiciary that despises transparency and decries accountability.

The allegation Prashant has made is just not an Indian issue. For instance a former Chief Justice of India, Mr. A. M. Ahmedi, was nominated to serve in international committees. He was appointed to look into human rights violations in East Timor by the United Nations, to assist the judiciary in Liberia by the International Court of Justice, and has been requested to review the state of relations between the judiciary, the legal profession and the executive and violation of human rights in Zimbabwe by the International Bar Association. Any argument that Ahmedi would do justice to the victims of human rights violations in foreign lands, while he has allegedly robbed the same for sheer self-interest and greed from his countrymen (and women) does not hold water. Ahmedi's case is just one among many that must be investigated.

It is often said that making public statements of the above nature against the judiciary of a country is immature. Some may ask, will such statements help in sorting out the mess that has now surfaced? Is it not amateur and nonprofessional to say these things in such emphatic tone? The Asian Human Rights Commission believes that the professionalism of the civil society is demonstrated in its ability to raise timely questions of rule of law, with an expectation that it would generate a worthy public debate in the country where it is engaged.

Unfortunately, most of India's media are observing their characteristic silence on the issue. They have apparently perfected their art of stirring public opinion for the wrong cause using all the wrong methods, as they demonstrated in dealing with the parliament attack case, where they proved the case against the 'suspects', parroting the confession statement of the accused, extracted by some of the dreaded criminals wearing police uniforms, who practiced some of the most inhuman methods upon the accused, including torture. Indeed the Indian judiciary convicted the accused, despite the prosecution failing to prove their case, an act by which the judiciary too reiterated that pride and speculation rules above justice.

The AHRC supports and congratulates Prashant Bushan for the bold initiative that he has taken by calling for openness and transparency in one of the most immune public institutions of the world. It is now the responsibility of India's civil society to wake up from its slumber and augment this process of fastening public accountability to one of India's oldest constitutional institutions. It is the primary responsibility of the lawyers and judges who believes in the rule of law and democracy to publically support the process Prashant has initiated.

The AHRC requests everyone to sign an online petition created for the purpose.

To say the least, if the allegations made by Prashant do not lead into an impartial, prompt and public investigation, it has to be believed that the democracy is dead in India.

* The affidavit filed by Prashant Bushan is available here.
* The affidavit filed by Santhi Bushan is available here.
* The online petition can be accessed here.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984

27 September, 2010

For India no more Business as Usual

GIRISH BHASKAR

India ‘s reputation has suffered a major setback as it prepares for the upcoming Commonwealth Games (CWG) in New Delhi. Allegations of corruption are for now kept on the back burner. Australia, New Zealand, Canada and England have threatened to pull out of the games for lack of adequate sanitary conditions at the athletes village. Only after intense pressure from major participating countries, did the Governement go into frenetic action to salvage further damage to its reputation.

India was awarded the rights to host the CWG seven years ago. The total cost is now estimated to run over $ 6 billion. Some Indians saw a golden opportunity to make a fast buck. Allegations of corruption first appeared in the press about 2 months ago. To save face the Government decided to look into allegations after completion of the games. Will the government be impartial in conducting the enquiry? A parliamentary committee of political parties should go into all aspects of the corruption. The enquiry should be timely and those responsible for blatant corruption should be sent to jail. Will the press pursue the alleged corruption charges with vigor?

The collapse of a foot bridge connecting the parking lot to the Nehru stadium and the damage to the canopy adjoining the stadium have caused injuries to several construction workers and police officers. These two incidents should be seen as symptomatic of what has gone wrong in public sector construction. In its eagerness to make a tidy profit, construction companies cut corners. Behind such shoddy work is rampant corruption that prevails in the industry. Organizers perhaps get 10% of the cut for turning a blind eye. Will criminal charges be brought against the construction company for causing serious injury to the people and giving a bad name to the country? Now why should construction companies employ child labor? Why did Organizing Committeee Chairman, Suresh Kalmadi remain silent when such practices were taking place? Westen countries see child labor with disdain.

Indian authorities had seven years to prepare for the games. When India was awarded the games for 2010, some Indians had warned that the country was not ready to host such a major event. The Government has to take full responsibily for the inordinate delay in completing the infrastructure. If the Prime Minister had chaired a committee to assess the progress of the construction and met every three months things would have been different. Certainly there was a steady lack of Central government leadership even as the Government poured in billions of dollars.

A major issue that upset many participating countries was the lack of proper hygiene in the athletes village. Westerners generally see Indian cities as filty and lacking in basic amenities. These games would have been a golden opportunity for the government to win the hearts and minds of the athletes and the fans from different countries. Basic hygiene is something that the Indians don’t like to talk about. Politicians rarely mention hygiene and population control. Perhaps this a time for Indians to take a pledge to keep their cities, towns and villages clean. This effort should start at the primary school. For this effort to succeed the elected politicians from the Panchayat to Parliament should take the lead.

When fear grips people, reasoning power vanishes rapidly. Fear of a terror attack, fear of dengue fever and fear of substandard living conditions at the Games village quickly spread throughout world like a wild fire. In a country where threat perception remains high, is it prudent to spend large amount of money on security? Many top athletes from different countries have backed out at the last minute for the reasons mentioned above.

When it comes to competitive sporting events India has been a laggard. India needs to invest heavily to detect and groom sport talents. While China has made remarkable progress in all fields, India’s development has been scrappy. China has shown the world that they can build world class roads, bridges, and trains. Chinese oversaw the best summer Olympics ever held. Will India ever be ready for the Olympics in our lifetime?

Girish Bhaskar writes for Bhaskar News Service

08 September, 2010

British example of treating caste as an aspect of race

AVINASH PANDEY

Britain, in a major victory for the movement against caste based discrimination and atrocities, can soon declare caste prejudice unlawful under laws against racial discrimination becoming the first country of the world to do so. The development was imminent in the wake of the fact that the House of Lords had already passed the Equality Bill empowering the government to treat caste as 'an aspect of race' in March this year leaving just one more step of getting it passed by the House of Commons to be enacted as law.

The victory has come as a result of the valiant struggle of the Dalit groups along with members of the broader civil society against the exploitative and oppressive system of caste, amidst tremendous opposition of the Indian government and the right wing Hindu groups based in Britain.

The significance of the development lies in the fact that it has taken almost a decade to come since 2001 when the Government of India had succeeded in botching up the attempt of the Dalit Rights Group together with the broader civil society to make caste based discrimination an aspect of racial discrimination at the Durban World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. The Government of India claimed the caste issues as ‘internal matter of India’ and asserted that they were making all attempts to put an end to caste based discrimination.

What it forgot in doing that was its own, and glorious, role in the struggle against apartheid in South Africa. If caste issues are an internal matter of India, would not apartheid be an internal issue of the governments of apartheid-era South Africa? So why did India play a crucial role in mobilising the world opinion against apartheid?

The government of India tried to further substantiate its claim by asserting the caste issues as intra-racial and intra-cultural even while conceding the existence of discrimination. Soli Sorabjee, the then Attorney General of India, maintained that the only reason behind India’s attempt to keep caste discrimination off the agenda of Durban Conference was that “it will distract participants from the main topic: racism”. Even while conceding that caste discrimination in India is 'undeniable' he stressed that 'caste and race are entirely different'.

It could very well be. After all, no two systems of social stratification in this world are absolutely similar to each other. A lot of factors, from culture to economy, intercede with the systems of stratification to produce the division of power and hierarchy in the society and make the systems, in the process, absolutely distinct from one another in internal structure. The crucial question, however, is not about their distinctiveness but their efficacy in maintaining and safeguarding social hierarchies.

Sadly, Indian caste system has proved itself to be one of the worst, if not the worst, system of social stratification for maintaining and perpetuating social hierarchies. Most probably, humankind has never devised a more comprehensive system of keeping a section of society under perpetual subjugation amidst inhuman conditions. It has never devised a worse way of dehumanising fellow human beings and reducing them to being mere labour force devoid of any dignity leave aside rights. Everything said and done, when it comes to committing atrocities on people, the caste system has proved itself to be far more clinical in brutalising its victims than race and not less.

The argument of the Indian government that caste based discrimination should not be included under the category of racial discrimination because it is making serious progress in the issue by having protective laws and positive discrimination fails miserable in the wake of data produced by its own agencies.

For example, the number of crimes against people belonging to the Scheduled Castes as per records of the National Crime Records Bureau of India, a body of ministry of Home Affairs, went up to 33615, an increase of more than 2 percent from the preceding year. Or the fact that the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act does not get applied even in such ghoulish cases of caste based atrocities as in the killing of a Dalit family in Khairlanji while committing brutal rapes on the women speaks volumes about the seriousness of the efforts of the government.

The second argument of Indian government, unfortunately backed by a few leading sociologists, was that since 'race' is a not a meaningful biological category in India and all attempts of profiling different castes along racial lines have fallen flat. Their claim is that even if caste is based on descent it is entirely different from race.

Even if the discrimination against the Dalits is intra-racial, the consequences for them are no less brutal than that in racism. On a more fundamental level, the lack of 'scientific' evidence may prove the absence of 'race' in India but not the absence of 'racism', an ideological structure based on the belief of superiority of some people because of birth and inferiority of others because of the same! And there is no doubt that this ideology is becoming stronger day by day despite all the attempts of Indian government to put an end to this ‘evil’ practice.

The seriousness of the government on the issue speaks for itself in its acts. After all, the government's dogged opposition to the inclusion of caste based discrimination does not come out of some failure to understand the ground realities out of sheer ignorance. It reflects the mindset and the psyche of the government and the people manning it. The stand of the government emanates from that pre-modern, barbaric and regressive social structure of caste that rules the country under its democratic façade. A facade that gets exposed more often than not by the deeds of all organs of the state, including its judiciary.

It is hard to believe that even judiciary can do that but even a cursory glance on its track records bear out the fact. Be it the highly misogynist and casteist verdict in Mathura rape case ((Tukaram V. State of Maharshtra, AIR 1979 SC 185) when the Supreme Court overruled the decision of the Bombay High Court convicting two policemen for raping Mathura, a 16-year-old girl because of the fact that the girl was an ‘illiterate and orphaned tribal girl’ and was of loose character by implication to the recent verdict of Maharashtra High Court in Khairlanji massacre, the judiciary has proved itself complicit in letting the government off its responsibility of abolishing caste based discrimination.

At times, ubfortunately, it has went all the distance to be part of the perpetuators ad not only accomplices of caste discrimination. Like in the infamous and stinking observation of the trial judge in the Bhanwari Devi rape case in 1995 that because Hindu scriptures do not allow upper caste men to touch a low caste woman, the accused could not have raped the Dalit victim. This case and many others have put our constitution to shame.

And that is why, compartmentalising the issue of caste into the 'scientific' and 'cultural' aspects and then prioritising the scientific ones to assert that caste is not race is not only incorrect but in fact a deceitful attempt to violate the spirit of the constitution of India if not the letters itself, and should be fought against from within and outside.

As a matter of fact, the meaning of the term 'descent' has been expanded to include 'discrimination based on caste' ,by the general recommendation number 29, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1969. Indian government will do well to remember that it is a signatory to that convention along with more than 170 other countries.

It will also do well to take note of the fact that the lives of more than 165 million citizens is not a question of intellectual theorising over whether race is caste or not before putting its act together and cracking down on all forms of caste atrocities decisively. By then, it can begin with accepting that caste is a form of racial discrimination, at least of racism if not of the 'pure' (in the Brahiminical sense) biological category of race!

Meanwhile, lets us all support the British Dalits in safeguarding their hard won victory against the demon of caste, threatened by the right wing Hindu organisation in Britain as well as Indian government which is, reportedly, trying to arm-twist the British government into not intervening in its 'internal' matter. Making that absurd claim amounts to appropriating anything relating to Hindu religion as ‘internal’ and caste serious aspersions on the secular credentials of Indian state. Does Indian government want to claim that all issues concerning Hindus are its ‘internal’ issues, throwing all its secular pretensions away?

After all, caste based atrocities have long ceased to confine themselves in Indian subcontinent. If the gory facts about honour killings taking place in Britain and Canada among other places were not proof enough, the recent killing of a Sikh religious leader belong to the Ravidasi sect (a Dalit sect) in Vienna leaves no scope for doubts about the same.

We can begin by standing by the policy and reminding the Indian government not to meddle in the internal issues of Britain, as it is dealing with an issue concerning its citizens and has nothing to do with a ‘secular’ India. Further, no government can sit idle when caste issues lead to illegal confinements, abductions, forced marriages, and even killings. It is the Indian state which has failed to contain the demon of caste, leave aside killing it, and it has no right to demand the same indifference and disdain for human life from a sovereign state for such a pressing issue.

Avinash Pandey, alias Samar, a research scholar based in New Delhi, is currently in Hong Kong on assignment with the Asian Human Rights Commission, which has distributed this article. He can be contacted at samaranarya@gmail.com

06 September, 2010

Right to Food Campaign seeks expansion of PDS

The following is a statement issued by the Steering group of the Right to Food Campaign and forwarded by the Asian Human Rights Commission, Hong Kong:

The Right to Food Campaign welcomes the Supreme Court's firm stance on food grains left to rot in godowns and their efforts to force the Government to take action. With a growing food emergency in the country and rampant spiraling prices, this is a step in the right direction. The Court has also suggested that instead of using the 2000 population figures to decide on the number of people under the Below the Poverty Line (BPL), the projected population figures for 2010 should be used for distribution of food grains. This will lead to an expansion of the number of people being covered and we welcome this move.

We would however like to express our apprehensions about the court’s view regarding doing away with Above the Poverty Line (APL). Limiting the percentage of people covered under the BPL to only 36% has meant that huge numbers of the hungry get left out. The Planning Commission has also shown high targetting errors in the BPL list with more than 50 percent of the actual poor BPL families being left out of these lists. With the present situation of runaway prices of food grains, and a nutritional and food emergency in the country, abolishing a system of subsidised food grains for those who are outside the BPL list will result in many going hungry. It is a proven fact that the adoption of universal coverage in distribution of grain is the only measure that will prevent exclusion of the poor. In the present scenario at least those poor who have been excluded from the BPL must have the right to avail of the APL grain, which is at less than half the market price of grain. We endorse the positions by the SC Commissioners and the Government of India on retaining the APL.

It is also our belief that for ensuring food security the Government needs to procure more grain. It needs to double the present procurement, which is only 25 % of the total production. We also believe that local procurement ought to be encouraged. This would not only reduce transport costs but also ensure better management of grain storage. The Food Corporation of India (FCI) needs to improve its storage systems and local bodies (including Panchayat) managed storage systems ought to be put in place. Instead of asking the Government to reduce procurement to present storage capacity, we would instead request the court to ask for an expansion in decentralized storage capacity and procurement so that public provisioning of subsidised food grains is expanded and strengthened.

We are also concerned about the Court’s suggestion to introduce fortified atta instead of wheat. Replacing wheat with atta will lead to more corruption due to central processing of the wheat by private flour mills. Flour, has a shelf life of only a fortnight, as compared to wheat, which can last for upto an year. It is also difficult for consumer to discern the quality of atta as compared to the quality of food.

Regarding the Government’s decision of 2 September 2010 to release 2.5 million excess food stocks for the next six months, we suggest that the grain be distributed in the following manner:

• Expansion of Antyodaya food grain entitlements (35 kilograms at Rs. 3/kg for rice and Rs. 2/kg for wheat) and to all rural households (APL, BPL or Antyodaya) for an initial period of two years in all districts that were declared as drought-affected in 2009 or are so declared in 2010.

• Extension of Antyodaya cards and entitlements forthwith to all the priority groups without any quota/ limit on the number of households living at the risk of hunger as per the order of the Government of India dated 3rd August 2004; Order No. F.13(22)/2001/CFS(D)/Vol.III/1033, which was issued on the basis of the SC order of 2nd May 2004 in the PUCL case 196/2001. This stipulates that, amongst others, all landless agriculture labourers, marginal farmers, rural artisans/craftsmen, slum dwellers, and daily wage earners in rural or urban areas should be given Antodaya cards.

• The Antyodaya category also includes households headed by widows, single women, children or terminally ill persons or disabled persons or persons aged 60 years or more with no assured means of subsistence or societal support, persons living with HIV/AIDS, homeless persons, transgender, and all primitive tribal households. Antyodaya cards and entitlements should be extended to all such people without any quota or limit on the number of people.

We urge the Supreme Court to ensure that all these households receive the full quota of 35 kilograms without any restriction on the numbers of such households so long as they meet the criteria set above by the Government of India order.

We would request the court to maintain the APL quota till such time as the Government expands the Public Food Distribution System (PDS) to cover most people in country.

The Government’s decision to release of 2.5 million tonnes of food grains will result in an expansion of coverage of people who receive subsidized food grains. In view of the persistence of hunger in the country, we request the Court to ensure that this expansion in coverage is not just for a period of six months but is the first step in the long term expansion to universally cover our population.

We are,

the Steering group of the Right to Food Campaign

Annie Raja (National Federation for Indian Women),
Anuradha Talwar (New Trade Union Initiative),
Arun Gupta (Breast Feeding Promotion Network of India),
Arundhati Dhuru (National People’s Movement of India),
Ashok Bharti (National Conference of Dalit Organizations),
Anjali Bhardwaj,
Aruna Roy and Nikhil Dey (National Campaign for People’s Right to Information),
Asha Mishra and Vinod Raina (Bharat Gyan Vigyan Samiti),
Colin Gonsalves (Human Rights Law Network),
Kavita Srivastava (People’s Union for Civil Liberties),
Mira Shiva and Vandana Prasad (Jan Swasthya Abhiyan),
Paul Diwakar (National Campaign for Dalit Human Rights),
Subhash Bhatnagar (National Campaign Committee for Unorganized Sector workers),
Jean Dreze (Allahabad University) and V.B. Rawat
For more information, please contact:

Kavita Srivastava (0141-2594131 or 09351562965),
Anuradha Talwar (09433002064),
Deepika (9560923178),
Sejal Parikh (09560266167),

Secretariat - Right to Food Campaign. C/o PHRN 5 A, Jungi House,
Shahpur Jat, New Delhi 110049. India
Website: www.righttofoodindia.org
Email: righttofood@gmail.com
Phone: + 91 11 2649 9563