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KERALA LETTER
Solar scam reveals decadent polity and sociery
A Dalit poet writing in English, based in Kerala
Foreword to Media Tides on Kerala Coast
Teacher seeks V.S. Achuthanandan's intervention to end harassment by partymen
Change of heart? Or stooping to conquer?

വായന

31 January, 2011

Bolstering civil society

BRP Bhaskar
Gulf Today

India has a comprehensive and progressive legal framework which guarantees human rights and fundamental freedoms but there are widespread deficiencies in implementation, Margaret Sekaggya, UN Special Rapporteur on the situation of human rights defenders, said on the conclusion of an 11-day visit to the country earlier this month.

The Special Rapporteur, whose mandate flows from the UN General Assembly’s 1998 declaration on human rights defenders, was on a fact-finding visit. She interacted with officials in New Delhi and in the states of Orissa, West Bengal, Assam, Gujarat and Jammu and Kashmir and received representations from several human rights organisations.

“Throughout my mission,” Ms Sekaggya said, “I heard numerous testimonies about male and female human rights defenders and their families who have been killed, tortured, ill-treated, disappeared, threatened, arbitrarily arrested and detained, falsely charged, under surveillance, forcibly displaced, or their offices raided and files stolen, because of their legitimate work in upholding human rights and fundamental freedoms.”

She noted that the violations were generally attributed to law enforcement authorities. However, there were also cases in which they colluded with armed groups.

She saw all this as evidence of shrinking of the space for civil society. She observed that the working of the judiciary, the primary avenue for legal redress, was hampered by backlog and delays in the handling of cases of human rights violations.

Pending the formulation of detailed proposals after analysing the material she had received, Ms Sekaggya made a few preliminary recommendations before leaving the country. As a first step, she asked the central and state administrations to publicly acknowledge the importance and legitimacy of those who are working individually or in association with others to realise, protect and promote human rights and fundamental freedoms.

While acknowledging that India faces security challenges, Ms Sekaggya voiced deep concern over the arbitrary application of security laws, especially in Jammu and Kashmir and the north-eastern states, which affected the work of human rights defenders. She also objected to the branding and stigmatisation of human rights defenders who are labelled as Naxalites, Maoists, militants, anti-nationals etc. She noted that journalists who report rights violations are targeted by both security forces and insurgents.

Her observations must be seen in this context of the attempts to silence writers, journalists and others who have raised their voice against the wanton use of force by the state.

Ms Sekaggya called for training of security forces to sensitise them on the role and activities of human rights defenders “with technical advice and assistance from relevant UN entities, non-governmental organisations and other partners.”

It is not security personnel alone that need to be sensitised. Some recent pronouncements by members of the Executive, the Legislature and the Judiciary indicate that there is inadequate appreciation of the role of civil society in all three limbs of the state.

The Constitution of India, which came into force in January 1950, incorporates most of the provisions of the Universal Declaration of Human Rights adopted by the UN 13 months earlier. To its eternal shame, during the Emergency of 1975-77, the Supreme Court upheld the Executive’s claim that it had the power to suspend all fundamental rights, including the right to life.

Recently an apex court bench formally repudiated that obnoxious judgment. But, then, another bench, recently reprimanded Teesta Setalvad, a human rights defender, for having written two letters to Office of the UN High Commissioner for Human Rights, viewing it as an attempt to seek foreign interference on a matter before the court.

One of the judges reportedly said, “We don’t appreciate letters being sent to a foreign country, we can’t approve of it.” If the report is correct, there is grave deficiency in the learned judge’s understanding of the role of the UN system in promoting human rights ideals worldwide.

The High Commissioner is mandated to promote and protect the enjoyment and full realisation, by all people, of all rights established in the UN Charter and in international human rights laws and treaties. It is a grave error to represent contact with a UN agency as contact with a foreign country.

Ms Sekaggya’s visit came even as some governments and political parties are making motivated attempts to discredit human rights defenders, whom they see as obstacle in the way of operations against terror groups. Implementation of her preliminary recommendations will help bolster India’s civil society.

27 January, 2011

UN fact-finding on human rights defenders in India welcomed

The following is a statement issued by the Working Group on Human Rights in India and the UN in New Delhi:

The Working Group on Human Rights in India and the UN (WGHR) commends the UN Special Rapporteur on the Situation of Human Rights Defenders, Ms. Margaret Sekaggya, for the successful completion of her fact-finding mission to India, which took place from 10 to 21 January
2011.

WGHR welcomes the Special Rapporteur’s recently released statement which summarises her main interim findings concerning the alarming situation of human rights defenders in India, and gives preliminary recommendations to relevant stakeholders.

WGHR echoes the Special Rapporteur’s statement and commends the Government of India for inviting the Special Rapporteur to India, and allowing her to travel and hold regional consultations with a broad range of civil society representatives in five states (Orissa, West Bengal, Assam, Gujarat and Jammu and Kashmir) and in the capital, New Delhi. These consultations were very significant for human rights defenders, as expressed by Babloo Loitongbam, Director, Human Rights Alert: “This is the first ever visit of a UN Special Rapporteur to the North-East. Ms. Sekaggya’s empathetic listening to the struggles of the human rights defenders of this isolated region has generated a lot of hope”.

The Special Rapporteur’s statement brings to light the severe assault on human rights defenders, by both state and private actors, in India today. During her 12-day mission in India. Ms. Sekaggya heard testimonies from defenders of killings, torture, ill-treatment, enforced disappearances, threats, arbitrary arrests and detention, filing of false charges against defenders, surveillance, forcible displacement, raiding of defenders’ offices and stealing of documents and files, and illegitimate restrictions on freedom of peaceful assembly.

While Ms. Sekaggya notes that India is home to a comprehensive and progressive rights-based legal framework, and welcomes the existence of numerous human rights institutions, she points to “widespread deficiencies” in implementation of laws and failings in institutional responses with serious adverse impact on the safety and security of human rights defenders.

The Special Rapporteur expresses serious concern over the plight of defenders working on a range of issues, including:

.. Defenders engaged in denouncing development projects that threaten or destroy the land, natural resources and livelihoods of communities;

.. Defenders working for the rights of marginalized people (Dalits, adivasis), religious minorities and sexual minorities

.. Right to Information activists

.. Defenders working on women’s and child rights, particularly women human rights defenders

.. Defenders fighting impunity for human rights violations

.. Defenders seeking accountability for communal pogroms

.. Defenders upholding the rights of political prisoners, journalists, lawyers, labour activists, humanitarian workers, and church workers

.. Defenders working in insurgency and conflict affected areas

.. Defenders working in rural India (who according to the Special Rapporteur are “often more vulnerable”)

Henri Tiphagne, Convenor of Human Rights Defenders Alert – India, observes: “Pervasive human rights violations, compounded by the non-accountability of state actors and institutions, have also triggered the emergence of new groups of defenders, made up of ordinary citizens and grassroots communities, fighting for their rights”.

Ms. Sekaggya points to the “arbitrary application” of security laws, particularly in conflict affected areas of the country such as Jammu and Kashmir and the North-East states. These laws are used to target and brand human rights defenders (including journalists) as anti-national, terrorists, Naxalites, and other perceived enemies of the state. The Special Rapporteur recommends the repeal of the Armed Forces Special Powers Act and the Jammu & Kashmir Public Safety Act, and also calls for a review of other security laws in force. Based on her observations at the Special Rapporteur’s consultation with civil society in Kashmir, Advocate Vrinda Grover states: “Parents of victims, human rights activists, the Srinagar Bar Association and journalists all underscored the rampant violations of human rights and the impunity enjoyed by the security forces in Kashmir. Moved by the accounts of young persons killed and
detained under draconain laws, the Special Rapporteur observed that Kashmir should be understood through the human rights violations suffered by the people”.

WGHR expresses deep concern for the safety and security of human rights defenders under severe assault across the country, and calls on the Central and state governments to consider and implement the Special Rapporteur’s preliminary recommendations without delay.

WGHR also calls attention to what the Special Rapporteur’s findings reveal about the larger situation of human rights protection in India, which is seriously and alarmingly lacking. The deliberate and often violent targeting of human rights defenders is facilitated by failing institutional responses, particularly of the National and state human rights commissions. The Special Rapporteur clearly identified the systemic problems in the performance of human rights commissions, which have led defenders to lose all faith in
these institutions. This was reaffirmed at a roundtable meeting hosted by the National Human Rights Commission for civil society representatives and the Special Rapporteur, at which speaker after speaker identified the need for a strong, independent, effective and transparent Commission. WGHR urges central and state governments, and the commissions themselves, to urgently take steps to rectify these failings.

“We hope this mission signifies that the Government of India will now regularly invite Special Procedures mandate holders to the country. We trust this step indicates a new era of collaboration with the UN human rights programme and demonstrates India’s firm resolve to respect its international human rights commitments, including timely implementation of Special Rapporteur and UN treaty body recommendations”, says Miloon Kothari, Convenor of WGHR. ..

For more information, please contact:
Henri Tiphagne: +919894025859,
Miloon Kothari +919810642122 or
Vrinda Grover: +919810806181

The Statement of the UN Special Rapporteur on the situation of human rights defenders is available at: www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10660&LangID=E

The Working Group on Human Rights in India and the UN – a national coalition of fourteen human rights organizations and independent experts – works towards the realization of all civil, cultural, economic, political and social human rights in India and towards holding the Indian government accountable to its national and international human rights obligations.

For information on WGHR, please visit: www.wghr.org

Martyrs Day rallies in support of Binayak Sen

Various human rights groups have called for observance of Sunday, January 30, as a day of protest against anti-democratic laws and demand the immediate release of Dr. Binayak Sen.

More than a month has passed since a Chhattisgarh court held the noted physician and human rights defender guilty of sedition and sentenced him to life imprisonment. An appeal filed by him is now pending before the state high court. The way the court gave a long adjournment after hearing the arguments of Ram Jethmalani, who appeared for Dr. Sen, seeking suspension of the sentence pending disposal of the appeal, is typical of the way our judicial machinery grinds. Apparently the horror expressed by human rights defenders the world over has not persuaded the court to act with a sense of urgency.

Against this background, the planned activities on January 30, the death anniversary of Mahatma Gandhi, which is observed nationally as Martyrs Day, assumes special significance.

The specific demands to be raised on that day include immediate release of Dr. Sen, repeal of Section124 (A) IPC (sedition) and the obnoxious provisions of the Unlawful Activities (Prevention) Act (UAPA), the Armed Forces Special Provisions Act (AFSPA) and the Chhattisgarh Special Public Security Act (CSPSA)

The slogans:
Hum Sab Binayak Sen, Hum Sab Jail Jayenge
(We all are Binayak Sen, We all will go to jail)

Agar Sach Bolna Rajdroh hai, toh hum Sab Rajdrohi hai (If speaking the truth is sedition, we all have committed sedition)
Rallies, meetings, seminars etc are taking place in many places in the country.

Prof. Ilina Sen, wife of Dr. Binayak Sen, writes:

As we celebrate 61 years of India becoming a Socialist Democratic Republic we are shocked to witness that the spirit of our Constitution stands violated every so often today, sacrificing people's democratic rights and throttling the socialist dream of our Constitution makers.

Speaking out against the conviction and incarceration of Dr. Binayak Sen's case has to be seen in that larger context of lending our voice against the gross injustice that we witness as a daily happening in India day after day.

Today when we demand his release we must also raise our voice against all those who remain hungry, malnourished, and without secure means of livelihood, as well as those who have been dispossessed, killed, tortured, humiliated, disappeared, threatened, arbitrarily detained and arrested, falsely charged and under surveillance because of their
legitimate work in upholding democratic rights and fundamental freedoms. In the last two days I too have been a victim of this in Wardha, Maharashtra (Central India) where I teach.

Dr. Binayak Sen has completed more than a month in this leg of his imprisonment. The hearing for the suspension of his sentence continues. It is not a testing time for us alone but more for our political and judicial systems, which are on trial for accountability,
rationality, justice and equity.

Finally, I would like to thank all of you for holding our hands in this period of suffering and anguish faced by me, Binayak's mother, daughters, brothers and all his friends.

I would like to end with a verse of Faiz

bol ke lab aazaad haiN tere
bol zabaaN ab tak terii hai
teraa sutvaaN jism hai teraa
bol ke jaaN ab tak terii hai

dekh ke aahaNgar kii dukaaN meN
tuNd haiN shole surKh hai aahan
khulne lage qufloN ke dahaane
phailaa har ek zanjiir kaa daaman
bol ye thoRaa vaqt bahut hai
jism-o-zubaaN kii maut se pahle
bol ke sach ziNdaa hai ab tak
bol jo kuch kehnaa hai keh le


English translation:

Speak up, while your lips (thoughts) are (still) free
speak up, (while) your tongue is still yours
Speak, for your strong body is your own
speak, (while) your soul is still yours

Look at the blacksmiths shop
hot flames makes the iron red hot
opening the (jaws of) locks
every chain opens up and begins to break

Speak, for this brief time is long enough
before your body and words die
speak, for the truth still prevails
speak up, say what you must.

WE WILL BE VINDICATED!!!

Prof. Ilina Sen,
Mahatma Gandhi Antarashtriya
Hindi Vishwavidyalay,
Wardha,
Maharashtra


January 26, 2011

26 January, 2011

On Republic Day awards

In a Republic Day post on Facebook I offered felicitations to friends who received Padma awards this year. It elicited some critical and derisive comments.

Bestowal of honours by the ruler (read state) for services rendered to him is a practice that goes back to the feudal era. The knighthood in Britain is said to have originated in Saxon times (449-1066). In the 19th century non-whites who served the colonial administrations began to be considered for the honour, and Mutu Coomaraswamy of Sri Lanka became the first Asian to be knighted. The British instituted a system of graded civilian awards exclusively for Indians – Diwan Bahadur, Rai Bahadur and Rai Sahib in (Rai became Rao in the South and Roy in Bengal and Khan in the case of Muslims and Parsis regardless of geographical location).

Many Maharajas instituted awards of their own -- like Rajyasevaniratha.in Travancore. .

Article 18 of the Constitution of India says: “No title, not being a military or academic distinction, shall be conferred by the State.”

The Article reflected nationalist sentiments against the colonial-feudal reward system. Mahatma Gandhi was the only high-ranking leader of the freedom movement to have received a British honour. In 1915, he was awarded the Kaiser-i-Hind medal in recognition of his services in organizing an Indian ambulance corps during the Zulu revolt in South Africa. He had just returned to India at the time and was helping to recruit soldiers to fight for Britain in the World War I. He returned the medal a few years later in protest against the Jalianwala Bagh massacre.

Following the adoption of Article 18, many Indians gave up titles conferred on them by the British.

Four years after the Constitution came into force, the government instituted the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri awards, reviving the imperial knighthood, Diwan Bahadur, Rai Bahadur and Rai Sahib under a republican garb. Many questioned the propriety of instituting such awards when the Constituent Assembly had rejected the concept of titles, holding that it militated against the concept of equality. The government clarified that the awards were meant to honour people for services rendered to the nation and that since they are not titles that can be used with the name they did not attract the constitutional bar.

In total disregard of the government’s clarification, many award winners use the Padma awards as titles. Even when they have the good sense not to do so, their admirers often insist on using them. This tendency is very pronounced in Kerala.

In the beginning, following the colonial practice, awards were given only to the living. When K. Kamaraj died in 1975, Indira Gandhi conferred the Bharat Ratna on him posthumously in the hope that the gesture will win her the support of his Congress (O) followers. This prompted Morarji Desai, who succeeded her, to suspend the award system. On her return to power Indira Gandhi revived it. Following her example, Rajiv Gandhi conferred Bharat Ratna posthumously on M. G. Ramachandran. In 1990, V. P. Singh set the tone for the birth centenary celebration of B.R. Ambedkar by conferring Bharat Ratna on him 33 long years after his death.

The award system was suspended again in 1992 as the Supreme Court was examining a petition challenging its constitutional validity. The court rejected the petition in 1995 and the government revived the awards in 1997.

Morarji Desai was honoured with the Bharat Ratna in 1991. He also received a Pakistani honour: Nishaan-e-Pakistan.

Normally the President confers the awards on the advice of the Council of Ministers. But when Jawaharlal Nehru returned from a successful visit to the Soviet Union in 1955 President Rajendra Prasad conferred the Bharat Ratna on him without any ministerial advice.

The manner in which selections are made for the awards was seriously questioned for the first time when an engineer who was given the Padma Shri in recognition of his role in the execution of a major project was later arrested on a charge of corruption.

There are a few known cases of eminent persons refusing awards as they believed they deserved something better than what was offered. K Subrahmanyam, who had served as civil servant, strategic analyst and journalist, had refused a Padma award for personal reasons. In a television interview, he said, "In my view I should not accept an award from the Government in any of the capacities as that would compromise my independence vis-a-vis the state.” That is a refreshingly welcome statement from one who was a part of the Establishment all his life.


I hold the view that the system of awards is not in conformity with the spirit of the Constitution. But, then, the Indian state is essentially a continuation of the colonial state and, what’s more, the system of awards appears to have wide acceptance not only among those looking for recognition but also among the general public. It is for an individual chosen for an award to decide whether or not to accept the honour. When someone is chosen for an award, I believe, felicitations are in order -- unless there are reasons to believe he does not deserve the honour.

The words Rabindranath Tagore wrote to the Viceroy in 1919 relinquishing his knighthood in the wake of the Jalianwala Bagh massacre are worth remembering: “The time has come when badges of honour make our shame glaring in the incongruous context of humiliation, and I for my part, wish to stand, shorn of all special distinctions, by the side of those of my countrymen who, for their so called insignificance, are liable to suffer degradation not fit for human beings.”

Humiliation of our countrymen for their so-called insignificance is a continuing story but how many are ready to stand by their side, shorn of all special distinctions?

India has a long way to go, says AHRC

The following is a statement issued by the Asian Human Rights Commission on India’s Republic Day:

The integrity of a republic and the determination of its people depend upon the legitimacy of their government. Since declaring the Union of India to be a sovereign, socialist, secular, democratic republic that assures its citizens justice, equality, and liberty and to be a nation that endeavours to promote among them all fraternity, 61 years ago, the country today has still a long way to go to realize the dreams of its founding fathers. The Indian Constitution, a social document, as referred to by Granville Austin, drafted to further "the aim of social revolution or attempt to foster this revolution by establishing conditions necessary for its achievement" depends much upon a government that has a democratic executive which is stable, responsible and impartial.

The defining characters of the country's executive has deteriorated to such levels over the past 61 years that it is not even a shadow of what it ought to be. Instead of undertaking honest endeavours to correct this and to contribute to the nation building exercise, today, despite of its symbolic value, the integrity of the republic, according to the determination of a large section of its people, has been reduced to the hoisting of the national flag in states like Jammu and Kashmir that struggles to return to normalcy from the externally sponsored and internally motivated civil war.

After declaring the country as a republic 61 years ago and 63 years since gaining independence from colonial rule, India today is still an underperforming state for more than 60 percent of its population. Despite maintaining a steady and decent growth rate for the past five years, the country is home for an alarmingly high number of persons, estimated to be 75 percent of its population, who live below the poverty line. This is a condition worse than in Sub-Saharan Africa.

Corruption, the omnipresent cancer that has eaten the country from within, has reduced the executive and the administration to a condition comparable with that of a termite ridden tree that waits for a strong wind to complete its downfall. Irrespective of their ideologies the political parties that exercise power in India have only competed between themselves to preserve the corrupt bureaucracy that always yearned to remain the mainstay of the politicians and rich. Despite the weekly reportage of corruption, where politicians and bureaucrats have been exposed of swindling millions worth tax payers' money there is no healthy debate yet in the country of the urgent requirement for a credible corruption prevention agency. One among the many that already exist, the Central Bureau of Investigation, yesterday was pulled up by the Kerala High Court and cautioned that the Court would have to take action against the Bureau should it continue intervening in the investigation of a politically sensitive murder case to save some of the high-ranking, as well as corrupt politicians. The Bureau is a typical Indian example of how these agencies are created and accustomed to doing anything else other than their statutory mandate, which is to detect, investigate and prevent corruption. The allegations of corruption against the present Chairperson of the National Human Rights Commission, is yet one more example of the stark reality of the extent to which corruption has eaten into the justice system of the country. The continuing reluctance of the Union Government to initiate an investigation into the scam, that it its wild course has tainted further none other than the Supreme Court of India, the highest seat of justice in the country, shows the extent to which this cancer has nullified the notion of justice in the country.

Corruption however is not a problem in itself. It is the result of much more deep-rooted issues within the administration of a state. In that, corruption flourishes only to the extent to which an environment for corruption prevails. This environment includes not only the administrative mainframe, but also the general perception of the public about the character of their state. For the ordinary citizen, there are some key institutions that represent the symbols of the state. Of them one of the most important element is the police, as the police is not only a uniformed state presence, but is also the symbol of its authority. A reform to the existing framework of administration is thus not possible in India without addressing the entrenched problems relating to policing in the country. Foremost in the list is the practice of the use of brutal force with impunity. So far the national debate to bring about changes to this unacceptable status quo has halted at the stage of the Parliamentary Select Committee proposing drastic revisions to the proposed law against torture. The Committee has suggested overarching revisions to the proposed law, which in its present form is none other than an eye wash legislation to justify India's proposal to ratify the United Nations Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment. The proposed law against torture, the Prevention of Torture Bill 2010 in its current form will be just one more legislation to justify the usual claim of the Government of India before the international community that the country has adequate legislation to guarantee the rule of law. What is ignored by international jurists and kept hidden by the country's government is that despite having laws, justice and redress remains a distant dream for most in the country.

This denial of justice is visible in the extrajudicial executions and encounter killings reported from states like Manipur and Jammu and Kashmir; in the despicable neglect of the state and central government of the tribal and otherwise ethnically minority communities that led to the disastrous and dangerous growth of armed extremist groups like the Naxalites and the other armed militia groups; in the cases of torture reported from the length and breadth of the country; in starvation deaths, forced evictions and bonded labour.

Every case of unresolved human rights violation that is reported from India is an assertion that the country needs much more than the pseudo chivalry of the hoisting of a flag in a state that has an alarming and disproportionate army presence. Every case of rights violations in the country is yet another cry for help of a hapless citizen who is denied his or her fundamental right to be treated equally and humanely that the constitution they believe in guarantees.

January 26 will be meaningful only if the guarantees in the constitution that proclaimed India a republic 61 years ago are also realized. Until then the Republic Day will remain an occasion for the annual remembrance of that great nation India once resolved to become and Indians thus far have failed to realize.

The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

24 January, 2011

Call to scrap Unlawful Activities Act which criminalizes dissent

The following is the text of an online petition appealing to the President of India to scrap the Unlawful Activities (Prevention) Act:

To
The President of India,
Rashtrapati Bhavan,
New Delhi.

We, the undersigned, are gravely concerned about the use of Unlawful Activities (Prevention) Act (UAPA) by the government of India and state governments to silence voices of dissent and opposition. Recently, a large number of political activists, human rights defenders and journalists have been arrested and convicted on the basis of this draconian law. We view this act only as a means of state terror intended to endanger citizens who are brave enough to speak, write or act against the interests of the ruling party and big business. The case of Dr. Binayak Sen confirmed our worst fears- that nobody who exercises their free speech to expose the violent state is spared.

If Dr. Sen is one of the more famous victims of this anti-democratic law, hundreds languish in jails in the country for speaking out against the collusion between multinational companies, politicians and the police. UAPA is being used to repress struggles by poor peasants and Adivasis for their land and resources , against striking workers, minorities, civil rights activists, journalists, lawyers and students for protesting against anti-people policies of the government. Swapan Dasgupta, the editor of a political magazine from West Bengal, died in police custody after being booked under UAPA in 2009. Spokesperson of People’s Committee Against Police Atrocities (PCPA) Chhtaradhar Mahato was arrested under UAPA in 2009 and still is in jail in West Bengal. It has been used against journalists like KK Shahina of Tehelka who dared to write about a legal system discriminating against minorities and against Dalit activists like Sudhir Dhawale who worked in open and public platforms. The law gives unlimited freedom to the police to interpret what constitutes “terrorism” and “unlawful activity” to suit the interests of the rich and the powerful.

This law is against the spirit of our Constitution and should be opposed on the basis of the following:

• UAPA criminalizes dissent. Section 15 of the act defines ‘terrorist activity’ extremely vaguely and gives enough room for executive to illegalize activities that challenge the anti-people policies of governments.

• Through this law, governments can brand any organization that it finds inconvenient as “terrorist” or “unlawful. Section 39 makes support to a terrorist organization an offence and criminalizes common activities like arranging, organizing or addressing public meetings.

• It permits longer detention of ‘terror suspects’, up to 6 months, without charge or trial. It sanctions harsh and tough procedures for the detained person to obtain bail which curtails the rights of the accused. This facilitates long incarceration of political activists and members of civil society who question the government.

• It allows anonymous witnesses which limits and curtails the right of the accused for a fair trial. Needless to say, all these provisions violate fundamental rights guaranteed by the constitution of India.

We understand that UAPA is an anti-people legislation that is designed to silence voices of dissent and bury political freedom. We feel that the continuance of this law and its extensive use to annihilate opposition is against the spirit of free speech, human rights and democracy enshrined in our constitution. We, therefore, appeal to you to immediately repeal UAPA and to free all political prisoners booked and arrested under this draconian law.
Sincerely,

Please sign the petition here:
http://www.petitiononline.com/rpluapa/petition.html

PS: Please write your full name and organizational affiliation, if any.

The black money chase

B.R.P.Bhaskar
Gulf Today

According to a message circulating in cyber space, a Swiss bank official has said Indians are holding “280 lakh crore rupees” (about $606,000 million) in secret accounts in that country. It is safe to assume the figure was cooked up locally. After all, a Swiss bank official is unlikely to use very Indian terms like “lakh” (100,000) and “crore” (10 million).

Also in circulation is a purported extract from a Swiss Banking Association report of 2006 which says Indians hold the most black money in banks there. The five countries mentioned in it as the biggest sources of black money are: India $1,456 billion, Russia $470 billion, UK $390 billion and Ukraine $100 billion.

These figures, too, appear to be fabrications. The Association’s annual reports for several years, including 2006, which are available on the web, do not contain any information about foreign black money deposits. The Global Financial Integrity (GFI) report of the US-based Center for International Policy, published this month, says the developing countries had lost about $6.5 trillion during 2000-09 on account of illegal money transfers. Its list of 10 countries which suffered the most losses does not include India.

The fact is that there is no reliable data on money held abroad by Indian nationals. However, last week, the Supreme Court, while hearing a set of public interest petitions, appeared ready to give credence to reports that Indians hold an estimated $1 trillion in foreign bank accounts.

The petitions, which have been pending before the court for nearly two years, are now receiving increased attention in the light of recent revelations about various corrupt deals, including the 2G scam, which led to the resignation of a central minister.

The government’s counsel handed over to the court in a sealed cover a list of 26 Indians with secret bank accounts in Liechtenstein, obtained from the German authorities. He informed the court that the Income-tax department had raised a demand of Rs242.6 million from the 18 resident Indians whose names figure in the list. The court expressed displeasure at the government’s inability to get information about money held in other tax havens. It also upbraided the authorities for focusing on tax evasion, overlooking corruption and other criminal acts involved in the generation of black money, and called for a comprehensive report by Thursday.

Black money, generated in the country and stashed away in foreign banks, has been a source of worry for the Indian authorities for a long time. To begin with, the offenders were mainly industrialists who under-invoiced exports and over-invoiced imports. Corrupt politicians and officials are believed to have joined their ranks later.

The government offered amnesty on a few occasions with a view to drawing black money into the tax net. The efforts were not great successes.

Switzerland is probably the most favoured parking station of Indian black money. Under an agreement negotiated last year, the Swiss government was to give India access to secret bank accounts of Indians beginning this month. Since the Swiss parliament has not adopted the necessary protocol, the agreement has not come into force yet.

The Indo-Swiss agreement has only limited application. It cannot be invoked to seek information about pre-existing bank accounts. Even with regard to new accounts, the Swiss commitment is confined to providing administrative assistance to track cases of tax evasion and fraud. The Swiss Bankers Association has said it will not permit “fishing expeditions.”

With the apex court calling for action to unearth black money and the Bharatiya Janata Party, the main opposition, demanding a law to track down money in secret foreign accounts, pressure is mounting on the government to act.

According to S. Gurumurthy, a chartered accountant and columnist who has a record of exposing some corporate misdeeds, the government lacks the will to go after foreign bank accounts since its own leadership is not free from blemish. In this context, he cites a 1991 article in Schweizer Illustrierte, a Swiss magazine, which said Sonia Gandhi, who is now chairperson of the ruling United Progressive Alliance, was controlling secret accounts with 2.5 billion Swiss francs (equal to $2.2 billion) in her son’s name at that time.

Gurumurthy, whose pro-BJP sympathies are well-known, steers clear of the question why the BJP did nothing to bring back the money in foreign bank accounts when it was in power from 1999 to 2004. Obviously there is more in the black money issue than meets the eye. -- Gulf Today, Sharjah, January 24, 2011.

21 January, 2011

Space for civil society in India is contracted: UN Special Rapporteur

Margaret Sekaggya, UN Special Rapporteur on the situation of human rights defenders, who has just concluded a visit to India, says in a statement:

From 10 to 21 January 2011, I carried out a fact-finding mission to assess the situation of human rights defenders in India, and travelled to New Delhi, Bhubaneshwar (Orissa), Kolkata (West Bengal), Guwahati (Assam), Ahmedabad (Gujarat), Jammu and Srinagar (Jammu and Kashmir).

I met with the Foreign Secretary; the Union Home Secretary; the Additional Secretary (International Organizations and Environment Diplomacy); the Joint Secretary (Human Rights), Ministry for Home Affairs; the State Chief Secretary, State Home Secretary and Director-General of Police in states visited; the Chairperson of the National Human Rights Commission; Members of the Statutory Full Commission; Chairpersons and Members of State Human Rights Commissions; and Judges from the High Court in Delhi. However, I regret I was unable to meet the Prime Minister, nor with members of the Parliament.

I met as well with members of the diplomatic community and United Nations agencies in the capital. Finally, throughout my mission, I met a very wide and diverse segment of the civil society through national and regional consultations.

I thank very much the Government of India for extending an invitation to me and for its exemplary cooperation throughout the mission. I further want to thank all human rights defenders with whom I had meetings, some of whom had to travel long distances to meet me. Finally, I want to express my appreciation to the Office of the United Nations Resident Coordinator in India for its invaluable support in preparation of and during the mission.

While I must now take some time to review and analyze the considerable amount of information I have received, and to follow up on further exchanges of information with the Government, human rights defenders and other stakeholders, I would like to provide a few preliminary observations and recommendations.

I first want to commend the Government for opening its doors to my mandate. Previous requests to visit India were made by my predecessor in 2002, 2003 and 2004. This is an important development, and I hope that the invitations of other Special Procedures mandate-holders will be similarly honoured in the near future.

I further commend the Government for enabling me to visit five States, which assisted me in gaining a clear understanding of the local specificities in which human rights defenders work. Given the duration of the mission and the size of the country, I regret I could not access all parts of the country, but I invite those who wish to do so to provide me with information now or in the near future.

I note with satisfaction that India has a comprehensive and progressive legal framework which guarantees human rights and fundamental freedoms, as enshrined, inter alia, in the Constitution, the Protection of Human Rights Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and the Right to Information Act. I welcome the commitment expressed by Indian authorities to uphold human rights.

I further welcome the draft Bill on the Prevention of Torture with a view to ratifying the Convention Against Torture in the near future.

Besides the National Human Rights Commission and existing State-level Human Rights Commissions, I note the existence of a wide range of Statutory Commissions mandated to promote and protect the rights of, inter alia, women, children, Scheduled Castes and Scheduled Tribes.

However, despite the aforementioned laws aimed at promoting and protecting human rights, I note widespread deficiencies in their full implementation at both Central and State levels, adversely affecting the work and safety of human rights defenders.
Similarly, I have observed the need for the National and existing State Human Rights Commissions to do much more to ensure a safe and conducive environment for human rights defenders throughout the country.

Throughout my mission, I heard numerous testimonies about male and female human rights defenders, and their families, who have been killed, tortured, ill-treated, disappeared, threatened, arbitrarily arrested and detained, falsely charged, under surveillance, forcibly displaced, or their offices raided and files stolen, because of their legitimate work in upholding human rights and fundamental freedoms.

These violations are commonly attributed to law enforcement authorities; however, they have reportedly also shown collusion and/or complaisance with abuses committed by private actors against defenders. Armed groups have also harassed human rights defenders in some instances.

In the context of India’s economic policies, defenders engaged in denouncing development projects that threaten or destroy the land, natural resources and livelihood of their community or of other communities, have been targeted by State agents and private actors, and are particularly vulnerable.

I am particularly concerned at the plight of human rights defenders working for the rights of marginalized people, i.e. Dalits, Adavasis (tribals), religious minorities and sexual minorities, who face particular risks and ostracism because of their activities. Collectivities striving for their rights have in fact been victimized.

Women human rights defenders, who are often at the forefront of the promotion and protection of human rights, are also at particular risk of persecution.

Right To Information (RTI) activists, who may be ordinary citizens, have increasingly been targeted for, among others, exposing human rights violations and poor governance, including corruption of officials.

Other defenders targeted include those defending women’s and child rights, fighting impunity for past human rights violations, seeking accountability for communal pogroms, upholding the rights of political prisoners, journalists, lawyers, labour activists, humanitarian workers, and church workers. Defenders operating in rural areas are often more vulnerable.

While I acknowledge the security challenges faced by the country, I am deeply concerned about the arbitrary application of security laws at the national and state levels (in Jammu and Kashmir and in the North-East of India), most notably the Public Security Act and the Armed Forces Special Powers Act, the Jammu and Kashmir Public Safety Act and the Unlawful Activities Prevention Act, which direly affects the work of human rights defenders.

I am troubled by the branding and stigmatization of human rights defenders, who are labelled as “naxalites (Maoists)”, “terrorists”, “militants”, “insurgents”, “anti-nationalists”, “members of underground”. Defenders on the ground, including journalists, who report on violations by State and non-State actors in areas affected by insurgency are targeted by both sides.

Freedom of movement of defenders has also been restricted under these security laws; for instance, applications of passport or renewal have been denied, as well as access for defenders to victims in some areas.

Illegitimate restrictions to freedom of peaceful assembly were also brought to my attention: for example, I was informed of instances of protests in support of a human rights defender in detention which were not allowed to take place.

Finally, I am concerned about the amendment to the Foreign Contribution Regulations Act which provides that non-governmental organizations must reapply every five years for the review of their status by the Ministry of Home Affairs in order to receive foreign funding. Such a provision may be used to censor non-governmental organizations which are critical of Government’s policies.

In view of the above, the space for civil society is contracted. Although the judiciary is the primary avenue for legal redress, I have observed that its functioning is hampered by backlog and significant delays in administrating cases of human rights violations.

The National Human Rights Commission and the existing State Human Rights Commissions is an important additional avenue where human rights defenders can seek redress. However, all the defenders I met during the mission voiced their disappointment and mistrust in the current functioning of these institutions. They have submitted complaints related to human rights violations to the Commissions, but reportedly their cases were either hardly taken up, or the investigation, often after a significant period of delay, concluded that no violations occurred. Their main concern lies in the fact that the investigations into their cases are conducted by the police, which in many cases are the perpetrators of the alleged violations. While I welcome the establishment of a human rights defenders focal point within the National Human Rights Commission, I regret that it was not given sufficient prominence within the Commission.

Based on the above, I wish to make the following preliminary recommendations:

To the Central and State Governments:

-The Prime Minister and the Chief Secretaries should publicly acknowledge the importance and legitimacy of the work of human rights defenders, i.e. anyone who “individually and in association with others, […] promote[s] and […] strive[s] for the protection and realization of human rights and fundamental freedoms at the national and international levels “ (article 1 of the Declaration on Human Rights Defenders, A/RES/53/144). Specific attention must be given to human rights defenders who face particular risks (as identified above).

-Security forces should be clearly instructed to respect the work and the rights and fundamental freedoms of human rights defenders, especially human rights defenders who face particular risks (as identified above).

-Sensitization training to Security forces on the role and activities of human rights defenders should be delivered, with technical advice and assistance from relevant UN entities, non-governmental organizations and other partners.

-Prompt and impartial investigations on violations committed against human rights defenders should be conducted, and perpetrators should be prosecuted.

-The Supreme Court judgment on police reform should be fully implemented in line with international standards, in particular at the State level.

-Full implementation of laws and policies which guarantee human rights and fundamental freedoms of human rights defenders should be ensured.

-A law on the protection of human rights defenders developed in full and meaningful consultation with civil society and on the basis of technical advice from relevant UN entities should be enacted.

-The Foreign Contribution Regulation Act should be critically reviewed.

-The Draft Bill on Prevention Against Torture should be adopted without further delay.

-The Optional Protocol to the Convention on the Elimination of all forms of Discrimination Against Women should be ratified. The ratification of the complaints procedure will provide women human rights defenders an opportunity to access another procedure to address any violations of rights under the Convention.

-The Armed Forces Special Powers Act and the Public Security Act should be repealed and application of other security laws which adversely affect the work and safety of human rights defenders should be reviewed.

-The functioning of the National Human Rights Commission should be reviewed with a view to strengthening the Commission by, inter alia: broadening the selection criteria for the appointment of the Chairperson; diversifying the composition of the Commission; extending the one-year limitation clause; establishing an independent committee in charge of investigating complaints filed; elevating the status of the human rights defenders focal point by appointing a Commissioner. The Protection of Human Rights Act should be amended as necessary in full and meaningful consultation with civil society.

-State Human Rights Commissions should be established in States where such commissions are not yet in existence without further delay.

-Central and State Governments should continue collaborating with Special Procedures of the Human Rights Council, including by extending invitations for country visits.

To National and existing State Human Rights Commission:

-The supportive role of the commissions for human rights defenders should be strengthened by inter alia, conducting regular regional visits; meeting human rights defenders in difficulty or at risk; and undertaking trial observations of cases of human rights defenders wherever appropriate.

-The visibility of the commissions should be ensured through regular and proactive engagement with civil society and the media.

-A toll-free 24-hour emergency hotline for human rights defenders should be established.

-The commissions should monitor the full implementation of recommendations made by UN human rights mechanisms, including Special Procedures mandate-holders, Treaty Bodies, and the Universal Periodic Review.
To the judiciary:

-In the absence of a witnesses and victims protection Act, the judiciary should take measures to ensure the protection of human rights defenders at risk, witnesses and victims.

-The judiciary should ensure better utilization of suo motu whenever cases of violation against human rights defenders arise.

-The importance of the role of human rights defenders in the vibrant and active functioning of the judiciary should be recognised.

To human rights defenders:

-Platforms or networks aimed at protecting defenders and facilitating dialogue should be devised or strengthened.

-Defenders should better acquaint themselves with the Declaration on Human Rights Defenders.

-Efforts should be made to continue making full use of United Nations Special Procedures and other international human rights mechanisms when reporting on human rights violations.

To the international community and donors:


-The European Union Guidelines on Human Rights Defenders and local strategies on India should be implemented on a systematic basis.

-The situation of human rights defenders, in particular the most targeted and vulnerable ones, should be continually monitored, and support for their work should be expressed through, inter alia, interventions before central and state institutions.

-Efforts should be intensified in empowering civil society.
To all stakeholders:

-The Declaration on Human Rights Defenders should be translated in main local languages, and disseminated widely.

-Efforts should be continued to raise civic awareness among the general public, and the spirit of dialogue and cooperation in society fostered.

I will present my full report with final conclusions and recommendations to the UN Human Rights Council in March 2012.

17 January, 2011

Judges in the dock

B.R.P.Bhaskar
Gulf Today

The judges are being judged. And that is not a pretty sight. When the Supreme Court decided last week to proceed with the contempt case against senior advocate Prashant Bhushan, who had refused to apologise for his statement in a newspaper interview that half of the persons who have been Chief Justice of India were corrupt, his lawyer, Ram Jethmalani, warned that it would open a can of worms.

The bench brushed aside the warning. “If it is to be opened, open it,” said one of the judges. The Judiciary undoubtedly enjoys greater credibility on India today than either the Executive or the Legislature. It earned this enviable position by going to the citizens’ rescue against the excesses of the other two. India’s Constitution gives primacy to Justice placing it above Equality, Fraternity and Liberty in its preamble. That gives the Judiciary, the final arbiter on social, economic and political justice, an exalted position in the constitutional scheme.

The Judiciary’s high reputation rests primarily on its record of providing political justice. Many victims of political injustice have been able to secure relief through the courts. However, the Supreme Court’s ruling during the Emergency upholding the suspension of all fundamental rights, including right to life, stands out like a sore thumb. Recently the court acknowledged that it was a mistake.

The Judiciary does not have an equally good record in the dispensation of social and economic justice. Litigation is costly and time-consuming, and victims of economic and social injustice, who are poor, do not have easy access to the legal system. Even if they are able to take their case to the court they are at a disadvantage as they cannot match the resources of their oppressors.

The court battle over Prashant Bhushan’s remark takes place against the backdrop of a spate of allegations against close relatives of Justice KG Balakrishnan, who retired as the Chief Justice of India in May 2010 and was later appointed Chairman of the National Human Rights Commission.

A week before Justice Balakrishnan was due to retire, M Furquan, a Delhi journalist, wrote to Vice-President Hamid Ansari demanding a Central Bureau of Investigation probe into his assets as well as those of his relatives. Ansari forwarded the letter to the government.

Furquan’s letter remained with the government without attracting much media attention until last month when newspapers and television channels in Kerala took up the issue of alleged amassing of wealth by Justice Balakrishnan’s relatives while he was the Chief Justice. Sections of the legal fraternity, led by former Supreme Court judge VR Krishna Iyer and the political parties immediately joined the demand for a probe. This is not the first time that members of the higher judiciary have attracted charges.

In the 1950s, it came to light that a chief justice of the Madras high court had given a false date of birth. Attorney General MC Setalvad advised that he be impeached. Chief Justice PB Gajendragadkar advised that he be told to resign as impeachment will bring a bad name to the judiciary. Prime minister Jawaharlal Nehru accepted the chief justice’s advice.

Under the constitution, a judge of the higher courts can be removed from office only through impeachment, a cumbersome process in which one house of parliament serves as prosecutor and the other as judge. Former Supreme Court judge V Ramswamy, the only one to have been impeached so far, could save his job as the resolution for his removal was defeated. A Calcutta high court judge is now awaiting impeachment.

The court’s power to punish for contempt has inhibited the public from levelling charges against judges the way they hurl allegations against politicians. However, allegations of corruption have surfaced from time to time and in the absence of a machinery to ascertain the truth several judges have completed their tenure under a cloud. Last month the Gujarat bar association alleged that the state high court had become a dumping ground for corrupt judges.

Prashant Bhushan is associated with the Campaign for Judicial Accountability and Reform, which has been working for two decades to improve the judicial system. The judiciary will only do further damage to itself if it punishes critics instead of facing the issue they have raised. -- Gulf Today, Januaer 17, 2011

13 January, 2011

Artists plan ‘cultural protest’ on Binayak Sen issue in New Delhi

An afternoon of cultural protest by artists, musicians, poets, film directors and writers against the persecution of Dr Binayak Sen will be held on 15th January at Jantar Mantar from 2 to 7 pm under the banner of ‘Artists for Human Rights’.

Among those who are expected to participate in the event are filmmakers: Aparna Sen, Gautam Ghose and Sudhir Mishra, musicians: Rabbi Shergill, Susmit Bose and Dhruv Sangari, poets and writers Ashok Vajpeyi, K.Satchidanandan, Kumar Narain, Mangalesh Dabral, Gagan Gill, Sanjay Kundan, Teji Grover, Khursheed Alam, Mukul Priyadarshini and Gauhar Raza.

All are invited to come and attend the protest.
For further information contact:
Satya Sivaraman: 9818514952
Apoorvanand: 27662146
Manisha Sethi: 9811625577

10 January, 2011

Pursuit of knowledge

BRP Bhaskar
Gulf Today

The old adage ‘Knowledge is Power’ is rarely heard these days. This is not surprising in a world ruled by the idea that power booms out of the barrel of the gun or flows from the money in the chest. But the emerging economic powers are rediscovering the truth of the old saying.

China, which has already edged all developed countries except the United States in economic terms, has just got through the first five years of an ambitious science and technology development programme designed to make it an innovation-oriented nation by 2020.

Two weeks ago, Prime Minister Manmohan Singh told Indian scientists to “think big, think out of the box, think ahead of the times” and announced plans to designate 2012-13, when the Indian Science Congress will complete 100 years, as the Year of Science.

The emphasis the two nations are placing on science and technology reflects increasing awareness of the need to acquire a leading role in knowledge creation to claim their place in the comity of nations. Even a cursory survey of history will show that creation and application of knowledge were critical elements that contributed to the ancient glory of many lands. These factors played their role also in Europe’s emergence in the 18th and 19th centuries and America’s in the 20th.

India had set out with certain advantages. The universities established during the British period had promoted English education which gave some Indians easy access to the knowledge created in the advanced West. They had also sustained a small but devoted band of scientists who had attracted attention worldwide by undertaking original research. One of them, CV Raman had won the Nobel Prize in Physics as early as 1930.

The first prime minister, Jawaharlal Nehru, envisaged the use of science and technology to overcome the backlog of development left behind by the colonial rulers. The Indian Institutes of Technology set up with the help of various foreign countries and the research laboratories established under the Council of Scientific and Industrial Research bear testimony to his far-sighted approach.

Nehru initiated a programme for use of atomic energy for peaceful purposes. After China conducted a nuclear test in 1964, Indira Gandhi gave the go-ahead for a nuclear test. Although the space research programme launched in her time, too, eventually acquired a military edge, its primary objective was to use space technology for education, health, communication and other activities which could improve the lives of the poor.

Thanks to the bold early initiatives, by the 1970s India had the third largest reservoir of scientific and technological manpower in the world after the USA and the Soviet Union. But the country fell behind subsequently.

Having come under the control of political parties with limited vision, the universities lost the ability to lead. There are now more than 450 of them but not one has found a place in the Times Higher Education’s list of 200 top universities of the world. Six from China and three each from Hong Kong and Taiwan figure in it.

Now China has the most scientists after the USA. Having had to slash funds for research and education in the wake of the economic slowdown, the USA and the European nations are in no position to stop its moving into the top spot. It is boosting its prospects by trying to attract home Chinese scholars living and working abroad.

Establishment of new institutions of higher learning on the lines of the Ivy League universities of the USA, improvement of academic standards of existing institutions and grant of incentives to industries willing to invest in research and developments are among the plans drawn up by the Indian government to ensure that in the years ahead scientific development keeps pace with economic advancement.

A fatal weakness of Indian research effort so far has been the tendency to follow in the path struck by Western scientists. This is not a problem that money can solve. It calls for minds capable of original thinking.

The Nobel Prize winning economist, Amartya Sen, who is heading a body constituted to revive the Buddhist-era university at Nalanda in Bihar, outlined before the Science Congress his vision of a modern centre of learning where scholars from different lands will gather as at the ancient institution. To begin with, he said, it would teach history, languages, social sciences, international relations, management and information technology. Sadly, he added that physical and biological sciences would have to wait for reasons of cost. --Gulf Today, Sharjah, Hanuary 10, 2011

04 January, 2011

Justice Balakrishnan issue: transparency not an act of charity, says ALRC

The following is a statement issued by the Asian Legal Resource Centre, Hong Kong:

The Indian judiciary is once again in the news and this time too it is for appalling reasons. The national and regional media have been reporting in the past two weeks regarding the disproportionate wealth between the declared and known incomes of some of the close relatives of the former Chief Justice of India, Justice K. G. Balakrishnan.

The reports allege that this wealth was amassed in the past four years, during which Justice Balakrishnan served as the Chief Justice of the country. The fact that the persons suspected of corruption are family members of the former Chief Justice and that the former judge is the current Chairperson of the National Human Rights Commission (NHRC) does not make matters easy for him. On the contrary, it casts a duty upon him to explain why his name or that of the institution he once led and the one he now chairs should not be dragged into a scandal.

During the past fifteen years, the country's judiciary has been embroiled in one controversy after another, all involving allegations of corruption and nepotism of some of the senior judges in the country. It is not a matter of mere unpleasant coincidence that some of the suspected judges have served as Chief Justices, but on the contrary it exposes the built-in defects of the Indian justice institutions, a fact that lawyers, a former law minister, experienced journalists and many of the former senior judges in the country equally agree upon. There is a petition, pending before the Supreme Court, on the question of allegations of corruption against former Chief Justices of India. It is unfortunate that this petition is in the form of a contempt of court proceeding against two Senior Lawyers, Mr. Prashant Bushan and Mr. Santhi Bushan, for their attempt to bring the long overdue transparency and accountability into the judiciary, particularly within the higher judiciary.

During Justice Balakrishnan's tenure as the 37th Chief Justice of India, he did not help much in dissipating the cloud of suspicion that has encircled the Indian judiciary and thus establishing the integrity of the institution that he was asked to lead. In his capacity as the Chief Justice, Justice Balakrishnan became infamous for his unyielding attitude of refusing the operation of the Right to Information Act, 2005 upon the higher judiciary. Though he later succumbed to equally uncompromising public sentiments and let willing judges, who were in the majority, to disclose their assets, but by then he had done further damage to the already bruised image of the institution.

Justice Balakrishnan was in the centre of yet another controversy during his tenure as the Chief Justice and as the head of the Supreme Court Collegium for the appointment of judges, when he showed undue haste for the promotion of a High Court judge to the Supreme Court, despite allegations of wide ranging corruption against the judge who was recommended to be promoted. The President of India declined to accept the Collegium's recommendation for promotion of the judge. Justice Balakrishnan's subsequent acquiesce for the Central Bureau of Investigation to investigate allegations of corruption against High Court judges did nothing to restore the already lost public confidence.

Given the fact that the allegations against the former judge's family are based on substantial proof and that the suspected corruption happened during the tenure of Justice Balakrishnan as the Chief Justice of India, one cannot complain that the reports have brought further adverse public perception upon the office of the Chief Justice. The nature of the allegations and the institutions involved are such that the Chairperson of the NHRC cannot shrug it off by mere denial.

What is at stake here is more than an individual or his family affairs. What is being debated in public is not about who made what money during which time. The debate concerns the trustworthiness of the country's supreme justice institutions and the general agony about these institutions, the Supreme Court in particular, is rooted in the reality that these institutions are highly susceptible to misuse. In the absence of any mechanism or process that is transparent enough to meet the standards of the modern democratic country that Indians believe they live in, mere adherence to a logic of the medieval ages that 'we are knowledgeable and reasonable enough to correct ourselves' is not enough to ensure basic norms of transparency within the judiciary. The public anger in India today is against those who pose hindrances for bringing transparency and accountability in public service and into institutions that the ordinary person depends upon as the last resort in his pursuit for ju stice. It is the very essence of the ability of the country's democratic institutions, and thus that of the country itself, that has been challenged.

In a separate vein, Justice Balakrishnan is also considered as the embodiment of Dalit liberation in India. It is thus equally the responsibility of the Dalit movement, in India and abroad, to ensure that the allegations against the first Dalit Chief Justice will not be used against the Dalit movement in the country.

In the present environment one cannot find fault with those who have started believing that the country's judiciary gives tacit approval to corruption and nepotism in favour of those who wield power. The comments that refer to the Vigilance and Anti-Corruption Bureau's investigation recommended by the Chief Minister of Kerala against one of the relatives of the former Chief Justice as a farce, also cannot be taken lightly.

In the mêlée of these allegations, suspicions and counter allegations what is at stake is the public trust of two important national institutions, the Supreme Court of India and along with it the entire judiciary, and the NHRC. Many have demanded Justice Balakrishnan's resignation from the post of the Chairperson at the NHRC. To save the institutions from further moral damage, it is not enough that those who are accused of corruption are simply allowed to resign. Now that a formal complaint has been made against the former judge, the allegations must be investigated. And, if the investigation leads to the discovery of a crime, it must be prosecuted. The positions that the person held or holds must not be a hindrance in the course of justice. It however makes sense for Justice Balakrishnan to resign from the position of the Chairperson at the NHRC to ensure that all investigations into the allegations are conducted impartially.

The fact that the judge facing the accusation is currently the Chairperson of the NHRC has also implications for India in international forums like the United Nations. At the moment, the NHRC has an 'A' status as assessed and reviewed by the Sub Committee on Accreditation (SCA) of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) at the UN. The case of the NHRC of Sri Lanka is proof to the fact that this status is not permanent and it could be degraded, an event that could cause international embarrassment to India.

The report of the UN Secretary General dated 15 January 2010 to the General Assembly enumerates a series of programmes the UN and its allied organisations have implemented in cooperation with the NHRC in India. The NHRC is also an implementing entity for programmes sponsored by the UN, not only in India, but also in other countries as a consultant. The fact that such an NHRC has a Chairperson with a tainted image would not be a light burden for the government. In other words, the Chairperson of the NHRC cannot just sit idle and merely deny allegations but must do everything legally and ethically possible at his disposal to clear the name of the institution that he leads from the scandal.

It is trite to argue that the judges, irrespective of their stature and the jurisdiction they entertain, are holding public offices. Being a judge does not shield a person or the office the person holds from the constitutional, as well as commonsense requirement, to be transparent and accountable to the public. There is no justice that could be upheld beyond being honest to the people who entrust them the job, and the constitutional obligation that they have sworn to protect, promote and fulfil. In the same vein, there is no greater injustice than the resentment or reluctance to be transparent and constitutionally accountable while holding such offices and even worse to use the same constitution that entrusts them to do a public service as an excuse to prevent transparency and accountability while holding such an office. Perhaps it is also a rude reminder to the country that it is too late to re-examine the institutional structure of the Indian judiciary itself. It is time to stop the muffled and reined discussion on the subject and open it up for a larger debate, inviting everyone who is concerned about the integrity of the country's judiciary to participate and suggest means by which the lost confidence in the justice system of the country can be salvaged from the abyss into which it is plummeting rapidly.

Allowing for transparency and accountability on those terms is thus not an act of charity that anyone who holds a public office can deny at will. They form the cornerstones upon which a democratic state is built and the dream of every Indian is woven. Thus, destroying it would be worse than betraying the country.

# # #

About the ALRC
: 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 organisation 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.

Physicians for Human Rights - India launched on Binayak Sen’s birthday

Today, on the 61st birthday of Dr Binayak Sen, a group of physicians, health activists and human right defenders came together to form Physician for Human Rights-India.

This independent and non political organization will work on the principles of human rights, medical ethics and social justice.

Physicians for Human Rights is a worldwide organization established in 1981 with a solid foundation of over two decades of investigation, advocacy and accomplishment. It has campaigned vigorously for the human rights of health care workers in various countries and has been in the forefront of the International campain for justice for Binayak. In fact, its founder, Jonathan Fine, has been in India closely following the case and was present at Binayak’s trial.

PHR India offered the position of Honorary Chairman of the body to Dr.Binayak Sen who “ has given his life to these principles and to serve the poorest among us”.

It said:

Without neglecting others equally worthy, we will work tirelessly for his release from prison and complete exoneration of unjust accusations. His prompt return to the fight for human rights, civil liberties and service of India's masses is essential for the sake of our nation. We strongly communicate our dismay and call for the dropping of charges , recognition of his exceptional contribution to Health & Human rights, his sacrifices and his deep commitment and rare integrity, his proclaimed consistent support of Non-Violence .It was for the above human values reflected in his life and work that he was awarded for being a role model for Medical students by the Christian Medical College, Vellore, his alma mater, the .R.R Keithan award for demonstrating the values of the Father of the Nation and the Johnathan Mann award for his work with the tribals .

Physicians for Human Rights - India will mobilize health professionals to advance health, dignity and justice, and to promote the right to health for all. Harnessing the specialized skills, rigor, and passion of doctors, nurses, public health specialists and scientists, PHR India will investigate human rights abuses and will work towards stopping them . We believe that human rights are essential preconditions for the health and well-being of all people. PHR India will educate health professionals and medical, public health, and nursing students and organize them to become active in supporting a movement for human rights and creating a culture of human rights in the medical and scientific professions.

Physicians for Human Rights - India will join with physicians and health professionals similarly organized in other countries to add our voices in support of persecuted fellow health professionals in all countries. We will speak out against torture, physical and psychological abuse, and all forms of repression harmful to the public health. We will work tirelessly to bring our medical skills to the struggle for the attainment of human rights for all people. We pledge to uphold the finest traditions of the medical and allied health professions to investigate and report objectively on all findings of abuses in contravention to the constitution of India, the United Nations Covenants on Social, Political and Economic Rights and the Geneva Conventions and Protocols.

ENDORSEMENTS

1. Dr Amte Bharati , Maharogi Seva Samiti, Anandwan, Warora, Maharashtra

2. Dr. Amte Sheetal , Maharogi Seva Samiti, Anandwan, Warora, Maharashtra

3. Dr. Amte Vikas , Maharogi Seva Samiti, Anandwan, Warora, Maharashtra

4. Dr Anand R K, Paediatrician, Mumbai

5. Dr Bal Arun, Surgeon, Mumbai

6. Bali- Mahabal Kamayani, , Health and Human Rights Activist, Mumbai

7. Dr Bhojraj Shekhar , Orthodepic Surgeon, Mumbai

8. Dr Chatterjee Garga , Researcher and Physician Kolkata

9. Datta, Saurav , Law Teacher and Human Rights Activist, Mumbai

10. Duggal Ravi, Health Activist, Mumbai

11. Dr.Gangolli Leena V Public Health Physician, Mumbai

12. Dr Gupte Manisha , Feminist and Health rights activist, Pune

13. E Pinto, Premdas Health Activist, Bangalore

14. Dr Gaitonde, Rakhal Community Health Researcher, Bangalore

15. Jesani Amar , Health Activist, Mumbai

16. Dr Kalantri, S P Physician, Wardha

17. Dr Karmarkar Santosh ,Paediatric surgeon Mumbai

18. Dr Korde Vivek Family Physician, Mumbai

19. Dr Lokhandwala, Yash Cardiologist, Mumbai

20. Dr Morparia Hemant Radiologist, Mumbai

21. Dr Nagral Sanjay GI surgeon ,Mumbai

22. Dr Naik Deven, Family Physician, Mumbai

23. Nohira Sathyashree , Health Activist, Bangalore

24. Dr Pai Sanjay , Pathologist, Bangalore

25. Dr Pandya Sunil, Neurosurgeon, Mumbai

26. Dr Roy Nobojit , Surgeon, Mumbai

27. Dr Shiva Mira , Public Health Physician ,Delhi

28. Dr Singh S P , Gastroenterologist, Cuttack


29. Dr Thomas George , Orthopaedic surgeon, Chennai