Allahabad High Courts Slams BHU Admin Quashes Dismissal of Sandeep Pandey

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April 22, 2016

In a landmark judgement that holds out of hope for free expression, and also quoting from Voltaire who famously said “I disapprove of what you say, but I will defend to death your right to say it.” the Allahabad High Court today, ruled in favour of renowned Gandhian, professor and Magsaysay award winner, Dr Sandeep Pandey and quashed the decision of the IIT Banaras Hindu University (BHU) to pre-maturely terminate his contract. The fact that the professor was not given a chance to explain the serious charges levelled against him was also strongly rebuked by the High Court. The path-breaking order can be read here.

Justices Mahesh Chandra Tripathi and V.K. Shukla moreover also recalled the syncretic vision of the founder ot the Banaras Hindu University, Pandit Madan Mohan Malaviya, saying, “…The (BHU) Founder's vision has been as follows; “India is not a country of Hindus only. It is country of Muslims, the Christians and the Parsees too. The country can gain strength and develop itself only when the people of different communities in India live in mutual goodwill and harmony. It is my earnest hope and prayer that this Centre of life and light which is coming into existence will produce students who would not be intellectually equal to the best of their fellow students in other parts of the world, but will also live a noble life, love their country and be loyal to the supreme ruler.”

The High Court' order also questions the motives of the IIT-BHU administration that took a summary decision to dismiss Dr Pandey without giving him an adequate hearing. The action was both 'stigmatic' and 'punitive' and guided by a differing ideological view. Further, it violated the procedural guidelines//rules of conduct. It states clearly that basic freedom of expression was violated in the Board's decision.

On January 6, 2016 in yet another show of high-handedness under the new Central government, the administration of the IIT-BHU had terminated the services of Dr Sandeep Pandey

Extracts from the Order say that:

“… Here the termination order certainly proceeds to make a note that services of petitioner are being disengaged in consonance with the terms and conditions of the service but the larger question is as to whether the order in question on its face value, appears to be innocuous, is a stigmatic order or not.

“In the present case, the order in question has to be accepted as stigmatic/punitive one for the simple reason that here petitioner has been not only accused of committing cyber crime but has also been accused of imparting teaching contrary to national interest.

“In the counter affidavit, conscious of the fact that line has already been crossed, as a damage control device, observations have been termed to be on prima facie basis. Once the Board of Governors proceeded to form such an opinion and based on the same such a decision has been taken, then it may be true that nature of the engagement of petitioner is a contractual one but once the order is not a termination simplicitor as per the terms and conditions of the contract rather on lifting the veil, it is clearly reflected that basically differences of ideologies has led to such action as petitioner appears to be a believer of different ideologue than the ideologue believed by the incumbent, who proceeded to make complaint, and the people saddled with the administration came on the same page, for reasons best known to them, and here before us from the side of petitioner it has been submitted that academic administrators have lineage to the ideology from which the complainant came forward.

“… Academic administrators should be politically neutral, at the point of time of dealing with academic/administrative matters of the University. The decision of Academic Administrator has to be free from malice and the said authority has to be exercised in free, fair and transparent manner after complying with the principle of natural justice. Apex Court in the case of Andhra Pradesh State Road Transport Corporation Vs. State Appellate Tribunal, 1998 (7) SCC 353, held that the power can not be arbitrarily/ indiscriminately exercised. The power is coupled with duty.

“… Here once the complaint was made and it was going to have serious repercussions, then, at the said point of time, it is true that petitioner may be the author of the aforementioned documents in question but certainly as to whether it falls within the category of cyber crime or in any way all such materials affected the national interest certainly would have been explained by the petitioner, who is alumnus of the University and a Magsaysay Award winner and fully understand the consequences of his activities.

“Petitioner has been performing and discharging his duties in BHU and he is bound by the conduct rules and in case petitioner has proceeded to cross the lines, then certainly after affording adequate opportunity of hearing and after examining all these aspects of matter, his services could have been disengaged, as per the terms and conditions of the contract.

“The case in hand is not a termination simplicitor rather it is a punitive/stigmatic order wherein petitioner has been alleged to have committed cyber crime and not only that he has been accused of cyber crime, allegations have been there that he is acting against the national interest. Heavy words such as commission of cyber crime and acting against national interest have been loosely used.

“All these allegations are serious in nature and such allegations have serious aspersions on the conduct and character of an incumbent and the way and manner in which decision in question has been taken as against him ex-parte cannot be approved of by us.

“… Rights, restrictions and duties co-exist. Apex Court in the case of S. Rangarajan Vs. P. Jagjivan Ram, 1989 (2) SCC 574, held:“The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group
of people. The fundamental freedom under Article 19 (1) (a) can be reasonably restricted only for the purposes mentioned in Articles 19 (2) and the restriction must be justified on the anvil of necessity and not the quickstand and of convenience or expediency.

“Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.”

“… Freedom of speech has been quoted by S.G. Tallentyre, author of the book 'Friends of Voltaire' as follows: “I disapprove of what you say, but I will defend to death your right to say it.”

“…The (BHU) Founder's vision has been as follows; “India is not a country of Hindus only. It is country of Muslims, the Christians and the Parsees too. The country can gain strength and develop itself only when the people of different communities in India live in mutual goodwill and harmony. It is my earnest hope and prayer that this Centre of life and light which is coming into existence will produce students who would not be intellectually equal to the best of their fellow students in other parts of the world, but will also live a noble life, love their country and be loyal to the supreme ruler.”

“… On one hand it is necessary to maintain and preserve freedom of speech and expression in democracy, on the other hand when one is discharging public duty he/she will have to to keep in mind that Rules/Regulations /Statutes framed by the University/Educational Institution has not been breached.

“… Here, in pith and substance, petitioner has been attributed with misconduct and without holding enquiry by violating the principle of natural justice with impunity impugned order has been passed that clearly casts stigma on the character of petitioner and is punitive in nature.
Consequently, in the facts of the case, on overall assessment of all aspect of matter, the decision dated 6.1.2016, which has been taken in pursuance of meeting dated 21.12.2015 of the Board of Governors, IIT (BHU), Varanasi, is hereby quashed and set-aside.

“Writ petition is allowed, accordingly with all consequential benefits with cost."

On February 6, 2016 during the hearing of the case, the Allahabad High Court had come down heavily on the administration and asked the BHU administration to explain the summary termination.

It was in pursuance of Resolution No 3.59 passed at the meeting of the Board of Governors held on December 21, 2015 that the decision to terminate the services was taken. The BOG, of the IIT BHU, was during the litigation, forced to defend its resolution, which has been passed, casting stigma and making serious allegations against Dr Pandey. Dr Sandeep Pandey was called 'anti-national', without providing any opportunity for him to be heard, or giving him a chance to respond or explain. The BOG simply took cognisance of a letter from a student of M.A. IInd year Political Science (who never attended the IIT classes), even without taking any pains to verify the correctness of the allegations leveled. Dr Pandey was Visiting faculty at the IIT, BHU.

An Art Tribute to Rohith Vemula who sent a Shiver up the Spine of Fascism with his Death

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April 22, 2016

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An Art Tribute to Rohit Vemula who sent a Shiver up the Spine of Fascism with his Death

When life, thoughts ,actions, diversity and even death becomes pointless,
when nations, gods and power stand guard for the borders created by humans,
when protests and struggles are getting saturated,
An Art Tribute to Rohit Vemula who sent a shiver up the spine of fascism with his death
An Art Tribute to Rohit Vemula who sent a shiver up the spine of fascism with his death

Aren’t we all born free in this world?

Aren’t we all entitled to equal justice?

Engrained in golden alphabet

Is the right to do what we chose!

Engrained in golden alphabet

Is the right to do what we chose!

Aren’t we all born free in this world?

Why did you spill blood on the little bit of blue sky that was ours

Why did you judge upon us with eyes blindfolded..

India is my country

I love my country

All Indians are my brothers and sisters

I am proud of its rich and varied heritage

I love my country and my people

I am writing this kind of letter for the first time.

My first time of a final letter.

Forgive me if I fail to make sense..

I was wrong, all the while, in understanding world.

In understanding love, pain, life, death.

But I always was rushing. Desperate to start a life.

All the while, some people, for them, life itself is curse.

My birth is my fatal accident.

I loved Science, Stars, Nature,

but then I loved people without knowing that people have long since divorced from nature.

Our feelings are second handed.

Our love is constructed.

Our beliefs colored.

It has become truly difficult to love without getting hurt.

The value of a man was reduced

to his immediate identity and nearest possibility.

To a vote. To a number. To a thing.

Never was a man treated as a mind.

People may dub me as a coward.

And selfish, or stupid once I am gone.

I am not bothered about what I am called.

I don’t believe in after-death stories, ghosts, or spirits.

If there is anything at all I believe,

I can travel to the stars. And know about the other worlds.

I believe that I can travel to the stars.

Martin ! Saji ! Sudheesh

“Oorali”

Members Oorali:
Martin John C – Vocals Percussion | Saji Kadampattil – Guitars, Vocals | Sudhish Velur – Percussion & Soundscapes | Shaji Surendranath – Lyrics | Jubith Namradath – Lyrics | Kadammanitta Ramakrishnan – Poems | Sudheesh/ /Jeez Raj – Art, Posters & Visuals
Editor – Anand Ramdas

Artistes of this troupe were brualised by the Thrissur police on March 17 2016

#SpareThe Handwara Girl

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April 22, 2016

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Sabrangindia has tracked developments in the case. The Chairperson of the State Women's Commission (SWC) Naeema Mehjood met with the young girl on April 22, who at the moment is about 15 kimoletres away from Handwara at the home of relatives. Though strictly not in custody, the Jammu and Kashmir police and other agencies are reportedly keeping a 'close watch' on activities in the home where she is stating. Meawnhile we are publishing this statement in the interests of transparency and out of respect not just for the young girl but the five lives lost in the firings at Handwara
Kashmiri Muslim professionals from the Valley appeal to the human rights fraternity all over India to help the Handwara girl who was at the centre of a controversy that led to violence in Kashmir last week

Appeal

It is distressing to see how some politically motivated groups that believe in and endorse violent political movements all over India, are hell-bent upon seriously vitiating the already volatile atmosphere in the Kashmir valley, which was fuelled this time by the condemnable acts of killings civilians by the armed personnel.

The killing of the provoked civilians and other people who were not even protesting should have been avoided at all costs. The security personnel involved should be promptly investigated and prosecuted.

Even more distressing is the fact that instead of focusing on bringing the miscreants (who spread the false rumour) and the culpable army personnel and police officials who killed civilians to book, the above parties have chosen to cynically use these tragic incidents to press their partisan case for ‘azadi’ over the dead bodies of innocent Kashmiris.

The issue of Kashmir is political in nature and can only be resolved by political means. Pretending to substitute strategic work, which is required towards a large political goal of ‘azadi’, with using the deaths of the Kashmiri civilians is an act of deceit. The use of tragic deaths to resolve deep-rooted political problems amounts to nothing more than political blackmail.

Besides, no one who understands the complexities of Kashmir as a political issue would expect any resolution to the issue, or even delivery of justice to the wronged,by politicisation of the dead. Had that been the case, the issue of Kashmir would have been settled long back, as so many have died and were killed. Maturity and objectivity is needed and should be stressed by all involved actors, such that people are not pushed further into the unending cycle of violence that has led to an irreversible damage for decades now.

The complexity of Kashmir is a fact. However, we are deeply and seriously concerned that a minor girl caught in the centre of this imbroglio has, for no fault of her own except that she happens to be a Kashmiri (and also a female), been turned into a pawn to score some political points.

It is a cruel irony that many of the people claiming to represent the girl are contradicting and appropriating her ordeal for the larger political goal. If we all are genuinely concerned for the girl, we should not be speaking over her testimony in front of the chief judicial magistrate.

Instead we all should try to support her, irrespective of whether any sort of violation of her rights was done by armed personnel or the local boys. An attempt to bring girl's mother, who wasn't even present at the scene and had no further facts to offer, was utterly foolish. Making her testify to suit a particular version of the story is condemnable, especially knowing that it has every possibility to incite further violence. Also condemnable is the circulation of the video of the girl in police custody by someone, which one may assume was done to clear the air of rumours and prevent violence. Reasons be whatever, it was an act of irresponsibility to expose the girl to public glare and cannot be left unaccountable. The demand of certain groups that the girl be released (to them) from the "custody of the state police", which she was unwillingly dragged to in the first place by her accusers, is irrational.

We do not in the least believe that once the girl and her father are let out into the collective frenzy, the truth of the girl’s traumatic experience and her initial testimonies would be safe or would not become distorted under the collective pressure of a polity that only wants to see their own version of the events reflected in her new statement. We are worried about the physical safety of the girl and her immediate family.

We also think that it is best for the girl and her family that they be promptly shifted into the safe keeping of a non-partisan party, say a neutral NGO outside the valley – either within the J&K state or outside the state, as per the family’s wishes. This is imperative till the situation in the valley cools down and the propensity for further bloodshed or rioting over the issue declines.

Though we believe that the girl could not be lying, we would rather pray that she is able to narrate her real ordeal without any pressure from any side. In many ways, through her initial statement that was leaked or later reiteration in front of a magistrate, she has ascertained the facts. Based on these facts, the boys who threatened and manhandled her and are responsible for provoking public sentiment should be identified and held responsible for their irresponsible and condemnable act. We are more bothered about the innocent deaths and the life of the girl—her physical, mental, and emotional condition—than the politics behind it. There are cases of molestation being committed by locals and by armed personnel too at various times in Kashmir. None of that should make us jump to conclusions or provoke us to violence.

We, as concerned Kashmiris, demand a few things, which include that:

1. The state initiates a thorough investigation, by some committee which should include a few politically neutral individuals or those who are willing to keep political aims or beliefs aside for the sake of fairness, from the community.

2. Proper punishment is meted out to the culprits – the boys who beat up the Handwara girl and incited violence or the armed personnel who molested her (unlikely, but for fairness sake, not impossible), the person who circulated her video, and the armed personnel responsible for the killings, in the sequence of events.

3. The girl’s safety and privacy concerns are adequately addressed. Her family's safety is ensured.

4. The girl is adequately compensated for the trauma and damage caused to her character.

We appeal to eminent people in and outside Kashmir and their respective forums to take up the case on the girl's behalf and come forward to help her and her family find a temporary safe shelter outside the valley. Continuation of the concerned girl’s education is another issue which needs to be addressed.

We hope people like Kailash Satyarthi (Nobel Prize Winner in Child rights),Urvashi Butalia, and other leading and credible voices on human rights will come forward to help the girl and her family.

Signatories:

Abrar Mustafa, self-employed
Arshia Malik, teacher
Ausifa Munshi, management professional
Ifra, student
Khalid Baig, entrepreneur
Mushtaq Dar, sales executive
Sabahat Malik, learning and development professional
Sadaf Munshi, artist and academic
Safeena Malik, homemaker
Shafaq Shah, lawyer
Shahid Hussain, procurement professional
Shakir, environmental journalist
Sualeh Keen, cultural critic
Zainab Bin ShamimImtiyaz, doctor
Zeenat Nissa, women rights activist

ISIS Executes 250 Women in Mosul for Refusing Sex Slavery

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April 22, 2016

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Photo courtesy: en.abna24.com

"At least 250 girls have so far been executed by IS for refusing to accept the practice of sexual jihad, and sometimes the families of the girls were also executed for rejecting to submit to IS's request," a Kurdistan Democratic Party (KDP) official from Mosul, Said Mamuzini, has told the Iranian news agency, ABNA.

That the ISIS has been forcing women into temporary marriage since the capture of Iraq’s second largest city, Mosul in June 2014 is already known. However the revelation by the KDP official that at least 250 girls have been killed for refusal to submit to the brutal IS’s so-called ‘sexual jihad’ (jihad-ul-nikah) first reported by ABNA on April 19 has shocked the world with the news being picked by news agencies across the globe.

A Mosul-based leader of the Patriotic Union of Kurdistan (PUK), Ghayas Surchi also told ABNA that human rights are being widely violated in all IS-held territories, particularly the womens' rights as they're seen as commodities and they have no choice in choosing their spouses.

Photo courtesy: en.abna24.com

Meanwhile, a report published by ABNA yesterday quoting the sole Kurdish Yazidi Member of the Iraqi Parliament, Vian Dakhil, said that a 12-year-old Yazidi girl, who was taken into IS slavery after the fall of Sinjar in August 2014, has managed to escape the terrorists group by putting sleeping pills in terrorists’ tea.

According MP Dakhil, the girl and her aunt, 17, were kept by IS in a house in Tel Afar district, west of Mosul in northern Iraq; after about four months of their captivity, they succeeded to flee the terrorists and arrive in Peshmerga-held areas.

The Kurdish MP revealed that the girls had asked the terrorists, who were guarding them, to give them sleeping pill as they could not sleep well. “Then, they put the medicine in militants’ tea and secured their escape after they fell asleep.”

Dakhil pointed out that the girl has reunited with her mother and sister in a refugee camp in Duhok province, Kurdistan Region; “but her two or three other sisters are yet in IS captivity.”

Not one Israeli soldier prosecuted for killing over 5,500 Palestinians in the last 15 years

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April 22, 2016

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[Israeli Defense Forces on patrol. (Photo: IDF)]

Israeli soldiers are almost never prosecuted for killings in the occupied Palestinian territory, the Israeli human rights group Yesh Din said yesterday after finding over the past 15 years, no officers were indicted for murder, and only one soldier was convicted of homicide in the case of the killing of a foreign national.

No soldiers were charged with homicide in the slaying of Palestinians during the period of September 2000 to November 2015. In this time frame Israeli forces killed more than 5,500 Palestinians and ten foreign nationals in the West Bank, Gaza and East Jerusalem, according to the human rights group B’tselem (this figure excludes casualties from both the 2009 and 2014 wars in Gaza).

“The fact is that we see the cases and we see the statistics, and it just seems the army doesn’t know how to or doesn’t have the ability to investigate these cases property,” said Yesh Din spokesperson Gilad Grossman, “And I’m not sure they have the will to do it either.”

Yesh Din analyzed data released by Israeli’s military court and found investigations were opened into the killings of 262 cases since 2000, leading to the indictments of 22 soldiers, and the conviction of seven.

The Israeli military did not disclosed information on all of the incidents where soldiers were sentenced. Filling in the blanks on one of the two negligent homicide convictions, Yesh Din conducted an independent inquiry and found a staff sergeant identified as “M.M.” opened fire on Palestinian Udai Darwish, 21, as he attempted to cross into Israel near the Negev in 2013. Darwish did not pose any threat to M.M. at the time of his killing.

For Darwish’s death, the soldier served less than one year in prison.

Yesh Din said M.M. “was convicted on the basis of his own admission and sentenced to seven months’ imprisonment, a five-month suspended sentence, and demotion to the rank of sergeant.”

In a similar case where Yesh Din said two soldiers were indicted but not convicted of reckless behavior in 2013, Israeli forces killed Samir Awad, 16, from the West Bank town of Budrus. Awad was shot multiple times while caught between two army fences that comprise the wall separating the occupied Palestinian territory from Israel.

Awad’s killing was one of 22 cases profiled in Amnesty International’s 2013 report Trigger-happy: Israel’s use of excessive force in the West Bank. The year of his death marked an increase in the killings of Palestinian civilians, twice as many were slain that year than in the two years prior.

Amnesty International said in the report Awad’s shooting may have amounted to an “extrajudicial killing,” or a willful execution, which is considered a war crime under international law.
Amnesty International’s Philip Luther questioned the legality of the shooting.
“It’s hard to believe that an unarmed child could be perceived as posing imminent danger to a well-equipped soldier. Israeli forces appear in this and other cases to have recklessly fired bullets at the slightest appearance of a threat,” Luther said.

Witness Malik Murar, 16, and a friend of Awad told Amnesty International, “They shot him first in the leg, yet he managed to run away… how far can an injured child run? They could have easily arrested him… instead they shot him in the back with live ammunition.”

“The fact that they don’t indict on more severe charges—I’m not talking about murder, nobody has been charged with that,” Grossman said, “raises a lot of questions.”

The most serious conviction handed down was for the charge of homicide in the killing of a British citizen, Tom Hurndall, 22. Hurdnall was shot by an Israeli soldier in the head in 2003 while volunteering in Gaza.
Grossman’s view is light sentences reflect a culture within military tribunals that sees these incidents not as “an extreme criminal case, but as a a mistake that happens during soldiers’ work.”

In other types of criminal offenses such as sexual abuse, Israeli military courts near a 50 percent rate of conviction.

Reclaiming rights and freedoms through UN-supported litigation

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April 22, 2016

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Police against protesting students of Hyderabad Central University. Photo courtesy: Huffington Post
Working together, the UN and civil society are using innovative legal action to protect fundamental human rights and re-open lost civic spaces. A contribution to the openGlobalRights debate on closing space.

It is almost passé these days, as depressing as that sounds, to declare that civic space is shrinking across the globe. It is certainly true that in the last decade we have seen an unprecedented wave of repressive laws and practices sweep across the world, all designed to prevent people from organising, speaking out and engaging in democratic rights and duties. But we are well past talking of “shrinking” in the present or future tenses. Data from the International Centre for Not-for-Profit Law (ICNL) indicate that between 2004-2010, more than fifty countries considered or adopted restrictive measures for civil society. In many places, the deed has been done. There’s not that much space left to take.

Even more depressing, perhaps, is the fact that many of our traditional tools for combatting this trend are no longer working quite as well. Reporting, documenting, public pressure, guidelines, recommendations—none of these have been particularly effective in reversing the overall drift towards repression. I feel this currently in my work as UN Special Rapporteur on the rights to freedom of peaceful assembly and of association. My duties include both a monitoring and reporting component—name and shame, if you will—and a technical assistance component, which means working behind the scenes to help states improve their enforcement of human rights norms. It is plain that some governments are not moved by either approach. At this point, real pushback and stepping up of enforcement measures will require more creativity, innovation and a multiplicity of approaches.

A new way forward: litigation in domestic and regional courts

It was against this backdrop of stepping up enforcement efforts that my mandate began a new project in 2014, designed to advance the rights to freedom of peaceful assembly and of association through litigation in domestic and regional courts. The project actively seeks to support cases related to these rights and focuses on providing technical assistance and advisory services to litigants, attorneys and civil society organisations. An important part of the project is the submission of amicus curiae briefs (e.g., briefs submitted by experts not connected to or solicited by either party) in relevant cases to add critical analysis and an international voice.

Special Rapporteur mandates are vast, often covering the entire globe, and resources are limited. We need civil society activists and actors as partners to alert us to cases which might benefit from an intervention, flag the legal challenges they face, re-use international-law based arguments in their domestic jurisdictions, and to let us know the outcome of these cases.

The thrust behind this endeavour is simple: get international human rights law and standards into local courts, so that they can filter into domestic law and—perhaps most critically—enjoy better enforcement. The UN system is notoriously impotent when it comes to enforcing the human rights it espouses; it simply does not have the tools, and its Member States are not going to make them available anytime soon. National and regional courts or human rights commissions are often in a better position to do this.

This is not to say litigation in domestic and regional courts is a panacea. It has its inherent shortcomings, such as corruption or a failure to induce real on-the-ground change. But litigation does present unique advantages, such as ensuring concrete remedies: accountability, compensation and some closure. Litigation can also shine a light on repression by forcing the government to address issues head-on in a public setting.

Until this date, my mandate has filed three amici curiae before domestic and regional courts. Besides the mandate’s first amicus brief submitted in a case before the Constitutional Court in Bolivia, described below, in August 2015, an amicus brief was filed in a case before the Supreme Court of Mexico challenging the constitutionality of the “City Mobility Law”, which I argued unduly restricts the right to freedom of peaceful assembly. In November 2015, the mandate also filed a third party intervention—with the Human Rights Centre, University of Ghent (Belgium)—urging the European Court of Human Rights to adopt strong protective standards for the right to freedom of peaceful assembly in four cases against Azerbaijan.

Bolivia: a first foray

My mandate submitted its first amicus brief in May 2015, before the Constitutional Court of Bolivia in Sucre. The case in question surrounded the constitutionality of the NGO Act: the first provision conditions legal status upon an association’s contribution to economic and social development. The second stipulates that such status can be revoked when associations do not comply with sector policies and/or norms. The law itself dates back to March 2013, when Bolivia adopted the legislation despite many analyses indicating that it contravened international law. It was implemented in June 2013, by the equally contentious Supreme Decree.

The amicus brief argues that the Bolivia provisions unjustifiably restrict the right to freedom of association under international law, standards and principles. The brief notes that restrictions to the right to freedom of association are only permissible under the International Covenant on Civil and Political Rights (ICCPR) when they are (1) prescribed by law; (2) for a legitimate aim; (3) necessary in a democratic society. Any restrictions to the right must be judged against this three-pronged test. Both of the articles challenged in the Bolivia case fail to meet this test.

Even if the restrictions were properly prescribed by law (which they are not), they do not serve a legitimate aim. To the contrary, they could be interpreted as an attack at the very foundation of the right to freedom of association. In addition, the provisions are not necessary or proportional. Their effects—not obtaining (or revoking) legal personality from associations that hold different ideas than the politicians of the day—are simply too sweeping, particularly when you take account of the wide margin of discretion afforded to the authorities enforcing the law.

The Constitutional Court of Bolivia is expected to rule on the case in early 2016. It is of course difficult to predict how the court will rule, but I am concerned by the recent statement by the Bolivian Minister for Decentralisation, who was quoted in news reports as saying that NGOs should observe national laws, regardless of what the UN thinks about them—likely a reference to my mandate’s amicus brief.

The way forward

The Bolivia case was just the first in what I hope will be a series of judicial interventions by my mandate. Each case is a small step towards reclaiming civic space, but the biggest impact will come when we reach a critical mass of interventions. Finding appropriate cases, though, depends on our networks and partnerships—the people on the ground. Special Rapporteur mandates are vast, often covering the entire globe, and resources are limited. We need civil society activists and actors as partners to alert us to cases which might benefit from an intervention, flag the legal challenges they face, re-use international-law based arguments in their domestic jurisdictions, and to let us know the outcome of these cases.
—

Maina Kiai is the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association.

Note from the author: If you have a case that might be relevant to the mandate, please get in touch with us via our website or by contacting our litigation project coordinator. Or if you simply want to inject international law into a current case on assembly or association rights, our previous briefs are all publicly available on our website. We hope that these filings will be viewed as model briefs to be recycled and reused around the world—each of them a catalyst to help enforce and reclaim civic space.

This article was first published on Open Democracy.

A longer version of this article was first published in Sur Journal’s 22nd issue here, produced by Conectas.

Swacch Bharat Abhiyan Invisibilises Caste and Glamourises the Broom: Bezwada Wilson

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April 22, 2016

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Photo Credit: hrw.org

Swacch Bharat Abhiyan invisibilises the linkage between Caste and Sanitation and glamourises the Broom among Scavenging Communities: Bezwada Wilson
Bezwada Wilson, National Convener of Safai Karmachari Andolan in conversation with Subhash Gatade

The 125 day Bhim Yatra which started from Dibrugarh and traversed 30 states and 500 districts to reach Delhi is now over. Sabrangindia.in has been following the yatra since its first steps to concientise Indians.
This country-wide mobilisation culminated in a massive rally and People’s Hearing where families of those victims who died while cleaning sewers and septic tanks shared their plight at the hands of State and fellow citizens. ‘Stop Killing Us’ was the call given by these brave marchers seeking to shake the conscience of state and society,

How do you see the impact of ‘Bhim Yatra’ ?
As far as those people who are still condemned to do scavenging is concerned, the 125 day Bhim Yatra has made an impact at two significant levels :
– First, it has made people aware that a new law (the 2013 act) has come into existence for elimination of manual scavenging and they should make use of it for their liberation.
– Second, is that (because of this mass countrywide mobilisation) people are realising that we should not do this work, we should leave this work altogether. Babasaheb’s teachings that depressed classes should leave all such professions which are stigmatised and which further help stigmatise them has reached a broader cross sections of people engaged in cleaning and scavenging.

The slogan ‘Leave the Broom, Take the Pen’ is slowly reverberating across people especially among the youth.

How do you look at the response of the civil society towards manual scavenging in general and the Bhim Yatra in particular?
As anybody can see civil society can play an important role in eradication of this practice by popularising the law(s) or policies formulated to eliminate it or become proactive by intimating the police if violations of the law occurs but it does not do it. The fact that there was no conviction under the 1993 act and the passage of the 2013 act has also not made any change in the situation on the ground is definitely a reflection of the ‘silence’ and ‘connivance’ in the continuation of this practice.

The question that arises is why 'civil society' – which seems aware enough to join other causes – prefers to resort to a silence when the issue of manual scavenging crops up. My understanding is that civil society is definitely aware of this practice but seems more worried about the immediate future regarding removal of human waste and prefers to keep mum about it. Citizens become worried over the possibility that if the Safai Karmcharis decide to quit this demeaning profession one day, who will clean their shit? Perhaps they will have to get ready to dirty their own hands?

Also there is another aspect to this limiting and hypocritical attitude: whenever the issue of manual scavenging comes up, the discussion centres around the manner in which people are condemned to do such ‘dirty’ work; the discussions never move beyond to, for instance, how do we promote, rehabilitate those who leave this profession?

Coming to the Bhim Yatra specifically, it has actually shaken off this avoidance and complacency: many citizens joined the processions held at different places and also addressed meetings, in solidarity. The Yatra also evoked positive response in sections of the media.

What is your future plan after the Yatra ?
We have given memorandums to different statutory authorities and asked them to take immediate steps to eliminate this ongoing practice, as is mandated by the law. We clearly want that there should be no further delay, no more shifting of deadlines.

Seventy years since Independence but the Scavenging Communities still yearn for real freedom from age-old slavery of a very different kind, demeaning work which is debilitating and also leading to untimely deaths of manual scavengers. Indians should not forget that Safai Karmacharis of all kinds have a shorter life span than other workers since under the name of occupational hazards they are exposed to poisonous gases and dangerous substances and also meet with fatal accidents.

One thing is clear. If the government does not listen to us we will come in our thousands and thousands to Delhi and would sit before the Parliament to pressurise it so that it mends its ways.

In fact, we have been emphasising this point throughout our public meetings held during the Yatra that Ours is a Struggle for Dignity and it is a struggle which we not only have to take forward and but one that may demand huge sacrifices. Yes, other justice loving people would definitely join us, but if we are not ready to protest, struggle and sacrifice how can the rest of the people help us?

There are many other routes open to continue the struggle. For example, we also plan to approach the Courts for a strict implementation of the 2013 act. We also realise that merely giving petitions, moving courts or organising sit-ins is not going to solve the problem, it is time that Safai Karmacharis organise themselves at the national level and declare a strike –stop to clean everyone’s shit!–only then society and state wake up from its deep slumber.

There are many like-minded parties and organisations who are working for the cause of Safai Karmacharis and we also plan to contact them or interact with them so that there is large scale mobilisation at the national level. At the immediate level we also plan to focus on the six states where according to government survey only no of dry latrines is significant.

What is your assessment of the Swacch Bharat Abhiyan (‘Clean India Campaign’) which was launched with much fanfare by the present government ?
The basic problem with the Swacch Bharat Abhiyan is that it de-contextualises the issue of sanitation from its social roots. It is since 1991 – after the b1rth centenary year celebrations of Babasaheb Ambedkar (born on April 14, 1891)—that we first initiated this campaign of Safai Karmacharis. Through this agitation and the propaganda around it, an awareness slowly built that reflected our argument which was essentially this: in the Indian context ‘sanitation is a caste based, patriarchy based profession’ and must be understood as such.

This argument slowly began to receive a wider acceptability, also. The cumulative impact of our intervention as well as other initiatives could be noticed in the fact that the Central Government deemed it necessary to have a new law replacing the earlier law vis-a-vis manual scavenging, where the very definition of manual scavenging was widened and sewer workers and workers cleaning septic tanks were also included within its ambit.

The communities which are engaged in the work of cleaning because of the hierarchical caste system based on purity and pollution also witnessed a new awakening and at many places people especially women came together to demolish dry latrines, deciding at the same time not to compel the younger ones of the family to continue with this profession.

The way Swacch Bharat Campaign looks at the work of cleanliness is deeply problematic. It calls it everybody’s work – one can even look at the Swacchata Pledge administered by the Honourable PM to everyone when he launched the campaign “Ab hamara kartavya hain ki gandagi ko door karke Bharat Mata ki sewa karein” (Now, it is our duty to serve Mother India by removing the dirt).

This whole approach not only invisiblises the inter-linkages which exist in India between cleanliness and caste, where you (the caste system and caste hierarchies) have condemned a number of communities – called by different names at different places – to do this work and only do this work. It also, by exclusion, hides the achievements by mobilisations and movements of the Safai Karmacharis which have tried to contextualise the issue of cleanliness in this part of South Asia. It is these mobilizations that have succeeded in highlighting the fact that without addressing the issue of caste it is impossible to deal with the question of cleanliness.

You can also notice the huge gap between what is being said (at the top level) and how things unfold on the ground. The Swacch Bharat Abhiyan was launched, celebrities came, and there were Photo-Op sessions with brooms in their hands. But, today who is cleaning the dirt? Not the celebrities, not the stars but it is we who are doing it. In a way, the Swacch Bharat Campaign tries to further glamourise the broom among those communities for whom the broom –and headloads of shit — is an unspeakably undignified burden. We have been doing this work for centuries, it is undignified work, demeaning work, invisible work and we have declared that we will not do it!

(Based on the discussion with Bezwada Wilson; the conversation has been edited by Sabrangindia)

kafila.org

See also
1. Dignity for Those Who Clean Our Filth

2. Bhim Yatra- Golaghat(Assam) and Dimapur(Nagaland)

3. Stop Killing Us: the Bhim Yatra of India’s Manual Scavengers tells the Indian government

4. When Narendra Modi saw the cleaning of toilets as a spiritual experience

A bloody route to power

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April 21, 2016

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Archived from the October 1993, tabloid issue of Communalism Combat

Kozhikode, a small town in Calicut district of Kerala was one of the more recent venues of Hindutva’s double-speak. Holding forth at a press conference before moving onto Kunnur, BJP president L. K. Advani vowed, once again, to provide a “riot-free administration” if voted to power at the Centre.

To reassure skeptics turned off by many nefarious deeds of Hindutavavadis that point to a diametrically opposed design, Advani concluded with his oft-repeated mantra: “Secularism is the basic tenet of Hindutva and the BJP is sworn to protect this basic tenet enshrined in the Indian Constitution.”

Lured by this cosy vision an undiscerning listener may hastily decide which way his vote must be cast next time. But it takes just a slightly closer look at some of the most violent communal clashes in the last three months to notice the game-plan of the BJP and its many affiliates in these regions.

Theirs is a strategy to systematically foment trouble, engineer communal violence in hitherto peaceful areas, enlist the support of the local administration (often in Congress-ruled states) and continue to project themselves as the sole guarantors of a riot-free India.

Manipur, in the north-east, has been the locale of some vicious “ethnic cleansing” in recent months. In the space of just 48 hours in the first week of May, 120 Muslim (Meitei) Pangals were hounded out of homes, establishments and schools in a bloody massacre that left the Imphal valley bruised and shaken.

Women were raped before they, with babes in arms, were hacked. More than 150 Muslim rickshaw-pullers are simply missing. (EyewitnessVideo News Channel of the Hindustan Times Group, June 1993).

The valley is home for 1,35,000 Muslims (70 percent of the 12 lakh population of the valley is of the Hindu Vaishnavite Maitei tribe). During August-September, over 200 Kukis – the broader name for all non-Naga, non-Hindu tribes—became victims of Naga brutality.

While the Imphal valley has for a decade-and-a –half been the scene of bloody clashes between Naga and Kuki tribes–each have their own clear goals of liberation through armed insurgency —-, recent interventions by the BJP have introduced a distinct Hindu versus the “foreign infiltrator” (read Muslims, Christians) element into what were simply tribal clashes.

The BJP’s is a strategy to systematically foment trouble, engineer communal violence in hiterto peaceful areas, enlist the support of the local administration (often in Congress-ruled states) and continue to project themselves as the sole guarantors of a riot-free India.

Meitei extremist oganisations like the People’s Liberation Army (PLA) were outlawed soon after they came into existence. Nameirakpam Bisheshwar, formerly a PLA leader floated an organisation called Poramelan Apunba (the PA) with a section of the PLA to fight the cause of the Meiteis in 1992.

The Mayangs, the first target of the Meiteis, were subjected to extortion and assorted terror tactics simply because they were “outsiders”—- Bengalis, Marwaris. The business community in Manipur was gripped by fear.

It was then that L.K. Advani stepped in on a special visit to Imphal, in early 1992. A hush-hush meeting between Bisheshwar and Advani helped iron out differences. In a dramatic turnaround, the Poramelan Apunba decided to leave the business community alone and instead trained its guns on a softer target: Muslims.

A month after the return of R.K. Dorendra Singh as chief minister heading a coalition government in April 1992 and a few months after Advani’s visit the poramelan Apunba (PA) began its emulation of a common tactic of the Sangh Parivar: it attempted to build a temple at Chingei Ching hillock, 12 kilometres from Imphal at a spot used by Muslims as a burial grounds and an Idgah for decades (Illustrated Weekly, July 1993).

Though a clash was averted on May 2 last year, the PA began a drive for the ouster of all Muslims from Manipur. May 2 was declared “Boycott Muslims Day”.

That the PA acquired its anti-Muslim thrust from the BJP was publicly stated by the body last year: “Our thanks to the press and the Bharatiya Janata Party for their cooperation in the activities of the Poramelan Apunba” (Kangla Pao, dated June 21, 1992).

May 2, 1993 was observed as: Boycott Muslim Day”. It became the occasion for launching an all-out offensive against them. Meitei youths were reported to have moved on motorcycles to spread the rumour that Meitei boys and girls had been killed inside a college located in a Muslim-dominated area. No such incident occurred but sources within the administration revealed how even the police wireless network relayed the rumour to every thana (police station) in the valley.

Far-flung regions of the north-east — generally short — shrifted in news coverage and attention – are not the only playing fields for the Sangh Parivar to work-out its communal designs. A similar game–plan is obviously at work in pockets of Karnataka too, a state which is being touted as the next success story of saffron.

(Archived from the October 1993, tabloid issue of Communalism Combat with its cover story, ‘Beyond Borders; this article was on page 3)