India’s Sixth of December

December 19, 2015

The sixth of December is a day that is remembered by very large numbers of people all over our country for very different reasons and in very different ways. There are those, mostly poor and oppressed, who mourn the sixth of December as the death anniversary of Dr. Babasaheb Ambedkar, his ‘Nirvan Diwas’. The word ‘Nirvan’ was earlier associated with the passing away of the Buddha and is now used to honour the passing away of Dr. Ambedkar soon after his historic conversion to Buddhism, along with several of his followers.

During a recent session of Parliament, held to commemorate the Constitution and pay homage to Dr. Ambedkar; and again, during the Parliamentary debate on ‘Growing Intolerance’, Babasaheb’s name was mentioned repeatedly. It was recognized by all that he had made the greatest contribution to enshrine the principles of Democracy, Equality and Fraternity in the Constitution and fulsome praise and accolades were bestowed upon him, speciallyby members of the NDA II (read BJP) Government. No one, however, except for Sitaram Yechury (CPIM, General Secretary) referred to his conversion to Buddhism or the reasons for this.

Despite the enormous and significant role he played in drafting the Constitution, Babasaheb had to, eventually abandon the religion of his forefathers. Throughout his life he made untiring and valiant efforts to bring about a change in the attitude and thinking of high caste Hindus through argument, writings, historical research and continuous appeals to reason, humanity and compassion. The drafting of the Constitution and Hindu Code Bill were, of course, the most important of these efforts.

Unfortunately, the bill did not bring about any real change of heart, mind and outlook. Every one of his efforts had aroused the most vicious opposition and calumny. Every promise that the Constitution made to bring about equality between all citizens was opposed tooth and nail during the Constituent Assembly debates by conservative elements determined to thwart all efforts to legislate equality into the existing unequal social hierarchies that they were determined to preserve.

The Hindu Code Bill was met by such howls of protest both inside the Constituent Assembly and outside on the streets that it had to be abandoned. Babasaheb resigned as Law Minister saying in protest that, “The Hindu Code was the greatest social reform measure ever undertaken by the legislature in this country. No law passed by the Indian Legislature in the past or likely to be passed in the future can be compared to it in point of its significance.

To leave inequality between class and class, between sex and sex, which is the soul of Hindu Society untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap. This is the significance I attached to the Hindu Code.” (quoted from Dr. Ambedkar’s speech when he resigned from the first Indian cabinet of ministers).

The failure of his repeated and untiring efforts to bring about a change in the hearts and minds of his opponents was not unforeseen as far as Dr. Ambedkar was concerned. As early as 1935, he had announced to his followers that although he had been born a Hindu he would not die as one because he was determined to abandon a belief system that refused to accept the principle of equality. Finally, on the October 2, 1956, he embraced Buddhism along with many hundreds of thousands. Tragically, within two months, on December 6, l956, he was no more.

On the same day, 36 years later, the Babri Masjid was destroyed by members of the Sangh Parivar. This event is also commemorated, across the country, by some as “Shaurya (Valour) Diwas” and by others as a day of mourning.

There are also those, however, who feel that the choice of the date for the destruction of the mosque was no co-incidence. They believe that it was Dr. Ambedkar’s Constitution that was the real target of the attack by the Sangh. This is based not only on the choice of date but on the fact that the Sangh Parivar members who destroyed the mosque owed allegiance to the same RSS that had been in the forefront of the opposition to both the Constitution and the Hindu Code Bill.

The most uncompromising opposition both to the Constitution and the Hindu Code Bill came from Shri Golwalkar, head of the RSS. Along with his supporters, he held fast to the view even after the Constitution was passed, that it was the Laws of Manu, the Manusmriti, alone that could be accepted as Law by Hindus.

As far as the Hindu Code Bill is concerned, Golwalkar castigated it by saying that it would reduce Hindu men to puny weaklings. His views have never been repudiated by the Sangh Parivar. Today, Home Minister Rajnath Singh’s speech in Parliament is significant because while he heaped praise on the Constitution and Dr. Ambedkar, he also sharply criticized the later inclusion of the work ‘secular’ to describe the Republic that brought the Constitution into existence.

The reasons he gave for this criticism should be examined seriously by all Indian citizens. He said “‘Secularism’ is the most misused word in the country… India’s religion itself is dharma nirpeksh. ..”Does the Constitution permit India to have a religion? If India has a religion then can it continue to abide by its Constitution? Is it a co-incidence that the Home Minister who has now made known his commitment to a Religious State or a Hindu Rashtra was present at the site of the demolition of the mosque (Babri Masjid) on December 6, 1992?

Even at the time of its passage, Dr. Ambedkar feared for the future of the Constitution because he did not believe that the soil of India which had given birth to the worst forms of inequality would readily accept the seeds of democracy and fraternity. Those who had opposed him then have given notice, time and again, that they continue to challenge the writ of this foundational doctrine.

The Evils of Caste

December 19, 2015

We reproduce below excerpts from the work of one of the oldest authorities on the Marathas, historian Jadunath Sarkar. In two books on the issue, the historian has dealt with the ticklish issue of caste which affected Shivaji’s acceptance as a formal ruler.

A deep study of Maratha society, indeed of society throughout India, reveals some facts which it is considered patriotism to ignore. We realise that the greatest obstacles to Shivaji’s success were not Mughals or Adil Shahis, Siddis or Feringis, but his own countrymen. First, we cannot be blind to the truth that the dominant factor in Indian life — even today, no less than in the seventeenth century — is caste, and neither religion nor country. By caste must not be understood the four broad divisions of the Hindus which exist only in the textbooks and the airy philosophical generalisations delivered from platforms. The caste that really counts, the division that is a living force, is the sub–division and sub–sub–division into innumerable small groups called shakhas or branches (more correctly twigs or I should say, leaves, they are so many!) into which each caste is split up and within which alone marrying and giving in marriage, eating and drinking together take place…

And each of these smallest sub–divisions of the Brahman caste is separated from the other sub–divisions as completely as it is from an altogether different caste like the Vaishya or Shudra, e.g., the Kanyakubja and Sarayupari Brahmans of northern India, the Konkanastha and Deshastha of Maharashtra.
Personal Jealousy Hindering Shivaji

Shivaji was not contented with all his conquests of territory and vaults full of looted treasure, so long as he was not recognised as a Kshatriya entitled to wear the sacred thread and to have the Vedic hymns chanted at his domestic rites. The Brahmans alone could give him such recognition, and though they swallowed the sacred thread they boggled at the Vedokta! The result was a rupture… Whichever side had the rights of the case, one thing is certain, namely, that this internally torn community had not the sine qua non of a nation.
Nor did Maharashtra acquire that sine qua non ever after. The Peshwas were Brahmans from Konkan, and the Brahmans of the upland (Desh) despised them as less pure in blood. The result was that the state policy of Maharashtra under the Peshwas, instead of being directed to national ends, was now degraded into upholding the prestige of one family or social sub–division.

Shivaji had, besides, almost to the end of his days, to struggle against the jealousy, scorn, indifference and even opposition of certain Maratha families, his equals in caste sub-division and once in fortune and social position, whom he had now outdistanced. The Bhonsle Savants of Vadi, the Jadavs of Sindhkhed, the Mores of Javli, and (to a lesser extent) the Nimbalkars, despised and kept aloof from the upstart grandson of that Maloji whom some old men still living remembered to have seen tilling his fields like a Kunbi! Shivaji’s own brother Vyankoji fought against him during the Mughal invasion of Bijapur in 1666.

Shivaji’s religious toleration and equal treatment of all subjects
He stands on a lofty pedestal in the hall of the worthies of history, not because he was a Hindu champion, but because he was an ideal householder, an ideal king, and an unrivalled nation-builder. He was devoted to his mother, loving to his children, true to his wives, and scrupulously pure in his relations with other women. Even the most beautiful female captive of war was addressed by him as his mother. Free from all vices and indolence in his private life, he displayed the highest genius as a king and as an organizer. In that age of religious bigotry, he followed a policy of the most liberal toleration for all creeds.

The letter which he wrote to Aurangzeb, protesting against the imposition of the poll–tax on the Hindus, is a masterpiece of clear logic, calm persuasion, and political wisdom. Though he was himself a devout Hindu, he could recognise true sanctity in a Musalman, and therefore he endowed a Muhammadan holy man named Baba Yaqut with land and money and installed him at Keleshi. All creeds had equal opportunities in his service and he employed a Muslim secretary named Qazi Haidar, who, after Shivaji’s death, went over to Delhi and rose to be chief justice of the Mughal Empire.

There were many Muhammadan captains in Shivaji’s army and his chief admiral was an Abyssinian named Siddi Misri. His Maratha soldiers had strict orders not to molest any woman or rob any Muhammadan saint’s tomb or hermitage. Copies of the Quran which were seized in the course of their campaigns were ordered to be carefully preserved and then handed over respectfully to some Muhammadan.”
(From Jadunath Sarkar’s book, ‘House of Shivaji’).

The Coronation of Shivaji And After (1674-1676)

Why Shivaji wanted to be crowned

Shivaji and his ministers had long felt the practical disadvantages of his not being a crowned king. True, he had conquered many lands and gathered much wealth: he had a strong army and navy and exercised powers of life and death over men, like an independent sovereign. But theoretically his position was that of a subject; to the Mughal Emperor, he was a mere zamindar. He could not claim equality of political status with any king.

Then again, so long as he was a mere private subject, he could not, with all his real power, claim the loyalty and devotion of the people over whom he ruled. His promises could not have the sanctity and continuity of the public engagements of the head of a State. He could sign no treaty, grant no land with legal validity and an assurance of permanence. The territories conquered by his sword could not become his lawful property, however undisturbed his possession over them might be in practice. The people living under his sway or serving under his banners could not renounce their allegiance to the former sovereign of the land, nor be sure that they were exempt from the charge of treason for their obedience to him. The permanence of his political creation required that it should be validated as the act of a sovereign.

Shivaji recognized by Gaga Bhatta as a Kshatriya
But there was one curious hindrance to the realization of this ideal. According to the ancient Hindu scriptures, only a member of the Kshatriya caste can be legally crowned as king and claim the homage of Hindu subjects. The Bhonsles were popularly known to be neither Kshatriyas, nor of any other twice-born caste, but mere tillers of the soil, as Shivaji’s great–grandfather was still remembered to have been. How could an upstart sprung from such a Shudra (plebeian) stock aspire to the rights and honours due to a Kshatriya? The Brahmans of all parts of India would attend and bless the coronation of Shivaji, only if he could be authoritatively declared a Kshatriya.

It was, therefore, necessary first to secure the support of a pandit, whose reputation for scholarship would silence all opposition to the views he might propound. Such a man was found in Vishweshwar, nicknamed Gaga Bhatta, of Benares, the greatest Sanskrit theologian and controversialist then alive, a master of the four Vedas, the six philosophies, and all the scriptures of the Hindus, and popularly known as the Brahma–deva and Vyas of the age.

After holding out for some time, he became compliant, accepted the Bhonsle pedigree as fabricated by the clever secretary Balaji Avji and other agents of Shiva, and declared that Rajah was a Kshatriya of the purest breed, descended in unbroken line from the Maharanas of Udaipur, the sole representatives of the solar line of the mythical hero-god Ramchandra. His audacious but courtierly ethnological theory was rewarded with a huge fee, and he was entreated to visit Maharashtra and officiate as high priest at the coronation of Shiva. He agreed, and on his arrival was welcomed like a crowned head, Shiva and all his officers advancing many miles from Satara to receive him on the way.

(From ‘Shivaji And His Times’ by Jadunath Sarkar).

(Archived from the October 2001 issue of Communalism Combat)

Quick March of State and Vigilante Censorship

December 19, 2015

2015 will go down in history as the year institutional sanction for censorship quick-marched along with vigilante censorship on the streets. Step for step, an increasingly saffronised censorship has permeated the world of the arts, theatre, films, book publishing, educational curriculum and has claimed the lives of writers, disrupted film and theatre screenings, pulped books and mandated the use of text- books that distort history.

The dastardly killing of 82-year old CPI leader Govind Pansare in Kolhapur on February 20, 2015 and 77-year old Kannada writer Professor MM Kalburghi in Dharwad on August 30, 2015 was a chilling indication of the lengths fundamentalist groups will go to plan these assassinations. These eminent rationalists have been writing and speaking out over the saffronisation of society and the killings sought to silence them.

Ironically, the very lumpenisation of these saffron brigades that Dabholkar and Kalburgi spoke out against claimed the life of an ordinary farm-worker, Mohammed Akhlaq, who was brutally lynched in Dadri in Uttar Pradesh on September 28, 2015 by villagers and neighbours over the suspicion that he had beef in his fridge. Instigated by rumours spread by so-called religious leaders, the villagers fell prey to incitement by leaders of a number of saffron organisations – called the Rashtravadi Pratap Sena, the Samadhan Sena and the Ram Sena – that had sprung up in the village, according to the report of a fact-finding committee of academics and civil society members.

Apart from these killings, there are numerous manifestations of saffron censorship, forced by political parties and vigilante groups who made full use of institutional support to assert their brand of religio-cultural nationalism and morality. Here are some instances:

Tamil writer Perumal Murugan announced his ‘death’ as a writer on his Facebook page, a day after being forced to sign an apology and enter into an agreement with caste and Hindu groups in the presence of the District Revenue Officer (DRO) V R Subbulaxmi on January 13 that he would not write anything that offended them![1] Since December 2014, the Hindu Munnani, BJP and RSS leaders joined with caste groups to hound him. [2]
The Brahman Ekta Seva Samstha filed a police complaint against comedy group All India Bakchod for a roast which they said was vulgar and denigrated Hindu values.[3]
Mathrubhumi newspaper’s literary critic M M Basheer was forced to terminate his series on the Ramayana after Hindu groups called the newspaper office to complain about a Muslim writing on the Ramayana! [4]
The Shiv Sena forced the cancellation of performances by Pakistani ghazal singer Ghulam Ali in Mumbai[5] and Pakistani sufi group Mekaal Hasan Band in Ahmedabad[6] and blackened the face of Observer Research Foundation director Sudheendra Kulkarni for organizing the launch of a book by former Pakistani foreign minister Khurshid Kasuri in Mumbai.[7]
Tamil writer ‘Puliyur’ Murugesan was beaten up by caste based Hindu groups for his short stories that allegedly showed women in a bad light.[8]
FTII students went on a 139-day strike to protest the saffronisation of the institution’s governing council by the appointment of persons who had little or no knowledge of cinema but who were close to the ruling BJP. Their protest fell on deaf ears.[9]
CBFC chairperson Leela Samson resigned to protest political interference[10] and was quickly replaced by Hindi film-maker Pahlaj Nihalani.[11] The latter immediately decided to ban swear words, sexually explicit scenes and drag his feet on the award of a certificate for the documentary ‘En Dino Muzaffarnagar’ by the late Shubradeep Chakravorty and Meera Chaudhary. [12]
Hindi writer Uday Prakash and Nayantara Sehgal returned their Sahitya Akademi awards to protest the killing of MM Kalburghi and the Dadri lynching, sparking off a major spontaneous movement of more than 70 writers, film-makers and artists who returned their awards in protest. [13]
Right-wing activists threatened performers of ‘tiatr’, the Goan satire theatre form[14]

And how did this government respond to the concerns of the writers and members of the film fraternity?

By debunking or belittling them. While Finance Minister Arun Jaitley said the writers who returned the awards were a ‘manufactured revolt’[15], the clamour over his silence on the Dadri lynching forced Prime Minister Narendra Modi to say that Hindus and Muslims must fight poverty, not one another.
What is clear is the sense of entitlement that the Hindutva groups have got from a government that is fraternal, that either silently looks on or makes these incredible and unconvincing statements to cover up its lapses.
The censorship has only continued the pattern set in 2014. Take a quick look:

Penguin India was forced to sign an agreement with Hindutva organization Shiksha Bachao Andolan to withdraw and pulp all remaining copies of Wendy Doniger’s book ‘The Hindus: an alternative history’.[16]
Members of Hindutva groups targeted organisers of the VIBGYOR film festival for the screening of documentary film ‘Ocean of Tears’[17]
Orient Blackswan decided to withdraw 'Communalism and Sexual Violence: Ahmedabad since 1969' by Dr Megha Kumar.[18]
The Globus theatre in Mumbai refused to screen the documentary 'The Gujarat Promise' for fear of a BJP backlash[19]

Hindu group demanded a ban on the film Ragini MMS 2 and the deportation of porn star Sunny Leone[20]
There were attempts to stall Rang Rasiya, the film on Raja Ravi Varma[21]
The Shiv Sena in Mumbai forced a ban on the performance of Pakistani artists in a concert in Mumbai[22]
ABVP groups tried to stop a poetry and music perfomance by Dalit group Kabir Kala Manch in Bangalore[23]
The VHP halted the staging of a play in Chandigarh[24]
The Kalaghoda festival in Mumbai stopped the staging of a play ‘Ali J’ after Hindu groups call it 'anti-national', police advised organisers of the Evam theatre group not to stage the play in Chennai[25]
The Hindu Janjagurti Samiti demanded that MTV stop the show Splitsvilla.[26]

Of course, the Hindutva groups aren’t the only ones to adopt unconstitutional and illegal methods to enforce their diktats. A fringe Christian group, Catholic Secular Forum, decided to protest the staging of a play ‘Agnes of God’, in Mumbai, because it was allegedly anti-catholic. But the play was staged amidst police protection.[27]

And the protests and complaints by sections of Urdu media and cultural groups against the Urdu editor Shirin Dalvi for making use of a cover of the French satirical magazine Charlie Hebdo is another example of offence-taking by Muslim groups.[28]

Last year, in Nagaland, the Ao Senden, the apex body of the Ao tribe in Nagaland, used social boycott as a weapon against Naga journalist Monalisa Changkija, author of ‘Cogitating for a better deal’. Like the majoritarian Hindutva groups, these social groups assert their own brand of majoritarian beliefs and sentiments, with violence if necessary.[29]

Free speech is seriously in peril when those who speak or sing of the dark times are attacked and silenced.

(Geeta Seshu is a senior journalist and Consulting Editor of the mediawatchsite The Hoot. She has been coordinating The Hoot’s free speech project since 2010)

[1] Tamil author Perumal Murugan announces his ‘death’ on Facebook over lack of freedom of speech http://indianexpress.com/article/india/india-others/forced-to-withdraw-novel-tamil-author-announces-his-death/

[2] The death of the author; http://www.thehindu.com/opinion/lead/the-death-of-the-author/article6794468.ece

[3] Thanks morons for the FIR, now hope AIB is dragged to the court, but not to jailhttp ://www.opindia.com/2015/02/thanks-morons-for-the-fir-now-hope-aib-is-dragged-to-the-court-but-not-to-jail/

[4] Hindutva voices force Kerala scholar to stop Ramayana column in newspaper http://indianexpress.com/article/india/india-others/hindu-group-forces-muslim-writer-to-stop-ramayana-column/

[5] Shiv Sena says will interrupt Ghulam Ali event in UP – See more at: http://indianexpress.com/article/india/india-news-india/shiv-sena-says-will-interrupt-ghulam-ali-event-in-up/

[6] Sequel Music: A La Ghulam Ali, Shiv Sena Forces Pakistani Band To Cancel Gujarat Show http://www.huffingtonpost.in/2015/10/13/mekaal-hasan-band_n_8283198.html

[7] Shiv Sena smears Sudheendra Kulkarni's face with black ink for organising ex-Pak minister's book launch http://indiatoday.intoday.in/story/kasuri-book-launch-shiv-sainiks-smear-black-paint-on-sudheendra-kulkarnis-face/1/496352.html

[8] The tragedy of Puliyur Murugesan: Tamil writer first beaten, then slapped with obscenity case http://www.firstpost.com/india/the-tragedy-of-puliyur-murugesan-tamil-writer-first-beaten-then-slapped-with-obscenity-case-2131145.html
TN again: Writer beaten, slapped with obscenity charge http://indianexpress.com/article/india/india-others/tn-again-writer-beaten-slapped-with-obscenity-charge/

[9] FTII students call off 139-day strike, protests to continue http://www.business-standard.com/article/current-affairs/ftii-students-call-off-139-day-strike-protests-to-continue-115102800932_1.html

[10] India's censorship board in disarray amid claims of political interference http://www.theguardian.com/film/2015/jan/21/india-censorship-board-crisis-leela-samson-msg-messenger-of-god-political-interference

[11] Why Pahlaj Nihalani's video about PM Modi might secretly be a spoof http://www.firstpost.com/bollywood/heres-why-pahlaj-nihalanis-video-about-pm-modi-might-secretly-be-a-spoof-2508558.html

[12]Delhi High Court sends documentary on Muzaffarnagar riots to CBFC for review http://www.dnaindia.com/india/report-delhi-high-court-sends-documentary-on-muzaffarnagar-riots-to- cbfc-for-review-2042451

Plea for certificate to riots documentary: HC seeks CBFC reply http://www.business-standard.com/article/pti-stories/plea-for-certificate-to-riots-documentary-hc-seeks-cbfc-reply-115100800990_1.html

16th Madurai Film Festival 2014: Homage to Shubradeep Chakravorthy http://maduraifilmfest.blogspot.in/2014_11_23_archive.html

[13] Hindi writer Uday Prakash returns Akademi award over Kalburgi killing http://timesofindia.indiatimes.com/india/Hindi-writer-Uday-Prakash-returns-Akademi-award-over-Kalburgi-killing/articleshow/48930730.cms
Dadri lynching: Nayantara Sahgal, Ashok Vajpeyi question PM Modi’s ‘silence’, give back Sahitya Akademi http://indianexpress.com/article/india/india-news-india/nayantara-sahgal-returns-sahitya-akademi-award-questions-pm-modis-silence-on-reign-of-terror/

[14] Goa: BJP govt under fire for trying to censor century-old Konkani theatre http://www.firstpost.com/politics/goa-bjp-govt-fire-trying-censor-century-old-konkani-theatre-2106495.html

[15] Arun Jaitley in Facebook post: Writers returning awards a ‘manufactured revolt’ www.indianexpress.com/article/india/india-news-india/writers-returning-awards-a-manufactured-revolt-arun-jaitley/

[16] Penguin India withdrawn copies of Wendy Doniger’s controversial book The Hindus http://articles.economictimes.indiatimes.com/2014-02-12/news/47269928_1_publishers-controversial-book-penguin-india

[17] Attack on film festival in Kerala's cultural capital shows rising Hindutva presence in liberal state http://scroll.in/article/657425/attack-on-film-festival-in-keralas-cultural-capital-shows-rising-hindutva-presence-in-liberal-state

[18]Revise your book, Orient Blackswan tells Megha Kumar http://www.thehindu.com/news/national/revise-your-book-orient-blackswan-tells-megha-kumar/article6123845.ece

[19] Mumbai theatre Globus refuses to screen 'The Gujarat Promise' for fear of BJP backlash http://www.dnaindia.com/entertainment/report-mumbai-theatre-globus-refuses-to-screen-the-gujarat-promise-for-fear-of-bjp-backlash-1958769

[20]Hindu Janjagruti Samiti demands ban on 'Ragini MMS 2', threatens stir http://www.dnaindia.com/india/report-hindu-janjagruti-samiti-demands-ban-on-ragini-mms-2-threatens-stir-1972150

[21] Based on the life of Raja Ravi Varma, Ketan Mehta's Rang Rasiya gets a legal notice http://www.hindustantimes.com/bollywood/based-on-the-life-of-raja-ravi-varma-ketan-mehta-s-rang-rasiya-gets-a-legal-notice/story-IR4CFywGDeWevNnZDVnUGI.html

[22] Shame Mumbai! Cops force Pakistani band to call off concert http://www.firstpost.com/india/shame-mumbai-cops-force-pakistani-band-call-concert-1830849.html

[23] Kabir Kala Manch, Bangalore Police and Free Speech http://www.mainstreamweekly.net/article5384.html

[24] Religious groups, artistes lock horns over ‘Dharamraj.com’ Tribune News Servicehttp://www.tribuneindia.com/2014/20140724/cth1.htm

[25] Kalaghoda axes play after Hindu groups call it 'anti-national'; producers move it to YouTube http://www.dnaindia.com/mumbai/report-kalaghoda-axes-play-after-hindu-groups-call-it-anti-national-producers-move-it-to-youtube-1959801

[26] HJS demands ban on MTV Splitsvilla http://www.thehindu.com/news/national/other-states/hjs-demands-ban-on-mtv-splitsvilla/article6369906.ece

[27] ‘Agnes of God’: Play facing ban threat opens to cheers, applause in Mumbai http://indianexpress.com/article/india/india-others/agnes-of-god-play-facing-ban-threat-opens-to-cheers-applause-in-mumbai/

[28] Six months since she published Charlie Hebdo cover, Urdu editor struggles for work and money http://scroll.in/article/739406/six-months-since-she-published-charlie-hebdo-cover-urdu-editor-struggles-for-work-and-money

[29]Free speech under attack from violence and defamation suits http://www.thehoot.org/story_popup/free-speech-under-attack-from-violence-and-defamation-suits-7957

Minority Rights and State wrongs

December 18, 2015

The massacre of innocents in Paris by the Islamic State, or Daesh, may have changed forever the internal discourse on the situation of religious minorities. Not just in France, the site of the violence, or in Europe where Christian nations are reaching a political breaking point, but even in the United States where the dormant xenophobia until now reflecting in attitudes towards blacks and Hispanics, is now targeting Muslims- those already in the country, and those presumably on the verge of invading the landmass by the boatload.

The real estate billionaire, Mr. Donald Trump, hitherto known for his acquisitions, his matrimonial issues and his television business game-play reality series, is now a front-runner for the Republican ticket in the US. He is sailing on a platform whose chief plank is to ban Muslims from the country and severely monitor those who came in before he arrived on the scene. Mr. Trump seems to suggest he is saving the Christian nation and its way of life from violent hordes out of Arabia and North Africa. He does not articulate it in so many words, but implicit in his rhetoric, in his frothing at the mouth speeches, are also wilder images.

That is a terrible situation already, even though perhaps Mr. Triumph will eventually not get to reside in the estate called the White House. But there is something eerily familiar in the American debate. Have we not heard those words earlier, or something similar, nearer home? Perhaps, in India? They do haunt us here, and it will be good to reflect on them this Minorities Day on December 18.

Mercifully, Mr. Trump has been finessed in his home country. The current occupant of the White House, the son of a Black African Muslim father and a White Anglo Saxon Protestant mother, has rubbished the speeches as anti-American, as going against the very premise of the US as a haven for refugees, the poor and the persecuted. Mr. Trump’s own Republican Party is deeply embarrassed, leading him to say he does not need the party to enter the Presidential fray. The White Americans, barring the cheering crowds at his rallies, have voiced solidarity with all Muslims, some apologizing for Mr. Trump’s poisonous churlishness.

The most severe indictment of the billionaire protagonist of the white supremacist ideology are American Jews, who normally support an aggressive US position against Arabian countries inimical to the Promised Land of Israel. Prominent American Jews, in speeches, television debates and newspaper reports, have told Mr. Trump that they have heard his argument on Muslims many decades ago. These were almost the exact words that Adolf Hitler, chancellor and eventually dictator of Germany, used against the Jews, including the programme of separate population registries. More than six million Jews were exterminated before the Western Allies and Russia managed to defeat Hitler in a five year long world war.

The Apex court, and also the high courts have not been proactive on issues of justice for religious minorities, whether they seek enhancement of relief and rehabilitation, affirmative action or a place in the state apparatus commensurate with their numbers. And above all, on issues of justice for victims of targeted violence, it’s healing and kindness to victims has been less than adequate.

Religious and ethnic minorities the world over have reason to be worried as to how the Daesh (ISIS) butchery of Christians, Muslims and others, will impact them. The reaction of governments is just one aspect, which includes the reluctance in Europe and elsewhere to take in Muslim refugees from Syria and parts of other neighbouring countries. In Europe there is the additional fear of radicalization or expansion to young Europeans of the ultra-conservative and xenophobic ideology. There have already been warnings of a rise in anti-Semitism and neo Nazism in several parts of Europe, and a growing intolerance of Muslim refugees, which began years ago with the first entrants from Turkey and Algeria and which has now intensified.

The spectre of Daesh (ISIS) has not left India untouched. There are real threats of terrorism in India, and Daesh (ISIS) with its highly public rhetoric on TV, print and social media may possibly be reaching a few young men and women in India. But the official and political response is an over-kill. Stalwarts of the sangh parivar, in overdrive since the election campaign of 2014 and only slightly dazed by the defeats in Delhi and Bihar, have picked on what happened in Paris and Syria to redouble their campaign to stigmatise the Indian Muslim. Every one of the usual suspects of the sangh parivar, and several more, have been on TV and public platforms trying to convince the general public of their thesis of an imminent danger of Islam and Muslims swamping and overwhelming the beloved and holy motherland. The release now of the religious component of the 2011 national census has added fuel to this. The sudden revival of the Constitution’s directive principles on the protection of the cow and the need for a Uniform Civil Code (UCC) have become the weapons of choice in a new political campaign against Muslims.

The rhetoric has already drawn blood, with one person, father of an air force corporal, lynched in Dadri in Uttar Pradesh, another killed by forcing high pressure air into his stomach, and many seriously injured in attacks after they were branded as cattle rustlers or beef butchers. Some states have made this witch-hunt legal, by making beef illegal. The toll rises by the day, and is at least five on the eve of Minority Rights day.

The Supreme Court is seemingly not interested in adjudicating these issues in a definitive manner, repeatedly sending mixed signals. One honourable Justice caustically asked the Union Government why it is not coming up with a Common Civil Code, while another bench said the protagonists or those opposing such issues need to go to the government for suitable legislation instead of seeking mandates from courts of law. The Apex court, and also the high courts have not been proactive on issues of justice for religious minorities, whether they seek enhancement of relief and rehabilitation, affirmative action or a place in the state apparatus commensurate with their numbers. And above all, on issues of justice for victims of targeted violence, it’s healing touch and compassionate jurisprudence to victims and survivors, has been less than adequate.

But a radicalised political group and its followers, in uniform in the form of the Rashtriya Swayamsevak Sangh (RSS), or in the scores of organizations it has spawned covering villages, tribals, education and the youth, which has been roused against Muslims will not be satisfied with just targeting that one community. The leaders of the Sangh have written, and said, quite openly that they see Christians and communists as much as an enemy, as the Muslims. It is no secret too, that it is the RSS’ supremacist ideology that dictates the central government’s thrust and functioning, today.
Christians, hierarchy or Laity, essentially live in a cocoon, or rather several cocoons of denominations, ethnicities and regional identities, when it comes to responses to issues of human rights, civil liberties or citizenship. Many tend to believe the myths or exaggerations spouted by the Sangh against Muslims, and in states such as Kerala, the valley of Kashmir and regions in Assam or Bengal, there are several friction points between Christians and Muslims. Church leaders have expressed their apprehensions of a rise in the Muslim population in some areas with no less pungency than the most acerbic of the Sangh veterans.

A false belief that Christians will remain untouched, or essentially safe, even in an environment that is becoming increasingly hostile towards Muslims, has prevented the community — which really has no national political leadership of its own – from dispassionately and comprehensively analyzing the public sphere, including constitutional derivatives such as the courts and the administration, for erosion of their rights.

One does not want to repeat the statistics of the one-year and more of Mr. Narendra Modi’s premiership here[1], or the record of the states where the Bharatiya Janata Party (BJP) is in power. The Congress, the Janata, the Dravida parties and several offshoots of the Lohia ideology have not shown too much of a better record when it comes to removing structural hurdles to ensure the rights of minorities.

Several of the worst laws eroding minority rights were passed by Congress governments, and not removed when the others came to power. The issue of Scheduled Caste status and the repeal of the anti-constitutional Part 3 of Article 341, and several of the laws against conversion are a case in point. In fact, many commentators have pointed out in the past that several other parts of the Constitution and legislation have a majoritarian bias, but have managed to remain on the statute books, unchallenged nor repealed. But since the Constitution and the Republic that it founded is the reference point available today, its further erosion remains a major threat to religious minorities in the country.

What the BJP-National Democratic alliance government has done is to remove the cataract that blinkered the minorities who had continued to hope that their low key movements for the removal of the anti conversion laws or the restoration of the rights to Dalit Muslims and Christians would succeed sooner rather than later.

Finance Minister Arun Jaitley, who has often come to the rescue of this majoritarian dispensation has made this clear during the beate on Constitution Day in Parliament. On the Dalit Christians and Muslims issue where writs in the Supreme Court have been kept hanging for more than a decade, the Congress government (UPA I and II) had whiled away the time and not given the Court the affidavit it was supposed to –despite a spate of adjournments and directives — on whether it supported the demand for abrogation of Article 341, part 3, or not. The Congress played a typical safe and double game: it just did not want to take a decision but also did not want to annoy the minorities. Congress president. Sonia Gandhi had made it clear that Christians and Muslims could not expect her to do anything because of the opposition from both the upper castes as well as the non Christian and non Muslim Dalits within the party who had been fed the lie that their rights would be taken away and apportioned away from Christians and Muslims (Dalits).

Incidentally, this was the same argument Mr. Modi used repeatedly in his campaign in Bihar, though it did not win him too many seats. Party officials have made it clear they have no intention of giving any scheduled caste privileges to Dalit Christians and Muslims. The government may also say this, in writing, to the Supreme Court one of these days. Patently, the minorities will have to review the situation and see how they re-invent their movement.

The long struggle to get the anti conversion laws which are operational in six states removed, shows no sign of moving forward. It needs be remembered that not all these laws were brought about by the BJP, or its predecessor, the Jana Sang. The last enactment, in Himachal Pradesh, was by a Congress government and its overzealous chief minister, Vir Bhadra Singh, who now finds himself in very hot water because of charges of corruption levied against him. Mr. Modi’s ministers have again spelled out in some detail that the government not only supports such laws, but is also actively considering bringing about a national law against conversions, though issues of Constitutionality and jurisdiction, remain. They are, as for some other laws, waiting till they get an absolute majority in the Rajya Sabha, or till they can persuade some of the more vulnerable Opposition groups to support the move.

In another structural issue related to furthering minority rights, the experience of the Christians of Kandhamal district in Orissa is an example of justice so slow in delivery, as to have become meaningless. Fr. Ajay Singh, a human rights activist who has been raising the issue since the large scale and targeted violence engulfed the district in August 2008, reports that in the eight years since the Kandhamal anti-Christian violence, the very fact that 72% of the complaints have not yet been even registered by the police itself speaks volumes. It exposes the mindset of the state machinery. “The role of prosecutors and judges in the trial courts also reveal little commitment to sense of justice. Less than six of the accused have been, so far, convicted. The failure of the criminal justice system to convict grave crimes like murders and rapes, and the meagre compensation given for the substantive damages suffered has furthered embolden the perpetrators.” “Today, Hinduvta forces are doubly emboldened because of the victory of Mr. Modi. The RSS shakhas are sprouting up. The terrified and insecure Christian community has started accepting this as a ‘fait accompli’, though we had petitioned everyone all the way upto the President of India when a delegation called on him in Rashtrapati Bhavan”, says Fr Ajay. The government of India seems un-interested in persuading the state government to reopen cases of murder, and arson. And this is understandable. The main accused and suspects in every case are members of the Sangh Parivar.

Tea parties for select Christians this year will not undo the hurt of declaring Christmas as Good Governance day last year. Surely the prime minister and his ministers, and the ambitious middlemen, must know that.

To come back to “Life after Trump”. Whether he wins or loses, the moot question is if the international community will in future pursue with any vigour the issues of hate crimes committed in his wake. Many wonder if the terrorist acts of Daesh will be evoked to explain, if not to justify, the response of xenophobes and of instances of targeted violence against Muslims.

And, overwhelmed by the situation in the Middle East and the refugee crisis in Europe, will the international human rights infrastructure of the United Nations, including the Special Rapporteurs of the UN Human Rights council in Geneva, ever again be able to use its moral clout to magnify the voice of victims in countries such as those of South Asia? For activists working on issues of “Freedom of Religion and Belief” as guaranteed under the UN charter, the end of 2015 is a time of great concern, and deep worry, specially so in India where religious minorities number nearly 200 million.

(The author is a journalist, occasional documentary film maker and social activist)

[1]Are Indians safe under NDA II Rule? https://sabrangindia.in/article/are-indian-christians-safe-under-nda-ii-rule

The Right to Home and Hearth

December 17, 2015

Image Courtesy: eprahaar.in
Olga Tellis on Arbitrary Evictions

Olga Tellis recalls her intervention for the pavement dwellers of Mumbai way back in 1981, a step that led to the five bench judgement of the Supreme Court in the famed Pavement Dwellers case that ensured, at the least, compulsory rehabilitation for those evicted

It has been over three decades since a Constitution Bench of the Supreme Court ruled in favour of the Pavement Dwellers case across the various metro cities in India (Olga Tellis & Ors v Bombay Municipal Council [1985] 2 Supp SCR 51, Housing, Rights). The ruling made it mandatory for the authorities to provide alternate accommodation to the slum dwellers if their shantytowns were demolished. However, even after this ruling was passed, the inhuman demolition and eviction of nearly 1,000 families in the Shakur basti slum in Delhi confirmed that the authorities are neither following nor taking the Supreme Court directive seriously.

The then Maharashtra Chief Minister, the late AR Antulay wanted the Bombay Municipal Corporation to remove all the pavement dwellers in Mumbai during the monsoon months of August (1981). The issue was taken up by a human rights group (People’s Union for Civil Liberties, PUCL) who went to the Bombay High Court saying that it was heartless to demolish the houses of the poor pavement dwellers in the harsh Mumbai monsoon months, without providing them alternative housing options.

My point was that their homes should not be demolished during any season at all, whether monsoon or any other; as they were not living in the difficult slum conditions out of pleasure or choice –they had not come to Bombay drawn by the big city lights or Bollywood. They were economic migrants – caught up in the lopsided iniquitous economic policies of various state governments.

The Indian political class has been emphasising on the development only of the cities; paying little or no attention to the villages and small towns who have been left to, virtually, fend for themselves. The absence of employment opportunities, inadequate education and health facilities have driven thousands of people seeking better economic opportunities to India’s various metropolitan cities everyday. Displacement through land acquisition for major ‘projects’ is another root cause of the migration, to the city and surging of ranks of the urban poor.

The Mahatma Gandhi National Rural Employment Guarantee (MGNREGA) program, created to provide the 100 days of employment guaranteed under this plan, on an average, reportedly provides only around 35 days of work; the daily wage guaranteed is low, often lower than the Rs 200 as per the plan. This is further testimony of the discrimination and negligence by various governments towards the people of rural India.

Consider this. The minimum wages for government servants is proposed to be Rs 18,000 a month when the wages under the MGNREGA in rural India is barely Rs 200 a day.

It is because of such unsympathetic conditions that people from rural areas all over the country migrate to the ‘thriving’ cities for a livelihood and the very meager requirement of three square meals and a roof over their heads.

In a Maximum city with sky rocketing property prices that even the well-off struggle to meet, the pavement dwellers have to live in pathetic conditions to make ends meet. They look for dwellings that are close to their area of work, they remain the backbone of the city; providing roadside eatables, house maids and helpers, dhobis or drivers etc. They do not get any subsidies and ask for none from the government.

So for me, demolishing the slums during the monsoons was not the real or core issue here. I appealed to the Supreme Court (against the Bombay High Court judgement) enumerating the reasons why the pavement dwellers should not be removed. This was converted into a petition and after five years (1980-85) and many adjournments the Supreme Court found, principally, that the right to housing was not a fundamental right; so the there was limited or little headway that we made, on this basic point. However, the Court reiterated that in case slums had to be demolished for urgent development works, the authorities were bound to provide alternate accommodation.

My point was that their homes should not be demolished during any season whether monsoon or not; as they were not living in the difficult slum conditions out of pleasure of being in a city or to see Bollywood

The ruling was very clear and simple.But the government authorities including those in Mumbai, Maharashtra, have continued to be vicious in their demolition of slums and homes on other spaces, without providing any alternate accommodation, violating the ruling. Well-known social activist Medha Patkar has been fighting a relentless and lonely battle for the urban poor living on pavements and other spaces, but in vain. The authorities have fallen foul of the SC ruling on many an occasion.

The latest demolition of Delhi’s Shakurbasti on a cold winter December (December 12, 2015) is the latest of a string of inhumane government actions. Worse was the statement, made in Parliament, by the Railway minister, Suresh Prabhu. On December 14, 2015, he is on record saying that “Such encroachments are the main source of garbage and open defecation, etc.”

This explanation is both facetious and ridiculous. All those among the one thousand residents whose homes were so callously demolished, had lived there for nearly 15 years and had all the relevant identity cards. What made the official (Railway minister) explanation worse was when Prabhu said that the railways did not have land to rehabilitate the slum dwellers. This seems preposterous because the railways have vast tracts of land all over the country that the government is presently thinking of monetizing.

Prabhu’srailway officials did not even bother to inform the slum dwellers about the demolition before swooping down on them. There are claims and counter-claims being made by the railways and the Aam Aadmi Party about the demolition; but the fact remains that the Shakur basti families, themselves, were not informed about the demolition.

The Delhi High Court has already questioned the haste and rationale behind the demolition during the harsh winter months in Delhi, without providing alternative housing for the elderly, women and children. They were practically left out in the open to suffer the bitter cold. The Court condemned the act as being ‘inhuman’ and ordered the railways to come up with a plan for rehabilitating the Shakur basti dwellers.

These migrants were from economically poor rural areas of Bihar, with very little or no employment opportunities with many of the state’s Chief Ministers busy with other matters, often feathering their own nests and doing little or nothing for development of Bihar’s rural population. All those who come to Delhi and Mumbai –subjecting themselves to life in inhumane conditions – are economic migrants and victims of both corruption and non-development back home. They hope to seek justice in the courts of law against the inhumane treatment of arbitrary evictions. They await alternate accommodation and sensible rehabilitation which is a logical requirement arising out of their predicament.

Only when our Courts of justice evolve a comprehensive understanding of the overall ground level situation affecting vast sections of the Indian urban poor, will substantive justice in human terms, result.

Significance and Nature of the Pavement Case

Pavement dwellers and public interest organizations claim eviction of pavement dwellers violate the right to life under the Constitution by depriving them of their livelihood; right to life includes protection of means of livelihood; obligations to provide natural justice before eviction but no automatic right to resettlement under Indian constitutional law.

Summary:
In 1981, the State of Maharashtra and the Bombay Municipal Council decided to evict all pavement and slum dwellers from the city of Bombay. The residents claimed such action would violate the right to life, since a home in the city allowed them to attain a livelihood and demanded that adequate resettlement be provided if the evictions proceeded. The Court declined to provide the remedies requested by the applicants but found that the right to a hearing had been violated at the time of the planned eviction.

The Court held that the right to life, in Article 21 of the Constitution, encompassed means of livelihood since, “if there is an obligation upon the State to secure to citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to lie.” However, the right to a livelihood was not absolute and deprivation of the right to livelihood could occur if there was a just and fair procedure undertaken according to law.

The government's action must be reasonable and any person affected must be afforded an opportunity of being heard as to why that action should not be taken. In the present case, the Court found that the residents had been rendered the opportunity of being heard by virtue of the Supreme Court proceedings.

While the residents were clearly not intending to trespass, they found it was reasonable for the government to evict those living on public pavements, footpaths and public roads. The evictions were to be delayed until one month after the monsoon season
(October 31, 1985). The Court however declined to hold that evicted dwellers had a right to an alternative site but instead passed orders that stated that:

sites should be provided to residents presented with census cards in 1976;
slums in existence for 20 years or more were not to be removed unless land was

required for public purposes and, in that case, alternative sites must be provided;
(iii) high priority should be given to resettlement.

How has this path breaking decision been enforced?
The pavement dwellers were evicted without resettlement.
Since 1985, the principles in this case have been affirmed in many subsequent decisions, frequently leading to large-scale evictions without resettlement. For example, in the Narmada dam cases, adequate resettlement was ordered but most affected evictees have not been properly resettled and the majority of the Court declined to examine the extent to which their judgment was enforced: see Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664.

Significance of the Case:
Olga Tellis, the petitioner, has been on record to state: “Ironically,[the case] helped the propertied classes; lawyers often cite the case to justify eviction of tenants and slum dwellers. But it also helps the slum dwellers; the Government can't evict them summarily. The case also spawned a lot of interest in fighting for housing as a fundamental right … but if you were a pavement dweller, it is just not enough.” This case is widely quoted as exemplifying the use of civil and political rights to advance social rights but it is also viewed as problematic due to its failure to provide for the right to resettlement. It is also inconsistent with developments in other jurisdictions, where courts have found stronger rights to resettlement.

The judgement of Supreme Court in the case of Olga telis Vs state of Bombay is greatly influenced by this more humane consideration. This case was decided by a five judge bench of the supreme court in the year 1985.This case came before the supreme court as a writ petition by Olga Tellis on behalf of the pavement dwellers in the city of Bombay . The pavement dwellers constituted almost half of the population of the city of Bombay. The reason behind the filing of this writ petition is the decision of the respondents (Bombay municipal corporation and state of Bombay), that meant that all the slum dwellers and pavement dwellers in the city of Bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of Bombay, in accordance with section 314 of the Bombay municipal corporation Act 1988.

In fact, the pavement dwellings of some of the petitioners were demolished in pursuance of that decision, by the Bombay municipal corporation. The petitioners challenged the order of eviction issued by Bombay Municipal Corporation as being unreasonable and unjust without providing for alternative living facility. More over they claimed ‘right to livelihood’ as an integral part of their ‘right to life’ guaranteed under article 21 of the constitution. Further the petitioners contended that section 312, 313 and 314 of the Bombay municipal corporation Act are violative of Article 14, 19 and 21 of the constitution of India. The petitioners hence prayed for the quashing of the order of eviction and allow them to stay on the pavements. The majority judgement was delivered by chief justice Y.V.Chandrachud on behalf of the bench.
The main issues which were considered by the Court in this case are as follows-

whether the procedure prescribed by section 314 of the Bombay municipal corporation Act 1988 for the removal of encroachment from pavements is/was arbitrary and unreasonable?
Whether the order of eviction is/was the infringement of the petitioners ‘right to livelihood’ and in turn ‘right to life’ guaranteed under Article 21 of the constitution?
Whether the impugned action of the state government and the Bombay municipal corporation is/was violative of article 19(1)(3), 19(1)(g) and 21 of the constitution?

The decision of the Supreme Court in this case has been influential in this area of jurisprudence. The eviction orders were held valid under Article 14, and 19 of the constitution , but the right to life was widened enough so as to bring the ‘right to livelihood’ within the purview of ‘right to life’ under Article 21 of the Constitution. The Court held that the respondents (Bombay Municipal Corporation) must provide with alternative shelter to the petitioners before eviction from the pavements.

Critical analysis
The large population of the petitioners (slum dwellers and pavement dwellers) through this class action, compelled the Court to pen down conditionalities and due process before eviction. This was despite o the existence of specific law that provides for the eviction of such pavement dwellers and slum dwellers (Bombay municipal corporation Act 1988). Section 312, 313 and 314 of the Bombay municipal corporation Act 1988 deals with prohibition on housing and depositions of various items on the pavements by the dwellers. In this judgement, the Court held that although the petitioners were using pavements and public properties unauthorisedly, they are in no way “criminal trespassers” under section 441 of the Indian penal code since their object or reasons for doing so was/is not to commit any offence or intimidate, insult or annoy any person. Rather they are/ were compelled by inevitable circumstances and are not guided by choice.

Much of these findings would be relevant to assess whether or not due process was followed before/during the Shakur basti and Balegaon demolitions in Delhi in October and December 2015.

(The writer is a senior journalist based in Mumbai)

Raid as political vendetta?

December 16, 2015

The Central government’s defence of the Tuesday morning (December 15, 2015) raid at the offices of the Delhi Chief Minister has been based on the existence of some allegations of corruption against his Principal Secretary. Surely, they (the central government) say, the CBI can act to investigate and bring to justice this errant officer. To oppose the CBI’s actions yesterday, is to oppose the fight against corruption. While this is a seductive argument, as all simplistic arguments tend to be, it is also perniciously incorrect. The CBI’s act of raiding the office of the Chief Minister was clearly intended to send a message to a political opponent. And to the bureaucracy as a whole. To anybody familiar with criminal law, there are many aspects of this raid which raise troubling questions about the CBI and its functioning.

The raid could have gone very differently. Imagine the chief investigating officer approaching the Chief Minister with a written demand/request/notice for producing the desk and files of his Principal Secretary for examination and scrutiny. Could the Chief Minister have refused? Section 91 of the Code of Criminal Procedure read with the Delhi Special Police Establishment Act grants a CBI officer, above the rank of a sub-inspector, the power to make such a written request. I use the word ‘request’ here but Section 91 makes it clear that this would not be a request, but a binding order, violation of which is punishable under the Indian Penal Code. The Chief Minister could not have refused to comply with it and he would have had to hand over the files and documents asked for. He could, however, have insisted that since there are many (other) sensitive files kept in the custody of the Prinicipal Secretary which ought to be protected from legal seizure, that the team carrying out this inspection should be accompanied by a responsible Delhi government official.

The CBI team would (or should) have welcomed this as they would require an impartial public witness to the inspection of documents and any consequent seizure. Any government officer present in the Secretariat would have served the purpose. This is standard procedure. The presence of this witness would have buttressed the sanctity of any incriminating material recovered during such an inspection. This witness would have come to Court and testified to support the CBI’s case against the accused. CBI had everything to gain by following the procedure laid down by law. It would have been a new feather in its cap.

Yet, they chose to enter the Chief Minister’s office without any warning, keep him and his staff out and then proceeded to search the office hoping that everybody would take them at their word which was that they had carried out the search in accordance with law and procedure and, most critically, not touched any files which they were not relevant to the exercise. CBI officers are well-trained investigators and are also well versed in the ways of the politics of power. It is therefore safe to assume that the manner of search and ignorance of the law was deliberate. It is also pertinent and relevant to mention here that under Section 165 of the Code of Criminal Procedure, the CBI enjoys the power, in appropriate cases, to carry out a search without any prior warning if they are of the opinion that evidence may be lost or destroyed due to any delay in the search. Here, there was apparently no such danger. The CBI itself has said that a search warrant was obtained from the Magistrate’s Court which can only be obtained in a situation where it is feared that the person from whose custody evidence is sought may destroy that evidence. We do not know the reasons given to the Magistrate by the CBI at the time of obtaining this search warrant but they presumably made out a case for imminent danger of destruction of evidence. If the CBI were actually afraid that Mr. Rajender Kumar could interfere with the evidence they could have detained or even arrested him, but that would have meant that the matter would immediately land up before the Courts where the CBI — unlike when they merely ask for a search warrant — would have had to actually face scrutiny of their actions.

If the CBI’s intentions were honourable it could have inspected all of Rajender Kumar’s files with the cooperation of the Delhi Government. The question that arises is why the CBI chose not to even approach the Chief Minister. This is baffling

A raid, on the force of a search warrant issued by a Court, could or should have been undertaken only if there was an apprehension that the person having control over a certain thing (the desk and files of the PS to the CM, in this case)would not produce it before the police of his own accord, when directed under law, to do so. In this case, documents were available with the officials of the Delhi Government, including the Chief Minister. If the CBI’s intentions were honourable it could have inspected all of Rajender Kumar’s files with the cooperation of the Delhi Government. The question that arises is why the CBI chose not to even approach the Chief Minister. This is baffling.

If the investigation had been carried out with the aid of the Chief Minister, there would have been no controversy. The Central government would, however, have lost an opportunity to blame Arvind Kejriwal for shielding the (allegedly) corrupt. Kejriwal has also alleged that the target of the CBI are the files relating to Mr. Jaitley’s tenure as president of the Delhi and District Cricket Association. Kejriwal has also raised the other, rather pertinent point that if the allegations of corruption pertain to a posting Rajender Kumar had with the previous government, there was no particular purpose to be served by searching the files he was handling in his current posting.

The true intent behind the actions of the CBI are perhaps best left to speculation at this stage. This kind of speculation tends to border on the sensational and thus overshadows the seriousness of the issue on hand, which is the malicious use of a central investigating agency by the government of the day, to browbeat its political opponents.

The strategy of the Central government, key members of which were members of the Gujarat government in days not long gone by, seems to follow the Gujarat model of targeting their opponents. The strategy of tiring out opponents through incessant litigation by misusing state machinery is an integral part of this model. Police officers like Kuldeep Sharma, Rahul Sharma, Satish Verma, R.B. Sreekumar and Rajneesh Rai all of whom have been brought into sharp conflict with the Gujarat government they once served, simply because, at the relevant time, they did their job within legal and Constitutional boundaries. Yet they have had to fight a vindictive state apparatus, every step of the way, simply for retaining terms of service or a place within the force. All of them have been targeted with charges that are absurd (these include truth-telling before the Nanavati-Shah Commission) and have been forced to approach the Courts for relief from this government onslaught. The same has been done to activists and politicians from the opposition, or at least those among them who could not be co-opted by the government.

It is a strategy of death by attrition, of miring all opposition figures in manufactured legal wrangles which have no future but are sufficient to keep any individual or organisation, both distracted and exhausted. One cannot, at this stage, speak about the culpability or innocence of Rajendra Kumar (principal secretary to chief minister, Arvind Kejriwal). It is however unfortunately, quite easy to see that he is the victim of collateral damage in this particular, ill conceived political battle. Bureaucrats, as a breed play safe, and this message coming from the very top, sends a sinister message to others serving political opponents. After all, as long as all political opponents are busy countering these manufactured attacks, the work of governance or what passes for governance these days, can carry on, unquestioned.

(The writer is a Delhi based lawyer)

Thanks but no thanks: Leading activist declines state honour

December 16, 2015

Jagmati, general secretary, AIDWA writes to Maneka Gandhi protesting government’s anti-people politics

Jagmati Sangwan, a fiery activist and academic from Haryana who has initiated and led the campaign and struggles against honour crimes and the role of khap panchayats has declined to be honoured by the Modi government

In a polite but strong letter to the union minister for Women and Child Welfare, Maneka Gandhi, Jagmati Sangwan has turned down a potential honour from the Modi government. Around December 10, 2014, International Human Rights Day, the central government had, through a letter informed her that she had been shortlisted as part of 100 Women Achievers to be honoured in the category of 'Women in Public Life'.

Four days later, on December 14, 2015 she has, in a letter to Maneka Gandhi politely but firmly declined the honour. Her letter available with Communalism Combatonline states,

“I would like to very humbly request you to take my nomination out of this award process. I am writing it to you with a heavy heart in the background of Haryana governments decision to put conditions on contesting panchayat elections which in effect have meant that 83% of Scheduled Caste women, 72% of the General category women, 71% of Scheduled Caste Men and 56% of general category men and overall 67% of general citizens in the state cannot contest the local elections.

As you may be aware, it was after long fought struggle and assertion by women that their participation in the local bodies was ensured. However, such a decision taken by the state government would only be detrimental to what we have achieved so far.
You are also aware about the massive fund cuts that the central government has undertaken in women friendly acts in the 2015 budget.

The day to day survival of women has only become more difficult in recent years as we feel that the central government has pulled itself (away) from its responsibility to safeguard the interests of women and other vulnerable sections including children.
In this present scenario, I do feel that my work along with millions of other workers of my organisation is in complete contradiction to what your government is aiming to achieve. Therefore, I would like to keep myself away from any award conferred by the government at the present juncture.”
This missive from a woman from the grassroots representing India’s largest woman’s organisation, is a blow to the Modi regime, keenly seeking respectability and considered, otherwise to be a master of symbolism.

Homeless and Cold

December 15, 2015

Demolitions violated the law, the Shakur Basti Demolition

Image Courtesy: indiatoday.in

Communalism Combatonline team

Six month old Rukaiyya died as her parents Mohammad Anwar and Safeena Khatoon rushed to save what they could as of their shanty as their home faced demolition by a bulldozer during a drive by the Indian railways on Sunday, December12 at the Shakur basti slum in north west Delhi raising serious questions of the fundamental rights of the homeless in the country. The temperature in the capital had dipped to a bitter 6.8 degrees Celsius on the day the authorities decided turn their lathis and bulldozers on the homeless.

Two demolitions, in the span of a fortnight smack of similar arbitrariness in action. One demolition took place at Belagaon on December 1 (conducted by the DDA), and the second by the Railways on Shakur Basti on December 12, 2015. A question that repeats itself every time such a demolition drive is undertaken is why such brute demolitions of home and hearth take place either during the pouring rain or the bitter cold.

The Railways and the Delhi Development Authority (DDA) are the two authorities that carried out this demolition. While the former is under the union government, the second is under the Lieutenant Governor of Delhi. Several judgements of the Delhi High Court including Sudama Singh and Ors.vs. Govt. of NCT Delhi (11 February 2010), have ordered for due process to be followed before any such action is undertaken.

According to these judicial pronouncements, due process includes an adequate survey, notice, and rehabilitation to be carried out before any demolition/eviction in Delhi. The Delhi Housing Rights Task Force (DHRTF)—a collective of individuals and organizations concerned with, and working to protect and promote, the human right to adequate housing in Delhi and across India has strongly condemned this action at the peak of winter. Besides the DHRTF has said that both these demolitions without due process and in violation of the Constitution of India, court judgements, and international human rights standards, including the United Nations Basic Principles and Guidelines on Development-based Evictions and Displacement.

Judiciary to the rescue, again

PIL against demolition

S Muralidhar and Vibhu Bakhru, Delhi High Court:
“What was the tearing hurry to demolish in December? …You really don’t care about the people, you just want to remove them,…There were a number of children suffering out there”

“Was there any survey?..“Railways had no business removing people”. Those who were forcibly evicted were protected from removal under the Delhi Urban Shelter Improvement Board (DUSIB) policy and the Delhi Laws (Special Provisions) Act which provides for protection of jhuggi clusters which existed before 2006.

“You are forgetting what your role as a public authority is. Your role is to ensure that people who satisfy the eligibility criteria don’t get removed. Just because you’re the Railways doesn’t mean the law doesn’t apply to you,” the bench said. The court directed that “responsible senior officials” from the Railways, Delhi Police and DUSIB be present in court Wednesday “with all relevant documents” to answer queries on the demolition drive.

Counsel for the Railways (evicting authorities) Jagjeet Singh: I have not received any briefing from officials except for the information that notices had been issued prior to the demolition.

Jagjeet Singh : Railways “not responsible for rehabilitation” since it did not have alternate land. Singh told the court that Railways had “paid 11 crore to the DUSIB” to remove the jhuggi cluster but the agency failed to do it.

DUSIB counsel: We were not even been informed that the demolition drive was to take place.
Railways Counsel Singh: The removal of the jhuggi cluster was “necessary” since it was “right next to the railway tracks.” “We had to remove them because they were in the safety zone… they were sitting on the tracks and stopping trains. There were also deaths,” Singh argued.

Bench refused to accept the argument.

Court: “Are they safe now? You have forced them to suffer and shiver in the cold. Every minute that they sped out in the cold counts,” the bench said. The Railways claimed that notices for pending demolitions had been issued in March and again in September, but the drive could not be carried out as Delhi Police delayed providing police personnel to support the demolition drive. “ The bench also refused to accept the argument that the demolition drive was undertaken under orders from the National Green Tribunal which last week imposed a fine of Rs 5 lakh on the Railways, and 1 lakh each on DDA and DUSIB for failing to clear jhuggi clusters near the railways tracks. The bench commented that the government “did not take action” on several orders issued by various courts “till heavy costs were imposed.” “Given the scale of the human tragedy, the court expects all parties to act in coordination to ensure that relief and rehabilitation are given to persons who lost their homes. This should be done without regard to the legality of the Shakurbasti slum as it existed,” the bench said.

(The PIL has been filed by Congress leader Ajay Maken through advocate Aman Panwar who sought court orders to “ensure” rehabilitation of the displaced residents of the jhuggi cluster)

People in Belagaon and Shakur Basti, however, were not even given sufficient time to remove their belongings before their homes were demolished. Affected families have been left out in the cold with no provisions for alternative housing or compensation for the loss of their homes and belongings.

Through this brazen action carried out on a cold winter’s day when the temperature was at 6.8 degrees Celsius, the state authorities have been in contempt of these judgements of the High Court. Besides these actions have violated, the human rights to adequate housing, information, security of the person and home, food, water and sanitation, health, education, work/livelihood, the right to reside and settle in any part of the territory of India, and most importantly, the right to life.

While a six-month-old baby girl was killed while the demolition was in progress, another young girl suffered serious injuries, as a result of which she has had to miss her school examinations. After the outcry, the police has registered a case under section 304 A (causing death due to negligence) at Punjabi Bagh police station. Anwar, the father of the small child has, in a statement said a tied bundle of clothes fell down on the girl sleeping on the floor as the family was in a hurry to vacate their shanty.

Delhi has a population of over 150,000 homeless people, only about two per cent of who are accommodated in shelters. It is a cruel irony that the central government is demolishing homes and rendering more people homeless despite its claims to provide ‘Housing for All.’

In a press release issued yesterday, the DHRTF has said that while the Delhi government has condemned this act of the Railways, and DDA has agreed to stall evictions during the winter, DHRTF believes that concerned officials of both agencies must be held accountable for the grave violations of human rights, and tried according to the law. This is especially important given the refusal of the Railways to accept responsibility for the death of the baby. Members of DHRTF also object to the statement made by the Minister for Railways in Parliament on December 14, 2015 that, “Such encroachments are the main source of garbage and open defecation, etc.” This reflects a very strong prejudice against the marginalised and homeless population of the city.

The Delhi Housing Rights Task Force had, in fact, written a letter to DDA on 1 October 2015, requesting the authority not to carry out any demolitions in Delhi. In particular, the letter stated: “Impose an immediate moratorium on all demolitions of existing settlements on all DDA land. The winter season is approaching and any further demolitions at this stage will result in thousands of people being left homeless on the streets of Delhi in the intense cold weather, exposing them to the risk of death, which is in violation of directives issued by the Supreme Court of India.”

Given the recent demolitions in Delhi, the DHRTF has submitted a list of the following demands to the Government of India:
1. Impose a moratorium on evictions in Delhi on all central government land (in accordance with the directive of the Delhi government).
2. Provide immediate relief, including accommodation, food, water, medical supplies, and healthcare to all evicted families.
3. Compensate the affected families for loss of their homes and belongings, and provide immediate assistance to help families rebuild their homes at the same site.
4. Provide alternative uniforms, books, and other educational material to children and ensure that they are able to resume school and appear in their examinations.
5. Give special attention to pregnant and lactating women, infants, children, older persons, persons with disabilities, and persons with illness/health concerns, Dalits, and minorities.
6. Coordinate with the Delhi government and the Delhi Urban Shelter Improvement Board (DUSIB), and provide all the necessary information and support to the affected families.
7. Ensure that all officials responsible for the demolition and loss of homes and life are investigated and tried according to due process of the law.
8. Ensure that provisions of Pradhan Mantri Awas Yojana (Housing for All by 2022) and the National Urban Livelihoods Mission – Scheme of Shelters for Urban Homeless are implemented in Delhi.
9. Make adequate budgetary provisions for low-cost housing, especially for in situ upgrading and construction of housing for the homeless. This should include hostels, women’s homes and shelters, family shelters, short-stay homes, rehabilitation centres, special homes for destitute and marginalised groups, which are linked to livelihoods of the urban poor.
10. Ensure reservation for Economically Weaker Sections (EWS) housing in all real estate/housing projects and develop a human rights-based law to provide affordable adequate housing for EWS and Low Income Groups.
11. Implement orders of the High Court of Delhi and Supreme Court of India.
12. Implement international law and guidelines, including the UN Basic Principles and Guidelines on Development-based Evictions and Displacement.

Members of the Task Force have also called upon the government to ensure that it meets its commitment to protecting the human rights of all residents and takes immediate steps to provide restitution for the human rights violations resulting from its act of commission and omission.

References

Shakur Basti demolition drive: Children suffering in cold, you don’t care, Delhi High Court tells Railways. http://indianexpress.com/article/cities/delhi/shakur-basti-demolition-drive-what-was-the-tearing-hurry-delhi-high-court-raps-railways/
Shakur Basti dwellers freeze in open after slum demolition http://timesofindia.indiatimes.com/city/delhi/Shakur-Basti-dwellers-freeze-in-open-after-slum-demolition/articleshow/50167165.cms
Shakur Basti demolition: Case lodged in toddler's death; slugfest between political parties http://zeenews.india.com/news/delhi/shakur-basti-demolition-case-lodged-in-toddlers-death-slugfest-between-political-parties-intensifies_1834522.html

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Demolitions violated the law, the Shakur Basti Demolition

Judiciary to the rescue, again

PIL against demolition

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Image Courtesy: eprahaar.in
Olga Tellis on Arbitrary Evictions