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Challenging Compacts

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On 14 January 2018, the Catholic Church will observe the World Day of Migrants and Refugees. The theme this year is“Welcoming, Protecting, Promotingand IntegratingMigrants and Refugees”; Pope Francis in his message highlights “the Church’s concern for migrants, displaced people, refugees and victimsof human trafficking”. He makes a passionate plea for more meaningful commitments from every section of society and challenges all for a more proactive response to the cries of the migrants, refugees and other displaced. 

Migrants

The historic‘United Nations Summit for Refugees and Migrants’ was held in New York on 19 September 2016. It was the very first time that the  UN General Assembly had brought together Heads of State and of Government to develop a blueprint for a more effective international response to perhaps the single most important crises of modern times, which affect millions across the globe today.

The outcome of that watershed meet was ‘The New York Declaration’, which was signed by 193 Member States (including India). It stated, “We declare our profound solidarity with, and support for, the millions of people in different parts of the world who, for reasons beyond their control, are forced to uproot themselves and their families from their homes. Refugees and migrants in large movements often face a desperate ordeal. Many take great risks, embarking on perilous journeys, which many may not survive. Some feel compelled to employ the services of criminal groups, including smugglers, and others may fall prey to such groups or become victims of trafficking. Even if they reach their destination, they face an uncertain reception and a precarious future. We are determined to save lives. Our challenge is above all moral and humanitarian. Equally, we are determined to find long-term and sustainable solutions. We will combat with all the means at our disposal the abuses and exploitation suffered by countless refugees and migrants in vulnerable situations”. (#8-10)

To realise in practise the lofty ideals encompassed in the Declaration, world leaders committed themselves to drafting and approving, by the end of 2018, two Global Compacts: one regarding refugees and the second, for safe, orderly, regular and responsible migration. Both these compacts are meant to comprehensively protect, promote the rights and integrate migrants and refugees into the mainstream. It is not going be smooth sailing. Already on 3 December 2017, the United States announced that it was withdrawing from the two Global Compacts. India on the other hand has literally shut its doors on the persecuted Rohingya refugees fleeing Myanmar. Xenophobia, racism, discrimination and exclusiveness is on the rise in several countries. Fortunately, most of the world is still concerned about the plight of refugees and migrants and hopefully, by the end of 2018, the two Global Compacts will see the light of day!

Pope Francis reminds world leaders of that Summit saying, “At the United Nations Summit held in New York on 19 September 2016, world leaders clearly expressed their desire to take decisive action in support of migrants and refugees to save their lives and protect their rights, sharing this responsibility on a global level.  To this end, the states committed themselves to drafting and approving, before the end of 2018, two Global Compacts, one for refugees and the other for migrants. Dear brothers and sisters, in light of these processes currently underway, the coming months offer a unique opportunity to advocate and support the concrete actions, which I have described with four verbs.  I invite you, therefore, to use every occasion to share this message with all political and socialactors involved (or who seek to be involved) in the process which will lead to the approval of the two Global Compacts”.

On 1 January 2018, the World Day of Peace (India observes it on 30 January, the anniversary of the martyrdom of Mahatma Gandhi) the message of Pope Francis focused on “Migrants and refugees: men and women in search of peace”.His message is an invitation to “all people and all nations on earth” to realise that refugees and migrants are “men andwomen in search of peace”. He urges all through four key verbs to welcome, protect, promote and integrate migrants and refugees saying, “In a spirit of compassion, let us embrace all those fleeing from war and hunger, or forced by discrimination, persecution, poverty and environmental degradation to leave their homelands. We know that it is not enough to open our hearts to the suffering of others. Much more remains to be done before our brothers and sisters can once again live peacefully in a safe home.”

In order to prepare a more effective response theMigrantsand Refugees Section (M&R) of the Vatican has published a significant booklet ‘Towards the Global Compacts on Migrants and on Refugees 2018’. This document (https://migrants-refugees.va/20-action-points )is rich in content with practical points for committed engagement from all sections of society. Itis an open invitation to reflect, to internalise and to engage in practical responses in order to respond to the realities of the refugees and migrants today. The document needs to be shared with all women and men of goodwill… All are encouraged to interact with political and social actors, at every level, to ensure the approval of the two Global Compacts! Several organisations are already involved in this campaign. The Jesuit Refugee Service (JRS) http://en.jrs.net  for one, has adopted the hashtag #Do1Thing so that the Global Compacts become a reality among all.

The compacts and the journey towards them are challenging indeed. Their actualization necessitates a radical change in our attitudes and a political will for its implementation. Onlythen, will we be able to say that we are serious in our commitment to welcome, protect, promote and integrate migrants, refugees, and the displaced.                                                                                                                            
 

* (Fr Cedric Prakash sjis a human rights activist. He is currently based in Lebanon, with the Jesuit Refugee Service (JRS) in the Middle East on advocacy and communications.
Contact:cedricprakash@gmail.com)   
 

What really happened in Bhima Koregaon

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Fact finding report by Rashtra Seva Dal unearths a Saffron conspiracy

Bhima Koregaon

On January 1, 2018, thousands of Dalit families that had gathered at Bhima Koregaon to pay homage to the Dalit Mahar martyrs of the Anglo-Maratha war of 1818, were targeted and attacked by members of extreme right wing Hindutva groups. The saffron goons not only pelted the Dalit gathering, where there were thousands of women and children, with large stones, but also set their cars and buses on fire. Neighbouring villages meanwhile engaged in a social boycott and shut down their shops, thereby denying the gathered Dalits the opportunity to even purchase bottled water. Following are the findings of a fact finding investigation by members of the Rashtra Seva Dal, a social welfare organization working in the field of Dalit rights.

Located at the eastern side of Pune and situated on the banks of River Bhima, Koregaon-Bhima can be traced along Pune –Ahmadnagar highway and approximately 25 km from the Pune City whose population is around 7000-8000.

January 1, 2018, was the occasion of celebrating the completion of 200 years of Bhima Koregaon battle. It is considered to be a valor day for Mahar regiment and was initiated by Dr B.R. Ambedkar nearly 90 years ago in 1927. From 1927 to 2018 the number of people belonging to and consisting of depressed classes from all over Maharashtra increased magnificently from a few thousands to nearly around 1.5 million this year.  Prior to this year’s conglomeration a substantial number of conferences were held all over Maharashtra in which hundreds of anti-caste groups under the banner of Elgaar had participated including that of Rashtra Seva Dal also.These conferences facilitated the record turnout at Bhima-Koregaon this year. The state administration was well –informed about all these developments. 

In the year 1990-91, on the special occasion of the death anniversary of Mahatma Jyotirao Phule and the birth centenary of Dr B.R.Ambedkar, a decision was taken to celebrate certain historical events like the establishment of the first women’s school at Bhidewada, Pune and the locations having historical significance like the birthplace of Savitribai Phule at Naygaon, Pune. Along with that, it was also decided to commemorate the things which have hitherto remained marginalized like the installation of the first statue of Gautam Buddha by Dr.B.R. Ambedkar on Dehu road near Pune. Celebration of the victory memorial of the Bhima-Koregaon battle as it was initiated by Dr.B.R Ambedkar on January 1, 1927, was also a part and parcel of this broader objective.

The Bhima-Koregaon war was fought between the British forces on the one hand and the Peshwas forces on the other. In that Peshwas had near about 20,000 soldiers while the British regiment known as Bombay Native Infantry, 2nd battalion consisted of merely around 1000 soldiers. However, latter were armed with better quality of arms and ammunition. This particular regiment consisted mainly of Mahar community soldiers. Ultimately, the battle won by the British resulted in the downfall of Peshwa regime. It was during this regime that atrocities related to the caste system were at its peak and the then untouchables along with women were at its receiving end. They were the most severe victims of caste-oppression and humiliation. The then untouchables were required to carry a pot hung from their chest to belly so that whenever they spit the matter should not fall on ground as it is considered to be impure. Further, a broom was also used to be tied at the back of their waist so that while walking on the ground the impure traces of their footprints should automatically be get cleaned & cleared. This humiliation was the most prominent reason behind the Mahar community’s participation in the brave fight from the British side. That’s the reason behind Dr. Ambedkar’s commemoration of the event as a victory day.

Another version of this episode was that the end of Peshwa regime did not automatically resulted in putting a full stop to the caste oppression. Instead, in the aftermath of 1857 Sepoy Mutiny (which is also being upheld as the First War of Independence within the ranks of nationalist historiography), the British regime assured both the Brahmins and the Muslims that they will not interfere in the religious affairs of the indigenous communities. They discontinued with the recruitment of separate Mahar regiment in accordance with this assurance. Thus, as per the proponents of this version of history, the British strategy should be looked upon with a suspicion and thereby we should refrain ourselves from celebrating this battle as a Victory Day which according to them amounts to being an anti-national. The descendents of the Peshwas along with Hindutva forces hold on to this view and had also approached the court to demand a ban on the celebration of this day as a Victory Day. However, their petition was rejected by the court. Interestingly, the War Memorial has been standing at that place for the last 200 years with the Martyr’s names inscribed on it. It consist not only the names of the soldiers from the Mahar Community but also a few Maratha and Other Backward Caste soldier’s names are visible alongside.

A few kilometers away from this memorial, a mausoleum of Chhatrapati Sambhaji is also situated at a village called Wadoo (Budruk). Renowned historian V.C Bendre had discovered this mausoleum in the year 1939 which can be located in the Dalit locality of the village. Sambhaji, the then scholar of Sanskrit language became an eyesore to the Brahmins as gaining the knowledge of Sanskrit was prohibited for the non-Brahmins on the basis of Manusmriti dictums. These Brahmins advised Aurangzeb to punish Sambhaji in accordance with the Manusmriti code which included the brutalities like to take out his eyes for the crime of reading Sanskrit Vedas, to cut off his head for memorizing them along with his body to be thrown out into pieces. A fatwa was issued prohibiting the cremation of his body parts. However, there was one Govind Mahar who took up the responsibility of late Sambhaji’s last rites and duly cremated his body after sewing up those parts and pieces. Renowned historians apart from V.C.Bendre like Kamal Gokhle and Shrad Patil had also corroborated this version.

However there is another version coming from Hindutwavaadi forces is that the body parts were not sewed by a Mahar but was done by a Maratha. Hence the Marathas of the village are claiming that it is the ancestor of a Maratha Family named Sevale who had performed the last rites of Sambhaji. The Hindutwavaadi forces are giving this twist to the story of punishment to Sambhaji for the last 25 years in western Maharashtra which has added fuel to fire in the riots on January 1.   

On December 28, 2017, existing family members of the Govind Mahar had fixed a board indicating direction towards his Sambhaji’s mausoleum. However, certain miscreants from the same village removed the hoarding. They also removed and threw away the shed over the mausoleum of Govind Mahar. Latter’s family members lodged a police complaint and accordingly 49 people were arrested from the village. On January 1, 2018, a rumor spread like a wildfire that some suspicious activity is taking place at Sambhaji Maharaj’s mausoleum. An organization called Hindu Aaghadi has been active for quite some time in this area. They have been holding public meetings for the last three weeks and were issuing warnings to the people in the gathering that those who would assemble on January 1, would be considered as anti-national. One amongst them held a press conference on December 28, 2017 at Pune and publicly said that probably India is the only country in the entire world where some anti-national elements can celebrate the victory of a foreign power over nationalist forces (i.e. Peshwas) and the incumbent government instead of interrogating them provides all facilities to hold such public gatherings.

On December 29, 30 and 31, 2017, law and order was presided over Bhima –Koregaon, Wadoo (Budruk) along with Sanaswadi. However, some strangers were found loitering around these villages. The Bhima-Koregaon village council had passed a resolution to observe a shutdown on January 1, 2018 and had also submitted a copy of the resolution to the nearest Police Station at Shikrapur. But the Police ignored it and grossly underestimated the situation.

On January 1, 2018 people from all over Maharashtra were approaching to gather at Bhima-Koregaon. On the other hand, thousands of people with saffron flags had assembled at Wadoo (Budruk) around 10a.m.The open space around Bhima-Koregaon was filled with the vehicles parked by those who came to celebrate the memorial and Victory Day. After parking their vehicles, people came walking for 3-4 kilometers towards the memorial which included women, children and elderly. Around 11 a.m., an attack was launched upon them by the bearers of the saffron flag. Hundreds of vehicles were burnt down. The riots escalated further towards the Sanaswadi and Chakan-Shikrapur road. The attackers were duly equipped with stones and other sharp-edged weapons. Ashop belonging to one Salim Inamdar was set ablaze. Petrol was freely used to burn the vehicles. A warehouse belonging to one Salim Khan was set on fire. A tyre-shop belonging to one Asgar Ali Ansari was burnt. His younger brother who had taken shelter inside the shop fled when the shop was put on fire. A cylinder in the adjacent hotel got burst which burnt the shop Sarvesh Autolines belonging to one Bhausaheb Khetre. The two trucks (truck no. MH-12-786 and MH-12- 2757) in front of one Razzak Bhai’s garage were put on fire. A shop belonging to one Shivraj Prajapati displaying the nameplate- ‘Ranabhai Marble’ was looted. A warehouse of firewood belonging to one Haribhau Darekar was burnt.

One Dalit by the name of Sudam Shankar Pawar, a project affected person who had been rehabilitated in the Sanaswadi and who had received two acres of land out of which 1 and ½ acres is used for Sugar Cane cultivation while in the rest of his land a Buddha Vihar has been built along with a meeting hall and an open space. He has also built 29 one room row houses (Chawl). On January 1, 2018, around 6pm a crowd marching from the side of a steel factory entered his field and broke the vehicles parked in his open space and put on fire his sugar-cane field from all the sides and also broke the glass –panes of the Buddha VIHAR. Interestingly, the houses and the fields belonging to Darekar and Hargude remained intact which were just in front of his home. Thus, it becomes apparent that the rioters had targeted only Sudam Pawar’s house and field because he is a Dalit. Similarly, the attackers also pelted stones towards the houses of Ravi Kamble and Athwale. The studio of a famous painter and sculptor, Elvin Fernandes was also burnt. The property of Mr. Mutha Jain was put on fire. On the Pune-Ahmed Nagar road, the fire brigade vehicle was also put on fire. In total 5000 vehicles were destroyed. 50 cars and luxury buses were burnt.
Following questions can be raised with regard to the whole incident:-
 

  1. Who took the decision for the shutdown on January 1, 2018? How come a village which claims to provide hospitality to the outsiders every year gave a call for shutdown on very day this year? As a result of which the visitors did not even get a glass of water to drink.
  2. We noticed a tremendous fear among the common people in the Bhima –Koregaon who requested us repeatedly not to write their names in our report. Due to this same fear, the existing family members of the Govind Mahar of Wadoo-Budruk who had filed a case earlier have retracted now. All 49 people who were arrested in the case of destruction of Govind Mahar’s mausoleum have now been freed. What is the cause of this fear psyche?
  3. The Hindutva forces which are clearly involved in this entire episode are roaming freely around, giving interviews and putting up distorted video clippings on social media relegating the entire blame at the doors of Dalits for whatever happened. What is the state administration doing?
  4. This whole episode clearly indicates an attempt directed to divide the Dalits and the Marathas along caste lines thereby disrupting the social fabric of Maharashtra. Why the law and order agencies are not paying any attention to the polarization effect taking place due to this incident? 

Our demands are as follows:-

  1. Arrest immediately the main culprits involved in the riots of Bhima-Koregaon.
  2. A judicial inquiry must be immediately instituted and it should duly publish its report.
  3. The role of the police and the administration should be investigated and the guilty persons should be punished accordingly.
  4. The role of the media in this entire episode should be scrutinized.

 
Team members of Rashtra Seva Dal who conducted this fact finding are:-

  1. Dr. Suresh Khairnar (President)
  2. Allauddin Sheikh
  3. Vinay Sawant
  4. Feroz Mithiborewala
  5. Puja Badekar
  6. Shivraj Suryavanshi  in association with
  7. Bharat Patankar and
  8. Kishor Dhamale

Jamiat slaps Rs 20 crore defamation suit against UP Shia Waqf Board Chairman Waseem Rizvi

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Waseem Rizvi’s controversial remarks against madrasas in the country have now landed him in potential trouble. Rizvi, who is the chairman of Uttar Pradesh Shia Central Waqf Board, had said that the country’s madrasas ‘produced more terrorists than civil servants’ in a letter addressed to the Indian Prime Minister and UP Chief Minister Yogi Adityanath on January 8.

Wasim Rizvi
Image: ANI

Incensed at the accusations made by Rizvi, Mustaqeem Ahsan Azmi, president, Jamiat Ulama-e-Maharashtra, has sent a defamation notice to Rizvi. “You have issued a statement which is not only completely false and incorrect but also disparages all the madrasas in the Country,” says the legal notice sent by the appellant’s lawyer Shahid Nadeem, a Malegaon-based lawyer practising in the Bombay High Court.

The notice further reads, “The said statement is nothing but a malicious attempt to cause damage to the reputation of the Madrasas being run by the Sunni Community in the Country, which would in turn fuel the ideological differences between the Shia and Sunni Community.”

In the letter, Rizvi made an arbitrary claim that the students studying in madrasas in the country cannot become anything but a terrorist. Rizvi said that the Madrasas produce “more terrorists than civil servants”. He further stated that “Our madrasa education system has failed to produce doctors, engineers and civil servants but some Madrasas have certainly produced terrorists.”

“The statement made by you adversely affects the reputation of the innocent children who study in Madrasas all over the country, by branding Madrasas as a place where terrorists are bred Keeping aside the children, these statements made by you also adversely affect the reputation of the teachers who teach in Madrasas all over the country,” said the notice further. “The bald allegations made by you cast serious aspersions on the character of the teachers who teach in such Madrasas and slanders their professional integrity and honour.”

Leading media outlets of the country gave voice to the statement made by Rizvi, who recently rose to fame after Shia Central Waqf Board came into the action soon Yogi Adityanath took charge as the UP’s chief minister. Rizvi is famous for projecting Shia Waqf Board as one of the parties in Babri Masjid-Ram Janmabhoomi demolition case, and alleging the Sunni Waqf Board holds no rights to the disputed land in Ayodhya.

The notice further said, “Many of the Madrasas being run in this country cater to the poorest members of the Muslim community and many of them operate as orphanages, providing shelter, food and education to the orphans. However, ever since the letter sent by you has been published, these Madrasas have been harangued by messages, calls and communications, expressing disgust, contempt and questioning their working and such Madrasas, which are tirelessly working for the downtrodden in the community, have for no fault of their own become victims of ridicule and contempt.”

Apart from the Rs 20 crore defamation suit, the notice also demanded Rizvi to submit an unconditional apology. Rizvi’s comment has caused an outrage among Muslims. The statement also must be seen in the light of various attempts on the part of the UP government, which Rizvi supports, to interfere in the matters of the state madrasas. Recently, the UP government slashed Eid and Muharram holidays from the madrasa school boards and added Hindu festivals like Diwali. Earlier, it had mandated the state madrasas to record Independence Day celebrations.

Courtesy: Two Circles
 

Hindutva Forces Want to Appropriate Ambedkar but not Impart his Teachings

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Pol discusses the history, symbolism of the Bhima Koregaon and what it means for the Dalits.

Interview with Prabodhan Pol
Interviewed by P.G. Ambedkar

Historian Prabodhan Pol talks to Newsclick about the recent violence in Bhima Koregaon. He discusses the history, symbolism of the place and what it means for the Dalits. Pol further talks about the relationship of Dalits and Marathas and how it has changed over time.

Courtesy: Newsclick.in
 

A Judiciary Made to Measure

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Close to two years ago, 15 months after the Modi government was sworn to power, an unholy controversy had arisen over the Modi regime’s open moves to influence India’s Supreme Court. Then attorney general, Mukul Rohatgi had made a series of aggressive, even controversial arguments in the Indian Supreme Court arguing for a supremacy of Parliament over the Supreme Court.

Supreme Court
 
A version of this article was published in the Indian Express on July 18, 2015. It makes for crucial reading today.
                                                                                      
It is barely eight days since the 40th anniversary of the Emergency was commemorated. A dark period in independent India’s history, the formal declaration of Emergency was preceded by a period when the government of the day, bit by bit, in a sinister manner, eroded the independence of India’s Judiciary. The separation of powers on which the basic structure of the Indian Constitution squarely rests, is firm in the fundamental formation of both Judicial Autonomy and Independence. It is this judicial integrity, autonomy and independence that are under direct assault and severe threat today.
 
The tone and tenor employed by the current Attorney General, when he made his arguments in support of the National Judicial Appointment Commission (NJAC) are not only unbefitting of the post, but reflect the downgrading of the position of Attorney General that has been reduced, by successive governments, from a Constitutional Authority qualified to advise the Court on the fundamentals of the Indian Constitution and law (even if this, at time, militates against the act of a particular Government), to the reductionist role of a defence counsel, defending the policies and individuals within the government in power at the relevant time.
 
So, among other things, Rohatgi said, pushing for the NJAC as it stands today, that the Parliament is supreme in our system and even the Supreme Court needs to bow before it.
 
How inherently wrong this interpretation is. The appointment of Judges, their elevation to the highest position, as chief justices of high Courts and the ultimate one of the Chief Justice of India, their transfer among high courts of the land, all these moves manifest the inherent powers which must be both autonomous and independent. Appointments and transfers cannot be at the behest of any government though in a democracy, the government and the opposition must play a significant role. That the present system requires course correction is true, that the appointments of judges needs to open itself to scrutiny and tests of representation is also valid, but the new path charted must answer to tests of transparency and accountability, not further obfuscate them.
 
Once before, between 1973 and the actual declaration of Emergency on June 25, 1975, we experienced the brute overreach of executive power, manifest not in just the taking of political prisoners –which included the unholy mix of Communists and Jan Sanghis – but in the actual move to manipulate the Supreme Court, and through it India’s higher judiciary. India saw then the erosion of institutional autonomy that was resorted to, brazenly, by the government of the day.
 
On 25 April of that year, the government had, in a shocking move, superseded in appointment to the position of the chief justice of India, three senior-most judges, Justices Shelat, Hegde and Grover and appointed Justice Ray. The reaction from the Bar was swift and instantaneous. Bar Associations across the length and breadth of the country, Bombay, Kolkatta, Madras, Chandigarh, Bihar, Allahabad, the outrage was unanimous and expression of it courageous. The chairman of the then Bar Council of India, Ram Jethmalani in an official statement declared it as “the most shocking display of executive arrogance” and six of the country’s eminent jurists, MC Setalvad, MC Chagla, JC Shah, KT Desai, VM Tarkunde and NA Palkhivala issued a strong statement the very next day condemning the Government’s move as “a manifest attempt to undermine the Court’s independence.”  Through this one act, the prime minister made her intentions of having a ‘committed’ judiciary clear, committed not to law and the Constitution but to the whims of the Government.
 
Over the last two months or so, the country has been witness to the brash and brazen face off between the present regime in power in Delhi and India’s Supreme Court of India. Within the next few weeks, will come a decision from the Supreme Court that will, whichever way it goes, have a lasting impact. There has been little substance and even less grace in the attorney general’s arguments that have bordered on the rude and arrogant. “Parliament is supreme” he has bellowed and the Court must bow to its supremacy, is one such. That the Supreme Court of India, and many of our High Courts face a serious issue of credibility, a reality based on both perception and reality, gives this face off an even more sinister turn. The regime is riding high on this perception, never mind the fact that it, itself represents a worldview that has in past and present conduct shown scant respect for the protection of our fundamental rights or the Constitution.
 
Given this complex scenario, it becomes necessary to look close and hard at the present attempt (even more crass than in the 1970s) by the executive to browbeat our judiciary. We need to step back in real memory to the May of 1973, when a historic protest meeting was held in Bombay. Among the galaxy of speakers that addressed the meeting and included M. Hidayatullah, JC Shah, CK Daphtary, HV Iengar, K Subha Rao and of course, NA Palkhivala, the speeches, pithy and substantive, voiced strong dissent against the then Central government’s brazen move. My grandfather, MC Setalvad, India’s first Attorney General was among the speakers. I was eleven at the time.
 
The speeches were inspiring and erudite. [They were reproduced later into a booklet, A Judiciary Made to Measure] published by NA Palkhivala.]  Setalvad, who had been both India’s first Attorney General and the chairperson of the first Law Commission and Palkhivala had both reacted sharply to senior lawyer and union minister M. Kumaramangalam’s speech in Parliament, defending the government’s action. There is a chilling similarity between what was said then and what Rohatgi is saying today.
 
Kumaramangalam, justifying the central government’s actions said that since Parliament was supreme in the Indian scheme of things, it was but natural that when it comes to the appointment of the Chief Justice, the Government of the day will select a person who shall uphold the Government’s view of the Constitution!  Setalvad, critiqued this interpretation as partisan and misguided since this meant that the Government was bound to uphold not the philosophy in fact underlying the Constitution but a particular Government (and by that logic, a particular party’s) understanding of that philosophy. 
 
To further quote, Setalvad, he said, “We all know that when a judge takes office, including the Chief Justice, he takes on oath of office and his oath pledges him, among other things, to decide cases in accordance with the Constitution. Now if he looks at the Constitution and feels that its interpretation, is according to him, in a particular direction or it has a particular meaning, he has not to give that direction or meaning to the words of the Constitution. He has to apply to the words of the Constitution, contrary to his own understanding, the philosophy of the Government. Let us analyse what the philosophy of the Government would, in ordinary practice, mean. The philosophy of the Government would mean the philosophy of the ruling party. Today it may be the philosophy of the ruling Congress, tomorrow it may be the philosophy of another party-it may be the Jan Sangh, it may be the Swatantra. Therefore, the judge or the Chief Justice has to keep track, when he is sitting on the Bench, in interpreting the Constitution, not of the language and the words of the Constitution, but of the philosophy of the ruling party which may change from time to time….”
 
What could be the consequences of such a move? Setalvad, “So, you have not to have an impartial Chief Justice but a judge or a Chief Justice who will bear in mind what, in effect, the Government thinks the Constitution means…….And the mischief does not end there. It goes further. Though the observations which were made in the Lok Sabha by Mr. Kumaramangalam refer to the office of the Chief Justice, they would apply all the way down to all judicial appointments. Every judge of the Supreme Court when making a decision in which Government policy is in question will have to think of his prospects of being appointed the Chief Justice and bear in mind what the philosophy of the Government of the day is, if he wants to be in good favour with the Government of the day is, if he wants to be in good favour with the Government in order to earn his appointment as the Chief Justice. Nay, it will travel down further. Take the judges of the High Court. Naturally and rightly they all aspire, as soon as they grow senior, to be selected for the highest Court in the land. But they must bear in mind that in order to be so selected they must also interpret the Constitution, not as they think it requires to be interpreted, but according to the philosophy of the Government in power at the centre for the time being.”As chair of India’s first law commission, MC Setalvad had with others also recommended that there should a severe restriction on post retirement postings for Judges of the higher courts.
 
Succinctly arguing against the ‘pre eminence of Parliament over the Court argument’, NA Palkhiwala, India’s pre-eminent jurist had said at the same historic meeting held in Bombay that,  “….Mr. Kumaramangalam has argued that the Government wants a Chief Justice who is able to recognize that Parliament is sovereign; that Parliament’s powers in relation to the future are sovereign powers….This ability required of the Chief Justice makes a mockery of the Constitution. Parliament has no unfettered sovereignty. The Constitution is supreme over Parliament; and not Parliament over the Constitution. The fundamental rights which are the basic human freedoms are fetters on Parliament’s powers. The Supreme Court has itself held by a majority in the great Constitutional case decided on April 24, 1973, that Parliament has no power to amend the Constitution in such a way as to alter the basic structure or framework of the Constitution; and the Government’s emphatic arguments to the contrary were expressly rejected. Mr. Kumaramangalam’s statement amounts to a refusal to accept the law as laid down by the Supreme Court.”
 
When we look back at those dark, dark days when authoritarian rule, the atrocities at Turkman Gate et al, the silver lining in the cloud were and are the audible protests from across the Bar. Today, when we await a verdict on which the future of India could hinge, a studied silence, by and large, prevails. Faced with a regime defined by its credo of vendetta-driven governance, the India that was built on the wisdom of men and women who had through sweat, principles and toil fought against a colonial oppressor, today needs to give voice to a spirited resistance that reaffirms our fundamentals.

Guardians of Democracy: 4 judges openly challenge Nepotism in the SC

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‘Preserve SC, Protect Democracy’ say the Judges in a press conference today. Read Letter to CJI

SC Judges

Four of the five senior most judges in the Supreme Court –five of whom constitutes its Collegium—have in an unprecedented move-challenged the CJI for alleged nepotism in assigning cases to pre-chosen benches in a press conference in New Delhi 

Four of the five senior most judges of the Supreme Court – Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – in a letter to Chief Justice of India Dipak Misra expressed concern on certain judicial orders passed by the top court which has “adversely affected the overall functioning of the justice delivery system.”

They said they sent the CJI the letter but didn’t hear back, and then they met him again this morning, to no avail.”We collectively tried to persuade the CJI that certain things aren’t in order so take remedial measures but unfortunately our efforts failed,” said Justice Chelameswar.The four judges said many “undesirable” things have occurred in the judiciary lately.”The administration of the SC is not in order and many things which are less than desirable have happened in last few months,” said Justice Chelameswar.

A few minutes before the press conference, the SC said, separately, that the “mysterious death of Justice BH Loya is a serious issue”. They asked the Maharashtra government to present all documents to do with his death to the court on Monday. Justice Loya was hearing the Sohrabuddin fake encounter case and died under mysterious circumstances.

The judges also had a grievance that the PIL seeking a probe into Justice Loya’s death was assigned to court no. 10 and not to any of the first four benches other than CJI-led bench.

 

  • The judges have—months after the issue has been festering– literally blown the lid off a growing rift with Chief Justice Dipak Misra. The explosive statements were made at a press conference “The four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country,” Justice J Chelameswar said on the lawns of his residence. He is the second most-senior judge of the Supreme Court.
  • Being pushed to the wall, the four senior most judges after the CJI, said that their concerns include cases of far-reaching consequences” being allocated without transparency. They made available a letter written by them to the Chief Justice two months ago, alleging “selective assignment of cases to preferred judges” and that “sensitive cases were being allotted to junior judges”.
  • Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurien Joseph said repeated attempts to alert the Chief Justice to their concerns – including a meeting with him this morning – had failed to make any progress which is why they decided to voice their complaints publicly.
  • When asked if their complaints include the case of the death of a CBI judge, BH Loya, “yes” said Justice Gogoi. This was however only the last of a string of such instances.
  • The Chief Justice in December was backed by four other top judges in asserting that he is the “master of the roster” and is alone authorized to allocate cases. The four judges who met the press today said that the rules make him “only the first amongst the equals, nothing more or nothing less.”
  • The public confrontation today comes amid growing calls for the judiciary to show more transparency including in how judges are selected for promotion and assignment to the High Courts and the Supreme Court.
  • Sources in the government said that the explosive trading of charges today is being seen as “an internal matter of the judiciary” on the administration of the Supreme Court and the government sees no reason for it to intervene.
  • In December, the Chief Justice was accused by some lawyers of inappropriately involving himself in hearing a case that alleges judicial corruption even though he was has been involved in earlier hearings of a linked matter – about whether bribes were paid by a medical college to reverse its blacklisting by the government.
  • While the immediate prompt coincided with the Loya case, the Ayodhya dispute, the Aadhar case are two major instances where ‘handpicked benches’ have been  were chosen. In the Ayodhya Babri Masjid Demolition case,  CJP Dipak Misra, Ashok Bhusan, S Abdul Nazeer are slated to the hear the matter on February 8.  The Aadhar matter, crucial to privacy and national security is to be placed before a five judge bench from January 17.
  • Background of the Loya case: Judge Loya was hearing a case that accused BJP president Amit Shah of murder when he died in Nagpur in December 2014. His family has alleged that his death was unnatural and came after he was offered 100 crores as a bribe to rule in favour of the BJP leader. Medical records show Judge Loya died of a cardiac arrest. Within weeks of his death, Amit Shah was acquitted.
  • The Supreme Court has been asked to order an independent inquiry into Jude Loya’s death. This morning, the case was assigned to a bench that does not include the four senior judges who held today’s press conference.

 
 
Full letter to the Chief Justice of India from the Supreme Court judges:

Dear Chief Justice,
It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the office of the Honourable Chief Justice of India.

From the date of establishment of three chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo-saxion jurisprudence and practice.

Once of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi-numbered courts for an orderly transactions of business and appropriate arrangements with respect to matter with which member/Bench of this court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention devised for a disciplined and efficient transaction of business of the court but no a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals — nothing more or nothing less. In the matter of the determination of the roster there are well settled and time honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the Bench which is required to deal with a particular case or the composition thereof.

A necessary corollary to the above-mentioned principle is the member of any multi-numbered judicial body including this court would not arrogate to themselves the authority to deal with and pronounce upon matter which ought to be heard by appropriate benches, both composition wise and strength wise with due regard to the roster fixed.

Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.
We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where case has far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this court selectively to the benches ‘of their presence’ with any rationable basis for such assignment. This must be guarded against at all costs.

We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution of some extent.

In the above context, we deem it proper to address you presently with regard the order dated 27th October, 2017, in R B Luthra vs. Union of India to the effect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was a subject matter of a decision of a Constitution Bench of this court in Supreme Court Advocates-on-Record Association and Anr. vs Union of India, [(2016) 5 SCC 1] it is difficult to understand as to how any other bench could have dealt with the matter.

The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by collegium of five judges (including yourself) and the Memorandum of Procedure was finalised and sent by then Honourable Chief Justice of India to the Government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalised by the collegium has been accepted by the Government of India on the basis of the order of this court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the bench to make any observation with regard to the finalisation of the Memorandum of Procedure or that issue cannot linger on for an indefinite period.

On 4th July, 2017, a bench of seven judges of this court decided In Re Honourable Shri Justice C S Karnan [(2017) 1 SCC 1]. In that decision (referred to in R P Luthra) two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure.

Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ conference and by the Full Court. Such a matter of great importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.
The above development must be viewed with serious concern. The Honourable Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the collegium and at a later stage, if required, with other Honourable Judges of this court.

Once the issue arising from the order dates 27th October, 2017, in R P Luthra vs Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with.

With kind regards,
J. Chelameswar
Ranjan Gogoi
Madam B Lokur
Kurian Joseph

 

 

No Country for the Hungry: Amid Daily Outrage On Newer Issues, Nothing Changes for the Satnami Community

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As my nation stands betrothed to World Hunger Index and Bullet train, it is quite incomprehensive, which beau she will meet at the altar-towards the end of 2019. The cacophony for more power, more votes, more solidarity grows within the usual suspects of political alliances. With each passing day India descends into another abyss of political turmoil, the stakes unusually high. I am told, post-2019 things will change phenomenally, even as political analysts work overtime corroborating election results from one state to another- typing astutely on social networking sites- before retiring to their comfortable lives. Between the umbrage of lynchings and beef ban, there’s an interesting debate doing the rounds here on the topic “revolution” nowadays.

Hunger
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Being part of journalism for the greater part of my life has resulted in me being overly cautious of political jargon, especially when it becomes a resoundingly popular one. What I see now, the building of a fastidiously negative wave for the ruling regime, reminds me of pre-2014 era, when a similar wave, albeit a positive one, had heralded Modi and his party to 7 Race Course Road, New Delhi. What we had then, a GDP growing steadily at 6.7%, with 4 million new jobs being created each year, a Prime Minister who spoke softly and had astute knowledge of country’s economy-somehow- was twisted and turned over its head- by a overtly tacky, misinformed, power hungry, money laundering bunch of youngsters for illicit amount of money being thrown at them by BJP. Anyone who countered their jargon, was instantly written off as unpatriotic by some of the most promising economists, authors, actors, writers, psephologists, industrialists, film industry buffs, news anchors, editors, lawmakers, and layman.

Today, after the GDP has slipped at 3.7%, with no jobs creations for two years at a row, De- monetization and GST, a fractured industrial economy and a Prime Minister who spills notoriously ominous filth through his election rallies- things are gradually changing. Also helpful, has been the building of a counter narrative to BJP’s popular yet distastefully sham jingoistic rubble- by a wonderfully informed, subtle and intrinsically researched social media.

However, between 2014 and 2019, amidst the subterfuge of patriotism, beef ban, lynchings of muslims, murders of authors, rationalists, political workers, Bharat Mata ki Jay, Anti-Romeo squads, Love Jihads, Modi’s unusually busy world tour, Adani’s land grab, Yogi Adityanath’s meteoric rise and Anupam Kher’s fall from grace- a few things have remained unchanged.

Like for example, Deepak Singh and the lives of his parents, Shailu Singh and Pulmati Singh, his sister Anita Singh and brothers Rajesh Singh, Sudheer Singh and Kishan Singh. Deepak Singh lives in a village roughly 5 kilometres from District Headquarters Janjgeer called Pendra with his family. He is 18 years old and on his way to college, to be the first graduate in his family. His parents and his siblings have all been brick kiln laborers throughout their lives. Every year, they migrate to Jammu, or Punjab for 8-9 months to make bricks in private kilns and return home for the remaining months to do part-time field work for a few months. Deepak Singh belongs to Satnami Community and lives in an outer corner of his village-called Bhatapara- as do the other members of this community. In every Chhattisgarh village- there is a Bhatapara- an exclusive corner, where these people, along with the Daliths- are bound to live. The Bhatapara corners are usually mud huts with thatched roofs, muddy pavements, having a small pond at a corner, electricity and some of the most beautiful flower and kitchen gardens.

The villages are empty, save for small children, and old couples throughout the 8 months of a year. Since the last 20-25 years, this has been the decorum. Almost four decades back, things were different. Deepak’s grandfather Ramkishore Singh owned 8 acres of land, and grew pulses and seasonal vegetables on it. The yield was good and the family lived comfortably. Shailu Singh and his brother, Sanjay Singh along with their younger sister, Bhanumati would have enough to eat two times a day. Ramkishore Singh also built a pukka house and they lived comfortably with their four cows. However, on a quiet corner of the nation, something called “Green Revolution” happened and suddenly, things changed for worse for this family. Within the next decade, Ramkishore Singh suddenly witnessed several new landowners in his village vicinity. They were from Punjab and had more money, than Ramkishore had ever seen in his life. Another few years, and huge tractors and crop harvesters began the rounds in the village.

Meanwhile, with the continuous pumping of chemical-laced fertilizers and pressure to grow just paddy and pulses as cash crops- resulted in the soil losing its fertility. The harvest became thinner, rains became sparer, and once after Ramkishore fell critically ill, for the first time, Shailu Singh had to step out as a field worker in another Landlord’s field to manage the medical expenses. However, the presence of Crop Harvesters made it impossible for him to manage employment. Things went from bad to worse and Ramkishore had to sell off 5 acres of his land. This threw the entire family into the spiral of debt, migration, slavery and bonded labour that is yet to end- after thirty odd years and two generations later. Shailu Singh is a living witness of how through callous implementation of incongruous schemes, a government can actually create an army of slaves without even firing a single bullet or whispering “war”.

This happened in the 80s while Congress Government was at the centre- while Rajiv Gandhi was at the helm of affairs heralding a new generation to the throes of computers and telecom revolution. This was the era of globalization. When the USSR had disintegrated and India had shifted its loyalty to grandmaster of capitalism, by agreeing to sleep with NATO partners. The unholy marriage resulted in the production of an army of selfish, greedy, callous, market-worthy generation that learned the art of creating and using slaves for profit, namely, the great Indian Middle Class. Within the next decade, India had imprinted itself strongly as one of the biggest markets, where every international brand was selling its stuff with unprecedented zeal. The carefully orchestrated machinations pointed at the villages for more and cheaper labour, and thus began the great migration of a self-sufficient, food producing, environment-friendly generation-having lightest carbon footprints- to the ghettoes of cities where even a drop of water was sold for a price.

By the end of the decade, India had already stepped into a shining pedestal as the fastest developing nation, piggybacking on world’s largest number of human slaves toiling for minimum wages.

Deepak Singh, has been living off blood and sweat ever since he could remember. When he was not going to the brick kiln, he was working in a landowner’s field, during the harvest season, working as field hand. Shailu Singh has a small piece of land, 2 acres left, in which the family grows paddy. Also helpful were the Mahatma Gandhi National Rural Employment Guarantee Scheme projects that would take care of their expenses while they were not traveling to the brick kilns. The family stepped into the new millennia with enough savings to start a new life and also built a small house on a piece of land.

For once, Shailu Singh felt he could surmise his life with a pinch of pride. The only problem being, the house was situated at the main village and not in Bhatapara, where the Satnamis are expected to stay. One fine day, Deepak Singh returned to see a group of Upper Caste men standing in front of his house. Incidentally, a School Master had purchased the very land where Deepak Singh had built his house. Despite a huge fight and a police complaint, Deepak Singh, in the end, had to part with his belongings as the village elders raised the house and police stood there guarding the action.

Today, Shailu Singh lives in a temporary hutment with his family of six and his brothers’ children. Last time, I met him in February 2017. Hey had just returned from Jammu with six months earnings, when suddenly they were asked to build toilets at home. Modi’s ambitious Swachha Bharat Campaign had come as a huge shock to the family, as they were ordered to build two toilets, each costing close to Rs 35,000. Deepak, just passed his school final examination had been looking forward to getting admission in College. He was trying to get a school leaving certificate and caste certificate since the last ten months but to no avail. With the toilet building dictat, his hopes of getting into college were dashed for a year.

The Novemeber 2017 de- monetization brought fresh lease of troubles for the entire family as they had to hastily retreat from the brick kilns without being paid a penny, to ensure they had no black money left at home. The MNREGA projects were now more assiduously distributed to Upper Caste relatives of the Sarpanchs, because they could not get jobs anywhere else. The unemployment, drought, massive cash crunch and overall slump in economy had once again pushed the Satnami populace to the brink of desolation. Shailu Singh is 65 years old. His haggard face bears the roadmap of his life’s journey that crinkle their way past his eyes that are now bereft of much shine. But, he looks at his grand-children and laughs- a clear, surprised laughter- probably hoping a better future for them.

As per Deepak, he prepares for another day of casual labour in a field or a roadside construction site. For four generations, they had been trying hard to earn enough money through hard work, seeing their Zamindars turn to Sarpanchs and Sahukars turn to Panchayat Secretaries. Nothing has changed for the Satnami Community.

Courtesy: http://www.indiaresists.com

The challenges of being a woman leader

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I want to share a thought that has been on my mind for a while. We’re grateful for all the love and support that we have received for our cause. We get numerous messages from people across the country saying how proud they are, how much they’re inspired by us and how much they love and adore us.

Shehla Rashid
Image: News18

In particular, I get messages from a lot of women who say how much it inspires them to see someone just like them in active public life. I also get messages from a lot of men saying that they would want their daughters and other women to be like me. At times, when we are visiting someone’s house, especially in smaller towns, the men will even go to the extent of telling their daughters that they must be like me, or even using me as an example to berate his wife for being concerned only with clothes or weddings, and “not taking up the cause of the community”.

Often enough, in these households, the women are performing all the traditional gender-assigned roles: bringing roti after roti while we eat or staying in the kitchen throughout the visit, while we relish the food made by them. I often have to step into the kitchen in order to talk to the women who are too shy or overawed to even talk to me, let alone talk to the gathering! Needless to say, this is more a feature of Muslim homes where the hospitality is amazing, but the gender-segregation is shocking.

Growing up in Kashmir, I wasn’t used to this, and I often thought that segregation is a myth. However, interacting with Muslim families across the country has convinced me that segregation is real and thriving. Now, these same families who look up to me as a leader would never want their own women in the role that I’m in. Or, in other cases, they would want them to be as “committed to the cause of the community“ as I am, but would never think of what it entails. Leadership, for men, is a black box. A woman has to decide, at every step, what she should and shouldn’t do. Going to a riot-affected area for a 3-day visit? Going to a late-night TV show? Going to work? Taking a cab late night? Being the only woman on a political tour? Travelling alone across state and national boundaries? Should I? Shouldn’t I?

Since women leaders do not mostly talk about these things, women leadership is a mystery, a black box, some kind of rocket science to most. Now, it is clear that our community cannot progress until/unless women are equally empowered and allowed to develop and grow. Just like our country cannot progress without the development and growth of every section and every community. But the question is: will the community allow women to do everything that is required to lead?

It is difficult to lead. It is doubly difficult for women to lead, because we have to make calculations about clothes/stalkers/appearances/monthly period, etc. that men do not have to make. Women leaders need additional support from their families, they need additional freedom of mobility and freedom from traditional gender roles. Now, gentlemen, while you admire women leaders who are already making a mark, please understand that you need to develop and empower women in your own family who are capable of leading. Not only are they NOT supported by their families, they even have to face social boycott if they decide to speak up – case in point being Ishrat Jahan who fought against the practice of triple talaq!

This advice is also for non-Muslim men who admire my leadership. Now, I have left behind a lucrative career because I have experienced oppression first-hand. Most of you would not let your daughters take up activism because – well, that is something that women from “good families” (elite or upper-caste Hindu families) do not do. Only jholawallahs like us should do that. So, gentlemen, when I get messages of admiration from you, it feels great, but if you show up for a protest or a political meeting without your wife or daughter or sister, there’s slight condescension in your admiration.

In India, since Independence, the number of women Parliamentarians has never been more than 10-12% – this is not an accident. It is a result of these structural barriers to women’s participation in public life. Also, if women are not treated as equals in society, violence against women will thrive. So, don’t get surprised when women are raped, abused and harassed – it is a result of inequality in power and NOTHING ELSE. I’m not going to paint you a rosy picture – activism is difficult and, unless you don’t sacrifice enough, you cannot be in leadership positions.

Not only is the sacrifice involved personal, your family also makes a lot of sacrifices to accommodate your unusual lifestyle and needs. If you want more women to lead, share in the household work, share the burden of child-rearing, cook, clean and assist your partner, plan your family according to her goals. If women are not urgently empowered and represented in positions of leadership, don’t expect your daughters and sisters to be safe from sexual violence or gender-based violence. The power imbalance between men and women is highly unnatural, skewed and perverted. In such an environment, we’ll always have oppression of women and sexual violence. Hope this makes sense. Peace out!

*The text was taken, with permission, from Shehla Rashid’s Facebook wall.

Courtesy: Two Circles
 

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