All Rights Magazine by All Rights Monthly Magazine

Volume : 01, Issue : 02, March, 2013

‘ÁðÂè’·¤æ ÁæÜ-2

A Monthly Magazine

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Accounting Spies

COVER STORY

Scourge of Child trafficking A Monthly Magazine VOLUME : 01, ISSUE : 02, MARCH 2013

Trafficking in human beings is a multi-billiondollar form of international organized crime, constituting modern-day slavery. 14

Is it right to call Judiciary communal? 25

Farmers Income Commission is now a reality in India 28 Implications of North Korea’s Nuclear Explosion

MORE CONTENTS

·¤ëçá «¤‡æô´ ·¤è ·¤Ç¸ßè ã·¤è·¤Ì

»ÚUèÕæð´ âð çÀÙð»æ, ¥×èÚUô´ ×ð´ Õ´ÅUð»æ

Capital Punishment

42 The Paranoia of the Superrich and Superpowerful

The Ethiopian Land Grab Crisis 38

The Curious Case of Binayak Sen 55

Editor : Gopal Chandra Agarwal Executive Editor : Pankaj Shukla News Editor : Vivek Pathak Spl Correspondent : Subodh Kumar Copy Editors : Yogesh Pandey & Subodh Kumar Contributers : Kumar Sauvir (Independent Journalist) Devinder Sharma (Agriculture and food policy analyst) Anant Asthana (Lawyer and Human Rights Activist) Nickolas Johnson (Policy Analyst at Oakland Institute) Sonali Singh (Research scholar at Deptt. of Political Science, Banaras Hindu University) Shivadas (Web Journalist) Ramesh Kumar Dubey (Independent Journalist) Sayyed Akram Rehman (Photo Assistant) Praveen Kumar & Salam Bijen Singh (Graphic Designer) www.allrights.co.in, info@allrights.co.in, Write us at : letters@allrights.co.in Owner, Editor, Printer & Publisher : Gopal Chandra Agarwal Published At : 17, Maurya Complex B-28, Subhash Chowk, Laxmi Nagar Delhi-110092, Phone: 011-42147246, Printed At : Neeta Press, Shed No. 19, D.S.I.D.C. Indl. Complex Dakshinpuri, New Delhi- 110062 The views expressed by authors are personal and do not necessarily reflect views of All Rights. The magazine is protected under copyright laws, all Content, unless stated, is owned by All Rights and its content providers and may not be used in any form without prior consent. The jurisdiction for all disputes concerning sale, subscription and published matter will be settled in courts/forum/tribunals at Delhi.

DCP No. F.2 (A-41) Press/ 2012

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¥æòÜ ÚUæ§ÅU÷â U×æ¿ü 2013

COVER STORY

Scourge of Child trafficking by Subodh Kumar

hat afternoon things turned murkier for Saddam. He and his twoyear-old sister were playing in an auto rickshaw parked near their home, suddenly a man who Saddam remembers, as “tall, short haired with a limp in his right leg” appeared on ALL RIGHTS

¥æòÜ ÚUæ§ÅU÷â U×æ¿ü 2013

the driver’s seat and started maneuvering the auto-rickshaw through the pathways. “At a speed breaker when the vehicle slowed down, the boy, then four years old jumped out. Watching the vehicle going afar, desperately, he shouted. “Please someone 14

Child :Anisha Parents: Fatima Missing Since: 1990 Adopted in: 1991 Country: Germany Agency: International Social Service (ISS)- German Branch Indian Agency- Tender Loving Care Fatima had been divorced from her husband when she was pregnant. Working in a household as a domestic maid she was taken to delivery to St. Theresa’s Tender Loving Care Home, an adoption agency in Hyderabad, Andhra Pradesh. After delivery, the agency demanded Rs 10,000 for the same. Fatima could only pay Rs 1,500, she was allowed to take her baby to home, but only under circumstances that she would have to pay the remaining amount later. After few days, the agency reached Fatima’s house and forcibly took the baby away from her. Repeated attempts by Fatima to reclaim her baby failed and she was threatened with police action. Anisha has since met Fatima twice. But Fatima continues to miss her daughter every day. Fatima is not one alone who is deprived of her parents’ rights.

COVER STORY save my sister.” Since then Jabeen has never returned. That was November 1998 and the place was Washermanpet in north Chennai. Jabeen was one of the 100 children Malaysian Social Service (MSS) had given up for adoption overseas. There are number of the participating adoption agencies have been in the news for inter-country adoption rackets and have done nothing to assist families whose children were fraudulently or forcefully taken away and put into inter-country adoption, giving them a new name, fabricated history and an obviously uncertain future for them. Holding a international conference on adoption on February 19 and 20 in the capital child rights activists pitched impassioned plea and demanded that international adoption should be banned from India till comprehensive laws are put in place to prevent ‘trafficking’ of children in the name of adoption. The event was organised by the Indian Central Adoption Resource Authority (CARA) and other government officials and adoption agencies like ACT (Against Child Trafficking Org.), Sakhi and HAQ (Center for Child Rights) in an attempt to promote India’s mutual cooperation on intercountry adoption, to discuss issues and challenges and to demand urgent government intervention in the matter. Child Trafficking a Key Concern The stories of trafficking of children for and through adoption are not unknown. But the woes remain the same and now new negotiations are taking place in the business of adoption at the international meets. CARA claims better regulation of inter-country adoption through the new

Child: Satish Parents: Kathirvel and Nagarani Missing Since: 1999 Adopted in: 2000 Country: Netherland Agency: Meiling Indian Agency: Malaysian Social Service (MSS) It was 3’O clock in the night, no electricity in the house, when she woke up to feed her child (Satish) who was sleeping outside the house, there was no one, her son went missing. In May 2007, a Dutch TV programme showed an extensive documentary about the case of Satish and other possible stolen children who have been sent to Netherland. Subsequently, the Dutch Minister of Justice ordered a three tier administrative inquiry. The parents personally lodged a police complain in the Netherland and the India but till date they have never seen their son, not received any information about him. While telling the tale of her missing child Nagarani’s eyes burst into tears as she says her only desire to see her son and she has came here only to seek justice with great hope in her heart.

2011 adoption guidelines but hold back information on number of children adoption through the new 2011 adoption and number of Indian parents waiting to adopt. It treats NRI adoptions as domestic adoptions, but gets the NRI adoptive parents to pay the 15

same fee as that charged from foreign adoptive parents. Voices raised against the existing system are met with legal cases filed against the adoption those who raise them. And amidst all these parents, who have been craving to meet their missing children, subsequently located in different parts of the world with their adoptive parents, have met with no justice whatsoever. In nation like India where government's perception is "one is not poor if he/she earns Rs 32 a day" not all can afford litigation and not all can have the means to fight for justice. Responding to queries in Raja Sabha, then Minister of State for Home Affairs, Jitendra Singh had said that as many as 5,000 children were reported missing in 2011. It makes clear that, a child goes missing every eight minutes in India. Between 2010 and 2011, the number of cases of kidnapping and abduction went up by 43 percent, as per a report prepared by the Ministry of Statistics and Programme Implementation. More than 3700 children went missing from Delhi in the last five years and are still untraceable, according to a status report filed by the Delhi government in Supreme Court ALL RIGHTS

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COVER STORY during the hearing of a PIL. "As these cases show, many such kidnapped and missing children are victims of gangs which place children in overseas adoption with the help of adoption agencies," said Anjali Pawar of Sakhi, a Pune based NGO, referring to the families who had come to the national capital to protest inter-country adoptions. In 1984 the supreme court of India ruled clearly in favour of domestic adoptions over intercountry adoptions. The Supreme Court also looked at the issue of child trafficking that could pave the ways for regulation on adoptions in a manner that would prevent illegalities and exploitations of children. However, the implementation of the judgment has failed to prevent child abduction for adoption, as adoption instead has become a booming industry.

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Thousands of women and children are trafficked every day. Within the overall profile of trafficking in South Asia, India is a country of both transit and destination. There is a considerable degree of internal trafficking as well as some trafficking from India to Gulf States and to South East Asia. Sale of children and their movement across the state borders takes place within the country too. Adoption and Child Trafficking The biggest challenges are that most agencies across the world fail to make the connection between adoption and trafficking. Even agencies like UNICEF, at the global level, hesitate to link adoption with child trafficking; they are rather reluctant to use the word trafficking in the case of

adoption, though they do accept that children are bought and sold for the purpose of adoption. Absence of a comprehensive, well-monitored programme enables hundreds of children to be given away in adoption in informal and perhaps illegal ways. In India, while the discussions in the Lakshmi Kant Pandey case went into the issue of trafficking and how, in the name of adoption, there are possibilities of children being trafficked and how children are suffering, the Court revolved more around the procedural aspects and did not look at the question of establishing the rights of the children in the context of trafficking for adoption. In the wake of this lack of awareness, there are cases where children have been stolen, grabbed by the adop-

COVER STORY tion mafias or just removed from the custody of their biological parents. Families register an FIR with the local police as a case of missing child. These FIRs get documented and become spume statistics somewhere. In few such cases, it has been later found that the children were placed in adoption to foreign through a legal process and they were living and growing abroad. The children who lost their biological parents and are now with adoptive parents remain undetermined, and there is the question of the rights of adoptive parents who adopted through a legal process to continue to have their children. The common mind-set with which inter-country adoptions are promoted needs to be questioned. There also needs to be a new law on trafficking that covers all forms and purposes of child trafficking. Argument in support of Inter-country adoption - Inter-country adoption can help provide a better life to children. It is seen as taking children out of hell and into heaven. Those who contend this are seen as people against children and child rights. - In India, there are no takers for certain children, even if they are for example, children with minor correctable disability. Therefore some children will never find Indian parents and will have to be given to foreign parents, who do come forward to adopt them. - There are hardly any numbers being placed in intercountry adoptions. In 2009, only 666 children were given in inter-country adoption as opposed to 1,852 placed in domestic adoption. The children who are going into inter-country adoptions are who have repeatedly not been accepted by

Cases of Kidnapping and Abduction of Children (below 18 years) that qualify as cases of Trafficking YEAR

2003

Various Purposes of kidnapping/ abduction/ trafficking

Out of 2265 cases of kidnapping and abduction that qualify as trafficking

Adoption Begging Camel Racing Illicit Intercourse Marriage Prostitution Selling body Parts Unlawful activity Slavery Sale

21 6 0 383 1369 58 0 109 6 13

2004

200

2006

2007

Out of 2265 cases of kidnapping and abduction that qualify as trafficking

Out of 2445 cases of kidnapping and abduction that qualify as trafficking

Out of 3549 cases of kidnapping and abduction that qualify as trafficking

0ut of 4 1 8 3 cases of kidnapp i n g and abduction t h a t qualify as trafficking

15 20 0 414 1593 101 1 92 16 13

41 19 0 501 1693 117 3 58 4 9

23 24 0 676 2621 148 1 30 15 11

2008

36 13 0 649 3224 130 0 84 35 12

Out of 5193 cases of kidnapping And abduction that qualify as trafficking

34 17 0 825 4003 130 0 138 32 14

Source : Crime in India 2003-2005, National Crime Records Bureau, Ministry of Home Affairs, and Government of India

Indian families. Against Inter-country adoption Those oppose inter-country adoption and favour in-country adoptions argue that the first choice for homes must be within the country, in a social milieu that they can identify with as they grow up; several other factors also come into play. "We don not have a law on adoption and guidelines can not be a law," said Bharti Ali of HAQ. "The government and the societies should first look for the inter-state adoption in 8o per cent cases and inter-country adoption should be the last choice, "Bharti had emphasized. - How can the government allow inter-country adoption, when there are many Indian parents in waiting? - Why there is poor linkage among the different states or 17

simply not allowed when it comes to in-country adoptions, to the contrary there is a well established inter-country adoption system. This reflects on the lack of a political will to promote domestic adoptions. - Inter-country adoptions only promote illegal sourcing of children. Dishonest and illegal Practices continue There can be no denial of the fact that illegal practices are going on in the name of adoption across the States. Prosecution of offenders in cases involving adoption and child trafficking is far more difficult in the absence of a comprehensive law. The existing legal framework and various dichotomies within that framework have only led to further vulnerability of the child is the way to check trafficking. Improper paper work and corruption make things worse. Making the implementing ALL RIGHTS

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COVER STORY agencies transparent and accountable is therefore critical. The root of the problem lies in illegal sourcing of children - The most common form of illegal sourcing thrives on exploiting the most vulnerable population of India- the poor. Recent fact-finding has brought to light the big competition among agencies to get babies from the government under the cradle baby scheme. Investigations have shown evidence of mothers being coerced, tricked or surrender documents simply forged in order for brokers to acquire the babies through what appears to be a willing surrender. Currently there are no DNA (Dioxiribo Nucleic Acid) testing requirements in place. -In Orissa, a study has been done on informal trafficking i.e. trafficking from hospitals/nursing homes. This study established that the hospitals have a whole list of contact persons to whom they hand over abandoned children. Out of the children abandoned in the hospitals, only 10 per cent are coming to the recognized childcare institutions whereas 90 per cent of them go the non-recognised agencies. Hospitals definitely need to be mentioned. -Also, all hospitals need to ensure 100 per cent birth registration. -Only 20 per cent of our districts have a (Child Welfare Committee) CWC, lack of CWCs in many of the districts also leads to child trafficking through not only the non-licensed news agencies but licensed agencies and many of the hospitals and/or childcare centers as well. A 70-year-old Kisabai Lokhande of Pune, in her voice wobbled with emotions recalls, “I had placed my two grandchildren Ashwini and Komal ALL RIGHTS

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in a boarding school in the Observation Home in Satara. Without my consent they (Observation Home) transferred both to Preet Mandir, an orphanage cum adoption agency in Pune.” Since Kisabai has not heard from her grandchildren as she came to know that they were given to adoptive parents in Spain, through the mediation of a Spanish adoption agency. The adoptive family denies all contact. “I want to see my grandchildren before my last breath,” she choked up while describing her last wish. Trafficking in Human Beings and World Scenario According to INTERPOL (World’s largest International Police Organisation) trafficking in human beings is a crime under international law and many national and regional legal systems. Given the complexities of the issue, a multitude of strategies are necessary 18

at a range of levels in order to reduce the problem. Trafficking in human beings is a multi-billion-dollar form of international organized crime, constituting modern-day slavery. Victims are recruited and trafficked between countries and regions using deception or coercion. They are stripped of their autonomy, freedom of movement and choice, and face various forms of physical and mental abuse. There are three main types of human trafficking: •Trafficking for forced labour; •Trafficking for sexual exploitation; •Trafficking of organs. Closely connected is the issue of people smuggling in which smugglers procure, for financial or material gain, the illegal entry of an individual into a country of which he is neither a citizen nor a permanent resident. Generally speaking, once payment is completed, the relationship between the illegal immigrant and the smuggler is terminated. Child Protection All children have the right to be protected wherever they are — at home, in school, on the streets, and at all times — in times of peace or conflict or calamity. Their right to protection is as intrinsic to their well being, as is the right to survival, development and participation. Children deserve to live in an environment where good governance and the full enjoyment of human rights are mutually reinforcing. In its simplest form, child protection addresses every child’s right not to be subjected to harm. It thus complements other provisions that ensure that children receive all that they need in order to survive, develop and thrive. It must relate to the child’s capacity for

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self-reliance and self-defence and to the roles and responsibilities of family, community, society and State. Children are 'un-protected" and vulnerable due to both acts of omissions (neglect and denial of basic rights) and commission (acts of violence, abuse and exploitation). ALARMING STATISTICS • In 2008, 5193 cases of kidnapping of minors amounting to child trafficking were registered • Between 2003 and 2008, kidnapping of minors amounting to child trafficking increased by 164 %. • 3/4th of all incidents of kidnapping of minors amounting to child trafficking in 2008 related to kidnapping for marriage. • Kidnapping of children for unlawful activities saw a 64.3% increase between 2007 and 2008. • In 2008, there was a 30.8% increase in kidnapping of children for begging while kidnapping for sale of children Arund Dohle of Against Child Trafficking (ACT), Netherlands and Brussels based organisation, which claims to have reunited 20 plus adopted kids to their biological families, says, "In the discourse on foreign adoption, we have forgotten Jabeen and similar other cases." Dohle adds that in cases where adopted children were able to trace their parents of birth, the damage done was irreparable. "By that time, they are grown up adults. They don't speak Hindi and are not accustomed to the Indian culture." 19

There is no law governing adoptions in India. There are only CARA guideline based on child protection principles and provisions mandated in Juvenile Justice (care &amp; protection of children) Act. CARA guidelines say that adoption agencies have to follow 80-20 ratio between domestic and foreign adoptions, failing which they can loose their licenses. The guidelines say that while sending children for inter-country adoptions, agencies should give priority to Indian nationals, Indian nationals living abroad (NRI), Overseas Citizen of....India card holders, and foreign nationals, in that order. Between 2009 and March 2012, more than 13000 children were placed in domestic adoption against 1848 inter-country adoptions, as per CARA data. For every adoption, domestic or inter-country, Child Welfare Committee (CWC), a quasijudicial body formed under the Juvenile Justice Act- has to declare a child legally free for adoption. But in many cases, says Enakshi Ganguly of HAQ- Centre for Child Rights, a Delhi based NGO, the committee's role has been unsatisfactory. "Gangs involved in adoption mislead the committee," she says. In international law, trafficking was first defined by the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, (known as the “Palermo protocol”). This does not restrict trafficking to cases of force or deception but also inculpates “the abuse of power or of a position of vulnerability.” Thus, consent can never constitute a defence to a charge of trafficking. Deception or lack of consent may not be present at all stages.Making stringent laws alone will not take the society to a pedestal better than the one we find it at now. It is in recognition of this fact that the nation has to write separate chapter that can deals with the proposition of bringing about police reforms. Such reforms are necessary not only to curb gender based violence but also to deliver justice effectively. Rather than treating child trafficking as an isolated issue, the government of India should respond by creating comprehensive and integrated child protection mechanisms. Trafficking is hard to define simply. The stereotypical image is of young women or girls sold into sexual slavery, but the reality is more complex. Not to put too fine a point on it, child trafficking is serious threat to the society and there is need to unveil the reality. n (Subodh@allrights.co.in) ALL RIGHTS

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GOVERNANCE

Accounting Spies by Vivek Pathak

ere comes another blast this time in the city of nizams with same questions-intelligence failure and India soft on terror? Our internal security agencies are battling for their own credibility and relevance. Not one terror attack case has been solved since 2009. After 26/11, our intelligence agencies came under severe criticism. Yet, the government's response was not to reform intelligence gathering but to set up an investigation agency with an unclear mandate. The result was the National Investigation Agency (NIA), with a grand total of zero cases solved to its credit. Ideas for reforming India's internal security already exist, published in reports commissioned by successive governments. But all gathering dust now. So it doesn’t come as too much of a surprise when the ALL RIGHTS

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Supreme Court seeks centre's response on a PIL demanding a regulatory mechanism and accountability for Intelligence Bureau (IB), Research & Analysis Wing (RAW) and National Technical Research Organisation (NTRO). On the one hand, the nature of their work demands the intelligence agencies work in

secrecy. On the other hand, there is a demand for transparency and accountability for them. Since the very inception these intelligence agencies are only public authorities which have been operating under executive orders issued by the government without any accountability to parliament or any other democratic institution. The Intelligence Bureau (IB), India's internal intelligence agency, has its origins in the Thuggee Office set up in Jabalpur by Colonel Sleeman in 1835 to gather intelligence about the movements and modus operandi of the ‘thugs’ and dacoits who rampaged the plains of northern India in the 18th and 19th centuries. After the Great Indian Mutiny of 1857, when the reins of government of the Indian Empire were taken over from the East India Company by the British Crown, the Thuggee Office was renamed the Intelligence Bureau and began to collect political and other non-criminal intelligence. Like the IB, the RAW is one of India’s premier intelligence agencies, responsible for external intelligence. Before the creation of RAW in 1968, the IB was responsible for both internal and external intelligence. During the 1962 and 1965 conflicts with China and Pakistan, a number of shortcomings were noticed. Based on the concept paper submitted by the Army, the govt. approved the creation of an independent intelligence agency to gather external intelligence. However, instead of the Ministry of Defence, as recommended in the paper submitted by the Army, the new organization was to function under the Prime Minister’s Office (PMO) known as the Research & Analysis Wing of the Cabinet Secretariat, RAW. It was established on 21 September 1968. The National Technical Research Organisation (NTRO),

GOVERNANCE earlier known as the National Technical Facilities Organization (NTFO), is a highly specialized technical intelligence gathering agency, which was created in 2004. Like the RAW, it functions under the PMO. The GoM on National Security had recommended the constitution of the NTFO as a state-of-the-art technical wing of intelligence gathering in 2001. As in the case of IB and RAW, details of its recommendations were not made public when the GoM Report was formally released on 23 May 2001. The NTRO carries out hi-tech surveillance functions, including satellite monitoring, terrestrial monitoring and internet monitoring. It also develops technology capabilities in aviation and remote sensing, data gathering and processing, cyber security, cryptology systems, strategic hardware, software development and strategic monitoring. However these intelligence agencies are not being audited by the Comptroller Auditor General (CAG) even though the Secret Service Funds (SSF) running into hundreds of crores are being funded out of the consolidated fund of India and Section 14 of the CAG Act mandates that the organization being funded out of consolidated fund of India must be audited by the CAG. But there were no questions asked, no audit reports required. As stated earlier the three agencies (IB, RAW and NTRO) were created by executive order, without the mandate of parliament. As such, their legal status and position in the nation’s polity remains vague and ambiguous. Apart from lack of clarity in the legal status, they also suffer from several other lacunae, such as lack of parliamentary oversight, operational and financial accountability, which in turn breed high levels of nepotism, malfeasance and corruption.

Corruption and Misuse of power Everything around seems infected by the corruption curse, just turn the carpet and you will find the floor smitten with dust. The primary task of intelligence agencies is to collect intelligence of threats to the nation’s security, from external as well as internal sources. However, these agencies have often been used for carrying out illegal acts by politicians and bureaucrats. This includes offering bribes to members of political parties to induce them change their loyalty, rigging and purchasing votes during elections, toppling elected governments, monitoring the activities and telephones of political opponents, and so on. Since their operations are shrouded in secrecy, these illegal acts seldom come to light, except when exposed by whistle blowers who have served in these intelligence agencies. Some examples of misuse of intelligence agencies and corruption have come out in books written by those who 21

have worked in these agencies.

To quote from The Kaoboys of R&AW, by B. Raman, p.56-57: "When the Morarji Desai-led Government came to power, it had all the records of the R&AW scrutinized ….. it came across a curious case in the files of the Ministry of Finance and the Reserve Bank of India, which it thought it could use to fix the R&AW. This related to Nair being sent to Geneva during the Emergency to deposit a cheque for US Dollars six million in a numbered account of a bank in Geneva…… …enquiries revealed that the account actually belonged to one Rashidiyan, an Iranian middleman, who was good friend of Ashraf Pehlawi, the sister of the Shah of Iran. On the recommendation of the Hindujas, the well-known business family, the Ministry of Finance of the Government of India had used the services of this man to persuade the Shah to grant two soft loans to India – one for the implementation of the Kundremukh iron ore project and the other to pay the import bill of India. In view of the action taken by the US Government against India after the Pokhran I nuclear test in 1974, the Government of India was facing serious financial difficulties and had requested the Shah of Iran for a soft loan of US DolALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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GOVERNANCE lars 250 million. At the urging of Ashraf Pehlawi, the Shah agreed to help India out. The Finance Ministry accepted a recommendation of the Hindujas that a commission of US Dollars six million should be paid to Rashidiyan for getting the loan through the sister of the Shah of Iran. The Reserve Bank of India sent a telex to a bank in Geneva, asking it to hand over this draft to Nair. The Finance Ministry had requested Kao to depute Nair to Geneva to collect the draft and deposit it in the numbered account of Rashidiyan. Kao obliged...”

This incident has been corroborated by K. Sankaran Nair. To quote from his book ‘Inside IB and RAW’, pp 171-72:

“….. Actually, a payment of this sum into a Swiss Bank had been made from the funds of the Ministry of External Affairs, on behalf of the Finance Ministry, after clearance of the Prime Minister, Mrs. Gandhi. I was involved in this transaction purely as a courier. The MEA would not trust their own mission in Geneva to handle this apparently sensitive payment and had requested Kao to help out. R&AW was not taken into confidence about the reasons for the payment, which had a strong kick-back smell.….” “……….. The six million dollar pay out in Geneva was a kickback to Rashidiyan and his associates for having procured the loan. This had been sanctioned by the Government of India. My eyes popped out in amazement when Narsimhan told me these startling facts…… ..” The former officer of IB, Maloy Krishna Dhar has written in his book ‘Open Secrets- India’s Intelligence Unveiled’ as how the IB has been used by various governments to serve their political interests. To quote from his book Open Secrets – India’s Intelligence Unveiled p. 18 “It happens very often when weak Prime Ministers and tottering Home Ministers have to eat out of the hands of the Director IB. They use the IB and other agencies to supplement their poALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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litical apparatuses. The IB is tasked to carry out election prospects study, verify credentials and suitability of the ruling party candidates and to meticulously study the weaknesses of the opposition candidates. The IB is used to monitor all communication arteries of the opposition leaders and other individuals considered inimical to the leadership. The political breed has of late started using the R&AW also to carry out such exercises.” Several instances of corruption malfeasance, indiscipline, misconduct and wrongdoing in RAW have been mentioned in the book titled India’s External Intelligence – Secrets of the Research & Analysis Wing (RAW) by Major General V.K. Singh, who served in the organisation as a Joint Secretary in 2000-04.

To quote from India’s External Intelligence – Secrets of the Research & Analysis Wing (RAW) pp. 81-93:“Sometime during the last week of July 2002, a file of the Procurement Cell landed on my table. It contained an order placed on Rohde and Schwarz Gmbh for the supply of 27 VHF/UHF log periodic directional antennae (LPDAs), covering frequencies from 30 to 3000 MHZ. The total value of the order was over Rs. four crores, with the cost of each antennae being about 15.5 lacs. ………Along with this file, there was another file of the Procurement Cell, which dealt with upgrading of certain monitoring stations. This contained approval of the Secretary for purchase of several items of equipment, including a dozen odd VHF/UHF antennae of exactly the same type that had been ordered from Rohde and Schwarz. However, there was a substantial difference in the price, which had been mentioned as Rs. 2.5 lacs per antenna against Rs. 15.5 lacs being paid to Rohde and Schwarz. …… After browsing the sites of several antennae manufacturers, I found that no one 22

GOVERNANCE made antennae covering both the VHF and UHF bands completely. The common band covered by most was 30 to 1300 MHz, which was the band commonly being used for communications. If additional coverage was required, a combination of two antennae had to be used. I found that the order placed on Rohde and Schwarz also specified two antennae, which were to be used in combination…..On the Internet, the price of the antennae covering up to 1300 MHz was around 300 US $, which worked out to less than Rs. 15,000. In other words, we were paying Rohde and Schwarz almost hundred times what it was costing in the international market. …….Once I had collected the above facts, I decided to bring it to the notice of my superiors. ….I also sent a note to Director (R), in reply to his communication under which a copy of the order placed on Rohde and Schwarz had been sent to the Procurement Cell. The anomalies in the entire procurement process, including the PNC-TAC were pointed out, and a request was made to cancel the order. As expected, I received a reply that the order could not be cancelled since all procedures had been correctly followed. Moreover, canceling the order would have legal implications. “ On 3rd May 2010, an article ‘We, The Eavesdropped’ by Saikat Datta was published in ‘Outlook’ on misuse of NTRO. As per the article, in February 2007, the NTRO tapped the cell phone of one of the General Secretaries of a political party. In a similar incident, the mobile phone of the present Chief Minister of Bihar was tapped during an official visit to Delhi in October 2007. In July 2008, the cell phones of opposition leaders including the present General Secretary CPI (M) were tapped to ascertain their plans regarding the Indo-US nuclear deal and the consequent no-confidence motion in Parliament at the time. In April 2010, cell phone conversations between the then Union agriculture Minister and the then Indian Premier League Commissioner were tapped in the wake of the scandal in the cricket league. Later on in the case of NTRO, serious cases of corruption in procurement of equipment and recruitment have come out in a special audit done by the CAG. The CAG in a reply under the RTI on 29.02.2012 has given information as to what kind of irregularities they have found in their auditing of NTRO and they are as follows: “We have noticed cases of appointment of ineligible candidates and lack of transparency in recruitment of employees in NTRO.” “We have noticed lack of transparency in appointment of contractual employees.” “We have noticed lack of transparency and non-compliance of rules and procedures in procurement of systems/stores/equipments and deficient procurement management resulting in 23

cases of excess payment/wasteful expenditure/ loss to exchequer.” “We have noticed instances of misuse of official position.”

Reforming Intelligence Agencies To be sure, agencies which have the mandate to gather intelligence are on a dicey wicket. The amount of frivolous work they do – for instance protecting VIPs from headline grabbers wanting to get into news by slapping or throwing shoes at VIPs and ministers – leaves them with little time for serious collation of facts and the ability to foresee potentially dangerous situations. The politician with his myopic vision on the vote bank could not care less. Yet, in a strange way and despite the odds, the November 11, 2008 attacks in Mumbai have changed things. Acknowledgment of it has come in a recent Institute for Defence Studies and Analyses (IDSA) task force report, sponsored by the Ministry of Defence (MoD) which admits that the unprecedented 26/11 attack on Mumbai focused attention on the complex security challenges facing India, which have the potential to derail its economic and social progress. In the aftermath of that incident, the functioning of India's security and intelligence set-up and its ability to meet the new emerging challenges prompted an across-the-board intelligence revamp and parliamentary accountability extensively discussed in various circles. Even earlier, after the Kargil intrusions in 1999, the issue of intelligence lapses had been examined in depth and several recommendations made by the Task Force set up by the Group of Ministers were implemented. "Several efforts have been made in the past to bring about reforms in the intelligence sector. Our contention in this report is that these efforts have been piecemeal and ad hoc. New organisations were created but no thought was given to prevent overlaps of jurisdiction or turf wars on the creation or sharing of expensive new technical assets or know how,'' says the recent three-member Institute for Defence Studies and Analyses (IDSA) task force report. Calling for introducing greater transparency and professionalism, the Task Force suggests that despite the sensitivities involved, greater accountability and parliamentary oversight is the need of the day. "We are mindful of reservations within the intelligence community, especially among police officers in the profession, that excessive harping on accountability could damage operational efficiency and jeopardise secrecy. Yet, it has been felt, on balance, that there can be no getting away from introducing some sort of external supervision and control, including legislative oversight to ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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GOVERNANCE improve efficiency and to build in self-correcting mechanisms." But the report admits that ushering in reforms is tough because even the smallest of reforms can become hostage to divisions, rancour or the monumental shortsightedness prevailing within the intelligence community. Most experts and analysts, however, believe that the time has come for not just a total intelligence revamp but also bringing it under appropriate scrutiny, whether an oversight committee like the various parliamentary panels or a special committee formed with the Defence Minister, Foreign Minister, Home Minister and Finance Minister under the chairmanship of Prime Minister. Of course, all this needs to be done under the oath of secrecy so that sensitivity is not compromised. A critical part of this revamp is the inclusion of manpower with varied experience and exposure. Pointing to this lacunae of not having the benefit of specialists from streams like financial services, people with understanding of business issues and the media, Rana Banerji, former Special Secretary RAW, says experts from different fields need to be roped in so that perspective and planning at the agency is enriched by multiple inputs. "We should appreciate the importance of people from the financial world when identifying support to terrorist organisations, drug cartels and hawala dealers,'' he points out. Intelligence Services and Power and Regulation Bill Manish Tewari, Minister of Information & Broadcasting, under his capacity of Congress MP from Ludhiana introduced a private member’s bill called Intelligence Services and Power and Regulation Bill in 2011 aimed at regulating the functioning of the intelligence agencies. If passed, it would lift the veil of secrecy behind which these agencies operate, allowing a parliamentary scrutiny of their working. The first objective of the bill is to set these intelligence organisations on a proper legal basis because any organisation which has the capacity to deal with the issues of life and liberty (of citizens) should do so within the parameters of the constitution. The second aspect is that these organisations need to have a very clearly defined mandate as to what is and what is not expected of them. Thirdly, there is a semblance of oversight which is very essential. Just because intelligence operations require secrecy it does not mean that intelligence per say should become a taboo. The bill says that the director of the IB or the secretary of the R&AW or the chairman of the NTRO cannot be pressed to disclose some information that the prime minister says should not be disclosed or the information is sensitive according to the agency ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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head, which mainly contradicts the aim of the bill. But Tewari goes on justifying it in an interview given to Governance Now saying the fear expressed by people who have headed or worked in these organisations is that if you have an oversight mechanism, it may start asking questions which may jeopardise their operational efficiency. So a need was felt for a stipulation to preserve their operational sanctity. By putting this firewall it allows the Prime Minister to exercise his discretion about what would or may jeopardise the operation aspects of an agency’s functioning. There is feeling that if this bill is passed many skeletons would come out of the cupboard. The bill is yet to be presented by the government in Parliament. But the intention should not be to embarrass or to disempower the intelligence structure. Whereas the attempt should be made to empower it further by giving it a clearly defined legislative mandate. But at the same time India needs to graduate from that Victorian syndrome. Unfortunately, there was a British convention which we inherited that in the field of intelligence even parliament must completely cede its discretion to the executive. That covenant may have been true in the early part of the 20th century. But even those countries which coined these covenants have given them a decent burial by making their executives and intelligence agencies more accountable with the changing time. Intelligence agencies such as Mossad, CIA and MI6 have reformed their structures to include operation and financial audits which have improved their efficiency. These agencies, prior to reforms, had a history of personal and political abuse. Institutions are based on trust, but there is no incompatibility between trust and verification. The taxpayer needs to know from a competent authority that his rupee is not being misused on ballerinas, champagne and settling personal scores. n (Vivek@allrights.co.in)

JUDICIARY

Is it right to call Judiciary communal? A Random Reflection of a Human Rights Lawyer by Anant Asthana

he execution of Afzal Guru has generated a huge debate. Some celebrated it and some criticised it for several reasons. One of the responses I came across on social media platform, Facebook reads that: “This spectacular and also imperceptible shift from staged encounters (extrajudicial killings) to simply judicial killings is alarming. Now, even in courts, even in the case of capital punishment, you cannot avail due process if you are a Muslim or Kashmiri. Afzal is both.” An implicit attribution of communalism to judiciary in this comment compelled me think about it carefully for several days. The more you think about this comment, the more you get distressed as it’s not only mischievous but also extremely irresponsible. It is not only ill-conceived but also a serious allegation and the problem is in its reliance on such a prejudiced selection of sample. It is not even a sample. To cast aspersions on judiciary in this manner is simply cynical. Whether award of death sentence and subsequent execution was right or wrong, sound in law or not, whether his conviction on circumstantial evidence was justified or not, whatever may be the problem with the way Afzal Guru was executed, it does not give occasion to impute such a slander on a credible institution like judiciary. An institution which stands as a guard against state’s power and acts as our final refuge does not deserve such treatment. This imputation of communalism on judiciary only reflects the well known syndrome of selective amnesia. Let us turn some pages of news25

papers in the last six months which is gathering dust if not sold to rag pickers. An article published in The Times of India on August 6, 2012 reads: In a setback to Delhi Police, the Delhi high court has upheld acquittal of seven alleged terrorists on the ground they were nabbed after a "fake encounter" in 2005 and were falsely implicated.” Another piece in the same newspaper on November 22, 2012 reads: “The Delhi High Court on 22 November in a 16-year-old important case of terrorism acquitted two convicts who were earlier sentenced to death. The court said its verdict was forced by the Delhi Police’s “shoddy investigation” in the case. The judgment by a bench of Justice S. Ravindra Bhat and G P Mittal was pronounced after hearing the appeals filed by the convicts, Mohammad Naushad, Mohammad Ali Bhatt, Mirza Nisar Husain and Javed Ahmed Khan, all from Kashmir.” On January 5, 2013 an article in Indian Express reads: Eight years after being awarded the death penalty by a sessions court for his alleged ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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JUDICIARY involvement in a 1997 bomb blast which killed four persons in a Delhi Transport Corporation bus, a Pakistani national was on Friday acquitted by another sessions court, which conducted a fresh trial in the case. Kashmiri man acquitted in terror case, reads an article published in The Hindu on February 10, 2013: A Sessions court here has acquitted a man, accused of being a member of terror outfit Al-Badr who had allegedly sent a large consignment of communication equipment from Saudi Arabia to India, after Delhi Police obtained a faulty sanction to prosecute him under the Unlawful Activities Prevention Act…Acquitting Srinagar resident Sajjad Hussain Sheikh, Additional Sessions Judge P. K. Jain said: “Prosecution has failed to bring home the guilt of the accused for the offence punishable under Section 40 of UAPA beyond the shadow of all reasonable doubts. Thus I hereby acquit him.” These are just few results of acquittals announced by various courts in Delhi in past six months in terrorism related cases involving Muslims as well as Kashmiris which came up during these two minutes of recapitulation of newspapers reports. So where does the allegation of Judiciary being communal stand? Standing up and working towards promotion and protection of human rights, Rule of Law, Due Process and civil liberties is an act of responsibility and it should be incumbent on people like us to be informed, fair and responsible in our criticism. It is true that judicial system is not flawless and yes there is a need to keep on improving it but at the same time it is very important for habitual critics like us to invest in keeping ourselves well- informed in order to be fair in our criticism and action. Imputing communalism to Judiciary, in such a general, bland and sweeping fashion, is the last thing any responsible human rights activist in India should do because it does not seem to be the case at all. There have been lot of vitriolic stuff on internet about judiciary and a lot of it was just “venting out”. More surprisingly such contents are coming from human rights related websites and blogs by those claiming to be speaking for human rights. Who are these self-proclaimed human rights saviours? The question here is, whether all these was coming from people who are seriously concerned about human rights situation in our country or just that they are angry on something and using human rights’ language as an easy tool to camouflage their anger or reaction? Today if general opinion about “Human Rights Activists” is getting dismal; it is so, to a great extent, because of these kinds of cynical criticism being put forth so randomly in the ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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name of human rights. Being a human right activist, I am fully aware that speaking for respecting human rights, calling for adherence to rule of law , criticising or being vocal or standing or acting against those in authority and power or challenging popular perceptions within society with uncomfortable questions, more so on sensitive issues like terrorism, state repression, freedom of speech, nationalism etc. Speaking on these issues often invites allegations of being “anti-national”, “unpatriotic”, “traitor”, “bleeding heart liberals”, “Foreign agents” and many activists are in fact victimised due to these stereotypes which is a matter of great concern but at the same time a lot of these stereotypes are resulting from irresponsibility shown by some of us , human rights activists. Today those who are using Afzal Guru’s execution for maligning judiciary, they should do some homework and should know that this very judiciary just last year set aside

JUDICIARY death sentence and conviction given to some Pakistani nationals accused of 1997 Delhi bomb blast only because it found that accused persons were not properly represented by legal aid provided to them. The judgment lambasted lower judiciary for taking legal aid casually. Why should we, human rights activists, not look at these judgments when we pass our “judgments” over judiciary? Are these Judgments coming from Mars? The effort here is not to put up a defence of judiciary but to break this culture of selective selection and irresponsible criticism and to highlight the need of exercising self-constraint on our overzealous criticisms which do not do any good to us except marginalising and delegitimizing our voices further.The dignified space which is accorded to dissent and criticism in democracy needs to be zealously protected and preserved and that’s why we need to guard ourselves and our movement against irresponsible behaviour and action. This was one of the lessons which I had learnt way back from Noted Human rights Scholar Prof Iqbal Ali Ansari with whom I used to work as a research assistant during my university days. I remember his insistence on maintaining highest standards of fairness in criticism. His scholarly work on various facets of human rights is a testimony to this. His aversion to selective selection and insistence on speaking uniformly against any kind of discrimination or bias used to make those, who would want to make his selective use, feel uncomfortable and would decided to isolate him but he did not compromise on this core principle. I don’t see that kind of integrity now a day in our circle. People just tend to suffer from compulsive criticism disorder.

Coming back to the issue, there is no denying fact that courts do go wrong and that is why in Law we have remedies to deal with fallibility of courts. We have instances where even Supreme Court has corrected itself. True that Afzal’s case and “Collective conscience” doctrine need to be attended, debated and responded, but in a responsible, fair and proper manner. Vilification of judiciary, for this reason is neither the answer nor it is fair. I record my protest against this

Imputing communalism to Judiciary, in such a general, bland and sweeping fashion, is the last thing any responsible human rights activist in India should do because it does not seem to be the case at all. culture of irresponsibility slowly creeping into our movement. Let us not loose sight of historical role our judiciary has played in advancing human rights law in our country. Let us be thankful to our Judges for upholding rule of law and protecting civil liberties. Let us also understand that we will be causing more harm than good if we rush to impute such baseless allegations on judiciary. We look up to judiciary in the time of crisis and I don’t think there is any case for being disillusioned from it. If there are instances where criticism is required, our democratic setup is spacious enough for that. Space of criticism needs to be utilised responsibly though and it works. We all remember Justice Katju’s magnanimous con27

quer over infallibility when democratic and dignified means were utilized to convey distress caused by his comment. Where is the occasion for resorting to cynicism, when we see fair criticism being attended properly? Deviations from set principles of law and instances of obstinacy, often seen in the functioning of lower judiciary are routine and the same are addressed by the Higher Courts in due process but to attribute an exclusive communal reading to such occasional deviations on the part of lower judiciary and to interpret errors and omissions which go on in judicial system in a selective fashion will not be fair and proper. This is something which happens routinely in the justice delivery system and that is why our judicial system has inbuilt supervisory and corrective processes in place. Fallibility of judges and courts is something which is acknowledged in law and that is why we should take it as that only. Having said this, I am not disputing the class character of law and given to that, our judicial system is also not immune from this but this is something which we need to address collectively in a wider process of social change. Judicial System, like any other system is also made up of human beings, vulnerable to all human weaknesses. It is not a machine or computer which could function on binary codes or set programmes. Law acknowledges this and so should we. n (Author is a Human Rights Lawyer in Delhi High Court, was requested by “All rights Bureau” to share his views on this subject and he shared this note, which is based on his personal reflections. He can be contacted at anant.asthana@gmail.com)

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AGRICULTURE

Farmers Income Commission is now a reality in India In the 10-year period, between 1997 and 2008, the National Crime Record Bureau tells us that approximately 2.40 lakh farmers had committed suicide primarily to escape the humiliation that comes along with growing indebtedness. Another 42 per cent want to quit agriculture if given an alternative. by Devinder Sharma

arnataka has done it. Last week it announced the setting up of a ‘Farmers Income Commission.’ The terms and conditions have yet to be formulated. If implemented properly, and followed up in Punjab, it can be the game changer for Indian agriculture which is reeling under a terrible agrarian distress. Noted agricultural scientist Dr M S Swaminathan sees merit in this. Thanking me for persuading the Karnataka government to establish an income commission, he wrote in a personal communication: “The National Policy for Farmers calls for a paradigm shift from measuring agricultural progress in terms of production to measuring progress by the real rate in the growth of the farmers’ income….This is the need of the hour.” Six years after I first demanded the need to provide farmers with an assured monthly income, the nation is gradually waking up to the desperate need for such a body to address the ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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fundamental issue of income security among country's exasperated farming community. Credit goes to former Karnataka Chief Minister B S Yeddurappa who very patiently listened to me, discussed its pros and cons and agreed to set up such a body. Present Chief Minister Jagadish Shettar finally announced it as part of the agricultural budget presented in Feb 2013. By providing income in the hands of farmers, (the mainstay of the economy) we are actually providing the real stimulus to kick-start the

economy. In my opinion, modern farming leads to two kinds of agriculture. First, is the highly subsidised agriculture in the western countries. And second, it results in subsistence agriculture, as is being witnessed in the developing world. The only way to bail out subsistence farmers is to

provide them with direct income support, as is being done in the rich and industrialised countries. Let us make a comparison. In the 10-year period, between 1997 and 2008, the National Crime Record Bureau tells us that approximately 2.40 lakh farmers had committed suicide primarily to escape the humil29

iation that comes along with growing indebtedness. Another 42 per cent want to quit agriculture if given an alternative. On the other hand, in the US between 1995 and 2009, farmers have been paid Rs 12.50 lakh crore as farm subsidies, including direct income support. In other words, while our farmers were reeling ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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AGRICULTURE under mounting debt, US farmers got a fat cheque sitting at their homes. In Europe, the economic handouts are more lucrative. Farmers receive a per hectare subsidy in the form of direct income support of Rs 4,000. In the case of cereals alone, if you multiply Rs 4,000 with 2.2 lakh hectares area sown in 27 countries of European Union, it comes to a staggering Rs 90.40 lakh crore. At a time when all out efforts are to launch the 2nd Green Revolution, buoyed with genetically modified crops, and stricter IPR laws that will shift the control over seed into the hands of private agribusiness companies, the market structure being laid out -- contract farming, food retail, commodity exchanges, and future trading -- all aim at making farmers economically viable, will actually allow the companies to walk away with more profits and leave farmers with empty pockets. If all this was workable, and was bringing income to farmers, there is no reason why the US and EU governments for instance would be providing huge subsidies, much of it in the form of direct income support or income transfer in one form or the other, to their miniscule population of farmers. For 45 years, the dominant breed of bureaucrats and technocrats, have been telling farmers that the more they produce the more will be their income. By saying so they were actually not helping farmers, but in the name of farmers promoting the commercial interests of fertiliser, pesticides, seed and mechanical equipment companies. No wonder, the average monthly income of a farming family in 2003-04, which includes five members of a family plus two cattle, had been worked out by NSSO at a paltry Rs 2115. The NSSO has since stopped measuring farm income. Under the 6th Pay Commission, a peon or a chaprasi in government service gets a minimum monthly salary of Rs 15,000. A farming family earns less than Rs 2115 (in terms of prevalent prices, it would be around Rs 2,400 a month). Can’t we as a nation even think of providing farmers with an income that equals what ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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a chaprasi gets? If Rs 2115 is the monthly income of a farming family (in Punjab, it hovers around Rs 3,200) shouldn't we as a nation hang our head in shame? If agriculture was indeed profitable, I see no reason why rural despair would increasingly drive farmers to take their own lives. Even in the frontline agricultural state of Punjab, two farmers commit suicide every day. As per a recent house-to-house survey, 19 people succumb to cancer ever day in Punjab ostensibly from the excessive use and abuse of chemicals in agriculture. Farmers were made to believe that putting more inputs would bring them more profits. They are now being told that free markets -commodity exchange, future trading and food retail – will make farming profitable and economically viable. What is not being told is that it didn't work in the US and the European Union. And it will therefore not work in India. Look at the way such a flawed approach is being agg r e s s i v e l y promoted in India. The beneficiaries of future trading and commodity exchange are not the farmers but speculators, the consultancy firms and rating agencies, and the business. And again, this is being done in the name of farmers. On the other hand, farmer unions have been only asking for a higher minimum support price (MSP). None of them have visualised that there are barely 35 to 40 per cent farmers in the country who ultimately get the benefit of procurement prices since they have some surplus to sell in the mandis. The rest of the farming community, which is in a majority, also produces food. Even if they hardly have anything to sell, they at least produce food. If they were not to produce food for themselves, the country would be importing that quantity of food. In other words, they produce economic wealth. Therefore they too need to be adequately compensated for the economic wealth they produce for the country. n (Author is distinguished agriculture and food policy analyst. He can be contacted at hunger55@gmail.com )

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OPINION

Capital Punishment

An Agenda for Abolition

by Yug Mohit Chaudhry

n Furman v. Georgia (1972), where the U.S. Supreme Court struck down the death penalty, Justice Marshall said that if citizens were fully informed about how people are sentenced to death, they would find capital punishment shocking, unjust and unacceptable. However, research on the death penalty and public awareness of the exact nature of the death penalty have been the most neglected 32 ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â U ×æ¿ü 2013

areas in the abolition campaign in India. The last three challenges to the constitutionality of the death penalty in India were rejected by the Supreme Court, inter alia, on the grounds that there is no empirical data to support the abolitionists’ claims. Unfortunately, the situation has not changed at all, and even now there is hardly any research on this subject. Therefore, the highest priority in any abolition campaign is to produce empirical research on the death penalty. That, and doing our utmost to stop each proposed execution and, failing that, to

OPINION make it as difficult as possible for the state to carry out an execution, adopting all legal, political and social means at our disposal. The death penalty will not be and never has been abolished in one fell swoop. Progress is going to be slow and incremental, and will depend on how successful we are in convincing the government, the courts, parliament and the people that the death penalty serves no purpose, but in fact degrades us all. Today, there are various reasons for opposing death penalty. People may feel it is morally wrong to kill, people may feel it is hypocritical to punish a murderer by imitating him, people may feel that there is no evidence that death penalty deters crime any more than life imprisonment does. Another reason to oppose death penalty is that it is irreversible. And there are situations where judgments have proven to be erroneous – they cannot be reversed, nothing that can be done, it is final. Let us discuss death penalty in the context of three social institutions to make an argument for its abolition. These three institutions are the Police, which are the evidence gathering machinery; the Courts, which adjudicate guilt and pass sentence and determine appropriate sentence; and the Executive, which deals with mercy petitions. One does not need to stress the point that in India we have a notoriously corrupt, dishonest, and criminalized police force. The evidence that is presented in the court is the evidence that is collected by this police. We are going to adjudicate whether somebody is guilty or not or whether somebody should be sentenced to death or not, on the basis of such evidence, which is collected by the Police force; which itself raises a huge question mark, on whether it is safe actually to have people sentenced to death on the basis of evidence collected by the police force we know to be corrupt. Let me give you a few examples about this. Some years ago in Bombay, a man was convicted and sentenced for the rape and murder of a child. The appeal was pending in the High Court, and while that appeal was pending, the police officer investigating the case committed suicide, leaving behind a suicide note saying he had falsely implicated this man. Now, the evidence on record did not merit an acquittal, the evidence was very strong. But for the suicide note, which was not even part of the evidence, this man would have gone to the gallows. The Bombay High Court, very unorthodox, took cognizance of the suicide note that was not on record, and acquitted this man. What would have happened if this officer’s conscience had not pricked him in this manner? 33

I will give you some other examples, cases that Shahid was handling which now I am looking into: the 2006 Malegaon bomb blasts. Bombs go off on a holy night, Badi Raat or Shab e Bara’at, outside the mosque in Malegaon, which is a predominantly Muslim town. Nine boys are arrested, and charged with having executed these bomb blasts. Nine confessions are recorded. Police claims that they seized RDX, explosive material, from their homes. Police also claims that one of these nine boys has agreed, because his conscience is troubling him so much, to become an approver, and to give evidence on behalf of the state, against his colleagues. Charge sheets are filed; sanctions are given. Because of the hue and cry raised in Mumbai, the case is transferred to the CBI. The CBI filed a supplementary charge sheet verifying the investigation done by the Mumbai Police. And then the NIA (National Investigation Agency) which is investigating the Samjhauta Express blasts, arrests Swami Aseemanand, who confesses to having carried out these blasts in Malegaon as well. He says that it was his Right wing Hindu terror group that did these Malegaon blasts. So then what happens to all that evidence, the confessional evidence, the RDX? Where did the RDX come from? Now, put yourself in the position of a judge, adjudicating a case, and the Police produce RDX in Court, saying it was seized from the house of the accused. The defence lawyer says that evidence has been fabricated. The Judge asks: “Where did the Police get it from?” How do you answer that question? You are at a loss for an answer. The judge is going to believe that evidence, that the RDX was actually seized, because where do people get RDX from otherwise? Normal people don’t have RDX. But for Swami Aseemanand’s confession coming to light, these nine boys would be facing the gallows. All of them. This is not a stray case. There were seven train blasts that took place within a space of half an hour in 2006, in Mumbai, on the 11th of July. The Police arrested thirteen boys, members of SIMI (Student Islamic Movement of India), saying they executed these blasts. Their mobile phones were seized at the time of the arrests. In the remand application that the Police filed before the magistrates, in writing, the Police said that these mobile phones have been sent for forensic examination, and the call records have been obtained from the mobile service providers. The call records show, claimed the police that these thirteen boys were in touch with each other, hatching the conspiracy. Further, that they were in touch with Lashkar-e-Toiba in Pakistan; that they were sending young boys to ALL RIGHTS

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OPINION Pakistan for terrorist training. And they said this not once, in the remand applications filed by the Police officers before the magistrate, but umpteen times, week after week – to justify the remand for custody. Hundred and eighty nine people have died in those train blasts, no magistrate or judge will ever give bail, especially not in the case of such statements being made by the police that they have got such forensic evidence. This is pretty strong evidence that you are in touch with LeT and sending people there for terrorist training. However, some time later, another branch of the Mumbai Police another set of people, who confessed to having carried out the same bomb blasts in the trains. They had confessions recorded. The government accorded sanction for the prosecution of those persons arrested in the other case of the same crime. Confessions were recorded, charge sheets were filed, and sanction was given by the Police commissioner and by the Government, for the same crime, to different people. When the charge sheet was filed in the SIMI case, the boys asked for copies of the mobile records because the Police had not filed those with the charge sheet. This was very surprising, given the fact that the Police had claimed that the records show that these boys had been in touch with the LeT. Why would they not file those records in the charge sheet? But they did not. The boys had always held that these records, if produced before the court, would prove their innocence; the fact that they were somewhere else at the time of the blasts. The tower location would clearly establish that they were not at Church Gate Station, as the Police had claimed but elsewhere. One of them was in Bihar, outside Bombay. Some were in North Bombay, at the other end of Church Gate station where the bombs went off. So the boys pleaded that these phone records were crucial for their defence. Six applications were made over a period of six years, by the defence lawyers asking for the copies of these phone records which the Police had in their custody. But the Police consistently refused to give these phone records on the plea that they had not relied on them in the charge sheet so they were not bound to provide them to the accused. But as often happens in terrorism trials – because there is so much at stake and because such hype surrounds these cases, the judge often just rubberstamps everything the prosecution says – the judge rejected the six applications for those phone records for over six years. The Police persistently refused to provide the records, but said nothing beyond this. Finally we moved the High Court and asked it to give us these records. The High Court found ALL RIGHTS

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these records to be relevant and directed the Police to give us the records. And then six years later and three months after the last time they said they would not give them, in the High Court for the first time, the Police said they have destroyed the records! Given the fact that the Police claim that some of the accused were still to be apprehended, could they have possibly destroyed these records? Unless of course they showed that the boys that were actually apprehended were innocent, as these boys claimed. In normal crimes, confessional evidence is considered unworthy of belief, because how can you believe everything a Police officer says. That is the judicial principle on the basis of which confessions are excluded from evidence. But, in serious crimes, confessions are admitted in evidence. This is quite strange. If confessions are not admissible for normal crimes, why should they be admissible for serious crimes where the burden of proof should be that much higher? But they are, under our law, admissible for terrorists, who are tried under these special legislations. So in Malegaon 2006, for example, all the police were ever going to produce as evidence in Court was the nine confessions. Along with of course fabricated RDX explosive discovery reports. No real hard evidence. It doesn’t take much to fabricate a confession when the confession is verified by the Police officers themselves. In the Indira Gandhi’s assassination case, Balwant Singh, one of the officers attached to her security had been arrested immediately, illegally, after the assassination. He was however not shown arrested but illegally detained by the Police at the end of Yamuna Velodrome for many days; brutally tortured for that period, before being released. A day or two after he was released, he was shown arrested while alighting from a bus at ISBT, and the police claimed they found a full confession in his pocket which he was carrying around with him – a full confession in letter form, in expanded notation. He was claimed to be carrying around the confession with him. This is Indira Gandhi’s assassination case! The trial court believed it, sentenced Balwant Singh to death. The High court believed it and sentenced Balwant Singh to death. I therefore come back to the question: Is it safe to accept such evidence and sentence people to death, and foreclose the possibility of discovery of error or manipulation at a later date in time? The second important institution involved in the death penalty is the Judiciary. The judiciary is as fallible, as error prone, as any other

OPINION institution in India. It comprises the same kind of people that make up other institutions in society. Error is bound to people. And also because the pretext for death penalty, i.e. ‘rarest of rare’, is inherently so subjective, that there are bound to be varying opinions on the same issue. The Supreme Court has been engaged in soul-searching and they have been admitting again and again, that their own death penalty jurisprudence is arbitrary, and not at all consistent; that the right to equality before the law has been consistently violated. In Bachan Singh (1982) Justice Bhagwati, a former Chief Justice of India, said that the Supreme Court has been awarding death penalties “arbitrarily and freakishly”. Was he wrong? In Furman v. Georgia, Justice Stewart held that death sentences and being struck by lightning were cruel and unusual in the same way. One does not know whom it will strike, it cannot be anticipated or guarded against, and if one is struck by it, bad luck. Harbans Singh’s case (1982) vividly illustrates this. Three persons with identical roles were sentenced to death for murder, and three different Supreme Court benches pronounced three dramatically different verdicts. Kashmira’s death sentence was commuted to life imprisonment, Jeeta’s appeal was dismissed and he was hanged, and Harbans was recommended for Presidential clemency though the court had initially dismissed his appeal and review petition. Examples abound of “a pattern of confusion, contradiction and aberrations” in death-penalty judgements. Identical cases have been treated differently so often as to become a cause of real concern. In these cases, there is little to differentiate those where death is given from those where it is substituted with life imprisonment, except the composition of the bench. While Justices Balakrishnan and Sinha commuted all death sentences for child rape and murder, There can be little doubt that Justice Bhagwati was right when he said “whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious.” This becomes self-evidently true on comparing Justice Krishna Iyer’s comments on the sacredness of life, the everpresent possibility of redemption in the worst type of criminal, and the barbarity of the death sentence with the regret expressed by some judges after the Bachan Singh judgment “unfortunately” prevented them from passing more death sentences. The law of death penalty was laid down in India by Bacchan Singh, and subsequent judgments are expected to be consistent with Bac35

chan Singh. Bacchan Singh held that the judges would have to look at both, the circumstances pertaining to the crime, as well as at the circumstances pertaining to the criminal. However, in cases of heinous crimes as well as cases of terrorism, this judicial caution takes a bit of a backseat and is overwhelmed by the sense of revulsion caused by the crime. A man called Ravji, murdered his family, because he suspected that his wife was unfaithful to him and his children were illegitimate. Now, In this case, if they were to look merely at the circumstances pertaining to the crime, of course they could hang him. But if they were to consider the circumstances pertaining to the individual, or the criminal, then they would have seen a human being with a mental problem, in which case perhaps they would have had leaned towards clemency and commuted the death sentence. But the crime was so gruesome and shocking – they wouldn’t allow themselves to do that. So they laid down a law that said that in heinous cases, we need not look at the circumstances pertaining to the criminal, but only the circumstances pertaining to the crime; and they sent Ravji to the gallows. This new principle of law which ran directly from the principle laid down in Bacchan Singh, was then invoked again within a few months, to send Surja Ram to the gallows. And then over the next ten years, it was invoked to send another twelve people to the gallows. A total of about fifteen people were sentenced to death on the basis of this erroneous principle. In 2009, the Supreme Court detected this error and declared Ravji’s case, and the 7 other cases that followed as being rendered per incuriam literally in error of, or in ignorance of law). Thereafter, two other benches reiterated these findings. However, by then it was too late for Ravji and another prisoner wrongly sentenced to death for they had already been executed. One of the prisoners was subsequently declared a juvenile, and the death sentences of four others were commuted by the government. Seven prisoners remain on death row despite the Supreme Court having admitted in four different cases that their death sentence judgements were rendered in ignorance. A campaign was launched pursuant to which fourteen judges of the High Court and the Supreme Court wrote to the President asking him to commute these death sentences. Amongst these was the case of Saibanna. At the advice of the Home Minister, the President has recently rejected Saibanna’s mercy petition. Saibanna is now in danger of imminent execution. The decision is still pending on the mercy petitions of the six other prisoners. ALL RIGHTS

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OPINION Take the Rajiv Gandhi assassination case now. Twenty-six persons were tried for the assassination of Rajiv Gandhi by the trial court. All 26 sentenced to death, all 26 found guilty. They were convicted under TADA, where there was no appeal to the High Court, because it was conceived as a fast track justice. So the matter goes to the Supreme Court. In Supreme Court, 19 of 26 people sentenced to death were acquitted. Look at the huge difference between the earlier death sentences and subsequent acquittals. There is something drastically wrong with a judiciary system, which can convict and sentence 26 persons to death and then acquit 19 of them after the first appeal. Out of the remaining seven, four are sentenced to death by the Supreme Court. One of them was a boy whose only role as per the Supreme Court judgment is that he procured the 14-volt battery for the people who actually planted the bomb in Dhanu. I mentioned earlier that under normal law, confessions are not admissible, but that under the special enactment of TADA confessions are admissible as evidence against the accused. In the Rajeev Gandhi assassination case the confession was recorded against these 7 people but what happened was that the Supreme Court accepted the argument that TADA offence did not apply. So the Supreme Court acquitted them of TADA. Now, if TADA is inapplicable, the confession should have been invalidated as well, but Supreme Court said ‘No’. The Supreme Court said that because they were charged with TADA and TADA allowed the confession in establishing guilt, it would not be thrown out. So tomorrow, what do you do if you want to get a thief convicted, if he cannot otherwise get convicted, charge him under TADA as well as theft. Let him get acquitted under the terrorist offense but be charged and convicted under theft anyway. This is the logic of the judges. In addition to being arbitrary, the death penalty is also discriminatory. Justice Krishna observed in Rajendra Prasad that the death sentence has a class bias and a colour bar. Of the fourteen prisoners wrongly sentenced to death, 12 were represented on legal aid. Usually, the records in death-penalty cases are voluminous and trials last for 6-9 months. In most places legal-aid lawyers are paid Rs.500-2000 for a death-sentence trial, about the same for High Court proceedings, and Rs. 4000 for a Supreme Court appeal. These fees, stagnant for decades, would not cover conveyance and miscellaneous expenses. Legal-aid rules require senior lawyers be appointed for all possible death-sentence cases, but this is rarely done. Raw inexALL RIGHTS

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perienced juniors are roped in for cases that would make seniors baulk. Not surprisingly, appellate courts often remand such cases back to trial courts because the prisoner was not defended in any meaningful way. But more such cases fall through the cracks. It is hardly surprising therefore that most cases of miscarriage of justice, wrongful convictions and executions have been defended at some stage on legal aid. Death-sentence prisoners handicapped by poverty are doomed ab initio by a system that pays legal-aid lawyers a pittance for their work. The Constitution has promised citizens equality before the law and protection from arbitrariness, which means that their cases will be treated like other cases before theirs, regardless of their financial capacity. Courts are required to uphold this promise for it is the bedrock of judicial legitimacy. Since the death penalty cannot be awarded with consistency and fairness it must be abolished, for without these prerequisites, judicially sanctioned killings are not meaningfully different from vengeful murder. And now we come to the third part .The manner in which the people are executed. The power of mercy is usually historically given to the sovereign. There is a very good reason to retaining this power. It is a way to correct the error in the judicial administration. It is meant to temper justice with mercy. Justice is employed in the widest sense of the term, to account for those things which law cannot take into account. Therefore it is very necessary to retain this power: to correct judicial error, to temper justice with compassion, and to do justice in the widest sense of the term. This is why all countries have a mercy power. But if you look at the way the mercy power has been used recently it has now become a tool for the government to distract the attention from other pressing issues. You look at the timing of the Kasab execution. Look at the timing of this execution. In 2001, the Parliament was attacked; in 2005 the Supreme Court delivered its judgment; in 2013, Afzal is hanged. Eight years later, suddenly today (9th February). He has not been hanged due to his role in the Parliament attack, I can tell you that. For eight years they kept his mercy petition pending and today, suddenly, when the BJP has put the Congress government on the back foot on various issues, including national security, crime etc, they execute him. The Parliament session is going to begin now just as it was going to begin when Kasab was hanged. One must question the manner of this execution. Article 21 of the Constitution is inalienable and applies to every human being, not only a citizen of India. Article 21 says that No person shall be deprived of his

OPINION life or personal liberty except according to procedure established by law. And that procedure as per Supreme Court has to be fair, just and reasonable. If you are going to take away somebody’s life, you have to do it according to the legal procedure. What does the procedure say in the law? The rules of the government on this issue says that when a mercy petition is made, and that this mercy petition is rejected, whoever makes the mercy petition for the prisoner has to be informed about the rejection of the mercy petition. The prisoner and his family have to be informed about the rejection and told in advance about the date of the execution. In the Kasab case, the day after the mercy petition was rejected by the President, a journalist filed an RTI application and he was informed in writing the day after the rejection that the Kasab mercy petition is still pending. What is the need to tell these lies? A government cannot tell lies. What was the need to violate the procedure which was laid down by the government itself? The government was armed with the judicial warrant authorizing the execution of Kasab. What was the need to do it in that manner, away in the darkness like a thief without informing his family? They had his family address. A large number of people wrote mercy petitions for Kasab. They were not informed that his mercy petition had been rejected. The rule says the person must be informed that the mercy petition has been rejected. Why do the rules say that? Because, again, the right to judicial remedy in here in the person till his last breath and if there has been considerable delay in the rejection of the mercy petition, the Supreme Court says the person has the right to go to the Supreme Court and ask for the commutation of the death sentence. There are rights available which have to be acted upon, which only can be acted upon by moving to the court. Therefor there is always a small window of time between the rejection of the mercy petition and execution day to enable the convict to resort to the judicial remedy. But neither Kasab nor Afzal Guru were given this opportunity. After Kasab was executed, the Home Minister of the country and the Chief Minister of Maharashtra actually said on record, we did it silently and secretly because we did not want people to move to court. The Home Minister reiterated this after Afzal’s execution. This is a startling statement in a democracy: the brazen disregard for the rule of law by the country’s Home Minister. Are we not becoming a police state? Afzal Guru had a wife, a family not too far away from Delhi: a meeting which was granted to the prisoner by the statute was now denied. That is how now we execute people. They did it with Kasab ear37

lier and did it again with the Afzal Guru. Recently, to show how much he cares for women’s rights and how tough he is on crime, the present Home Minister, a former sub-inspector of police, has proudly announced that he would never permit the commutation of the death sentence for a rapist. This, apparently, will make the streets safer for women, just as executing Kasab has insulted India from terrorist attacks, and executing Saibanna and Das will prevent people from committing repeat murders. Executions and support for the death penalty are props for politicians to claim that they are tough on crime. Instead of persisting with the more difficult, drawn-out and complex work that is needed to properly protect against future attacks and addresses the causes of crime, this simplistic gesture of the death penalty pursued at great human cost is resorted to as an easy and cheap way of mollifying the public urge that something be done. In fact the death penalty is a distraction, a red herring, diverting attention from government inaction in the areas that matter most. It exploits the public thirst for blood, feeding the belief that execution will secure closure. But as we know, executing a human being does not secure closure or fix the underlying, persisting problems – it rather conceals them. A state-sanctioned execution has nothing to recommend it except a very base blood lust that we encourage at our peril. Feeding this blood lust by executions and introducing new types of state sanctioned violence like castration can only make us a more violent society, not less. If we have to become a more humane and compassionate society, and leave a better, less blood-thirsty world behind for our children, we have to curb our instinct for bloody retribution. Judicial errors, fabricated evidence or this kind of executive chicanery. It is a combination of these three that result in the death sentence which is then actually executed. Death sentences, passed in dusty courtrooms after arcane legal arguments inscrutable to laypeople, are executed in utmost secrecy behind high prison walls at the crack of dawn. Though the right of the state to punish by killing is intensely debated, the process which takes prisoners from the dock to the scaffold remains shrouded. Since executions are done in our names, we need to know more about them and make informed choices. n (This is slightly edited text of the second Shahid Azmi Memorial Lecture, delivered at the Indian Law Institute on 9 February 2013 by advocate Yug Mohit Chaudhary.) ALL RIGHTS

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BEYOND BOUNDARIES

The Ethiopian Land Grab Crisis S

by Nickolas Johnson

ince the 2007 food price crisis foreign acquisition of land has shot through the roof. Experts believe that agricultural commoditization, climate change, and cropland being diverted to biofuels has been largely to blame for the 2007 food crisis and recent volatility and price increases. As a result, foreign govern-

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ments, private agro-enterprises and private equity funds have purchased large swaths of lush, arable land in developing countries, especially Africa. In 2009 alone foreign investors acquired 60 million hectares (ha) of land, the equivalent to the size of France. With nearly 75 percent of the deals taking place in sub-Saharan Africa, some of the most food insecure and ecologically sensitive areas

BEYOND BOUNDARIES are being bought up, bulldozed and transformed to large scale, chemical, mechanized farms. A greater example of this could not be found better than with Ethiopia. In Ethiopia, these areas are home to thousands of small sale farms and pastoralists who have already had to deal with decades of neglect by their government. Land Deals Through backdoor deals these companies are able to acquire land at rock-bottom prices with renewable multi-decade lease terms. Additionally, most of these large-scale land deals are negotiated without the Free Prior and Informed Consent of the indigenous populations living on the land. In the worst but all to common cases, people are forcibly evicted from their land with little or no compensation. To top it all off, these deals are being done in the name of progress, food security and development under Ethiopia's villagization program. Villagization In Ethiopia's villagization program more than 1.5 million residents of Ethiopia have begun or will begin relocating away from their ancestral lands in a program called villagization. Ethiopia has a long and controversial history with resettlement, as it was a major element of the Derg’s socialist agricultural policies. By 1989, Derg’s villagization program had resettled more than 13 million people; international disapproval, degrading security and dwindling of resources caused the program to slow down. Today, the government has resumed the program, stating that it is voluntary and justifying it by claiming that it’s necessary to centralize infrastructure by having the villages close to roads and available water supplies. Though this appears like a valiant attempt to supply access to services quickly, research and testimonies from locals say otherwise. Despite promises of development, the government’s land lease scheme has led to forced resettlement and human rights violations of the Mursi, Suri, and Bodi agro-pastoralist tribes at the hands of the Ethiopian Defense Forces (EDF). There are also serious concerns about the impact of this “rapid development” on the environment and the livelihoods of the 500,000 indigenous people that rely on the waters of the Omo River and the adjacent lands, as well as Lake Turkana The Oakland Institute’s field research shows that a vast majority of people in the targeted regions do not want to relocate, but have been

threatened by local police. As reported by Human Rights Watch (HRW), the forced relocation of residents of Gambella has caused great hardship to tens of thousands — including rape, other violent acts, coercion and intimidation. Furthermore, despite the governments claims, reality shows that the regions targeted for villagization are also those where the government is trying to bring in investors for large-scale commercial plantations. A clear example of this being more than purely coincidental, the Indian company Karuturi, one of the largest foreign landholders in Ethiopia has stated publicly that the Gambella Regional government offered to move the village of Ilea for them. Luckily, Karuturi chose not to pursue this venture. However, another company, Saudi Star, is now clearing forests

that had been used by former residents who were forced to relocate to Pokedi as part of the villagization program. India's Investments Throughout Ethiopia, most investment deals are taking place within five administrative regions –Afar and Amhara in the North, Oromia in Central Ethiopia, and Gambella and the Southern Nations, Nationalities and Peoples Regions in the South. Indian enterprises are most the prominent investors in Ethiopia with a majority of their farms in Gambella and Afar. One Indian investor, Karuturi Global plans to farm palm oil, cereals, and pulses on 300,000 ha of

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BEYOND BOUNDARIES land in the region. In the case with Karuturi and other Indian corporations, investments generally take place in regions where the government offers generous tax incentives. Incidentally, these are the very same regions that are targeted by the villagization program. Within the Lower Omo region, few direct Indian investments have been identified as the region is primarily developed by state-owned companies for the production of sugar. Regardless, India is playing a key role in this region through the Export- Import (EXIM) bank of India who has has opened a $640 million line of credit to the Ethiopian government to expand the country’s sugar sector. This line of credit commits Ethiopia to import 75 percent of the goods and services, such as consultancy services, from India. Food Security Suffering from endemic poverty and food insecurity, these land deals have created vast conflict across Ethiopia. According to IFPRI’s 2012 Global Hunger Index, Ethiopia is the fifth “hungriest” nation in the world even though 80 percent of the population is engaged in agriculture. This reality has created a country where 10 to 15 million people are depend on food aid for their survival. It is these facts that the Ethiopian government argues that foreign investment in agriculture will bring economic development and eventually reduce hunger and poverty. The government claims that these investments are necessary to modernize agriculture, bring new technologies, and create employment. However, investigations by the Oakland Institute and other NGOs show that large-scale plantations create little employment and bring limited benefits for the local populations. In the case of Saudi company Saudi Star, a 10,000 hectare farm in the Gambella region, has been embroiled in dispute, conflict, and unfortunately, violence. Marred in human rights abuses in the aftermath of an unfortunate shooting that left five Saudi Star employees dead this June, the Ethiopian government has retaliated with arbitrary arrests, beatings, and rape. While it is still unknown who perpetrated the killings, one man who claimed to be part of the attack stated that it was in “retaliation for the land leasing by Saudi Star and other foreign investors in Gambella region.” It is through the failures of the Ethiopian government to live up to their promises of jobs, and infrastructure, coupled with the loss of land, livelihood and the numerous human rights abuses, that have lead locals to speak out and fight for their land rights. ALL RIGHTS

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Human Rights Abuses In the case of the Gambella regions indigenous Anuak, community members and prominent human rights defenders, Obang Metho and Nyikaw Ochalla confirm reports by OI and HRW of forced removals, demolition of houses, and the destruction of crops and ancestral burial grounds. "When [the government] comes to take their land, it is without their knowledge, and in fact [the government] says that they no longer belonged to this land, [even though] the Anuak have owned it for generations. . . . [In one instance] the government told the Anuak people to load their cattle, goats, and chickens onto trucks so that they could be moved to outside villages." -Nyikaw Ochalla Ethiopian police and soldiers beat and arrest those who do not comply with this “voluntary program,” and individuals are only released on the condition that they support the program. Those who try to return, according to Metho, found “their homes were destroyed and the land was completely changed.” Furthermore, once relocated, these communities of Anuak farmers are left to fend for themselves with substandard land to be cultivated statically, a way with which they have no experience. The Anuak’s cultivation practices rely on shifting cultivation on one plot of land for several years before moving on to another. Seven to ten years later, they return to begin the process all over. From self-sufficient and sustaining to becoming dependent on aid, Ochalla explains that the Anuak’s way of life is being destroyed: “The government is depriving the Anuak people of their memories, homeland, and traditional farming system. And the Anuak are leaving behind homes [they have lived in] for generations. . . . The Anuak are now mov[ed] to a land that cannot be inhabited, with no water, and no access to education. This has created so much impact on their livelihoods.” For Metho, these realities are equally disturbing. “For the indigenous people, [their land,] their one identity and existence as a people for their survival has been taken away by the very government that is supposed to protect them.” According to the US Department of State’s 2011 human rights report, Ethiopia's regime is responsible for massive human rights violations. With the government’s actions around villagization, forced displacement, and land acquisition and their failure to secure Free Prior and Informed Consent from displaced indigenous communities, the Ethiopian government is in violation of no less than seven international human rights treaties.

BEYOND BOUNDARIES Explained in a new OI report Unheard Voices, prepared by the International Human Rights Clinic at New York University School of Law, treaties including Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment have all been violated. These treaties are coupled with regional treaties such as the African Charter on Human and Peoples’ Rights, among others. Signing these treaties is not a symbolic act and these treaties obligate the Ethiopian government to strive to not only meet these minimum standards, but also to surpass them. As pointed out in the report, these treaties also cover government policies that may threaten human rights.

Indian Perspective Indian companies which invested in controversial deals involving hundreds of thousands of acres of land in Ethiopia have found themselves out of their depth in a fast-growing African economy that is still in the process of building critical transport and irrigation networks. Documents related to one such transaction reveal how Emami Biotech, a subsidiary of the Rs.2,200-crore Emami Group, pulled out of a Rs. 400-crore, 40,000-hectare, bio-fuel plantation only a year after the project was announced. Indian companies are the second largest investors in the Ethiopian economy with approved investments worth nearly $5 billion. While a majority of the businesses are small manufacturing and trading enterprises run by business families long settled in East Africa, the big money has come with the recent entry of large Indian investors. A number of Indian companies have signed agreements to lease more than 4,40,000 hectares of land across Ethiopia, 1,00,000 hectares of which has been granted to a single Bangalorebased company, Karuturi Global Ltd. International. Rights organisations and NGOs have characterised the deals as instances of land grab and have accused the government of forcibly resettling pastoral communities. The Ethiopian government has denied these allegations, insisting that large-scale commercial agriculture is a vital part of an ambitious project to transform the national economy. Yet, the failure of Emami Biotech’s plantation and the glacial progress of Karuturi’s 1,00,000-hectare project in Gambella have led some to question the ability of these companies to manage such large plots of land. The controversy regarding growing “land grab” in some African countries, especially Ethiopia by multinational corporations are being closely watched globally by Indian government and Indian government agriculture experts and researchers. The UPA led Indian government says the Indian companies have taken land on lease as per rules of the country concerned. The government says companies operating in Ethiopia and other parts of Africa have been asked to remain sensitive to the concerns of host countries.

Investors Responsibilities & Grass Roots Efforts As many NGOs and local movements look for a change in the policies and priorities of the Ethiopian government, support has recently emerged for the “Protect, Respect, Remedy” framework, which requires corporations to avoid infringing on human rights and address the negative human rights impacts of their operations. While these proposals take shape, many people are dealing with the Ethiopian governments refusal to acknowledge the realities of their land investment policies and investors such as Karuturi rejecting any responsibility in regards to the villagization program. Whether it be through the Ethiopian governments villagization program or investors implicit acceptance and exploitation of these same policies (that would not be accepted in the investors’ home country), both parties have roused the hearts and minds of locals, NGOs, as well as Ethiopian and Indian activists. These groups are pushing for the adoption of such guidelines as the UN endorsed “Guiding Principles for Business and Human Rights” which would protect against human rights abuses by third parties, including business enterprises. Most importantly these groups believe that once the stories of those effected by these land grabs are heard and citizens speak out agents the predatory dealings of their countries’ companies, both the Ethiopian government and the foreign investors will no longer be able to hide in the shadows. n (Nickolas Johnson is the Policy Analyst at the Oakland Institute, California, USA. He can be contacted at njohnson@oaklandinstitute.org )

(All Rights Bureau) 41

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Implications of North Korea’s Nuclear Explosion

by Sonali Singh

he Democratic People’s Republic of Korea or the North Korea’s decision to conduct a third nuclear test, despite warnings from international community and in defiance to bans imposed on it, on February 12, has attracted widespread condemnation. Under its new young leader Kim-Jong-un, Pyongyang has successfully tested or rather demonstrated its nuclear capability. But it was most expected one by the international community as North ALL RIGHTS

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Korea remained consistent with this record following 2006, 2009 tests and now in 2013 though with increased (from last two) yield of about 5 kilotons . Combine this with the fact that North Korea has developed long range missiles in name of its space program, the worries of international community and especially America, are not entirely unfounded. The realists insights to behave in the realm of international politics often termed as doctrine of Raison d’état or reason of state might has triggered North Korea for such actions and no doubt guided by its rationality North Korea has their own pre-supposi-

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tions regarding hard power. But, the world community has regarded this as a clear threat to world peace and security, “a highly provocative act”, “a clear and grave violation of the relevant Security Council resolution” and so the next.

Unravelling Trajectory

Evolution

The history of the Korean Peninsula is like the history of

any small country wedged between two powerful neighbours. For a thousand years Korea was ruled by two dynasties (Goreyo Dynasty and Joseon Dynasty) separated by a brief Mongol conquest. It suffered Japanese and Manchu incursions in the sixteenth and seventeenth centuries but survived until the end of the nineteenth, by which time it had become a pawn in Sino— Japanese—Russian conflicts. Japan with the victorious side ruled over the Korean peninsula till its surrender in the Second World War. After the surrender of Japan partly to the Russians and party to the Americans in the Second World War, Korea was divided into two parts along the 38th parallel demarcation line. The attempt to equip a single government was failed due to presence of Russians as well as American troops. In 1947, United States took the problem to the United Nations which appointed a commission (UN Temporary Commission on Korea—UNTCOK) to effect unity in the peninsula through elections. The election in 1948 was supposed to be for the creation of a government for whole of the Korea but the commission was failed to operate in the north of the 38th parallel and North Korea did not accept the authority of the head of the elected government, Syngman Rhee. New elections in South Korea and propaganda in North Korea for the re-unifications of Korea either by elections or merger of the two parliaments occupied the early 1950. But all these attempts were failed to prop a solution and rather military of North Korea invaded the South on June 25, 1950 leading to a full scale civil war. The 38th parallel inspired a polarized reaction from sides, the sponsors, Chinese military allied of north and the United 43

States allied of south intervened and confronted on behalf of their allies and shifted the balance of the war which ended on July 27, 1953, that left five million people dead, injured or missing. The end of war restored the original boundaries between the North and South Korea with an “Armistice Agreement”. The Korean War left North and South deeply hostile to each other and condemned to decades of misrule. India played an active role in Korean peninsula. In the build-up to the war, facilitating intra-war communication and helping implement the armistice, New Delhi was intensely involved in the Korean peninsula. But, Indian role appears to have forgotten not just in north-east but also in New Delhi. Here it is important to note that Korean War was first military confrontation of the cold-war period which set the standards of several other conflicts and created the idea of proxy-wars. Further, the relative peace between North and South Korea was interrupted by violence and several assassinations attempts and this had spoiled, their relations with polarised ideology, as South became anti-communist and antiNorth Korean sentiments brewed there. North Korea remained closely aligned with Soviet Union and China. With the disintegration of Soviet Union in the December1991 and emergence of a new world order, the power equation has changed in the world politics. In the post-cold war era, North and South Korea signed the June 15th North-South Joint Declaration in 2000, in which they promised to seek peaceful reunification. On October 4, 2007, the leaders of North and South Korea pledged to hold summit talks to officially declare the war over and reaffirmed the principle of mutual ALL RIGHTS

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NUCLEAR PROLIFERATION and opted to possess nuclear weapon. Also, feasibility to get nuclear technology through smugglings from countries such as Pakistan gave a greater edge to North Korea to get nuclear capability. And lastly, as a part of clandestine axis between recalcitrant states North Korea wishes to overrule international norms of peace and coexistence.

Implications and Ramifications of North Korea’s Nuclear Test on the International Community In the age of digital revolution and increased means of transport the world has shrunken dramatically. Global communication as well as global politics has changed incredibly. With the proliferation of 24/7 news channels and World Wide Web, we can assume that the saying ‘breach of peace anywhere is breach of peace everywhere’, is true. Social media tools have also increased the impact and ramifications of any action against global peace and security. In this backdrop, here it is important to analyse various implications of recent North Korea’s nuclear test. non-aggression. But North Korean “prompt and powerful physical attack” against South Korea in 2010 has again doubted the intensions of the former. In the present context of North Korea’s nuclear test, here it is notable that North Korea has signed nuclear NonProliferation Treaty in 1985 and later withdrew from the International Atomic Energy Agency (IAEA), a UN agency based in Vienna to inspect nuclear programs of the member states in 1993. However, North Korea’s intensions are highly ambiguous on this. If we ascertain various reasons propelling North Korea’s nuclear weapon program, the first one would ALL RIGHTS

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be an attempt (of North Korea) to achieve parity with South Korea and dominate over the Korean peninsula. Secondly, as driven by communist sentiments, North Korea has AntiAmerican feelings based on historical and realist notions. Also, the ‘fear psychoses’ of North Korea in wake of American playing the role of hegemony in the post-Soviet era poses a threat perception both to North Korea and to China which is still trying to come from behind. Thirdly, nuclear weapons are well thought-out as currency of power. Further, North Korea probably distrusts China’s ability to provide protective umbrella to it 44

Effect on Balance of Power in Asia and Regional Repercussions In the anarchy of the international system, the most reliable brake on the power of one state is the power of other state. The latest nuclear test of North Korea may not have altered the balance of power in Asia but it affects the threat perception at the neighbourhood i.e. South Korea and Japan, and has the potential to affect the whole world. Already the tension in the neighbouring countries has escalated to new heights. Two days after the test, South Korea test fired its ballistic missiles

NUCLEAR PROLIFERATION

At stake : US President Barak Obama, UN Gen Sec Ban-ki-Moon, N Korean leader Kim-Jong-Un and warned that it has the power to attack North Korean leadership and will do so if the need arises. Japan, which is bound by its pacifist constitution against developing weapons capable of attacking North Korea, said it has the right to develop such weapons against this new backdrop of events. This test offers an opportunity for Japan and South Korea to find common cause, and push the conservative governments in Tokyo and Seoul back towards the security-first mindset where they should be ideological soul mates away from their differences over history and disputed islands. This could involve their initiative to revitalize efforts at three-way security coordination with the United States, which last surfaced after the North Korean provocations of 2010. Unhesitant, moves to strengthen U.S.-Japan, U.S.-South Korea or even Japan-South Korea security cooperation could facilitate in sending that signal. They may fuel Chinese allegations of containment, but this would be a natural reaction to Japanese and South Korean anxieties about the North’s movement towards a deployable nuclear weapon. If China brings real pressure to bear on Pyongyang, then its claim that Asia does not need America’s pivot will become somewhat more credible. But, China’s intention is still unclear in this context. On one hand, China has sternly criticised North Korea for the nuclear test and on the other hand, it has not 45

taken any measures, like sanctions against North Korea, to prevent its nuclear program from further expansion and trade between them continues reaching new heights. The debate about whether to pressurize or unconditionally tolerate North Korea’s outrages is likely to be reopened in China’s ambit. Now is the time for the United States and other countries to help and influence that debate, by reminding China that a North Korea with a credible nuclear capability is harmful for China’s interests as well.

Challenge to Collective Security System The principle of collective security system says that ‘everybody is his brother’s keeper’ or ‘one for all and all for one’. It is the proposition that the aggressive and unlawful use of force by any nation against any nation will be met by the collective force by all nations. One of its objective requirements that entail preponderance of power and certainty of defeat of the aggressor would be endangered if the aggressor possesses ‘nuclear weapon’ posing a threat perception in the world community. The Aggressor state with nuclear weapon would definitely use it in the situation of its imminent defeat turning collective security action into a nuclear war leading the colossal destruction of lives and property. Thus, recent nuclear test by North Korea has wider implications as far international peace and security is concerned. Also, this nuclear test ALL RIGHTS

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NUCLEAR PROLIFERATION has the potential to start a new arms race.

Demonstration Effect North Korea’s third nuclear test has another ramification that through ‘demonstration effect’, it might prompt other countries to follow suit in rethinking their positions either in favour of nuclear weapons or actively developing defences against them. This nuclear test has the potential to start a new arms race. In the backdrop of this nuclear test, America plans to deploy missile defence systems in South Korea, Japan and Philippines to shield it against North Korean attack. Russia and China has protested to this saying this will send them on backfoot against America and they will be forced to develop better weapons to overcome this situation. Thus a new arms race can start in the world. It enhances the possibility to make similar explosion by the other threshold powers like Israel and Iran. Through these tests, North Korea has pretty much advertised to the world, its power to sell its nuclear weapon in the illegal market. No wonder the Indian test in 1998 had evoked Pakistan and it responded back within a fortnight. Similarly, there is much possibility that recent Korean test may provoke other potential states to comply such actions.

a state’s threat to use nuclear weapon is credible. Probably this has triggered North Korea to demonstrate its nuclear competence, threatening all laws of nonproliferation and furthermore a grave threat to international peace and security.

Direct threat to India’s Security The nuclear developments in the Korean peninsula, in particular the nuclear and missile cooperation between Pakistan and North Korea, have had a direct bearing on India's security. The border conflicts of India and Pakistan has already distressed their relations with an ongoing low level mini- crisis and need not to mention the list of wars fought between them. The current issue has created severe intimidation towards India’s territorial security and foreign policy concerns. Certainly, it is bad for the global non-proliferation and already troubled North Asia but at the same time it stringent India’s relationship vis-a-vis Pakistan and virtually North Korea, apparently Pakistan-North Korea illegal nuclear cooperation is ballooning large these days. North Korea's transfer of medium range missiles has brought most Indian cities within the reach of Pakistan's nuclear arsenal. Therefore, India’s stake in durable Korean peace is immense.

Challenge to International Resolution towards Disarmament.

Conclusion

At the pinnacle of the Cold War, in 1968, the treaty on Nuclear Non-Proliferation was opened for signature. Its objective was to ‘control the spread of nuclear materials and expertise’. It was probably built on superpower’s common fears of China and other potential new nuclear states. Among the signatories, there are United States, Russia, the United Kingdom, France and China, in order of acquisition and four non-signatories to the Treaty have, or are believed to have, nuclear weapons: North Korea, India and Pakistan. They have openly tested and claimed ownership of nuclear weapons, whilst Israel is widely believed to own them. Several treaties in the 1970’s have locked in the superpower’s basic parity in nuclear capabilities under Mutually Assured Destruction (MAD). After that, apart from bilateral treaties like ABM Treaty or SALT, a Comprehensive Test Ban Treaty was signed in 1996. But states like North Korea, Pakistan and Israel have their own rationality for weaponization. The reason for possessing nuclear weapons is almost always to deter another state from a nuclear or conventional attack by threatening ruinous retaliation. The credible nuclear deterrence work only if other state believes that

North Korea is probably pursuing its nuclear programs as fervently as it can. Although fabrication of a nuclear explosive device is well within North Korea’s technical competence, the rate of expansion of its fissile material stocks and its ability to produce a warhead light and durable enough to ride a missile to a target are more open questions. No doubt, North Korea has acquired far more bargaining power to compete in global nuclear age. Despite all international efforts to check nuclear proliferation, North Korea continues to pose a proliferation risk globally. Since, North Korea has good relations with China and if America takes up any initiative against North Korea then China could be displeased and future confrontation would be brewing. The country most affected, of course, is South Korea but this nuclear test has again triggered the ideological war of Capitalist vs. Communist. Nuclear weapon possessed by a communist country irritates America. However, what counter-actions America and the other superpowers are going to take up is still to be seen. n (Author is research scholar at Department of Political Science, Banaras Hindu University. She can be contacted at sonalisingh0609@gmail.com.)

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WAR ON TERROR

The Ugly

Drones by Yogesh Pandey

tweet by ‘Zero Dark Thirty’ on January 16, “To find a man in hiding, you need an eye in the sky”, which was later deleted has sparked off a controversy whether the movie endorses use of torture to access information to zero in on Osama bin Laden by United States in the aftermath of 9/11. The movie, which was nominated for Oscar as best motion picture has thrown a hectic debate about the modus operandi adopted by the US in its fight against terrorism. There’s no doubt that America has been successful in preventing another 9/11 on its soil, but the question is whether its anti-terrorism steps are inhumane, undemocratic or unethical? The killing of bin Laden by the US Navy seals is just another example of the US-sponsored international manhunt that rake up uncomfortable questions over its decade long fight against terrorism. What about undermining of civil liberties here at home? The rights of suspects? The secret surveillance of American citizens? The swollen ex-

ecutive powers first claimed by George W. Bush and now by Barack Obama? Soon after he succeeded Bush, President Obama announced he would not permit torture and would close down the detention camp at Guantanamo Bay. He also said, “The orders that I sign today should send an unmistakable signal that our actions in defense of liberty will be just as our cause. And that we the people will uphold our fundamental values as vigilantly as we protect our security. Once again, America’s moral example must be the bedrock and the beacon of our global leadership” Four years later, Guantanamo remains open. In fact, just a few days ago, the State Department announced it was eliminating the office assigned to close the prison and move its detainees. Meanwhile, President Obama has stepped up the use of unmanned drones against suspected terrorists abroad, not only in Afghanistan but in countries where US is not at war, including Pakistan, Yemen and Somalia. Since Obama took office, the aerial assaults also have killed three U.S. citizens, raising additional arguments as to whether the president

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WAR ON TERROR has the right to order the death of Americans suspected of terrorism without due process of law. One of those controversial drone attacks involved the killing of Anwar al-Awalki, an American citizen and radical Muslim cleric who had moved to Yemen with his family. He was said to be the brains behind repeated attempts to attack the U.S., including the Christmas day underwear bomber plot in 2009. Also dead was American citizen Samir Khan, editor of “Inspire,” al Qaeda ‘s online propaganda magazine, and two weeks later, in a separate drone attack, alAwalki’s 16-year-old son, born in Denver. A key player in America’s current drone program is John Brennan, who during the Bush presidency was a senior official at the Central Intelligence Agency and head of the National Counterterrorism Center. Reportedly, Barack Obama considered offering him the top job at the CIA in 2008, but public opposition — in reaction to the charges that the Bush White House had approved torture — caused Brennan to withdraw his name from consideration. Nonetheless, Obama kept him on as an adviser, and now, despite Brennan’s past notoriety, Obama officially has chosen him to head the CIA. This time, there’s been little criticism of the decision.

Drone and Democracy With use of drones to fighting terrorism, there’s a raging debate whether its use has undermined rights of American people to decide on declaring war. In democracy like America, citizens have participated historically to decide on taking military actions, extending their support to the State by sharing economic costs. U.S. government raised $185 billion during World War II after 85 million Americans purchased war bonds. Not only this they have in the past endured the human loss. Today, the United States military has more than 7,000 unmanned aerial systems, popularly called drones. There are 12,000 more on the ground. Last year, they carried out hundreds of strikes — both covert and overt — in six countries, transforming the way American democracy deliberates and engages in what they used to think of as war. Now with drones at the forefront of war, Congress’s role to take a call on declaring military actions stands diluted. Last time Congress gave its approval to declare war was in 1942 against Bulgaria, Hungary and Romania. The US -sponsored drone war in Pakistan is not-so-covert but still even after seven years it began, Congress hasn’t yet debated drone operations. The drone technology removes the last political obstacles to war. The strongest appeal of unmanned systems is that US doesn’t have to send someone’s son or daughter in the battlefield. THE change is not limited to covert action. Last spring, America launched airstrikes on Libya as part of a NATO operation to prevent Col. Muammar elQaddafi’s government from massacring civilians. In ALL RIGHTS

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late March, the White House announced that the American military was handing over combat operations to its European partners and would thereafter play only a supporting role. The distinction was crucial. The operation’s goals quickly evolved from a limited humanitarian intervention into an air war supporting local insurgents’ efforts at regime change. But it had limited public support and no Congressional approval. When the administration was asked to explain why continuing military action would not be a violation of the War Powers Resolution — a Vietnamera law that requires notifying Congress of military operations within 48 hours and getting its authorization after 60 days — the White House argued that American operations did not “involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof.” But they did involve something Americans used to think of as war: blowing up stuff, lots of it. These events reflect how a new technology is short-circuiting the decision-making process for what used to be the most important choice a democracy could make. Something that would have previously been viewed as a war is simply not being treated like a war. Starting on April 23, American unmanned systems were deployed over Libya. For the next six months, they carried out at least 146 strikes on their own. They also identified and pinpointed the targets for most of NATO’s manned strike jets. This unmanned operation lasted well past the 60-day deadline of the War Powers Resolution, extending to the very last airstrike that hit Colonel Qaddafi’s convoy

WAR ON TERROR America’s founding fathers may not have been able to imagine robotic drones, but they did provide an answer. The Constitution did not leave war, no matter how it is waged, to the executive branch alone. In a democracy, it is an issue for all of us.

Is Drone war unethical?

on Oct. 20 and led to his death. Choosing to make the operation unmanned proved critical to initiating it without Congressional authorization and continuing it with minimal public support. On June 21, when NATO’s air war was lagging, an American Navy helicopter was shot down by pro-Qaddafi forces. This previously would have been a disaster, with the risk of an American aircrew being captured or even killed. But the downed helicopter was an unmanned Fire Scout, and the story didn’t even make the newspapers the next day. We must now accept that technologies that remove humans from the battlefield, from unmanned systems like the Predator to cyberweapons like the Stuxnet computer worm, are becoming the new normal in war. And like it or not, the new standard has been established for them is that presidents need to seek approval only for operations that send people into harm’s way — not for those that involve waging war by other means. Without any actual political debate, an enormous precedent is being set, blurring the civilian and military roles in war and circumventing the Constitution’s mandate for authorizing it. Freeing the executive branch to act as it chooses may be appealing to some now, but many future scenarios will be less clear-cut. And each political party will very likely have a different view, depending on who is in the White House. C.I.A. drone strikes outside of declared war zones are setting a troubling precedent that we might not want to see followed by the close to 50 other nations that now possess the same unmanned technology — including China, Russia, Pakistan and Iran. 49

Increasingly, the United States has come to rely on the use of drones to counter the threat posed by terrorists. Drones have arguably enjoyed significant successes in denying terrorists safe haven while limiting civilian casualties and protecting U.S. soldiers, but their use has raised ethical concerns. While drones are technically capable of improving adherence to principles of discrimination and proportionality, concerns regarding transparency and the potentially indiscriminate nature of drone strikes, especially those conducted by the Central Intelligence Agency (CIA), as opposed to the military, may undermine the probability of success in combating terrorism. Military and intelligence personnel, robotics experts, and some academicians have argued drones remove the risk to U.S. personnel. Moreover, their ability to undertake limited, pinprick, covert strikes significantly reduces civilian casualties compared to other weapons platforms, as well as the costs and risks of waging a larger war to curtail the terrorist threat, thus leading to what the Obama administration sees as a more humane type of war. Journalists and human rights organizations have brought to light concerns about the efficacy of CIA-drones in avoiding civilian casualties and the impact purported civilian deaths have on fueling terrorist recruitment. Even though the threat posed by Al Qaeda must be recognized, as must the truth that U.S. leaders and officials face difficult dilemmas when thinking about whether to employ drones (or any use of force), important concerns remain regarding the standards described by Brennan. Notwithstanding possible objections that drones are, in fact, legal and wise, the focus here is on the ethical and procedural justifications outlined by Brennan, and raise two key questions: Are lethal drone strikes a last resort, that is to say, have all feasible alternatives really been exhausted? Can the use of drones lead to a lasting and just peace? Drones are not simply a moral issue. Like debating the legitimacy of air strikes, ground invasion or cruise missile strikes, deliberating on the use of drones is a use of force question. To the extent that their use is supposed to follow the moral standards of war, the first question is under what conditions is their lethal use legitimate? To gain purchase on the ethical dilemmas posed by drones, one needs, first, to know the moral and historical context during which the use the drones emerged as the weapon of choice of President Obama. This is linked to a partial transition away from the Bush Doctrine. ALL RIGHTS

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WAR ON TERROR Early in his presidential campaign in 2008, Obama stated he wanted to repudiate the "mind-set that got us into [the Iraq] war in the first place." That mind-set included Bush's willingness to snub allies, such as France and Germany, and undertake a preemptive war, or what is sometimes now distinguished as preventive war, against Iraq in the name of self-defence. Obama's rhetoric thus sounded a more cautious tone that emphasized the importance of last resort and multilateralism. In his Nobel Peace Prize acceptance speech in 2009, Obama referenced the importance of the just war tradition in guiding the use of force: "And over time, as codes of law sought to control violence within groups, so did philosophers and clerics and statesmen seek to regulate the destructive power of war. The concept of a 'just war' emerged, suggesting that war is justified only when certain conditions were met: if it is waged as a last resort and in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence." The 2010 National Security Strategy - the document that outlines the foreign policy threats facing the U.S. and how the administration plans to deal with them - echoes this cautious war philosophy. The language of pre-emptive war that predominated Bush's national Security Strategy of 2002 and 2006 was removed, and a more cautious language that echoed the notion of last resort was employed: "While the use of force is sometimes necessary, we will exhaust other options before war whenever we can, and carefully weigh the costs and risks of inaction." The document goes on to emphasize the importance of using force in ways that "reflects our values and strengthens our legitimacy" and stresses the need for "broad international support." The notion of last resort is important here because it suggests that Obama sees the use of force as something that ought to be avoided, if possible. This means that force should not be used unless a threat is imminent, and even in cases in which it is all reasonable means of forestalling the threat should be tried first. In some respects, Obama has towed the line. The Libya campaign was a multilateral effort aimed, at least initially, at protecting civilians from imminent threat of slaughter. When dealing with the looming threat of Iran, Obama has emphasized diplomatic measures designed to isolate the regime. Finally, he has shown restraint by not rushing to war to stop the bloodshed in Syria because of a lack of international support. When it comes to large-scale force, Obama has, it seems, turned the page from the Bush Doctrine. But this does not mean he has completely rejected the idea that the U.S. could 'go it alone' and act preemptively. As the National Security Strategy unequivocally exclaims: "The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to the standards that govern the use ALL RIGHTS

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of force." This leads us to the dilemmas posed by drones. In using drones, Obama continues to act on the Memorandum of Notification, signed in the weeks following 9/11 by President Bush that gave the CIA the right to kill members of Al-Qaeda in anticipatory self-defense virtually anywhere in the world. While the administration claims important successes in decimating Al-Qaeda, skeptics point to the link between purported civilian casualties and terrorist recruitment, as well as the growing presence of potentially affiliated branches in Africa and Yemen, to suggest that the war against extremism is far from being won by drones. The cause of this criticism is the impression that the Obama administration is not living up to its own values. The Anticipatory Drone Strike Doctrine The Obama administration may have departed from the highly controversial anticipatory war doctrine of the Bush era; however, it has replaced this doctrine with an equally problematic, albeit less costly and less destructive, anticipatory drone strike doctrine. Namely that low levels of force, such as drone strikes, bypass the bureaucratic hurdles, making them very easy, perhaps too easy, to justify. This builds from the assumption that because we are waging a just war against Al-Qaeda, it must be just to expand the war in any direction we see fit. But the war against Al-Qaeda is not a conventional war in which both sides will fight, kill, and then come together in the end to make some sort of peace. It is a struggle to defeat an ideology, meaning every action - especially including drone strikes - which could potentially fuel this ideology, needs to be carefully considered. In the case of drones, Obama has over-emphasized the ability of drones to better satisfy the principles of proportionality and distinction, to the point of overlooking the essential question: is it just to use them in ever-expanding ways against Al Qaeda cells in Pakistan and against affiliate organizations in other countries without official consent of the local governments? What is missing is for the Obama administration to recognize that drones, as they are currently used in anticipatory attacks against AlQaeda and similar organizations, run counter to the just war standards privileging the notion of last resort embraced in Obama's rhetoric and in official documents. All this suggests that when it comes to fighting Al-Qaeda and other like-minded organizations, the threshold of last resort has long ago been crossed, and that some application of force is seen as necessary to quell the threat. But what does necessity mean in relation to a drone strike? What constitutes an imminent threat? Are all active terrorists, assuming we can correctly identify them, a sufficient threat legitimizing lethal drone strikes?

WAR ON TERROR Could other non-lethal tactics, such as arresting terrorists, freezing assets, and working with foreign partners to isolate and diminish their influence, be employed instead?

Peace Impossible Through Drone Warfare No matter how good drone strikes are at limiting civilian deaths, inevitably some civilians will die. While all life is sacred, it takes only one civilian death to fuel negative perceptions of the U.S. in some parts of the world and all but guarantee a steady flow of terrorist recruits. Minimizing the chances of such a scenario unfolding is why the notion of last resort is so important when contemplating drone strikes. The current drone strategy does not provide a clear picture of the post-war-against-Al-Qaeda era, described in the 2010 National Security Strategy as a "just and sustainable international order." Drones, which were the worst kept secret at the time, are not even mentioned. And Brennan's speech does little to clarify the ultimate goal, except to imply that drones are part of the process to help end the war against Al-Qaeda as quickly as possible. With drones as the default tactic, Obama may succeed at eliminating experienced terrorist leaders and keeping other members on the run, but it seems unlikely that this will eradicate Al-Qaeda altogether or marginalize the influence of their ideology. Is it enough to keep them on the run? What happens if Pakistan or Yemen were to take a more forceful, or even military, stance against U.S. drones? What will happen when the U.S. pulls out of Afghanistan, where bases used to launch drones into Pakistan are located? In short, there is no clear end game of the drone campaign against Al-Qaeda, but rather, an endless cycle of perceived threat, drone strikes, inevitable collateral damage, and mutual animosity. By their very nature, drones remove the human element because they are operated from far away and all but eliminate any positive contact with local populations. This may greatly diminish the risk to U.S. personnel, but it also makes making peace almost impossible. If drones are to be effective, they need to be part of a clearly defined strategy where non-lethal measures are the priority, and drone strikes are a last resort. Just because they are easy to use and very effective at killing does not mean they should be used in lieu of other options.

The Way Forward If these are the risks, what can be done instead? The 2011 National Strategy for Counter-Terrorism, in which drones, not surprisingly, do not feature, points to several options: stepping up intelligence gathering activities, freezing terrorists assets, creating strategic partnerships with the governments of other countries, pursuing terrorists with local authorities to arrest them and gain valuable intelligence, 51

isolating terrorists to remote areas where their movements can be more easily tracked, and marginalizing Al Qaeda's ideology to the point of irrelevance. The document also states that the U.S. "must pursue the ultimate defeat of Al-Qaeda and its affiliates without acting in a way that undermines our ability to discredit its ideology." Unfortunately, the current drone-first strategy does not accomplish this goal. Brennan admits as much when saying that capture is exceedingly rare because terrorists have become so isolated that capture missions are too risky. Yet, one should not paint a picture of the war against Al-Qaeda as based on a capture/kill dichotomy. This is a short-term vision that ignores the long-term costs when drones inevitably kill civilians, downplaying the potential efficacy on the non-violent methods described above. Limiting drone strikes to instances of imminent threat will lessen their frequency, giving time for alternative mechanism to work. The alternative is that each unnecessary drone strike will potentially undermine the effectiveness of non-violent mechanisms. n (Yogesh@allrights.co.in)

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INTERVIEW

The Paranoia of the Superrich and Superpowerful This piece is adopted from “Uprisings,” a chapter in Power Systems: Conversations on Global Democratic Uprisings and the New Challenges to U.S. Empire, Noam Chomsky’s new interview book with David Barsamian (with thanks to the publisher, Metropolitan Books). The questions are Barsamian’s, the answers Chomsky’s. Noam Chomsky is Institute Professor & Professor of Linguistics (Emeritus) in Massachusetts Institute of Technology

oes the United States still have the same level of control over the energy resources of the Middle East as it once had? The major energy-producing countries are still firmly under the control of the Western-backed dictatorships. So, actually, the progress made by the Arab Spring is limited, but it’s not insignificant. The Western-controlled dictatorial system is eroding. In fact, it’s been eroding for some time. So, for example, if you go back 50 years, the energy resources -- the main concern of U.S. planners -- have been mostly nationalized. There are constantly attempts to reverse that, but they have not succeeded. Take the U.S. invasion of Iraq, ALL RIGHTS

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for example. To everyone except a dedicated ideologue, it was pretty obvious that we invaded Iraq not because of our love of democracy but because it’s maybe the secondor third-largest source of oil in the world, and is right in the middle of the major energy-producing region. You’re not supposed to say this. It’s considered a conspiracy theory. The United States was seriously defeated in Iraq by Iraqi nationalism -- mostly by nonviolent resistance. The United States could kill the insurgents, but they couldn’t deal with half a million people demonstrating in the streets. Step by step, Iraq was able to dismantle the controls put in place by the occupying forces. By November 2007, it was becoming pretty clear that it was going to be very hard to reach U.S. goals. And at that point, interestingly, those goals were explicitly stated. So in November 2007 the Bush II administration came out with an official declaration about what any future arrangement with Iraq would have to be. It had two major requirements: one, that the United States must be free to carry out combat operations from its military bases, which it will retain; and two, “encouraging the flow of foreign investments to Iraq, especially American investments.” In January 2008, Bush made this clear in one of his signing statements. A couple of months later, in the face 52

of Iraqi resistance, the United States had to give that up. Control of Iraq is now disappearing before their eyes. Iraq was an attempt to reinstitute by force something like the old system of control, but it was beaten back. In general, I think, U.S. policies remain constant, going back to the Second World War. But the capacity to implement them is declining.

Declining because of economic weakness? Partly because the world is just becoming more diverse. It has more diverse power centers. At the end of the Second World War, the United States was absolutely at the peak of its power. It had half the world’s wealth and every one of its competitors was seriously damaged or destroyed. It had a position of unimaginable security and developed plans to essentially run the world -- not unrealistically at the time.

This was called “Grand Area” planning? Yes. Right after the Second World War, George Kennan, head of the U.S. State Department policy planning staff, and others sketched out the details, and then they were implemented. What’s happening now in the Middle East and North Africa, to an extent, and in South America substantially goes all the way back to the late 1940s. The first major successful

INTERVIEW resistance to U.S. hegemony was in 1949. That’s when an event took place, which, interestingly, is called “the loss of China.” It’s a very interesting phrase, never challenged. There was a lot of discussion about who is responsible for the loss of China. It became a huge domestic issue. But it’s a very interesting phrase. You can only lose something if you own it. It was just taken for granted: we possess China -- and if they move toward independence, we’ve lost China. Later came concerns about “the loss of Latin America,” “the loss of the Middle East,” “the loss of” certain countries, all based on the premise that we own the world and anything that weakens our control is a loss to us and we wonder how to recover it. Today, if you read, say, foreign policy journals or, in a farcical form, listen to the Republican debates, they’re asking, “How do we prevent further losses?” On the other hand, the capacity to preserve control has sharply declined. By 1970, the world was already what was called tripolar economically, with a U.S.-based North American industrial center, a German-based European center, roughly comparable in size, and a Japan-based East Asian center, which was then the most dynamic growth region in the world. Since then, the global economic order has become much more diverse. So it’s harder to carry out our policies, but the underlying principles have not changed much. Take the Clinton doctrine. The Clinton doctrine was that the United States is entitled to resort to unilateral force to ensure “uninhibited access to key markets, energy supplies, and strategic resources.” That goes beyond anything that George W. Bush said. But it was quiet and it wasn’t arrogant and abrasive, so it didn’t cause much of an uproar. The belief in that entitlement continues right to the present. It’s also part of the intellectual culture. Right after the assassination of Osama bin Laden, amid all the cheers and applause, there were a few critical comments questioning the legality of the act. Centuries ago, there used to be something called presumption of innocence. If you apprehend a suspect, he’s a suspect until proven guilty. He should be brought to trial. It’s a core part of American law. You can trace it back to Magna Carta. So there were a couple of voices saying maybe we shouldn’t throw out the whole basis of Anglo-American law. That led to a lot of very angry and infuriated reactions, but the most interesting ones were, as usual, on the left liberal end of the spectrum. Matthew Yglesias, a well-known and highly respected left liberal commentator, wrote an article in which he ridiculed these views. He said they’re “amazingly naive,” silly. Then he expressed the reason. He said that “one of the main functions of the international institutional order is precisely to legitimate the use of deadly military force by western powers.” Of course, he didn’t mean Norway. He meant the United States. So the principle on which the international system is based is that the United 53

States is entitled to use force at will. To talk about the United States violating international law or something like that is amazingly naive, completely silly. Incidentally, I was the target of those remarks, and I’m happy to confess my guilt. I do think that Magna Carta and international law are worth paying some attention to. I merely mention that to illustrate that in the intellectual culture, even at what’s called the left liberal end of the political spectrum, the core principles haven’t changed very much. But the capacity to implement them has been sharply reduced. That’s why you get all this talk about American decline. Take a look at the year-end issue of Foreign Affairs, the main establishment journal. Its big front-page cover asks, in bold face, “Is America Over?” It’s a standard complaint of those who believe they should have everything. If you believe you should have everything and anything gets away from you, it’s a tragedy, the world is collapsing. So is America over? A long time ago we “lost” China, we’ve lost Southeast Asia, we’ve lost South America. Maybe we’ll lose the Middle East and North African countries. Is America over? It’s a kind of paranoia, but it’s the paranoia of the superrich and the superpowerful. If you don’t have everything, it’s a disaster.

The New York Times describes the “defining policy quandary of the Arab Spring: how to square contradictory American impulses that include support for democratic change, a desire for stability, and wariness of Islamists who have become a potent political force.” The Times identifies three U.S. goals. What do you make of them? Two of them are accurate. The United States is in favor of stability. But you have to remember what stability means. Stability means conformity to U.S. orders. So, for example, one of the charges against Iran, the big foreign policy threat, is that it is destabilizing Iraq and Afghanistan. How? By trying to expand its influence into neighboring countries. On the other hand, we “stabilize” countries when we invade them and destroy them. I’ve occasionally quoted one of my favorite illustrations of this, which is from a well-known, very good liberal foreign policy analyst, James Chace, a former editor ofForeign Affairs. Writing about the overthrow of the Salvador Allende regime and the imposition of the dictatorship of Augusto Pinochet in 1973, he said that we had to “destabilize” Chile in the interests of “stability.” That’s not perceived to be a contradiction -- and it isn’t. We had to destroy the parliamentary system in order to gain stability, meaning that they do what we say. So yes, we are in favor of stability in this technical sense. Concern about political Islam is just like concern about any independent development. Anything that’s independent you have to have concern about ALL RIGHTS

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INTERVIEW because it might undermine you. In fact, it’s a little ironic, because traditionally the United States and Britain have by and large strongly supported radical Islamic fundamentalism, not political Islam, as a force to block secular nationalism, the real concern. So, for example, Saudi Arabia is the most extreme fundamentalist state in the world, a radical Islamic state. It has a missionary zeal, is spreading radical Islam to Pakistan, funding terror. But it’s the bastion of U.S. and British policy. They’ve consistently supported it against the threat of secular nationalism from Gamal Abdel Nasser’s Egypt and Abd al-Karim Qasim’s Iraq, among many others. But they don’t like political

if the United States needed psychiatric treatment or something. Of course, there’s another interpretation, but one that can’t come to mind if you’re a well-educated, properly behaved intellectual.

Within several months of the toppling of [President Hosni] Mubarak in Egypt, he was in the dock facing criminal charges and prosecution. It’s inconceivable that U.S. leaders will ever be held to account for their crimes in Iraq or beyond. Is that going to change anytime soon? That’s basically the Yglesias principle: the very foundation of the international order is that the United States has the right to use violence at will. So how can you charge anybody?

And no one else has that right.

Islam because it might become independent. The first of the three points, our yearning for democracy, that’s about on the level of Joseph Stalin talking about the Russian commitment to freedom, democracy, and liberty for the world. It’s the kind of statement you laugh about when you hear it from commissars or Iranian clerics, but you nod politely and maybe even with awe when you hear it from their Western counterparts. If you look at the record, the yearning for democracy is a bad joke. That’s even recognized by leading scholars, though they don’t put it this way. One of the major scholars on so-called democracy promotion is Thomas Carothers, who is pretty conservative and highly regarded -- a neo-Reaganite, not a flaming liberal. He worked in Reagan’s State Department and has several books reviewing the course of democracy promotion, which he takes very seriously. He says, yes, this is a deep-seated American ideal, but it has a funny history. The history is that every U.S. administration is “schizophrenic.” They support democracy only if it conforms to certain strategic and economic interests. He describes this as a strange pathology, as ALL RIGHTS

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Of course not. Well, maybe our clients do. If Israel invades Lebanon and kills a thousand people and destroys half the country, okay, that’s all right. It’s interesting. Barack Obama was a senator before he was president. He didn’t do much as a senator, but he did a couple of things, including one he was particularly proud of. In fact, if you looked at his website before the primaries, he highlighted the fact that, during the Israeli invasion of Lebanon in 2006, he cosponsored a Senate resolution demanding that the United States do nothing to impede Israel’s military actions until they had achieved their objectives and censuring Iran and Syria because they were supporting resistance to Israel’s destruction of southern Lebanon, incidentally, for the fifth time in 25 years. So they inherit the right. Other clients do, too. But the rights really reside in Washington. That’s what it means to own the world. It’s like the air you breathe. You can’t question it. The main founder of contemporary IR [international relations] theory, Hans Morgenthau, was really quite a decent person, one of the very few political scientists and international affairs specialists to criticize the Vietnam War on moral, not tactical, grounds. Very rare. He wrote a book called The Purpose of American Politics. You already know what’s coming. Other countries don’t have purposes. The purpose of America, on the other hand, is “transcendent”: to bring freedom and justice to the rest of the world. But he’s a good scholar, like Carothers. So he went through the record. He said, when you study the record, it looks as if the United States hasn’t lived up to its transcendent purpose. But then he says, to criticize our transcendent purpose “is to fall into the error of atheism, which denies the validity of religion on similar grounds” -- which is a good comparison. It’s a deeply entrenched religious belief. It’s so deep that it’s going to be hard to disentangle it. And if anyone questions that, it leads to near hysteria and often to charges of anti-Americanism or “hating America” -- interesting concepts that don’t exist in democratic societies, only in totalitarian societies and here, where they’re just taken for granted. n

The Curious Case of Binayak Sen

by Dilip D’Souza,Harper Collins Publishers India,2012;pp187,RS 250.

by Mahtab Alam

ver since the pediatrician, public health and human rights activist, Dr. Binayak Sen was first arrested (leading to Life term imprisonment for allegedly waging war against the Country with the help of a Maoist) in a fabricated case in May 2007, much has been written about his life, work and the case against him—both positive and negative. The book under review, authored by Mumbai based writer, Dilip D’Souza is the fourth positive work in the form of a book, captivatingly titled, “The Curious Case of Binayak Sen”. However, the author in the very beginning, first chapter, makes it clear that, “this is really not a book about (Binayak) Sen, this one man. It is instead about his way of thinking about

BOOK REVIEW the world.”Unlike previous works, this book, notably, covers what Binayak has been doing after he was released on bail granted by the Supreme Court of India’s direction in April last year. The author notes, “Since his release on bail, Sen has spoken often about another kind of connection: between malnutrition and secession” and “there’s an articulation of the same concern with human rights—indeed, with the human condition—that Sen speaks about.” Binayak believes and rightly so, that his case is no different from those of thousands of others who are suffering. He says, “Whatever has happened to me is the result of the suffering of thousands of people. Any personal imprint would by ghoulish.” But, the author tells us that through this Sen has “a broader point to make. The communities that face (this) structural violence are facing annihilation—strong word, but Sen clearly saw it as possible—because of famine and an inability to survive”.In an earlier occasion, the authors quotes Sen while explaining what he really means by structural violence. In Sen’s words, “By structural violence I refer to the fact that half our children and our adults in this country suffer from malnutrition. Malnutrition casts a dark shadow over other diseases like malaria and tuberculosis.” Citing data produced by government’s own institution, the National Nutrition Monitoring Bureau and the World Health Organisation’s norms, Sen concludes, we are living in condition of famine. And “a third of our live births have low birth weights, this is what I mean when I talk of structural violence.” Elaborating the flimsy and fabricated case against Binayak, digging in to charge sheets and reading out from the judgment of the trial court, which convicted him with life imprisonment, the author raises certain pertinent questions not only about the Chhattisgarh government and its Police, on whose behest Binayak is convicted for no crime but also about the state of the judicial sys55

tem in our country, especially in the state of Chhattisgarh. The author ably exposes the holes in the charge sheets, selectivity of the prosecution and the executive mentality of the judiciary. Commenting about two emails, which were produced as major ‘evidence’ against Sen, totally out of context and selectively, the author observes: “It is hard for me to believe that any reasonable prosecution would actually seek to make a case like this.” He is referring to the fact that, for the prosecution, how the mere mention of the ISI (here, meaning the Indian Social Institute, New Delhi and not the Pakistani Intelligence agency ISI which is the “chimpanzee in the White House”), prove that Binayak and his wife Ilina are part of an International terror network! In this regard, he further observes, “It is harder still for me to believe that any reasonable judge would listen to this and take it seriously.” Towards the end of the book, the author does not forget to ask very simple yet important questions, while commenting on the state of Indian democracy. “The one major attempt to shut down Indian democracy happened in 1975 and was called the Emergency. Luckily, it lasted less than two years…But we can still ask: is democracy as we have known it in India really democracy? What constitutes democracy, after all? Elections? Freedoms? Rights?” The book is an important addition in the available literature on Binayak Sen case, the issues of public health and state of democracy in India and its institutions. However, one strongly feels that the language and presentation could have been much simpler than one adopted in this book. Nevertheless, it deserves to be widely read. n (Author is a Delhi based Civil Rights Activist and Independent Journalist. He can be conacted at activist.journalist@gmail.com. The review was first published on pratirodh.com.) ALL RIGHTS

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BOOK REVIEW

Our memories come in the way of R our histories

Our Moon Has Blood Clots by Rahul Pandita, Vintage Book/Random House, 2013; pp272, RS 499.

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by Gowhar Fazili

ahul Pandita’s book Our Moon Has Blood Clots must be looked at both as a personal account of suffering as well as a political project that implicitly and explicitly makes use of that suffering towards a particular end. The undertaking is a legitimate one on both counts. What the book manages to achieve on each, warrants a fair and dispassionate assessment. His narration of events experienced by the Pandits is a welcome exposition of subjectivity around a range of traumatic events, humiliations, killings and betrayals undergone prior to and after the outbreak of mass political rebellion in Kashmir in 1989. The events thus narrated, especially the account of the personal experiences of trauma do make one strongly identify with the suffering of the families involved and agree with the wide swathes of subjective anger and hurt shared by the community. The chilling accounts of individual and mass killings and the circumstances that made them possible, call for collective self-reflection, remorse and atonement. This account also calls for serious reflection on the fragility of human associations and trust in exceptional circumstances that we normally take for granted. The book as well as the promotional interviews around the book push the claim that not only certain militants but also many ordinary people, including those personally known to the victims, were responsible for the exodus through their acts of omission and commission. This claim is substantiated through a range of indictments based on personal encounters with individuals, shared nuggets of information, as well as the interpretation of the larger political symbolism and slogans which were seen as a deliberate attempt to intimidate Pandits, and Pandits alone. While it is difficult to deny that a number of individuals took advantage of those anarchic times to gratify personal hate and lust for loot, it makes for an overstatement to underplay the equally frequent narrative of mutual support between individuals that one gets to hear during conversations between the members of the two communities privately. Such underplay does violence to those aspects of shared memory. The arrangement of harrowing experiences from the beginning of time, through July 1931 to the present as though there is a seamless, teleological continuity between events separated by time and space makes the narrative monolithic and monologic and effectively unconvincing, though one can understand how deeply felt hurt and anger can lead to such simultaneous cathexis and amnesia in the mind of the subject.

BOOK REVIEW Kashmiri Muslims overlook the impact of the use of overt religious symbolism in their rebellion against the state, upon the minorities who were thus othered by default. But that it was intended purely to scare them off is again an overstatement given that any mass cultural or political rally in Kashmir even prior to 1989 articulated itself through religious symbols, and there are historical reasons for this. Besides this over the years the secular symbolism and political language that did exist in Kashmir was largely appropriated by the occupation and deployed to further the statusquo. For this and many other reasons resistance to the statusquo took on a religious tone. Also the struggle drew inspiration from various movements active at the moment across the Muslim world where Islamised resistance was pitched against secular neo-colonial regimes or military occupations like that of Kashmir. This does not absolve those who led the rebellion in Kashmir of their failure to invent symbols that would have been more inclusive. Besides this the groups like Jamaat-eIslami (JI) did ride the wave of dissent and use the erosion of the state to further its brand of political Islam and pan-Islamism and found ready subscribers. JI was one of the largest non-co-opted groups with the ideological resources as well as the organisational base to do so besides being actively patronised by Pakistan for its own ends. This appropriation of the national liberation struggle for exclusivist communal ends requires much introspection and revision on part of those who subscribe to the movement for Azadi. On the other hand the book presents Pandits as politically benign throughout history, while the period post the arrival of Muslims on the scene is spoken of as ‘Islamisation’, im-

plicitly as though Islam were something essentially vile. It does violence to the community, its intellect and will to presume that they were mostly converted forcibly by the invaders. The ascendance of Islam in Kashmir is at least as much to do with its civilisational appeal, its novelty as a spiritual experience, its relative egalitarianism and the realignment of hierarchies that result with any major socio-political change; as to the superior military and administrative prowess of the kings and queens who took over from Pandit or Buddhist Kings. Such exclusivist reading of history in Kashmir makes for Hindutvalike historiography. Communal historical narratives do persist in the privacy of our homes but any scholarship worth its salt should seek to challenge such naïve accounts of self. While looking at Pandits as politically benign, Muslims are effectively stereotyped as perpetrators of systematic violence with the exception of few incidental individuals thinly sprinkled across the narrative. It also seamlessly combines the politically loaded stereotype of the ‘brutish tribal invaders’ of 1947 with that of the local militants and protestors of 1989, missing out on the respective contexts of the Dogra state-sponsored Jammu genocide of 1947 that triggered the tribal raid as a response, as well as the immediate political context that led to militancy in 1989. The book elaborates on the bigotry of Muslim regimes over many pages but shrinks the hundred plus years of appalling, communal atrocities by the Sikh and Hindu-Dogra regimes that preceded 1947 into a few token sentences. The continuities with the Dogra regime that set the tone for Indian occupation are completely missed. The book ignores the causes of cyclic political upheaval in Kashmir and the his57

tory of political intrigue and violence that has sustained Indian control since 1947. In the immediate, it fails to even mention the Centre’s intervention to install Ghulam Mohammad Shah (Gulle Shah), followed by the systematic rigging of 1987 elections and accompanying repression that led to mass rebellion. Such systematic state violence and complete failure to make any political redress led to a tipping point following which violence spiralled out of hand. This is not to say that Pandits were legitimate target because of their identifications and silences, but to illustrate how perceptions of violence are selective. The superior claims to Kashmir based on mythologised communal history does violence to humans who predated any known religion in Kashmir (like the well known stone-age inhabitants of Burzahama). By implication erasing all those non-caste inhabitants like Aaram, Doomb, Chopaan, Haenz, Watal, Gujjur, Bakerwaal – in fact the whole of peasantry who have as much claim to Kashmir as any blueblooded Pandit, Syed or Sufi regardless of the fact that they may not have left much of a written record to vouch for themselves. They are there in flesh and blood for everyone to see. The failure to find them in history does violence to Pandit claims of superior knowledge and learning — the claims that are naively repeated (subtly or explicitly) throughout this book and many other Pandit self-accounts. The connection between power and knowledge is somehow completely lost on them. The pride in being exceptionally learned and the anxiety over losing that exclusive privilege is a palpable, unresolved undercurrent. These claims are not unlike the exclusivist elite Muslim claims to history that do not consider the contributions of ALL RIGHTS

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BOOK REVIEW their Hindu, Buddhist and non-religious ordinary and exceptional ancestors as their own (as though they have all sprung out of the womb of Ka’aba and not Kashmir). History needs to be understood as the dialectics of power in which all are implicated regardless of whether we see ourselves as political or numerical minorities or majorities or neither or both at the same time. Minorities and majorities are constantly in flux and depend on how we choose to identify ourselves as well as the result of markers and experiences that have shaped us and that we are for various reasons unwilling to let go. All this does not mean to say that the historical/political takes precedence over the personal and intimate but that the personal is irretrievably braided with the historical/political and any claims to naiveté and innocence in this regard are patently false and pretentious. The violence of the elite embedded in the system is of a different order than that of those who challenge the system on the streets. The violence is in their silences and in the very disproportionate representations at the expense of the excluded and the marginalised. This holds true for both the Pandit as well as the Muslim elite. The failure to forge a non-communal language of politics and resistance and the resultant communalised violence and communal subject positions is a collective failure of the Kashmiri self as a whole — including those who claim superior knowledge and access to power, or those who have the numbers and the will to resist on the streets. The exclusive political affinity to Pakistan or Saudi-Arabia for a Muslim is as communal as the exclusive political affinity of a Pandit to India. It is the reverse affinities that are more interesting. These may be a result of political masochism, of one being a political sell-out or an outcome of spiritual transcendence beyond the scope of rational understanding. Being Kashmiri necessarily demands some understanding of, and affinity with the shared cultural and political experience. Any attempt to distance oneself from it, distances one from the essence of being a Kashmiri. This holds true for all communities. The narrative demarcates and crystallises the self communally. The ‘other’ is a seamless monolith collectively responsible for the religious minority’s suffering, even while sections from among those designated as the other were equally vulnerable to the anarchic situation because of their political and class affiliations, or to the violence of the military unleashed by the state on people in general. At the heart of the problem is the failure to imagine community except in terms of religion as a pure indivisible and non-overlapping category with no internal and external contradictions. This may be a failure of ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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imagination or deliberate political choice. The greater onus for this in my opinion rests with Muslims because of their superior numbers (though Pandits could have greatly helped with their historically inherited superior access to knowledge and power). Further the identification with the symbols of the state like BSF (Border Security Force) in one’s backyard is also noteworthy. The uniformed men who were and are perceived as a threat and as intruders by the majority in Kashmir are seen as a source of security by the Pandit community. Similar identification and abhorrence of the symbols of the state are communally shaped. Pandit identification with India and alienation from resistance is as communally driven as Muslim disregard for Indian presence in Kashmir and identification with Pakistan or the militants of Pakistani origin. Sadly we have failed to find security in each other and look for it among nonKashmiri co-religionists. Early militancy had multiple inspirations, only one of them was Islamism. It served the interests of both the Indian and Pakistani establishments to split Kashmir along religious lines and we let them succeed. Further the systematic revenge that the Indian state has been taking on the people of Kashmir for who we are has further impeded emotional recovery and possibility of serious effort towards communal reconciliation. To look at Pandits as active political actors would also mean to understand their complicity through silence over the systematic state violence that has prevailed in Kashmir pre- and post-Pandit departure. Their identifications and influence with the Indian state makes it ethically imperative upon them to take a moral stand against the policies of the state they identify with and press for a just political solution in Kashmir. Otherwise it will be safe to assume that the status-quo suites them politically and that they leverage their influence and suffering in favour of the exclusionary right-wing politics in India. It is important to emphasise that India has not only been fighting militancy in Kashmir but the population itself as a whole along with its political claims. Leveraging tribal raids, Islamism and violence against minorities in Kashmir to undermine or drown out those political claims is ethically as well as logically unsustainable. This may find emotional resonance with the Hindu rightwing in India and sadly that may be exactly what is sought.n (Author is a PhD scholar at the Department of Sociology in Delhi School of Economics. The review was first published on kafila.org )

BUDGET

Election Budget

rushing aside speculations regarding spending cuts in the union budget amid high fiscal deficit, Union Finance minister P Chidambaram on February 28 unveiled a budget for fiscal year 2013-14 levying high tax on super rich but sparing middle class and poor. The federal budget gives a hint that the government cannot afford to alienate middle class which is already facing heat of inflation. Eyeing on upcoming general elections the Union Government proposes to pump more funds in UPA flagship programmes like MNREGA, JNNURM while claiming that the UPA is committed to bring Food Security bill in the Parliament. Some of the vital announcements made in the budget : n Nirbhaya Fund of Rs 1,000 crore -- women and girl child related schemes n Rs 150 crore proposed for health scheme for old. Ayurveda, Unani, Homeopathy to be mainstreamed 59

Education to get Rs 65,867 crore, 17 per cent more than last year's RE. Aligarh, Varanasi universities get Rs 100 crore. n Mid-day meal scheme will get Rs 13,215 crore; Child development scheme to get Rs 17,700 crore n MNREGS to get about Rs 33,000 crore n Rural Development Schemes to get Rs 80,194 crore n Agriculture sector to get Rs 24,049 crore n Mobile phones priced over Rs 2,000 to attract 6 per cent duty n Defence allocation increased to Rs 2,03,672 crore n Tax free bonds in 2013-14 up to Rs 50,000 crore n Income limit for tax-savings under Rajiv Gandhi Equity Savings Scheme has been raised to Rs 12 lakh from Rs 10 lakh n PSU banks will have ATMs in all their branches by 2014. India's first public sector bank for women proposed with Rs 1,000 crore as initial capital n Private FM channels to reach 294 new cities, 839 new channels to be auctioned in 2013-14. All cities with over one lakh population will be covered by private channels. n Service tax on all A/C restaurants with over 2,000 sq ft proposed n Royalty tax hiked from 10% to 25%. n Import duty on set-top boxes increased to 10% from 5% n Import duty on raw silk increased to 15% from 5% n Taxing the rich further: Duty on imported goods like motor vehicles, yatchs and motor cycles increased n Equalise duty on grades of coal. 2% Customs and CVD duty on coal n Duty free limit on gold increased to Rs 50,000 for male passengers and Rs 1 lakh to female passengers n Cigarattes hit with an 18% rise in excise duty. So also cigars and cheerots. n Excise duties on personal SUVs increased, Excise duty on SUVs hiked to 30 per cent from 27 per cent. No duty on those used as taxi. n No CVD on imported parts -- for shipbuilding n All silver to attract excise of 4 per cent n Surcharge of 10% on people with taxable income of Rs 1 crore or more. Only 42,800 persons with taxable income of over Rs 1 crore. Higher surcharge for only FY 2013. n Tax slabs remain unchanged Main opposition party, the BJP has termed the Chidambaram’s eighth budget as ‘accountant’s work’ saying it does not offer anything for manufacturing industries and agriculture sector, the main drivers of economic growth. Leader of opposition Sushma Swaraj said that the budget has nothing for creation of employment for youths. n ALL RIGHTS

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TOTAL RECAP

On Track?

nion Rail minister Pawan Kumar Bansal on February 26, presented the federal railway budget. The budget clearly sets the tone for austerity keeping in view India’s looming fiscal deficit. Eight percent increase has been given in gross budgetary support for the railways which is less than half the 20 percent increase allocated in the last year’s railway budget. This shows that the government has cut spending on already ailing Indian railways. Some of the key features of Railway budget are: t With no increase in passenger fares, government has played it safe keeping 2014 general elections in mind t Though, five percent increase in freight charges indicates that the government tried to send a message that it continues to pursue reforms. t Operating ratio has fallen to 88.8% from 94.9 per cent in 2011-12 which is of concern. t Pension payments have been increased to Rs 20,000 crore. Dependency ratio – the ratio of retired persons alive to employees – is we surmise around 7. This implies that salary, wages and pensions will take away a good portion of the revenues. t E-ticketing through mobile phones and SMS alerts are interesting initiatives t Indian Railways is planning to borrow more than Rs 15,000 crore from the market and it may not be an easy proposition. t New factories announced are in Rajasthan, Madhya Pradesh, Andhra Pradesh, Odisha – seems to be related to Assembly elections. t Reservation fee for Tatkal services and superfast trains to be hiked t Railways to introduce 67 new express trains. t 47,000 vacancies for weaker sections and physically challenged to be filled up soon. n

Sethusamundaram

PA government has rejected the RK Pachauri report's recommendations on Sethusamundram project which suggested scrapping of entire project for its "unviability" on economical and ecological grounds. “Government does not accept the conclusions and recommendations of the Pachauri Committee. Given the advantages of the project, the Government of India intends to pursue the implementation of the project,” reads an affidavit of government to the SC. The Sethusamundram shipping project was ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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Chopper Scam

he government on February 28 formed a Joint Parliamentary Commission (JPC) to investigate the VVIP chopper scam promising Parliament that it will identify and punish those who paid or accepted kickbacks in a deal to buy 12 Italian helicopters. "I feel ashamed whenever any controversy comes around our ministry. Forget politics, see my track record - do I throw complaints in waste paper basket?, said Defence Minister AK Antony. The principal opposition party,the BJP and its allies walked out of Parliament opposing the motion in Upper House to form the JPC. The BJP wants the Supreme Court to monitor the CBI probe commissioned this month. "This will hardly be a JPC. It will be a CWC (Congress Working Committee)," Leader of the Opposition in the Rajya Sabha Arun Jaitley said. A JPC without FIR, without court monitoring is humbug,” said BJP leader Ravi Shankar Prasad. Members of parties TMC, CPI and AGP also staged a walkout. The helicopters that India agreed to buy in 2010 are made by AgustaWestland(AW), a subsidiary of Finmeccanica. Italian investigation said bribes worth nearly Rs. 350 crore had been paid to Indian officials, including former Air Chief Marshal SP Tyagi. While Tyagi has denied any wrongdoing. n

proposed to create a sea route between India and Srilanka. The Supreme Court stayed the project on September 1,2007 and appointed RK Pachauri headed panel to examine the probability of an alternative route to the proposed Ram Sethu project. In May 2012, Pachauri panel submitted report to SC finding fault with the project. The government's adamant stand on pursuing the implementation of the project invited wrath from the principal opposition the BJP and Hindu organisations. "The important thing is that the project is not acceptable. It is illegal, arbitrary, unreasonable and extremely expensive," said Janata Party president Subramanian Swamy. n

TOTAL RECAP

And The Oscar Goes To..

t t

t t t t t t t t t

scar Awards 2013: ‘Argo’ wins best picture, ‘Life of Pie’ gets best director Following are the highlights of the top award: Best Picture - Argo! George Clooney, Ben Affleck, Grant Heslov and Alan Arkin accept the award for 'Argo'. Best Actor - Daniel Day-Lewis for 'Lincoln'. Best Actress - Jennifer Lawrence for 'Silver Linings Playbook'. Best Writing - Original Screenplay - Quentin Tarantino for 'Django Unchained'. Best Writing - Adapted Screenplay - Chris Terrio for 'Argo'. Best Original Song - Adele for 'Skyfall'. Best Original Score - Mychael Danna for 'Life of Pi'. Best Production Design - 'Lincoln' - Rick Carter (Production Design); Jim Erickson (Set Decoration). Best Picture award - 'Django Unchained', 'Amour' and 'Silver Linings Playbook'.

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Best Film Editing - William Goldenberg for 'Argo'. Best Actress in a Supporting Role - Anne Hathaway for 'Les Miserables'. Best Sound Editing - A tie between Paul N.J. Ottosson for 'Zero Dark Thirty' and Per Hallberg and Karen Baker Landers for 'Skyfall. Best Sound Mixing - 'Les Misérables' - Andy Nelson, Mark Paterson and Simon Hayes. Best Foreign Language Film - 'Amour' – Austria. Best Documentary - Feature - 'Searching for Sugar Man'. Best Documentary - Short Subject - 'Inocente'. Best Short Film - Live Action - Shawn Christensen for 'Curfew'. Best Costume Design - Jacqueline Durran for Anna Karenina. Best Visual Effects - 'Life of Pi' - Bill Westenhofer, Guillaume Rocheron, Erik-Jan De Boer and Donald R. Elliott. Second award. Best Cinematography - Claudio Miranda for 'Life of Pi'. 'Life of Pi' bags its first award! Best Animated Feature Film - 'Brave', directed by Mark Andrews and Brenda Chapman.

Maldives’ Nasheed

Hyderabad Blasts

n yet another case of intelligence failure twin blasts rocked Hyderabad, the capital of Andhra Pradesh on a fateful night of February 21. The two bombs ripped through the busy Dilsukhnagar area of the state capital, killing at least 16 people and leaving other 119 severely wounded. The blasts were triggered by Improvised Explosive Devices (IED) tied to two bicycles. Union Home minister Sushil Kumar Shinde rushed to the ground zero soon after news of blast broke. Preliminary probe suspects terrorist outfit Indian Mujaheedin (IM) hand, however no group has yet taken the responsibility for the blast. Government faced fourpronged attack for the blast. Opposition demanded Shinde’s immediate resignation saying the home minister has failed to do his duty. Investigative agencies are probing the case with no breakthrough so far. n

North-East Polls

lections results for the assembly polls in three North-eastern states Meghalaya, Nagaland and Tripura announced on February 28. The elections in these states were held on February 14 and February 23. While Manik Sarkar led CPI (M) has notched up another victory in Tripura, the Nagaland Peoples Front (NPF) has stormed back to power in Nagaland trouncing the Congress. In Meghalaya, the Congress has emerged as a single largest party, winning 29 seats. It has every possibility of forming government with support of Independents MLAs. The newly formed PA Sangma’s National Peoples Party failed to make an impact in the elections and managed to bag only two seats. n 61

ormer Maldives president Mohamed Nasheed stepped out of Indian mission on February 23, ending an eleven day-long stalemate which began after he sought refuge following an arrest warrant issued against him. Claiming his life was under threat, Nasheed entered Indian High Commission on February 13 after a court ordered his arrest for not attending hearing for allegedly ordering an illegal detention of a senior judge judge Abdulla Mohamed, in January 2012, the allegation which led to his ouster from the office in a military coup last year. However, Nasheed calls the trial as "politically motivated" to disqualify him from September presidential elections. India played a key role in brokering the truce between Maldivian government and Nasheed. MEA team led by Joint Secretary Harsh Vardhan Shringla held series of deliberations with government ministers and various other stakeholders though uncertainty still hovers around Nasheed's freedom as he walked out of the mission. n (Compiled by Yogesh Pandey.) ALL RIGHTS ¥æòÜ ÚUæ§ÅU÷â

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LETTERS Dear Sisters (and brothers?) at Harvard Letter from some Indian feminists to their siblings at Harvard We’re a group of Indian feminists and we are delighted to learn that the Harvard community – without doubt one of the most learned in the world – has seen fit to set up a Policy Task Force entitled ‘Beyond Gender Equality’ and that you are preparing to offer recommendations to India (and other South Asian countries) in the wake of the New Delhi gang rape and murder. Not since the days of Katherine Mayo have American women – and American feminists – felt such a concern for their less privileged Third World sisters. Mayo’s concern, at that time, was to ensure that the Indian State (then the colonial State) did not leave Indian women in the lurch, at the mercy of their men, and that it retained power and the rule of the just. Yours, we see, is to work towards ensuring that steps are put in place that can help the Indian State in its implementation of the recommendations of the Justice Verma Committee, a responsibility the Indian State must take up. This is clearly something that we, Indian feminists and activists who have been involved in the women’s movement here for several decades, are incapable of doing, and it was with a sense of overwhelming relief that we read of your intention to step into this breach. You might be pleased to know that one of us, a lawyer who led the initiative to put pressure on the Justice Verma Committee to have a public hearing with women’s groups, even said in relief, when she heard of your plans, that she would now go on holiday and take a plane ride to see the Everest. Indeed, we are all relieved, for now we know that our efforts ALL RIGHTS

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will not have been in vain: the oral evidence provided by 82 activists and organizations to the Justice Verma Committee – and which we believe substantially contributed to the framing of their report – will now be in safe American hands! Perhaps you are aware that the Indian State has put in place an Ordinance on Sexual Assault that ignores many recommendations of the Justice Verma Committee? If not, we would be pleased to furnish you a copy of the Ordinance, as well as a chart prepared by us, which details which recommendations have been accepted and which not. This may be useful in your efforts to advise our government. One of the greatest things about sisterhood is that it is so global, feminism has built such strong international connections – such that whenever our first world sisters see that we are incapable of dealing with problems in our countries, they immediately step in to help us out and provide us with much needed guidance and support. We are truly grateful for this. Perhaps you will allow us to repay the favour, and next time President Obama wants to put in place legislation to do with abortion, or the Equal Rights Amendment, we can step in and help and, from our small bit of experience in these fields, recommend what the United States can do. Vrinda Grover (Lawyer) Mary E. John, Senior Fellow, Centre for Women’s Development Studies, New Delhi Kavita Panjabi, Professor of Comparative Literature, Jadavpur University, Kolkata Shilpa Phadke, Assistant Professor, School of Media and Cultural Studies, Tata Institute of Social Sciences, Mubmai Shweta Vachani, Senior Editor, Zubaan Urvashi Butalia, Director, Zubaan And many others. n

Lip-talk by British PM : If sincere, return ‘Kohinoor’ It refers to British Prime Minister Cameron expressing ‘regret’ on 1919-massacre by erstwhile British rulers in India pre-independence era with paying homage at Jaliawala Bagh (Amritsar – India). But at same time on specific question on return of ‘Kohinoor’ diamond to India, David Cameron stated that he did not believe in ‘returnism’! Any such regret is a lip-talk without doing anything practical where British robbed Indians not only of their lives but also of wealth. Cameron very well knows that such a lip-talk will in no way can return lives of Indians robbed by British rulers. If British Prime Minister had any sincerity in his intentions of expressing regret on looting Indians’ lives and wealth in pre-independence era, he must have offered return of remains of big loot by erstwhile British rulers including famous ‘Kohinoor’ diamond. British rulers are self-conscious by themselves when Queen Elizabeth did not use her ‘Kohinoor’ studded crown during any of her visits to India, even though she did use it in Pakistan during her same tour of 1960’s to twin nations. India and other member-countries of Commonwealth nations for their self-respect should withdraw from this group which is nothing but a shameful sign of colonial British era still giving Britain a special status on member-countries of Commonwealth Nations. Everyone is aware of big controversy that arose during infamous CWG-2010 in New Delhi on ‘sharing’ importance between President of India and representative of British monarchy. India should also lodge its formal demand for return of Indian assets including ‘Kohinoor’ diamond taken by erstwhile British rulers before India’s independence and/or while going back finally to Britain when India became republic on 26.01.1950. -Subhash Chandra Agrawal, RTI activist n Write us at : letters@allrights.co.in

DCP No. F.2 (A-41) Press/ 2012