30 - Judicial Activism in South Asia

October—December 2010

Judicial Activism in South Asia Judicial Activism and Good Governance in India Judicial Activism in India and Pakistan Bangladesh's Experience with Judicial Activism Judicial Activism and Environment in India Bangladesh: Protection of Environment through Judicial Activism Legal Awareness in Bhutan The History of Political Parties in Pakistan Geelani and Politics of Accession in Jammu and Kashmir Floods in Pakistan—A Brief Overview Towards Energy Independence in Pakistan

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Editorial

Judicial Activism in South Asia

T

he judiciary in South Asia has gradually come into its own, and by the end of the first decade of the 21st century, it seems to be playing a very important role in countering the usual “third world” trend of executive laxity in upholding the law.

“Activism” itself has become a familiar word identifying the judiciary's assertion in favour of the citizen where the law itself is vague and gives the executive the leeway to remain remiss or passive. It also indicates a court's tendency to encourage “public interest litigation” (PIL) through the use of suo motu notice to highlight and resolve issues that normally never get raised at the court. There is, however, some controversy related to this as jurists differ over the uses and perceived abuses of this tendency.

One must take note here that judicial activism began in India and was used by the Indian courts against the growing high-handedness of the executive and in favour of the human rights of the citizens, where the law was imprecise and allowed the governments to ignore the rights of the common man. At first the assertion of the court—for instance, in its “activism” in favour of environment protection—was seen as unrealistic by the general public, but the court's insistence in preventive action by the government resulted in a successful lowering of air pollution in the capital of India. The Indian court's steady insistence on the right of “judicial review”—judging also all legislation by the parliament on the basis of the “basic structure” of the constitution—has been welcomed by the jurists in India.

The Supreme Court in Pakistan asserted itself gradually against an executive usually headed by a military ruler by leaning on the interpretations offered by the Indian Supreme Court in its reaction to the growing authoritarian tendencies of Indian governments. This trend grew as the assertion of the Court in India was internationally seen as an assertion of the rule of law. The “activism” shown by the Pakistan Supreme Court after its induction by General Pervez Musharraf relied on PIL through the use of the suo motu initiation of cases involving the various branches of the executive. This trend, set by the Chief Justice of Pakistan, is believed to have led to his dismissal, along with the judges who stood by him, in November 2007. He returned to his office after a lawyers' movement forced the PPP-led government after the 2008 elections to restore him.

Two elements in the “activism” of the Supreme Court of Pakistan should be noted. The first is the controversy arising out of the excessive incidence of the suo motu PIL cases which have equally come under criticism in India, compelling the judiciary there to pass strictures of “self-correction”. The second is the politicisation of the process of restoration of the judiciary through public agitation. This sets the “activism” of the judiciary of Pakistan apart from those of India and Bangladesh. The Supreme Court in Bangladesh has been consistently upholding the human rights of the people during

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satisfaction test” but rather insisting that the government's decision to detain any person must pass judicial examination of objectivity.27 By way of another example, in a significantly bold assertion of judicial authority, the court in Sahar Ali v A. R. Chowdhury28—which concerned s. 30 of the Special Powers Act 1974 that barred “any court” from revising any order or judgment of special tribunals established under this Act—famously held that its constitutional supervisory power could not be ousted.29 This welcome instance of judicial interpretive activism ultimately triggered legislative removal of the illegality.30 However, despite these few instances of upholding the principle of legality, the Bangladeshi judiciary on the whole abdicated its constitutional responsibility of protecting the rule of law during the martial law regimes and largely became a partner of usurpers of the constitution.31 The “Basic Structure” Doctrine The revival of the constitution by the military ruler on 11 November 1986 enriched the top court judges with a sense of obligation vis-à-vis Bangladesh's founding mottos of constitutionalism and democracy. During the waning hours of autocracy but still some time before democratic restoration, the Appellate Division in its historic 1989 decision in Anwar Hossain Chowdhury v Bangladesh32 invalidated the 8th Amendment to the constitution, thereby entrenching the now famous “basic structure doctrine.”33 In Anwar Hossain Chowdhury the court held that the parliament's plenary legislative and amendatory power under the constitution is “limited” in that this power having been a “derivative” constituent power34 can not be exercised to alter or destroy its “basic structures.” The court was seemingly motivated to uphold the greater public interest and virtues like the rule of law.

The then military authority by various martial law regulations diffused the High Court Division into seven permanent benches, and later constitutionalised this change by amending Article 100 of the constitution. Some lawyers challenging the vires of the amendment successfully convinced the Appellate Division that, among other things, the High Court Division's plenary judicial power over the whole republic was a basic structure of the constitution which was un-alterable even by a constitutional amendment.35 In a three to one majority judgment, the Appellate Division employed a holistic interpretation to the constitution and concluded that the parliament with an unlimited amending power is inconsistent with the concept of constitutional supremacy, a basic pillar of the constitution.

Despite its several shortcomings and ambivalence in the reasoning of the majority judges,36 the 8th Amendment decision continues to remain the boldest ever instance of judicial activism in pursuit of constitutionalism in the Bangladeshi polity. The judges, by and large, were alert to the need for protecting “the fundamental aim” of society from destruction,37 and they sought to concretize their reasoning by relying on comparative

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public law besides taking moral-legal guidance from their own constitution.

There are criticisms, both academic and political, against the basic structure doctrine, which are mostly akin to general criticisms against judicial activism.38 Critics often ignore the local political specificities and constitutional imperatives that necessitate a limitation on the parliament's unbridled amending power. The Anwar Hossain Chowdhury decision can indeed be “an effective guarantee against frequent amendments of the constitution in sectarian and party interest”39 as well as against omnipotent parliamentary supremacy like the one during the Emergency or martial law regimes. Critics of the basic structure doctrine also miss the reality that even most activist judges conform to the “dictate of conscience” and tend to defer to the representative organ of the state when the deference is due in examining the constitutionality of a law or constitutional amendment. As against apprehensions that the basic structure doctrine might be over-applied, the judges in Bangladesh have shown due comity while sustaining the 13th and 14th constitutional amendments.40 At the same time, they invoked and duly relied on the doctrine recently, declaring the 5th and 7th amendments to the constitution that legitimised two successive marital law regimes.41 Judicial Activism following Democratic Restoration Following democratic restoration in 1991, the people's faith in constitutionalism and the judiciary increased. A surprising surge of litigations aimed at realising the legal rights and governance imperatives became a feature of this period. And, like the postEmergency judicial activism in India, the Bangladeshi judges too seemed to be developing a consciousness that the legitimate concerns of people should be the central focus of their business. As a result, post-1991 judiciary embraced “public interest litigation” (PIL) and increasingly exercised constitutional judicial activism. These developments were the essential consequence of a remarkable shift in the court's interpretational jurisprudence towards creative interpretations.

Progressive judicial interpretations implicating rights, constitutional safeguards and constitutionalism ushered in a new beginning of judicial activism. In the post-1990 period, thus, we see many new developments especially in the field of right to life and personal liberty, including a light attempt to construct a theory of public law compensation for breaches of the constitution and fundamental rights,42 and some selfinitiated (suo motu) judicial interventions by socially sensitive judges who were eager to remove illegality from the country's criminal justice system.43 To cite one such activist decision in the area of prevention detentions is Korban v Bangladesh, where the petitioner was re-detained from the jail gate after his courtintervened release from earlier detention; the High Court Division awarded against the detaining authority “compensatory costs” of taka 5000, but not compensation proper, for arbitrary and colourable exercise of public power.44 In another exceptional decision, in Bilkis Akther Hossain v Bangladesh (1997)45 the High Court Division held the government liable in damages for arbitrary and unlawful detention of some political leaders. This pro-active decision has not, however, yet become a trend or a precedent, since it has been pending on appeal in the Appellate Division for the last 13 years.

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Most striking judgment in defence of the people's fundamental rights was in a case involving unlawful, lingered incarceration of a young person. In State v Deputy Commissioner, Satkhira (1993)46 the first-ever reported suo motu intervention, the High Court Division actually set up a trend of activist adjudication of rights. After having read a newspaper report, it issued on its own motion a rule in order to free an illegally detained person who, charged with some baseless criminal allegations, had been languishing in jail for 12 years with bar fetters tied to his legs since he was first arrested at the age of 9. On the very first day of hearing, the court ordered to take off the bars and quashed all pending criminal proceedings against Nazrul Islam, which it found void ab initio as the convict was charged and tried jointly with adults in contravention of the Children Act 1974, section 6.47 Nazrul Islam marked the beginning of suo motu judicial interventions and explored a so far undiscovered source of judicial power. Also, this case set a landmark in the country's judicial history by issuing various directives to the government agencies. Quite innovatively, the court directed to make an investigation into whether any other children were in situations similar to Nazrul's, and also ordered a report of compliance with the said directives.

The post-1990 court was particularly sensitised to the concerns arising from police atrocities, custodial death and abuse of police powers. In Alhaj Md Yousuf Ali v the State48 the court cautioned the police against misusing their arresting powers and torture “in the garb of police remand.” In a PIL initiated in the context of a widely condemned killing of an innocent university student through torture inflicted by some members of the police, the High Court Division in BLAST and Others v Bangladesh and Others (2003)49 handed down a ground-breaking judgment issuing directions and guidelines with a view to stopping largely unchecked police brutalities and custodial deaths. The court emphasised the need to bring existing legal inconsistencies into conformity with the constitutional safeguards against torture and unlawful arrest, and formulated certain strategies and polices to regulate the arresting power of the police under widely-framed section 54 of the Criminal Procedure Code as well as to condition the magistrates' power to remand an accused to the police. Unfortunately however, an appeal against this rights-enhancive decision has since remained pending before the Appellate Division.

Another noticeable area where the court followed justice-promoting interpretation was that of women's rights. Clearly, paternalistic assumptions in judicial decisions are on the decline now. On several occasions, the court has struck down gender-based discriminatory actions and laws and has attempted to promote a substantive concept of equality.50 In Shamima Sultana Seema v Bangladesh51 the High Court Division quashed an administrative notification allocating differentiated functions and pay to women commissioners of a city corporation elected from the “reserved seats,” calling for a change in societal attitude towards women since mere law may not often prove enough.52 Gender-sensitive judging prominently appeared in some criminal cases concerning victims of rape, torture and murder. Considering rape as a deplorable violation of one's right to life, the court advised that the violators should receive serious punishment so that justice be done both to the victim and society.53

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In the post-democratic transition era, Bangladeshi judges became aware of their past failings, a realisation that boosted their sense of activism for justice.54 Resultantly the court in a series of cases stood in defence of constitutionalism by way of expanding the judicial review power in ordinary and public interest litigations. Although the court still feels shy to recognise the constant engagement with policy issues,55 judicial engagement with policy matters or judicial policy suggestions in Bangladesh is not uncommon.56 For example, governmental inactions including those in the sphere of foreign affairs are becoming justiciable in abstract or concrete challenges.57 To be brief, the post-1990 court has by and large remained alert to breaches of principles of constitutionalism. In an instance of strategic activism, the court in Kudrat-E-Elahi Panir v Bangladesh,58 concerning the abolition of a tier in the local government system, the Appellate Division refused to give “legal force” to fundamental principles of state policy. But, having been inspired by these fundamentals, the Appellate Division issued certain directions asking the government, inter alia, to ensure elections to local government units ensuring representation of women in particular.59 In some other decisions, the court invoked the common law doctrine of public trust in its modernist perspective to hold the government and its agencies to account. For example, in BLAST v State (2008),60 a PIL, it directed the realisation within six months of a huge amount of arrear telephone bills from some 427 members of the parliament, reinforced the view that public functionaries are trustees of the people for whose interest they must act.

The most notable decision furthering the supremacy of the constitution is Bangladesh Italian Marble Works Ltd v Bangladesh (2006)61, conveniently referred to as the 5th Amendment Case. In this case, which in the last few years has been the centre of heated debates regarding the proper extent the court can go to in a democracy, the High Court Division declared unconstitutional the 5th constitutional amendment that validated the first martial law regime. For the court, the “amendment” was a “grave” legal wrong and will so remain “for all time to come.” It held that “martial law” is unknown to the constitution let alone being authority to enable changes to the constitution.62 There are some notable weaknesses in the court's reasoning especially for its stand of sustaining the legality of some changes and of rejecting the other changes brought about by the 5th Amendment. Undeniably, this decision which has recently been endorsed by the Appellate Division63 is a bold assertion against unconstitutional usurpation of state powers. It seems to have compensated in some way the court's earlier failing to discard martial law. As seen above, the court during extra-constitutional regimes mostly surrendered its autonomy and judgment to the executive, a legacy that until this decision made the court's post-1990 activism remain blurred.64 Most recently, the High Court Division has declared unconstitutional the 7th constitutional amendment that legitimised the second martial law regime.

Independence of the judiciary: The Masdar Hossain Case The post-1990 judicial activism has found spectacular expression in decisions concerning the various aspects of independence of the judiciary. In these decisions the court was seen optimally activist compared to its activity in other fields of law.

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Apparently, it became extraordinarily self-conscious about its self-reputation and status. A landmark decision of this genre was in the case of Secretary, Ministry of Finance v Md. Masdar Hossain and Others,65 which stands as probably the most finegrained instance of judicial activism for constitutionalism. In Masdar Hossain, the Appellate Division largely agreed with the High Court Division's judgment in the original judicial review petition66 and issued some directives concerning judicial independence for “forthwith” implementation by the executive.

Despite several constitutional provisions providing for the independence of the judiciary as a whole, independence of the lower judiciary had long remained a matter of serious concern. Magistrates exercising judicial functions were indeed officers of the executive organ of the state, while judges in the “judicial service”, although they were not members of the executive, used to be appointed and controlled almost single-handedly by the administration. These issues of judicial independence came to be the central theme of the judgment in this class-action lawsuit by some 223 judges initiated to reclaim some financial benefits that the government withdrew. Speaking for the court, Kamal J treated judicial independence as a basic pillar of the constitution and held that it could not to be “demolished, whittled down, curtailed or diminished in any manner.”67 In a well-argued judgment buttressed by comparative constitutional law decisions from other comparable courts,68 the court found the executive and legislative organs to have committed a “constitutional deviation” from obligations regarding independence of the judiciary.69 It, therefore, set out to undertake a constitution-reinforcing role, ultimately directing the government to take necessary steps towards (i-ii) framing Presidential “Rules” regulating appointments of lower court judges and magistrates and their posting, promotion, discipline, and pay or allowances; (iii-iv) establishing a Judicial Service Commission to recommend recruitments to the judicial service and a Judicial Pay Commission; and (v) ensuring the Supreme Court's financial autonomy.70 Following its verdict the court took the role of post-decision monitoring, kept the case open as a continuous mandamus for any consequential directive and through several strategies made the government implement the above directives. The government resorted to several dilatory practices to delay the full implementation of the judgment, but ultimately fully complied with the decision. Since November 2007, by virtue of new enactment of new law, the magistrates were separated from the executive organ of the state and put under the regulation and governance of the Supreme Court.

The Masdar Hossain Case led the critics to raise questions about the propriety of the court's intervention of the above type as well as about its policy and lawmaking roles. In its very judgment, the court offered eloquent and thoughtful responses to these common objections against judicial activism. In essence, the kind of activism the court exercised in this case was not un-contextual, but rather was in defence of the constitution.71 Public Interest Litigation Public interest litigation that has now become firmly entrenched in the Bangladeshi

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jurisprudence72 is the most noticeable area of judicial activism in Bangladesh, accomplishing both practical achievements and normative social impacts. In Dr. Mohiuddin Farooque v Bangladesh (hereafter the FAP 20 Case),73 the first PIL in its true sense, an environmental organisation was held to have locus standi to challenge a flood action project (FAP) on the grounds of violation of the surrounding people's rights as well as of the principle of legality. This opening was based on the court's adoption of what can be called an autochthonous style of constitutional interpretation based on the spirit and dynamics of constitutional foundational values such as social justice and democracy. There has since been a steady rise in litigations for the public good or interest.

In PIL cases the court has so far been activated to achieve justice vis-Ă -vis a wide array of issues. For example, the court has issued remedies preventing the release or import of radio-active dried milk in order to protect the lives of children from being endangered, protecting slum dwellers against unlawful eviction,74 and preserving the environment, public parks or rivers,75 and public health and hygiene. In some other cases concerning a mixed genre of political rights claims and greater constitutional principles, the court zealously guarded judicial independence76 and sought to inculcate electoral political culture,77 ensure grassroot-level participation in democracy, stop police brutalities, prevent sexual harassment in work-places or educational institutions, check corruption by state executives, and protect liberty and other fundamental rights of vulnerable people.

Interestingly, environmental justice seems to have drawn the court's most intensive attention, and judicial environmental activism has been one of the central features of the Bangladeshi PIL jurisprudence. In a long series of cases, the court has pro-actively indulged in exercises directed towards the protection of the environment, mostly by issuing innovative remedies such as obliging the concerned government agency to make rolling reports of progress or by binding the government with specific positive obligations or framing “obligatory� guidelines. To take just a few more striking examples, the court in Dr. Mohiuddin Farooque v Bangladesh78 issued a eight-point directive to improve the conditions of air pollution in Dhaka, asking the government to convert the polluting vehicles into natural gas-run environmentally friendly transports.

In Professor Nurul Islam and Others v Bangladesh79 the High Court Division imposed a ban on advertisements of cigarettes and tobacco-related products in furtherance of right to life of the people at large, leading to the enactment of a legislation. A most recent action in Human Rights and Peace for Bangladesh v Bangladesh (2009)80 has prompted a string of government actions, including evictions of river-side industries, regarding the protection of four rivers surrounding the Dhaka metropolis that are allegedly the most polluted rivers in the world.

PIL-based judicial activism in Bangladesh has partaken of two different but conjoined features: rights-based activism and constitutionalism-inspired activism. Considered as a tool to attain social justice most PILs in their early age sought to implement socioeconomic rights such as environmental or labour rights via attempts to enforce

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statutory legal duties and constitutional fundamental rights. However, although the judges are increasingly extending the enforceable constitutional “right to life” to cover newer rights as the right to safe drinking water81 or the right to a healthy environment,82 judicial social rights activism in Bangladesh remains still rudimentary and lags well behind activist instances particularly of the Indian Court that influenced the Bangladeshi PIL most.83 By contrast, alongside judicial vigilance in the traditional public interest rights litigations, constitutionalism-inspired judicial activism seems to have increased significantly in recent times. For example, in Ekushey Television Ltd v Dr. Chowdhury Mahmood Hasan (ETV Case)84 and Engineer Mahmud-ul Islam v Govt. of Bangladesh (Private Port Terminal Case)85 the court invalidated respectively a public license granted to a private television operator and struck down a permission to a foreign private company to construct container terminals at the Chittagong Port on the ground of opaqueness and non-transparency in public decision-making. Accordingly, the court in recent times voided a law that undermined the principle of governance through “elected representatives,”86 directed the government to establish special courts in the Chittagong Hill Tracts region for the protection of women and children,87 invalidated a provision of mandatory death penalty,88 and required the police to submit to it fortnightly reports of the investigation concerning the 2007 terrorist attacks that killed many including two judges.89 Also notably, PIL-based activism has been increasingly embracing legitimate exercises in judicial lawmaking or policy-setting, a stance that is fed by imperatives of the constitution.

This does not, however, lead to a conclusion that PIL-based judicial activism is free of imperfections. The court's preparedness in PILs to be vigilant against executive violation of the citizens' rights or against any injustice does not seem to be sufficiently robust, coherent, and pragmatically policy-based.90 For example, the court has not yet established the jurisprudence of public law compensation for gross constitutional breaches or misfeasance in public offices. Nor has the court been able to develop a cooperative mode of adjudication taking the public officials within implementation processes. Despite limitations of judicial public interest activism, however, the PIL-tool continues to help the willing and perceptive judges achieve goals of justice and constitutionalism.

The 2007 Emergency, and Post-Emergency “New” Judicial Activism91 On 11 January 2007 the then interim government in Bangladesh declared a state of emergency, which effectively suspended the constitutional rights of the people and clipped the protective role of the courts.92 These sweeping initiates threw the court into challenges, dilemma and confusions. Resultantly, judicial aberrations followed, with far-reaching implications for the agency of the court in which public confidence came to be low.

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Judicial decisions during the two-year-long Emergency show that while the Supreme Court's High Court Division apparently asserted its authority vis-à-vis the overweening government, the Appellate Division seems to have paid undue deference to the executive.

Despite hindrances and prohibitions of the regime, ordinary citizens as well as legal actors resorted to the instrumentality of legal actions in order to protect the fundamental rights and ensure constitutionalism. This rights-consciousness and civic assertiveness apparently reflected the people's changing perception about the judiciary which the Supreme Court's public interest jurisprudence generated.

The Emergency foreclosed the possibility of public interest litigation on constitutional rights grounds. Public-spirited citizens or “interested” politicians, however, invoked the court's jurisdiction through PIL and ordinary litigations under the operative part of the constitutional remedial clause. In these actions challenging the legality of several actions by the government, the court's responses were a kind of mixed bag of assertions and abdication.93 In Masood R. Sobhan v The Election Commission (2008)94, for example, the High Court Division employed a purposive interpretation of the vonstitution's 90 days' timeframe for holding general elections after the dissolution of the parliament.95 The court dismissed a constitutionality challenge to Election Commission's deferral of general elections beyond this time limit, and observed that government's pledge for holding elections by December 2008 was not unreasonable.96 At odds with this pragmatic decisions are a number of decisions in which the Appellate Division's encounter with sweeping executive interventions with the liberty of the people and principles of constitutionalism is acutely deficient in upholding the supremacy of the constitution. In Moyezuddin Sikder v State (2008)97, for example, the Appellate Division overruled the High Court Division's decision that its inherent power and wider judicial authority to grant bail to the accused can not be foreclosed even by Emergency laws.98 In another high-profile case, Bangladesh v Sheikh Hasina,99 the Appellate Division controversially upheld the retrospective operation of the Emergency Powers Rules 2007 affecting the trial of a criminal charge against a former Prime Minister for an alleged offence that pre-dated the promulgation of emergency. In the original constitutional challenge, the High Court Division found that the retrospective operation of the Emergency Power Rules to conduct trial of pre-Emergency offences was incompatible with the constitutional prohibition of ex post facto criminal laws and hence unconstitutional.100 The High Court Division reasoned that any Emergency-law that breaches inviolable fundamental rights is liable to be adjudged unlawful,101 a reasoning that is premised on constitutional values. Encouragingly, by referring to the judicial oath, it emphasized an “extra” duty to examine the constitutionality of executive actions when citizens' rights are at stake even during emergency.102 Standing on a footing radically different from that of the High Court Division, the Appellate Division adopted a merely textual interpretation of the constitution, and found that the prohibition of ex post facto laws concerned only “conviction” and not the trial process.103 Needless to say,

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this interpretational approach is plainly not in terms with the judicial duty to do justice.

The strongest assertion of authority by the High Court Division came just few days before the withdrawal of Emergency on 17 December 2008. In Advocate Sultana Kamal and Others v Bangladesh,104 decided on 4 December 2008, the High Court Division invalidated some provisions that precluded judicial review of executive actions under any Emergency law and clipped the higher courts' power to grant bails and suspend sentences or to hear appeals from lower courts' interim orders.105 Although the court stopped short of striking down the 2007 Emergency as unconstitutional,106 it observed that Emergency can not legally continue for an indefinite period107 and that it can not be stripped off judicial review of emergency laws.

An appeal against the decision in Advocate Sultana Kamal is now awaiting the disposal by the Appellate Division which in its interim order stayed the judgment's efficacy. Fullfledged challenges to the constitutionality of 2007 Emergency went to the court only when the Emergency was about to be withdrawn, which too are awaiting final determination. In M. Asafuddowla and Others v Bangladesh (2008)108, a PIL, constitutional provisions enabling the president to declare a state of emergency generally and particularly to postpone the enforcement of constitutional rights were challenged.109 The court issued a rule calling for explanations from the government, but it seems that this challenge will continue to remain unheard in the context of the withdrawal of emergency.

The above shows while the High Court Division employed a dynamic interpretation of the constitution in most if not all cases concerning the Emergency laws,110 the Appellate Division followed a formalistic method of constitutional construction and sometimes overly interfered with the former's autonomy. Appreciably however, in the wake of return to democracy through 2008 elections the Appellate Division opened a little space for liberal interpretations particularly in granting bails of the accused facing prolonged detention.111 It remains unclear why the Appellate Division pursued a policy of not interfering with the executive. Did it wanted to extend some measure of legitimacy to the allegedly extra-constitutional emergency government and its purportedly noble mission of institutionalising democracy, or simply become subjugated to external pressures.

Following the withdrawal of the Emergency and after the instalment of a new democratic government in 2009, the Bangladeshi top judges seem to have regained their constitutional agency in a bid to overcome the crisis of public confidence it incurred during the 2007/08 Emergency. This post-Emergency period can to some extent be likened with the post-Emergency period in India that gave birth to the most powerful and activist court in the world. As noted above, the Supreme Court of Bangladesh in recent times has been issuing activist judgments in the protection of fundamental rights and the principles of constitutionalism with remedies of the kind not delivered before.

For example, as already mentioned, in this period the Appellate Division has confirmed the High Court Division's judgment striking down the 5th Amendment to the constitution that constitutionalised a martial law regime.112 Unlike earlier suo motu interventions in the area of criminal injustice, it has also acted on its own to protect human lives from

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road accidents.113 To cite an example from the area of fundamental rights, it has issued detailed guidelines to be followed by educational institutions and employers so as to prevent and handle allegations of sexual harassment.114 Conclusion The aim of the paper has been to show the development of judicial activism in Bangladesh. The earlier discussion shows that Bangladeshi judicial activism, which has oscillated along with democratic nuances in the country, is increasingly becoming intense particularly in the post-Emergency period. Unsurprisingly, this has attracted sustained criticisms against judicial activism. These criticisms or accusations of overactivism are not altogether without any substance. In few cases, the court's activism was either non-pragmatic or deficient in reasoning.

The present and constant challenge for the Bangladeshi judges aspiring to enact justice actively is to adopt a middle-ground between meek administration of justice and unacceptable judicial overstepping. In breaking the middle-path of activism, they must be guided by existing socio-political realities and the foundational values of the nation in enforcing public accountability and reaching justice to the people.

As the above assessment reveals, on the whole, judicial activism in Bangladesh has not turned out to be over-activism. Rather, one can see judicial under-activism in some respects. For example, the court's failing to effectively stretch out the constitutional rights to the activity of private actors does not match with its rights-based activism.115 Also, there is still a long way for judicial public interest activism to travel.

Rizwanul Hoque is assistant professor in the Department of Law, University of Dhaka, Bangladesh. For some arguments and analyses made in his paper the author has relied on his unpublished PhD thesis: Hoque, Ridwanul. 2007. Judicial activism as a golden mean: A critical study of evolving activist jurisprudence with particular reference to Bangladesh. London: University of London, SOAS. Endnotes 1. For an overview of these debates see, among many others, Michael Kirby, Judicial activism.

(London: Sweet & Maxwell, 2004); Bryce Dickson, ed., Judicial activism in common law supreme courts (Oxford: OUP, 2007); Kent Roach, Supreme Court on trial: Judicial activism or democratic dialogue (Toronto: Irwin, 2001).

2. This is what is known as “counter-majoritarian” argument against judicial activism, famously developed in: Alexander Bickel, The least dangerous branch: The Supreme Court at the bar of politics (Yale: Yale University Press, 1986). See also John Hart Ely, Democracy and distrust: A theory of judicial review (Cambridge, MA: Harvard University Press, 1980).

3. In Khawaza Tariq Rahim v Federation of Pakistan PLD 1992 SC 646, Sajjad A. Shah J noted a general trend of superior courts' activism in “the advanced countries of the world.” This justificatory reference to Western jurisprudence perhaps symbolises a typically colonial judicial mindset that everything good, including judicial activism, should flow from the West.

4. The author has here deliberately eschewed definitions of judicial activism, but have used the concept to mean judicial functional responsibility to achieve socio-economic and political

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justice for wider society beyond the bounds of a particular dispute, and thus to direct and influence social and constitutional changes. Justice Bhagwati charted out three types of judicial activism: i) judicial social activism meaning activism for social justice; ii) technical judicial activism, i.e., exercise of freedom of judicial choices; and iii) juristic activism, i.e., creation of new legal principles without looking at the purposes they serve. See P. N. Bhagwati, “Judicial activism and public interest litigation,” Columbia Journal of Transnational Law 23 (1984-5): 561–577, at 561. From the Western perspectives, Kmiec expounded “five core meanings” of judicial activism, which are i) invalidation of the arguably constitutional actions of other branches; ii) failure to adhere to precedent; iii) judicial legislation; iv) departures from accepted interpretive methodology; and v) result-oriented judging. See Kennan D. Kmiec, “The origin and current meanings of judicial activism,” California Law Review 92 (2004): 1441–1447. See also G. Jones, “Proper judicial activism,” Regent University Law Review 14 (2002): 141.

5. The literature on Bangladeshi judicial activism is quite scant. The first-ever figuring of the term judicial activism was in a section of a 1988 article: Imtiaz Omar, “Independence of the judiciary and the role of the Bangladesh Supreme Court,” Law and International Affairs 11 (1 & 2) (1988): 80–106. An early relevant work on this is by Naim Ahmed who focused on public interest litigation. See Naim Ahmed, Public interest litigation in Bangladesh: Constitutional issues and remedies (Dhaka: BLAST, 1999). “Judicial activism” spanned only for two pages in a 2003 book by a former Supreme Court judge. See Kazi Ebadul Hoque, Administration of justice in Bangladesh (Dhaka: Asiatic Society of Bangladesh, 2003). On Bangladeshi judicial activism, now see R. Hoque, Judicial activism as a golden mean, above note 1. See further A. T. M. Afzal, “I am not against judicial creativity,” Dhaka Law Reports (DLR), Journal section 51 (1999): 41–42; Afroza Begum, “Judicial activism versus judicial restraint: Bangladesh's experience with women's rights with reference to the Indian Supreme Court,” Journal of Judicial Administration 14 (2005): 220–241 (arguing that judicial activism is inescapable to accommodate women's contemporary needs); Ridwanul Hoque, “Taking justice seriously: Judicial public interest and constitutional activism in Bangladesh,” Contemporary South Asia 15 (4) (2006): 399–422; and Ridwanl Hoque and Morshed M. Khan, “Judicial activism and Islamic family law: A socio-legal evaluation of recent trends in Bangladesh,” Islamic Law and Society 14 (2) (2007): 204–239.

6. See the Presidential Proclamation of December 28, 1974, made under Article 141A of the constitution that was introduced through the Constitution (Second Amendment) Act, 1973.

7. Throughout this chapter the term “constitution” has been used to refer to the Constitution of the People's Republic of Bangladesh, adopted on November 4, 1972 and effective from December 16, 1972.

8. See the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991).

9. The constitutional supremacy clause (Art. 7) categorically declares that any other law inconsistent with the constitution shall be void, while Article 26 enjoins the state not to legislate in derogation of fundamental rights and provides that any law inconsistent with these rights shall be void.

10. See respectively, Article 44(1) and Article 102 (1) of the constitution.

11. Its other and the apex part is the Appellate Division, with only appellate power and the advisory jurisdiction.

12. Without using the nomenclature “writ”, Art. 102 (2) allows five kinds of writs, mandamus, prohibition, certiorari, quo warranto and habeas corpus, against state and local authorities.

Moreover, the Appellate Division of the Supreme Court has the power to issue directions and orders “to do complete justice” in any pending case (Art. 104).

13. See article 4 of the High Court of Bangladesh Order, 1972.

14. Kutubuddin v Nurjahan (1973) 25 DLR (HCD) 21.

15. A. T. Mridha v The State (1973) 25 DLR (HCD) 335, 338.

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16. (1973) 25 DLR (HCD) 335.

17. Ibid., 350 (referring to pre-constitution President's Order No. 50). The Appellate Division reversed this decision on a narrow technical ground: Solicitor, Govt. of Bangladesh v A. T. Mridha (1974) 26 DLR (AD) 17.

18. (1974) 26 DLR (AD) 44.

19. Ibid., 52 , per Sayem CJ. 20. Ibid., 51–52.

21. This term was used by M. H. Rahman J in Anwar Hossain Chowdhury, below note 32, 180.

22. (1978) 30 DLR (AD) 207, 210. In Sultan Ahmed v Chief Election Commissioner (1978) 30 DLR (HCD) 291, 296, the martial law was termed as “the Supreme law of the land.”

23. See clause (g) of the Proclamation of Martial Law of 20 August 1975.

24. Earlier, the court in Abdus Shukoor Dada v The State (1976) 28 DLR 441 defined martial law as a “known concept” of jurisprudence invoked “for taking certain corrective measures which are beyond the reach of normal laws.”

25. See, e.g., the dissenting opinion by K M Sobhan J in State v Joynal Abedin (1980) 32 DLR (AD) 110, arguing for the availability of judicial review when martial law courts were improperly constituted or acted without jurisdiction or beyond their constituting legislation.

26. See the Special Powers Act 1974, Section 3.

27. See the leading case of Abdul Latif Mirza v Govt. of Bangladesh (1979) DLR (AD) 1.

28. (1980) 32 DLR (HCD) 142.

29. See also Lutfur Rahman v Election Commissioner (1975) 27 DLR (HCD) 278 (judicial authority to issue interim orders in judicial review to prevent injustice cannot be absolutely foreclosed).

30. For an almost similar early decision see Humayun Kabir v The State (1976) 28 DLR (HCD) 259.

31. For a good analysis see Sheikh H. R. Karzon and Abdullah A. Faruque, “Martial law, judiciary and judges: Towards an assessment of judicial interpretations,” Bangladesh Journal of Law 3 (2) (1999): 181–210.

32. 1989 BLD (Spl.) 1.

33. In reaching the decision, the court greatly relied on the famous Indian decision in Kesavananda Bharati v State of Kerala (1973) 4 SCR 225 that first established in the common law world the doctrine of inviolability of the “basic structure” of the constitution.

34. Note 32 above, per Ahmed and Chowdhury JJ, ibid., 143, 83.

35. See opinions of Ahmed Chowdhury and Rahman JJ, respectively at 83, 156–157, and 174 in Anwar Hossain Chowdhury, above note 32 (Afzal J dissenting).

36 Two majority judges, for example, took a highly controversial view that a constitutional amendment is not a “law” within the meaning of Article 7(2) of the constitution, as noted in note 9 above.

37. Anwar Hossain Chowdhury, above note 32, per Rahman, J., at 160.

38. For example, two scholars have loosely argued that by “constitutional theory” the court lacked power to invalidate the 8th Amendment: Imtiaz Omar and Zakir Hossain, “Coup d' etat, Constitution and legal continuity,” Parts 1-2, Issue Nos. 207 & 208, Law & Our Rights, the Daily Star, Dhaka, 17 and 28 September 2005.

39. Shahabuddin Ahmed J in Anwar Hossain Chowdhury, above note 32, at 157.

40. See respectively M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171 (introduction of “non-party caretaker government” has not breached any basic structure but rather has strengthened democracy, a basic pillar of the constitution), and Farida Akhter and Others v Bangladesh (2007) 15 BLT (AD) 206 (reservation of seats for women in the parliament is not against basic structures).

41. See respectively, Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd. (2010) VI (B) ADC (Appellate Division Cases) 1 (declaring the 5th amendment unconstitutional); and

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a recent High Court Division's decision of 26 August 2010 (Siddique Ahmed v Bangladesh, Writ Petition of 24 January 2010) declaring 7th constitutional amendment unconstitutional. On the basic structure-compatibility of these amendments, see M. Rafiqul Islam, “The seventh amendment to the Constitution of Bangladesh: A constitutional appraisal,” Political Quarterly 58 (3) (1987):12–29; and Sheikh H. R. Karzon and Abdullah A. Faruque, “Martial law regimes: Critically situating the validity of the fifth and seventh amendments,” Bangladesh Journal of Law 2(2) (1998): 152–192.

42. See, e. g., Mohammed Ali v Bangladesh (2003) 23 BLD (HCD) 389, the only case awarding public law damages against the police for unlawful searches.

43. On suo motu judicial intervention see Ridwanul Hoque, “Suo motu jurisdiction as a tool of activist judging: A survey of relevant issues and constructing a sensible defence,” Chittagong University Journal of Law 8 (2003): 1–31.

44. (2003) 55 DLR (HCD) 194.

45. (1997) 17 BLD (HCD) 344.

46. (1993) 45 DLR (HCD) 643.

47. See also BLAST v Bangladesh (2002) 7 BLC (HCD) 85 (a conviction passed by any court other than the juvenile court in respect of a child is liable to be set aside).

48. (2002) 22 BLD (HCD) 231. See also Saifuzzaman v State 56 (2004) DLR (HCD) 324 warning against police torture or “third method degrees.”

49. 23 BLD (2003) (HCD) 115.

50. See, e.g., Bangladesh Biman Corporation v Rabia Bashri Irene (2003) 55 DLR (AD) 132, striking down the rule of different ages of retirement for flight stewards and stewardesses.

51. (2005) 57 DLR (HCD) 201.

52. Ibid., 212–213 (interestingly, by reference to religious scripts, the court took a pedagogic role to educate the government about its protective duty towards women).

53. See, e.g., Al Amin & Others v The State (1999) 19 BLD (HCD) 307, 317–319. In some cases the court set out to craft a women-friendly criminal justice system, suggesting, e.g., reduction of the evidential threshold in rape cases in consideration of the relevant social factors: State v Moslem (2003) 55 DLR (HCD) 116; State v Mir Hossain (2004) 56 DLR (HCD) 124.

54. See, e.g., Bangladesh Italian Marble Works Ltd, below note 61; Shahriar R. Khan v Bangladesh (1998) 18 BLD (AD) 55, 78.

55. See e.g., Younus Mia v Ministry of Public Works (1993) 45 DLR (HCD) 498 (courts cannot direct the government to implement a policy).

56. See e.g. Mostafa Kamal v Commissioner of Customs (1998) 18 BLD (HCD) 301, 308 (the judgment suggesting a legal framework for fixing import tariffs was sent to the government “for consideration for framing rules”).

57. In Abdul Gafur v Secretary, Ministry of Foreign Affairs (1997) 17 BLD (HCD) 453, the court directed diplomatic assistance for the rescue of a girl-victim of an international abduction from Kolkata.

58. (1992) 44 DLR (AD) 319.

59. In the same vein, in BLAST v Bangladesh (2008) 60 DLR (HCD) 234 (judgment 2 August 2005) the court declared the Village Government Act 2003 unconstitutional for providing for “selection” rather than election of representatives to the village governments.

60. (2008) 60 DLR (HCD) 176.

61. (2006) BLT (Special) (HCD) 1 (judgment 29 August 2005).

62. For a note on this see Ridwanul Hoque, “On coup d' etat, constitutionalism, and the need to break the subtle bondage with alien legal thought: A reply to Omar and Hossain,” Law & Our Rights the Daily Star, Dhaka, October 29, 2005.

63. See Khondker Delwar Hossain, above note 41.

64. In some cases, e.g., the post-1990 court refused to review the legality of actions by past martial law administrators on the unjustifiable ground that those were protected by the 7th or the 5th

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amendments to the constitution. See Abdur Rashid Sarker v Bangladesh (1996) 48 DLR (AD) 99; Shah Mohammad v Secretary to the President (1996) 1 BLC (HCD) 8.

65. (2000) 52 DLR (AD) 82 (hereafter Masdar Hossain) (judgment 2 December 1999).

66. See Md. Masdar Hossain & Others v Secretary, Ministry of Finance & Others (1998) 18 BLD (HCD) 558.

67. Masdar Hossain, above note 65,103.

68. The court relied on, e.g., Indian, Pakistani, and Canadian decisions: All Indian Judges' Association v India (1993) 4 SCC 288; Walter Valente v The Queen (1985) 2 SCR 673; Reference re Remuneration of the Judges of the Provincial Court of Prince Edward Island (1997) 3 SCR 3.

69. Masdar Hossain, above note 65, at p. 108.

70. Ibid., 109.

71. The court (ibid., 160) reasoned that it can issue necessary directions to bring the parliament or the executive back to the constitutional path when they breach the constitution, relied on the Pakistani decision in Govt. of Sindh v Sharaf Faridi PLD 1994 SC 105 imposing positive obligations on the state to separate the lower judiciary. It is interesting to note that the Appellate Division followed strategic activism by not straightforwardly directing the government “to separate the judiciary from the executive organs of the state” as per Article 22 of the constitution probably because of this mandate's judicial non-enforceability.

72. In Kazi Mukhlesur Rahman v Bangladesh, above note 18, which had a strong PILness, the court missed an opportunity of being the pioneer in establishing PIL jurisprudence. Unlike Indian judges, Bangladeshi judges had never been the vanguard of the PIL movement. Rather, the activist lawyers needed to work hard to make the judiciary break away from the colonial legal thinking and orthodox jurisprudential inhibitions. See for a negative decision: Bangladesh Sangbadpatara Parishad v Bangladesh 43 (1993) DLR (AD) 126. On PIL generally see Ahmed (1999), above note 5, and Hoque (2006), above note 5.

73. IX (1996) Bangladesh Supreme Court Report 27.

74. For some old cases see Kalam v Bangladesh (2001) 21 BLD (HCD) 446; Aleya Begum v Bangladesh (2001) 53 DLR (HCD) 63.

75. See, e.g., M Salimullah v Govt of Bangladesh, 23 (2003) BLD (HCD) 58, RAJUK v Mohshinul Islam 53 (2001) DLR (AD) 79.

76. M. Idrisur Rahman v Shahiduddin Ahmed (1999) 51 DLR (AD) 163.

77. Ziaur Rahman Khan v Bangladesh 49 (1997) DLR 491 (declaring timeframe for holding fresh elections in the three local government bodies in the Chittagong Hill Tracts.)

78. (2003) 55 DLR (HCD) 613.

79. (2000) 52 DLR (HCD) 413.

80. (2009) 14 BLC (HCD) 759.

81. See Rabia Bhuiyan, MP v Secretary, Ministry of LGRD and Others (2007) 59 DLR (AD) 176.

82. In Dr. Mohiuddin Farooque v Bangladesh (1996) 48 DLR (HCD) 438, 442 the court held: “the right to life…includes the enjoyment of pollution free water and air, improvement of public health…and [a] life consistent with human dignity.”

83. On cross-national influences in the development of PIL in South Asia, see Arun K. Thiruvengadam, “In pursuit of “the common illumination of Our house”: Trans-judicial influence and the origins of PIL jurisprudence in South Asia,” Indian Journal of Constitutional Law (2008): 68–103.

84. (2002) 54 DLR (AD) 130, affirming Chowdhury M. Hasan v Bangladesh (2002) 22 BLD (HCD) 459.

85. (2003) 23 BLD (HCD) 80.

86. BLAST v Bangladesh (2008), above note 59.

87. BLAST v Secretary, Ministry of Law, Justice and Parliamentary Affairs (2009) 61 DLR (HCD) 109 (judgment 24 February 2008).

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88. BLAST v Bangladesh WP No. 8283/2005, challenging s. 6(2) of the Suppression of Violence against Women and Children (Special Provisions) Act 1995 (later repealed) (judgment 2 March 2010).

89. Z. I. Khan Panna v Bangladesh WP No. 8621 of 2005.

90. This observation holds good in Ain o Salish Kendro (ASK) v Bangladesh (2007) 15 BLT (HCD) 48 in which case the High Court Division held that restraining a prisoner in bar fetters following the law is not unconstitutional. But see the path-breaking decision in BLAST v Bangladesh (2003), above note 49.

91. Some analyses made in this section are based on my earlier work on the 2007 Emergency in Bangladesh. See Ridwanul Hoque, “The recent emergency and the politics of the judiciary in Bangladesh,” National University of Juridical Science Law Review 2 (2) (2007) 183–204.

92. The Emergency Powers Ordinance 2007 and the Emergency Powers Rules 2007 curtailed judicial powers significantly.

93. Although the right to enforce fundamental rights under Article 102(1) of the constitution had been suspended, judicial review power concerning other issues of legality under Article 102(2) remained unaffected.

94. Writ Petition No. 709 of 2008 (judgment 22 May 2008).

95. See Article 123 (3) of the Bangladeshi Constitution that provides that the parliamentary elections shall be held within 90 days of the dissolution of the parliament.

96. For similar observations, see also Advocate Sultana Kamal v Bangladesh (2009) 14 BLC (HCD) 141, as in note 104 below.

97. (2008) 60 DLR (AD) 82.

98. Moyezuddin Sikder v State (2007) 59 DLR (HCD) 287, 297.

99. (2008) 60 DLR (AD) 90.

100. Id. See Article 35(1) of the constitution.

101. Ibid., at p. 142, para. 42 (referring to Article 26 of the constitution, noted in note 9 above.).

102. The court showed its readiness to exercise judicial vigilantism in times of extra-ordinary political situations like Emergency. In the court's words (ibid., at paragraph 48), the duty to “defend” the constitution gives the judges an additional duty to “read and apply” the provision of the Constitution strictly” when a citizen's rights are infringed.

103. (2008) 60 DLR (AD) 90, 100.

104. (2009) 14 BLC (HCD) 141.

105. The court invalidated section 5 of the Emergency Powers Ordinance 2007, and rules 11(3), 19Gha and 19Uma of the Emergency Power Rules 20007.

106. Interestingly, the petitioners did not challenge the constitutionality of the state of emergency as such.

107. By this the court established, not so strongly though, that the president's “satisfaction” about the existence of reasons for imposing and withdrawing emergency is subject to judicial review. Compare Abdul Baqui Baluch v Pakistan (1968) 20 DLR (SC) 249, in which the Pakistani Supreme Court held that once a proclamation of emergency had been validly issued the question whether conditions for emergency ceased or whether it needed to be withdrawn was not for the court to decide.

108. Writ Petition of 24 November 2008. Also see another earlier challenge, M. Saleem Ullah and Others v Bangladesh (2008), Writ Petition No. 5033 of 2008.

109. Indeed, the petitioners challenged the Constitution (2nd Amendment) Act 1973 that made provisions for the state of emergency.

110. Apart from cases cited here, there are other good instances of judicial constitutionalism activism during the Emergency. See, e.g., Pirjada Syed Shariatullah v Bangladesh (2009) 61 (DLR) (HCD) 647 holding that the President's ordinance-making power must conform to the constitution.

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111. Surprisingly, there was not even any dissenting opinion in the discussed cases of doubtful logical correctness.

112. See Khondker Delwar Hossian, above note 65, and the High Court Division's recent decision invalidating the 7th Amendment, above note 41.

113. Government of Bangladesh v Ministry of Home Affairs and Others (2008) 16 BLT (HCD) 264 (directing to install speed governor in all vehicles as per Motor Vehicles Ordinance 1985).

114. BNWLA v Bangladesh (2009) 14 BLC (HCD) 694.

115. See, e. g. Anwar Hossain v Mainul Hosein (2006) 58 DLR (AD) 229, refusing to enforce fundamental rights against private persons. This stands at odds with Article 102 (1) of the constitution that empowers the High Court Division to enforce these rights against “any person.�

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Judicial Activism and the Environment in India Shibani Ghosh

A

s one of the first countries in the world to recognise “environmental rights,”1 India has a vast and rich environmental jurisprudence. The Constitution of India recognises the duty of the government to protect and improve the environment and safeguard forests and wildlife as one of the fundamental principles of governance.2 It also places a duty on every citizen of the country to protect and improve the natural environment.3 In the last four decades, the parliament and the state legislatures have passed several legislations on environmental issues—protection of wildlife, prevention of water and air pollution, forest conservation, hazardous waste management, protection of coastal areas, environment impact assessment of projects and so on.4 However, despite the extensive black letter of the (environmental) law, it is the Indian judiciary, and not the legislature, which has been credited for evolving various types of environmental rights and delineating obligations on the state and the citizens to protect the environment. Even the vast and complex structure of central and state environmental ministries and pollution control boards across the country has, more often than not, been mobilised out of its state of inertia by the judiciary.

In this process of evolution of environmental rights and obligations and the instances of pushing and prodding governmental agencies into action, the Indian judiciary has often been considered to be “judicially activist.” Its decisions have been hailed for expanding the legal horizons and changing the parameters of justice. It has brought hope to the vulnerable groups of people who have been victims of state and non-state apathy and atrocities and for whom the judiciary was the last resort.5 But “activist” decisions have also led to concerns that the judiciary is transgressing the boundaries which separate the powers of the three branches of government.6 As a non-elected and democratically unaccountable body, the judiciary cannot be allowed slip to into the role of a law- and policy-maker or that of the executive.7 Different conceptions of judicial activism exist and there are extensive debates in legal literature about what constitutes judicial activism, and whether activist courts are overstepping the powers which they draw from the constitution.8 Courts have been considered to be judicially activist when they do not confine themselves to the adjudication of legal conflicts, but venture out to make social policies, affecting many more people and interests than had they confined themselves to the resolution of narrow disputes before them.9 The phrase could be used to commend the judiciary or criticise it; it could be used to describe a decision which is per se unconstitutional (as it lacks

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jurisdiction)10 but it could also signal an activity to bring justice to the doorstep of people particularly in areas not covered by any statue made by a legislature.11 An eminent Indian jurist, S. P. Sathe, has noted: People's understanding of judicial activism depends on their conception of the proper role of a constitutional court in a democracy.

Those who conceive the role of a constitutional court narrowly, as restricted to mere application of the pre-existing legal rules to the given situation, tend to equate even a liberal or dynamic interpretation of a statute with activism. Those who conceive a wider role for a constitutional court, expecting it to both provide meaning to various open textured expressions in a written constitution and apply new meaning as required by the changing times, usually consider judicial activism not as an aberration, but as a normal judicial function.12 The courts through their decisions have changed the legal landscape of the country's environmental regulation. This was possible, in large part, due to the rise of public interest litigation (PILs) before the courts.13 As large sections of the Indian population had no access to justice or were being denied justice, the Supreme Court of India in 1970s started this new genre of litigation (which was soon adopted by the high courts). This form of proceedings liberalised the rule of standing and allowed persons, who would otherwise not have any standing before the court, to represent disadvantaged sections of the society which are unable to fight for their legal rights.14 PILs can be brought before the Supreme Court of India under Article 32 and before the high courts under Article 226 of the Constitution of India. Under Article 32, a person can approach the Supreme Court if his/her fundamental right is violated. High courts can be approached under Article 226 for violation of fundamental and other rights. The Supreme Court and the high courts have considerable discretion with respect to the types of orders they can pass under Article 32 and Article 226.15 PIL proceedings are different from regular court proceedings—they can be initiated even by a letter to the court or be based on a news item;16 many of the procedural requirements are done away with; the proceedings are generally not adversarial, but more an exercise of cooperation and collaboration between different stakeholders;17 the court often relies on the advice of court-appointed expert committees and amicus curiae. The responses of the courts to the PILs have also been very different and, at times, innovative. One of the responses has seen the court issue orders in the nature of “continuing mandamus”—the court keeps the case under its judicial oversight for several years and keeps issuing orders and directions suited to the situation on the ground to the concerned government authorities.18 Without entering the debate on the legitimacy of judicial activism, in the context of environmental law, one can certainly identify some broad grounds based on which the courts have been called “judicially activist.” It is because their decisions have either a) created new law; b) interpreted rights and obligations where none were clearly defined; c) made policy choices and directed executive action; or d) insisted on continually monitoring the implementation of law/policy. Besides these grounds, some authors

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have considered some of the “retrogressive” decisions of the courts to be judicial activism. In these decisions, the courts go to great lengths to justify actions of the government on policy grounds, instead of deciding the matter on established legal principles.19 a) Courts have created new law Although law-making lies essentially in the domain of the legislative branch of the government, in the course of deciding environmental matters before it, the Supreme Court of India has on certain occasions resorted to introducing new legal principles.

These legal principles have subsequently been upheld to be part of the Indian legal system and have become the “law of the land.”

One of the first instances in which the court adopted this law-making avatar was in 1986. The court, while deciding a PIL which claimed compensation for victims of an oleum gas leak and demanded the closure of certain hazardous industries in Delhi, introduced a new principle of liability—absolute liability—in Indian law. The court held that the rule laid down in Rylands v. Fletcher in 1866 was no longer relevant as the law had to evolve with changing times. It decided that there was a need for a new legal principle and held that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and nondelegable duty to the community to ensure that no harm results to anyone on account of any hazardous or inherently dangerous nature of the activity which it has undertaken.20 If any harm results on account of such an activity the enterprise is held to be absolutely liable and responsible for the compensation for such harm; it is no defence for the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.21 Subsequently, the court held this rule of liability to be a binding legal principle.22 In 1995, a petitioner approached the Supreme Court directing its attention towards the inaction of the state government of Tamil Nadu on the issue of forest conservation and implementation of the Forest (Conservation) Act, 1980. This petition became the basis for the court's continued involvement in forest conservation across the country.23 An interim order passed by the court in 1996 became one of the most significant orders in the history of environmental law because of the subsequent legal action it led to.24 The court concluded that there appeared to be some confusion with regard to the ambit of the Act and the definition of forest and therefore, it laid down a definition of forest which did not exist in the Act and which had a much broader scope than the existing understanding of forest.25 This became the legal definition of forest for the purposes of implementation of the Act as well as the subsequent orders of the court.

The other significant contribution of the judiciary to environmental jurisprudence is the declaration that certain principles enunciated in international environmental legal instruments are part of the Indian municipal law. Several decisions of the Supreme Court and the high courts since the 1990s have been based on or have referred to the

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precautionary principle,26 principle of sustainable development27 and the principles of inter-generation equity.28 These principles had not found mention in any Indian legislation. But courts have concluded that these are part of the Indian law. It was only in 2010 that the parliament included the principle of sustainable development and precautionary principle in a statute—the National Green Tribunal Act 2010. Section 20 of this Act, makes these two principles, along with the Polluter Pays Principle, the guiding principles for the tribunal when it is passing an order, decision or award. b) Courts have interpreted earlier undefined rights and obligations The Constitution of India recognises certain fundamental rights which cannot be abrogated by any law or administrative action. The right to life and personal liberty contained in Article 21 is one such right. The Supreme Court of India has liberally interpreted this right to life and held that it includes other rights such as the right to live with human dignity,29 the right to livelihood,30 the right to health and medical care31 and the right to education.32 Adopting a similarly expansive approach to interpretation, the Supreme Court has held that there is a fundamental right to healthy environment33 and pollution-free air and water.34 While interpreting these rights, the courts have drawn support from Articles 47, 48A and 51A (g) of the constitution.35 India has enacted several environmental legislations such as the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. These legislations, inter alia, put in place processes to analyse the impact of any activity on the environment; lay down norms and criteria to reduce the adverse impact of human activity on the environment; and create institutions to monitor the activities of industries and redress grievances. Many cases brought before the courts highlight the failure of the states to implement provisions of these legislations. The courts have generally deliberately interpreted provisions to give a pro-environment decision. In a series of decisions in 2009 and 2010, the Delhi High Court has clarified the law under the Environment Impact Assessment Notification, particularly with regard to public consultation and decisiom-making of the government.36 In all these cases, the courts purposively interpreted the law to make the environmental decision-making more participatory and to ensure that the basic tenets of administrative law are not ignored by environmental decision makers. c) Courts have made policy choices and directed executive action Policy making and implementation lies in the domain of the executive. However, when the executive does not formulate or amend policy to suitably address legitimate demands of the people or when it fails to discharge its statutory obligations, the judiciary has stepped in by increasing the extent of review of executive (in)action. In such cases, the courts i) direct the executive to formulate appropriate policy to respond to the need of the hour; ii) direct the executive to discharge its obligations in a time bound manner; or c) make a policy choice for the executive and direct the executive to implement the same.

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In M.C. Mehta v. Union of India,37 the Supreme Court directed the relocation of 550 polluting tanneries then situated in four areas in the city of Kolkata in West Bengal. In this case, the court had given several directions to the state government since 1993 but the government had made no effort to implement those directions. In its final order the court gave the government eight weeks time to comply with the order of the court and relocate the tanneries in an alternative area outside the city.

A February 2009 order of the Delhi High Court strongly criticised the government for not taking action to fully constitute the National Environment Appellate Authority (NEAA).38 In 2005, the court had disposed off a petition directing the government to make the required appointments in the authority in 45 days but the government did nothing for four years. The service conditions of the chairperson and the members of the authority as decided by the executive were such that no eligible candidate was accepting the positions. But the executive was taking no action to change the conditions which were inexplicably different (lower) than those for other regulatory authorities. The court held that it had no option but to hold that the service conditions stood amended by the order of the court and then direct the government to offer the positions to eligible persons.39 Two decisions of the Supreme Court of India which have been widely discussed for the extent to which they “arm-twist” the government are worth a mention here. The first one is the Delhi Vehicular Pollution case.40 The pollution in Delhi due to vehicular emissions had reached dangerously high levels and the government was not taking action. The Supreme Court was approached by a civil society organisation to intervene. The court not only directed the Delhi government to take action but also specified the technological solution that the Delhi government had to implement in a timely manner.

All public transport vehicles were to start using compressed natural gas (CNG) as fuel instead of diesel in accordance with the time-table stipulated by the court. While most commentators recognised the need for the court to intervene given the state of Delhi's air, the others asked whether “it was right for the court to throw its weight behind a particular technical solution to the problem.”41 The second decision is In re: Networking of rivers42 in which the court directed the government to undertake inter-linking of rivers across the country by transferring water from water surplus basins to water deficit basins. Expert agencies estimated that more than 40 years were required to complete the link projects. Despite there being no clear evidence that inter-linking of rivers was scientifically a good idea,43 the court directed the government to “ensure that the link projects are completed within a reasonable time of not more than ten years.”44 Even proponents of judicial activism in the realm of environmental law might be sceptical of such a judicial edict in a context of a problem of such immense social, economic, ecological, technical and political complexity. In 2009, the Minister of State for Environment and Forests Jairam Ramesh called the project “a human-ecological-economic disaster.”45 This certainly holds a cautionary tale for the judiciary against hasty and ill-informed intervention in the exercise of complex executive functions.

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d) Courts have insisted on monitoring implementation of law/policy In some cases, where the executive has displayed a very poor record of implementation of its statutory obligations, the Supreme Court has adopted the “monitor” avatar.

Showing little faith in the executive, the court hears these cases regularly, assumes some of the powers of the executive and monitors the actions taken by the executive closely. In the Godavarman case, the Supreme Court has been issuing orders since 1995 on the issue of forest conservation.46 As per the provisions of the Forest (Conservation) Act, 1980, any diversion of forest land for non-forestry purposes by state governments requires the approval of the central government. But as the central government failed “to do its job properly” and the state government took little or no interest in forest conservation, the Supreme Court assumed this responsibility through a series of decisions given in the Godavarman case.47 Forests can no longer be diverted for nonforestry purposes without the final approval of the Supreme Court with the central government playing only a recommendatory role.

In the last three decades most major developments in the field of environmental governance in India have been as a result of the judiciary's intervention. But in the past year, there have been certain significant events and developments relating to environment protection which are attributable to the other two branches of the government.

The parliament passed the National Green Tribunal Act, 2010 and it has come into force in June 2010. This tribunal is in the process of being constituted and it will replace the NEAA. It is being set up to promote effective and efficacious disposal of environmental cases and it would have jurisdiction over all civil cases which involve a substantial question relating to the environment, including enforcement of any legal right relating to the environment.48 The tribunal can award relief and compensation to persons who have been victims of pollution and environmental damage including any accident due to the handling of hazardous wastes. It can also award restitution of property or direct restitution of the damaged environment. The panel is supposed to be composed of judicial and technical members with experience in science, administration, and so on.

While there are apprehensions based on past experiences about the working of this tribunal,49 the tribunal's wider jurisdiction and powers and the conviction shown by the Ministry of Environment and Forests headed by minister of state, Jairam Ramesh, might make a difference. It is also hoped that a well functioning specialised tribunal would not only improve environmental decision-making processes but also act as deterrent to violations of environmental norms.

In recent months the executive has taken some significant proactive measures towards environment protection. These measures are not, in a sense, extra-ordinary. It is evidently the obligation of the executive branch of the government to take adequate measures to protect the environment and enforce the environment laws of the country.

What perhaps makes these measures significant is—first, that the executive has undertaken these measures independent of the judiciary and second, that they appear to be at least partially influenced by vocal public protest and actions of civil society

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organisations.

In August 2010, the central government issued a moratorium against new projects in two districts of Maharashtra. According to the office memorandum issued, this moratorium was issued in response to the “representations expressing concern relating to the environmental impacts and ecological degradation due to large number of projects being proposed in the region as well as the projects under implementation.”50 The government has also withdrawn its forest clearance for bauxite mining in the Niyamgiri Hills. The decision came after a committee constituted by the central government concluded that the forest rights of the tribals in the area had not been settled under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.51 The decision came two years after the Supreme Court gave its approval to the same project despite its own expert committee recommending against it.52 Anti-dam movements in India have met with little success in the courts.53 But a recent decision of the government has come as a pleasant surprise for project-affected persons and activists across the country. Several dams have been constructed and more are proposed to be constructed on the Ganga River as part of hydro-electric power projects.

Anti-dam protestors have been petitioning against these dams for many years as the river is not only of great ecological value but holds a very important place in the Hindu religion and faith and blocking its flow has severe adverse impacts on the river. One such project which has faced constant public opposition is the Loharinag Pala Hydel Project.

The environment clearance granted to the project was challenged in the NEAA in 2005 which dismissed the appeal. The matter then went to the high court which directed the NEAA to reconsider the appeal. The NEAA once again dismissed the appeal and the case was taken up at the high court of Uttarakhand. As the legal possibilities to challenge were not bearing any fruit, the activists intensified their protest. In August 2010, the government finally decided to stop the Loharinag Pala Project as well as two other projects in Uttarakhand. It has also declared a 135 kilometre stretch of the river to be an eco-sensitive zone. The main reason cited by the government was that it was conscious of the faith of the people in the holy river.54 The government has constituted a consortium of experts to formulate the Ganga Basin Management Plan.55 For three decades now the courts have played the environmental crusader—expansively interpreting the fundamental right to life under the Indian Constitution, drawing from principles of international environmental law, and in more than one way telling the executive to “get its act together.” It is likely that many of these interventions were prompted by the perception that executive lethargy was causing great harm to the nation's environmental resources. Concerns about the legitimacy of such judicial activism apart, it is hard to dispute the fact that the courts' interventions have brought environmental concerns to the forefront in policy-making, and likely compelled the executive to consider these concerns more seriously in the course of its own decisionmaking. Certainly, in recent years, the executive appears to have addressed

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environmental concerns more substantively, at least in certain prominent instances.

The question of how the judiciary will respond to these developments is complex. It is possible to argue, however, that the proactive actions of the executive branches of government (assuming such a trend continues) would lead the judiciary to take a step back. There are a number of factors which might contribute to this. First, the executive has been, or at least appears to be, more active in taking decisions and enacting measures to ensure environmental protection in the recent past. Second, the 1990s activist jurisprudence of the courts has created a greater awareness about environmental issues throughout the polity, and the courts might feel these issues can now be left to the political sphere. Third, some current judges might agree, at least to an extent, with the criticisms of “judicially activist” courts of past years, and feel that there was some extent of judicial overreach.56 This trend, if it continues, would not mean that the judiciary will retain no role in the environmental sphere, but merely that it is likely that it will exercise more traditional judicial functions. Lastly, what impact this has on the protection and preservation of the environment depends on the interaction of a large number of complicated factors, including the actions of the political branch of government, the approach of companies and the private sector as well as the role played by civil society organisations.

In conclusion, judicial interventions have worked best when the judiciary has remained conscious that it is merely one of the actors influencing outcomes in the environmental field, and has evolved its approach in response to the actions of other actors. In the years ahead, it should remain acutely conscious of the changing, evolving and (hopefully) improving role of the executive, and modulate its own approach accordingly.

Shibani Ghosh is research associate, Centre for Policy Research, New Delhi. She is also a practicing environmental lawyer with the Legal Initiative for Forest & Environment (LIFE), New Delhi. The author is grateful to Dr Lavanya Rajamani and Rishad Ahmed Chowdhury for their guidance and support in writing this piece.

Endnotes 1. Decision of the Supreme Court of India in A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) & Others (2001) 2 SCC 62, para 6. See Lavanya Rajamani, “The Right to Environmental Protection in India: Many a Slip between the Cup and the Lip?,” RECIEL 16(3) (2007):274.

2. Article 48A, the Constitution of India.

3. Article 51A(g), the Constitution of India.

4. For information on environmental legislations, visit website of Ministry of Environment & Forests, Government of India www.moef.nic.in.

5. D. S. Sengar, “Environmental Justice through Public Interest Litigation,” in Indian Judiciary and Politics: the Changing Landscape, ed. B. D. Dua et al. (New Delhi: Manohar, 2007), 211–212.

6. Decision of the Supreme court of India in Divisional Manager, Aravali Golf Club & Anr. v.

Chander Hass & Anr. 2007 (14) SCALE 1, paras 17-40.

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7.

8.

9.

10.

11.

12.

13.

14. ·

·

·

15.

See Pratap Bhanu Mehta, “The Rise of Judicial Sovereignty,” Journal of Democracy 18(2) (2007):70.

See S. P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (New Delhi: Oxford, 2002); Upendra Baxi, “The Avatars of Indian Judicial Activism: Explorations in the Geographies of (In)justice,” in Fifty Years of the Supreme court of India: Its Grasp and Reach, ed. S.K. Verma and Kusum (New Delhi: Oxford University Press, 2000), 156–207.

Mahendra Pal Singh, “Inconclusive Overview of Judicial Activism in India,” in Indian Judiciary and Politics: the Changing Landscape, ed. B.D. Dua et al. (New Delhi: Manohar, 2007), 121, 123.

Decision of the Supreme court of India in Indian Drugs & Pharmaceuticals Ltd. v. The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408, in which Justice Katju observed at para 18“The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.”

Chinnappa O. Reddy, The court and the Constitution of India: Summits and Shallows (New Delhi: Oxford, 2008), 256–257.

S.P. Sathe, “Judicial Activism: The Indian Experience,” Journal of Law & Policy 6 (2001): 29, 31.

See Ashok K. Desai and S. Muralidhar, “Public Interest Litigation: Potential and Problems,” in Supreme but not Infallible: Essays in Honour of the Supreme court of India, ed. B.N. Kirpal et al. (New Delhi: Oxford University Press, 2000, 2008 edn), 159–192. See also Lavanya Rajamani, “The Right to Environmental Protection in India: Many a Slip between the Cup and the Lip?,” RECIEL 16(3) (2007):274, 275–277.

Based on the liberalised definition of standing, three types of standing can be identified in PILsA case initiated by a person or a group of persons who are members of a class which may have been adversely affected by an administrative wrong (In Kinkri Devi v. State of Himachal Pradesh AIR 1988 HP 4, a PIL was initiated before the High Court of Himachal Pradesh which highlighted the impact of the unscientific and uncontrolled blasting for limestone in the Shivalik hills on the ecology and the inhabitants of Sirmaur district. The petitioner was one of the affected villagers); A case initiated by a citizen or a group who does not belong to the class of persons whose rights have been violated, but is approaching the court to vindicate the rights of such persons (In M.C. Mehta v. Union of India & Others (1988) 1 SCC 471, the Supreme Court was approached by activist lawyer M.C. Mehta who brought to the attention of the court the pollution caused to the river Ganga by the release of untreated trade effluents by tanneries located near the river in Kanpur. His standing before the court was based on the fact that he was interested in protecting the lives of people who are dependent on the water of the River Ganga; and A case initiated by a public-spirited citizen who is not representing any particular class of persons, but is filing the case in her own capacity of being a citizen of the country to whom certain public duty is owed to by the government (Almitra Patel v. Union of India was a PIL filed in the Supreme Court in 1996. In this case, the petitioner raised the issue of faulty and deficient garbage disposal system in the country. The court was requested to direct the concerned government authorities to stop open dumping of garbage and to identify mechanisms for proper disposal of waste across the country.)

The Supreme Court under Article 32 of the Constitution of India, the court has the power to

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issue “directions or orders or writs, … for the enforcement of any of the rights conferred in this Part”. The Part referred to is Part III of the constitution which lists the fundamental rights.

Further, in Article 142(1), the Supreme Court has been given the power to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it….” Article 226 gives the high courts the power to “issue to any person or authority… directions, orders or writs, … for the enforcement of any of the rights conferred by Part III and for any other purpose.”

16. The court has exercised epistolary jurisdiction—i.e. accepting letters addressed to it as petitions. See Decision of the Supreme Court of India in M.C. Mehta v. Union of India (1987)1 SCC 395, paras 4-5; a newspaper article titled “And quiet flows the Maily Yamuna” published in the Hindustan Times in 1994 was converted into a PIL by the Supreme Court. The news article highlighted the deterioration in the quality of the water in the River Yamuna once it entered Delhi.

17. Decision of the Supreme Court of India in State of Uttaranchal v. Balwant Singh Chaufal & Ors. 2010 (1) SCALE 492, para 39.

18. In M.C. Mehta v. Union of India 2007 (12) SCALE 91, Justice S.B. Sinha of the Supreme Court observed“8. We have no doubt in our mind that judiciary may step in where it finds the actions on the part of the Legislature or the Executive are illegal or unconstitutional but the same by itself would not mean that public interest litigation, in a case of this nature, should be converted into an adversarial litigation. The jurisdiction of the court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with its judicial functions.”

See Lavanya Rajamani, “The Right to Environmental Protection in India: Many a Slip between the Cup and the Lip?,” RECIEL 16(3) (2007): 274, 275.

19. See S. P. Sathe, “Supreme Court and NBA,” Economic and Political Weekly 35(46) (2000): 3990; Ramaswamy R. Iyer, “Some Constitutional Dilemmas,” Economic and Political Weekly 41(21) (2006): 2064, 2068–2069.

20. Chief Justice Bhagwati's decision in M.C. Mehta & Anr. v. Union of India (1987) 1 SCC 395, para 36.

21. Ibid.

22. Decision of the Supreme Court of India in Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212.

23. T.N. Godavarman v. Union of India, Writ Petition (Civil) No. 202 of 1995. Any matter concerning the Forest (Conservation) Act, 1980 is now heard by the Supreme Court as an Interlocutory Application under the Godavarman case.

24. T.N. Godavarman v. Union of India Writ Petition (Civil) No. 202 of 1995, Order of 12.12.1996.

Available at http://indiankanoon.org/doc/298957/.

25. Ibid.

26. Decision of the Supreme Court of India in Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647 and A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) (1999) 2 SCC 718.

27. Decision of the Supreme Court of India in S. Jagannath v. Union of India (1997) 2 SCC 87 and M.C. Mehta v. Union of India (Taj Trapezium case) (1996) 8 SCC 642.

28. Decision of the Supreme Court of India in M.C. Mehta v Union of India (Aravalli mining case) (2009) 6 SCC 142.

29. Decision of the Supreme Court of India in Francis Coralie Mullin v. Union Territory of Delhi AIR 1979 SC 1360.

30. Decision of the Supreme Court of India in Olga Tellis v. Bombay Municipal Corporation

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AIR 1986 SC 180.

31. Decision of the Supreme Court of India in Vincent v. Union of India AIR 1987 SC 990.

32. Decision of the Supreme Court of India in Unnikrishnan v. State of Andhra Pradesh AIR 1993 SC 2178.

33. Decision of the Supreme Court of India in Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh AIR 1989 SC 359.

34. Decision of the Supreme Court of India in Subash Kumar v. State of Bihar (1991) 1 SCC 598; M.C. Mehta v. Union of India (1992) 3 SCC 256; and Virender Gaur v. State of Haryana (1995) 2 SCC 577. In Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647, Justice Kuldip Singh in para 16 noted “The Constitutional and statutory provision protect a person's right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment.”

35. Article 47 and 48A are part of Chapter IV of the Constitution of India contain the Directive Principles of State Policy and Article 51A(g) is part of Chapter IVA which contains the Fundamental Duties of every citizen of India.

Article 47 provides – 47. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Article 48A provides – 48A. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Article 51A(g) provides – 51A. It shall be the duty of every citizen of India – (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; 36. Decision of the High Court of Delhi in Utkarsh Mandal v. Union of India, Writ Petition (Civil) No. 9340 of 2009; Jan Chetna v. Union of India 184 (2009) DLT 752; Balachandra Bhikaji Nalwade v. Union of India, Writ Petition (Civil) No. 388 of 2009; Samarth Trust v. Union of India, Writ Petition (Civil) No. 9317 of 2009.

37. (1997) 2 SCC 411; See also Decision of the Supreme Court of India in Tirupur Dyeing Factory Owners v. Noyyal River Ayacutdars Protection (2009) 9 SCC7 37; M.C. Mehta v. Union of India (Kanpur tanneries case) 1988 SCC (1) 471.

38. Decision of the High Court of Delhi in Vimal Bhai v. Union of India 158 (2009) DLT 477. The National Environment Appellate Authority is a statutory body formed under the National Environment Appellate Authority Act 1997 to hear appeals against environmental clearances granted or rejected by the government to projects. In S. Jagannath v. Union of India (1997) 2 SCC 87, the Supreme Court directed the central government to constitute an authority to protect the ecologically fragile coastal zones. In M.C. Mehta v. Union of India (1992) 1 SCC 358, the Supreme Court gave directions to the central and the state governments to promote environmental education. It directed the national television and radio broadcasters to broadcast programs on environmental awareness.

39. The Act gives the authority the exclusive jurisdiction to hear appeals against environmental clearances, and the truncated authority was dismissing most appeals which came before it on technical grounds. At the same time, the numbers of project which are being granted clearance by the government are going up drastically. Project-affected persons were being left with very little legal recourse. The urgency of the matter perhaps played on the minds of the judges. This order was challenged in the Supreme Court by the Government in Union of India v. Vimal Bhai, Special Leave Petition (Civil) No. 12065 of 2009. One of the grounds is that the

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high court did not have the power to give such a direction. The matter is still pending.

40. M.C. Mehta v. Union of India Writ Petition (Civil) No. 13029 of 1985; Subhendu Rajan Raj, “Supreme Court Environmental Crusade: Enforcing CNG Alternative for World's Third Most Polluted City,” in Indian Judiciary and Politics: the Changing Landscape, ed. B.D. Dua et al.

(New Delhi: Manohar, 2007), 221; Armin Rosencranz and Michael Jackson, “The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power” Available at http://www.cleanairnet.org/caiasia/1412/articles-69423_delhi_case.pdf (accessed on 19 September 2010).

41. Ramaswamy R. Iyer, “Some Constitutional Dilemmas,” Economic and Political Weekly 41(21) (2006): 2064, 2069.

42. Writ Petition (Civil) No. 512 of 2002, Order of 31.10.2002. Available at http://www.sandrp.in/riverlinking/ilrprpsl.pdf (accessed on September 20, 2010).

43. Ramaswamy R. Iyer, “Linking of Rivers: Judicial Activism of Error?,” Economic and Political Weekly 37(46) (2002): 4595.

44. On 7 December 2002, Justice Kirpal, who had passed the direction and had by then retired, said that the direction was only a passing suggestion to the government. See http://www.doccentre.org/docsweb/linking-rivers/1st-page.php (accessed on September 20, 2010).

45. “Interlinking of rivers buried, Jairam says idea a disaster”, Indian Express, October 6, 2009.

Available at http://www.indianexpress.com/news/interlinking-of-rivers-buried-jairamsays-idea-a-disaster/525654/ (accessed on September 20, 2010).

46. Ritwick Dutta, Supreme Court on Forest Conservation (New Delhi: Universal Law Publishing Co., 2005). Another case in which the Supreme Court has been exercising monitoring power is the Centre for Environmental Law WWF-India v. Union of India, Writ Petition (Civil) No. 337 of 1995, in which the issues before the court relate to the protection of National Parks and Wildlife Sanctuaries across the country.

47. A Central Empowered Committee (CEC) has been set up by the court to give expert advice on these matters to it. For more information on the CEC visit http://cecindia.org/aboutcec.php (accessed on September 19, 2010).

48. Section 14(1), the National Green Tribunal Act 2010.

49. The parliament had passed the National Environment Tribunal Act in 1995. But the tribunal was never constituted. The authority constituted under the National Environment Appellate Authority Act 1997, has not had a chairperson since 2000. Till date it has not been fully constituted. At present, the authority is functioning with one member whose term has been extended twice after the date on which he was set to retire. See also text accompanying footnote no. 34 and 35.

50. Office Memorandum available at http://moef.nic.in/downloads/public-information/ratnasindu-OM.pdf (accessed on September 21, 2010).

51. Decision of the Ministry of Environment and Forests dated 24.08.2010 available at http://moef.nic.in/downloads/public-information/Vedanta-24082010.pdf (accessed on September 20, 2010).

52. An August 2008 decision of the court allowing diversion of over 660 hectares of prime forest land for bauxite mining by Vedanta was significant for many reasons. First, the court reversed its own stance of November 2007 when it held that Vedanta did not have the requisite “credibility” to be handed over an “important asset” and denied the clearance. The August 2008 decision granted approval to an “associate company” of Vedanta, with an equally dubious human rights record and in spite of the fact that there was no clarity on the corporate relationship of the two companies. Second, the mining area was situated in the Niyamgiri Hills which are held sacred by the Dongria Kondhs, a vulnerable tribal community residing on the hills. They had been opposed to the Project throughout. Third, the court's own expert committee—the Central Empowered Committee (CEC)—had reported that the area was of

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high ecological importance and that the Company committed several violations of law. Fourth, the court directed the company to adopt a rehabilitation package which the court had decided was appropriate with no input from the affected persons or the government which otherwise decides rehabilitation modalities. Even the modifications suggested by the CEC were rejected as being too “complicated”. T.N. Godavarman Thirumulpad v. Union of India, in the matter of M/s Sterlite Industries (India) Ltd. I.A. No. 2134 of 2007 in Writ Petition (Civil) No. 202 of 1995, Order of 08.08.2008.

53. The Supreme Court in Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 and in N. D. Jayal v. Union of India 2003 (7) SCALE 54 allowed the construction of the Sardar Sarovar project and the Tehri Dam despite strong opposition from not only anti-dam protestors but also experts. See Prashant Bhushan, “Supreme Court and PIL Changing Perspectives under Liberalisation,” Economic and Political Weekly 39(18) (2004): 1770.

54. Letter sent by Minister of Finance, Government of India, Pranab Mukherjee to Dr G. D. Agrawal on 23.08.2010. Dr G. D. Agrawal had been on fast-unto-death in protest against the dam. Letter on file with author.

55. The Uttarakhand High Court delivered its decision on 25.08.2010, after the decision of the central government. It directed the petitioner to approach the National Ganga River Basin Authority, which had been constituted by the central government during the pendency of the case, with her complaint against the Environmental Clearance granted to the project. The decision of the Uttarakhand High Court is available at http://lobis.nic.in/uhc/BG /judgement/28-08-2010/BG25082010WPPIL1102009.pdf (accessed on September 19, 2010).

56. The current Chief Justice of India Justice S.H. Kapadia has publicly spoken against judicial activism. See Manish Chibber, “Judicial activism beyond a point is against rule of law,” Indian Express, May 3, 2010. Available at http://www.indianexpress.com/news/judicial-activismbeyond-a-point-is-against/614192/ (accessed on September 19, 2010).

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Protection of Environment through Judicial Activism in Bangladesh Abdullah Al Faruque

T

he judiciary of Bangladesh is increasingly expanding its role through liberal interpretations of procedural rules and various laws for a better regime of social justice of what is known as “judicial activism.” Public interest litigation (hereinafter referred to as PIL) has emerged as a pivotal instrument of such judicial activism in South Asia.1 According to the traditional standing rule, judicial redress is only available for persons who have suffered a legal injury by reason of the violation of their legal rights by the action of the state or of a public authority. For the last three decades, the courts of these countries have relaxed the Anglo-American standing so that it has become easier for litigants to initiate class actions.

PIL has been developed in Bangladesh through judicial activism in order to establish collective rights of the people. PIL attempts to ensure access to justice for the socially and economically disadvantaged, to those deprived and exploited classes of unable to seek remedy through the court due to various constraints. PIL is also used as a direct lobbying mechanism to influence law reform. PIL has led the way for the expansive interpretation of the procedural rule of locus standi and has also opened up the judicial system for those who otherwise would have been restricted in terms of access to judicial remedies for the violation of their rights. Thus the initiation of PIL that led to the demise of the principle of standing reflected a paradigm shift from the conventional role of judiciary as adjudication of disputes to a vehicle for the delivery of social justice. The shift in emphasis was from purely legalistic justice to social justice.

A remarkable feature of this evolution is the growing role of the judiciary in environmental citizenship.2 Judicial activism in the realm of environmental protection goes beyond the mere enforcement of the statutory provision of the environmental laws and embraces restitutionary as well as injunctive relief on the basis of constitutional jurisprudence and weaving in environmental law buzzwords such as “sustainable development,” “polluter pays,” “precautionary principle,” doctrine of trust, and intergenerational equity.3 Bangladesh, like many other developing countries, is facing a multitude of environmental problems such air pollution, hazardous waste, land degradation, water pollution and so on. The pressures of rising populations, rapid industrialisation, urbanisation and agricultural development have all contributed to environmental degradation in Bangladesh. Legislation is by far the most effective instrument to protect the environment. Bangladesh has a large body of environmental legislation and many

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laws contain provisions on environmental protection. In Bangladesh, there are about 180 laws, which deal with or have relevance to the environment.4 Apart from statutes, Bangladesh also has a well-developed environment policy and many sectoral policies which have relevance on the preservation and conservation of the environment.

But the current regulatory arrangements and institutional frameworks for enforcement are both inadequate and ill-equipped to resolve the burgeoning environmental problems in Bangladesh. The failure of the state agencies to effectively enforce the environmental laws apart from non-compliance with statutory norms by the polluters resulted in further degradation of the environment. This is largely due to lack of personnel, budgetary resources, lack of coordination among the government agencies and motivation to enforce the existing legislation.5 On the other hand, the traditional judicial system can hardly offer appropriate remedies for environmental injuries and can ensure environmental justice. Moreover, neither the fundamental rights nor the preamble or the state policies in the Constitution of Bangladesh mention any right to healthy and clean environment.

Inadequacy of Existing Mechanisms on Environment Protection Representative Suit Under the provision of Code of Civil Procedure, 1908, of Bangladesh, a representative on behalf of the affected people can move a petition to the court to vindicate their rights.

Such a suit can be filed to ensure statutory compliance or to obtain compensation as a remedy for environmental injury. But represenative suits can hardly provide appropriate remedy for environmental wrong because the legal proceedings in traditional judicial system are usually time consuming processes; the lower courts are overburdened and procedures are complicated.

Environment Court In Bangladesh, three environment courts have been established under the Environment Court Act, 2000. But the courts are not delivering on their stated goals due to a number of factors: first, the Environment Court was not designed to accommodate expert knowledge over environmental matters. Expert knowledge is especially required to determine the level of pollution which can constitute a violation of environmental law.

Second, judges of the Environment Courts are settling environmental disputes in addition to their general duties.6 Third, the court has no suo moto power to take up an issue of environmental pollution and investigate it. Fourth, the courts are dependent on the Department of Environment to bring legal action. According to the Act, only persons authorised by the director general of Department of Environment can inquire into matters for the purpose of trial by the Environment Court. The court has no independent power to take a case directly from aggrieved individual.7 An individual can only directly lodge a case if the court is satisfied that the inspector has failed to initiate proceedings within 60 days from receiving a complaint and that there is reasonable ground for accepting the complaint for trial. This provision remains a stumbling block in the effective functioning of the court.

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The above factors have led to the role of civil society and enlightened citizens in the enforcement of environmental laws through PIL.8 Unlike India where PIL was primarily initiated by judges, PIL in Bangladesh is a result of relentless efforts by legal activists and NGOs.9 The relatively weak enforcement capacities of the government agencies have led to a strong resurgence of legal and human rights NGOs, a strong alternative force in Bangladesh working for environmental protection. Due to a lack of environmental information and access to the environmental decision-making in Bangladesh, most people are not aware of the harm to which they are exposed. The NGOs provide much needed scientific and legal knowledge to identify the problem and determine how to solve it.10 Many human rights and environment NGOs have set their priority issues for PIL. PIL by NGOs has been used to enforce environmental regulations and duties against both governmental institutions and private entities. The need for judicial activism for the protection of environment through PIL has been underlined by Razzaque in the following way: “…public officials and agencies are not capable of policing the environmental system due to insufficient funds, inadequate staff and lack of expertise. Secondly, the agencies may be unwilling to bring action against the violators due to political pressure or the agencies themselves are promoting the activity that they should be regulating. Thirdly, PIEL [public interest environmental litigation] reduces the government's burden to enforce the regulation. PIEL utilise private resources and thus saves the government money and leads to a more efficient administration of legislative policies.”11 Judicial Discretion and Judicial Activism Judicial activism implies that the judges are playing a pro-active role in order to render justice in a particular situation where law as it stands cannot give an adequate answer to a particular legal problem. One of the cardinal principles of law is that justice should always be done in all circumstances. But where the universal application of law results in injustice in a particular situation, judicial discretion can be applied to this situation to ensure justice. In this sense, judicial activism is the application of judicial discretion which implies authority of judges to decide on legal issues and problems within the limits allowed by law. In this sense, judicial activism is part of the process of judicial review of executive action. According to Menski, “Judicial activism is inherent in judicial review. Whether it is positive or negative depends upon one's vision of social change. Judicial activism is not an aberration but is a normal phenomenon and judicial review is bound to mature into judicial activism. Judicial activism also has to operate within limits.”12 The exercise of judicial discretion involves a degree of personal choice on the part of judges to apply appropriate legal standard or principle to a particular situation in order to attain a just outcome of a dispute. Thus, one of the main reasons for judicial discretion

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is so that, in cases involving a possible conflict among principles and policies that are relevant to the decision, a judge may impose his/her own values and exercise choice in order to determine the order of priorities among such principles and policies.13 But such personal choice should be based on reason and justice and restricted to the confines of certain legitimate restrictions. Therefore, judicial discretion is a legitimate choice. The underlying assumption behind the judges' authority to exercise discretion stems either from the consequence of the conferment of power upon them in an institutional capacity to render justice or as the result of some absence or indeterminacy of the appropriate legal standards.14 One of the convincing theories on judicial discretion has been propounded by John Bell.

He argues that in exercising judicial discretion, judges take recourse to policy arguments with regard to the particular area of law in question. Policy arguments, he defines, as substantive justifications to which judges appeal when the standards and rules of legal system do not provide a clear resolution of a dispute.15 John Bell emphasises the second sense of judicial discretion in the form of creativity and considers it as the most appropriate circumstances in which judicial discretion can be exercised.16 To conclude, in exercising judicial discretion, judges certainly play a creative and interpretive role within constraints of established principles and objectivity. Judicial discretion must be guided by judicial self-restraint, which requires the judge to use equity and justice in particular circumstances and never to rely on his own will or arbitrary judgement.

Examples of Environmental PIL Cases In Bangladesh, PIL is instituted before the Supreme Court through writ petition to challenge the action of the public bodies or individuals violating environmental law, to prohibit the government from violating environmental law and to obtain pre-emptory order against the respondent to perform a specific duty in public law. At present a large body of PIL on environmental matters is pending before the High Court Division of the Supreme Court. The petitions that seek judicial redress in a large number of issues mostly rely on the human rights arguments based on the constitutional provision of the right of life (Article 31 and 32), the writ jurisdiction of the courts (Articles 44 and 102) and the statutory obligations of the public agencies. The writ procedure is preferred over conventional suits because it is speedy, relatively inexpensive and offers direct access to the highest courts of the land. One of the important features of PIL is that the litigant does not generally have a financial stake in the outcome of the litigation, but is motivated by public good, including upholding environmental law.

As mentioned earlier, in Bangladesh, PIL has been initiated by the NGOs rather than individuals. Bangladesh Environmental Lawyers Association (BELA) is pioneer in introducing PIL in Bangladesh in general and has filed numerous PIL for the protection of environment in particular. PIL is also considered as a strategic arm of legal aid. In Bangladesh, litigation on environmental disputes is not covered by government legal aid programme.

The judiciary of Bangladesh allowed PIL for the first time in the case Dr. Mohiuddin Farooque vs. Bangladesh which concerned environmental protection. In this case, the

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Supreme Court opted for a liberal interpretation of locus standi and held that the voluntary societies and representative organisations having no personal interest in the cause would be allowed to challenge the validity of a law or an action of government agency affecting the public generally. The cause which the appellant espoused in the writ petitions was the anticipated environmental fallout of a Flood Control Plan affecting the life, property, livelihood and environmental security of more than a million people in the district of Tangail. In formulating and implementing the scheme, the plight of local community people was not taken into consideration. Following the judgement, the initial project was suspended and the government and donors reformulated the project.

In addition, they also introduced an environmental impact assessment plan, which consulted the local people in the project area.

In PIL cases on environment protection, the higher judiciary has provided directives and injunctive relief against industrial pollution, vehicular pollution, river encroachment, unlawful filling of flood plain zones, water and air pollution, violation of construction law, pollution from brick fields, environmental hazards of shrimp cultivation, destruction of hills, gas explosion without environmental impact assessment (EIA), protection from hazardous wastes. The judiciary in PIL cases also provided directives for the protection of wildlife, bio-diversity, compensation for environmental damages and so on.17

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•

Injunctive relief: The judiciary of Bangladesh in several cases granted injunctive relief to reduce environmental harm or pollution. In Sharif N Ambia vs Bangladesh and Other, the High Court Division, after issuing a show cause notice, granted an ad interim injunction on the construction of a 10 storied market—constructed in violation of the Dhaka Master Plan—causing environmental harm to its neighbourhood.18 In Dr. Mohiuddin Farooque, BELA vs. Bangladesh, the judiciary granted injunction on a government body to prevent them from releasing radioactive milk in the open market.19 In M. Farooque vs Bangladesh, an injunction was issued against a government body to prevent them from filling up public lake as they deviated from the master plan.20

•

Suo Motu rule: The term suo motu has not been defined in any law, but generally refers to taking notice or cognizance of a matter by any court or authority on its own motion. The suo motu proceeding is also known as “epistolary jurisdiction.” The power of the court to provide remedies in suo motu proceedings must be well founded. First, it must be apparent from the circumstances that justice will be denied unless the matter is given suo motu consideration. Second, epistolary jurisdiction applies mainly to violations of fundamental rights. Third, it applies to very grave, inhuman and serious situations only.21 In Bangladesh, the judiciary has only in a few instances given remedy by suo motu proceedings. There are two types of suo motu proceedings: first where the court itself has initiated original proceedings, either completely on its own motion or on the basis of any news report or letter addressed to the

court, in order to correct gross executive negligence, police excesses or other forms of injustices or sufferings. Second, where the court does not per se initiate proceedings but provides remedies or prescribes guidelines or suggestions, or mandatory directives for the government to follow in cases properly brought to it by the parties.22 Unfortunately however, there are very few instances of environmental matters where suo motu intervention has been applied.

Recently the Supreme Court issued Rule Nishi on the government on the issue of encroachment of various rivers on the basis of newspaper reports.

In the case of Dr. Mohiuddin Farooque vs. Bangladesh and others,23 judicial recognition for protection of environment was first recorded by the high court in a case that challenged nuisance during the election campaign. The judiciary disposed of the case on assurance from the attorney general to take measures against the defacing of public and private property in the cause of election campaigns.

In another case of Dr. Mohiuddin Farooque vs. Bangladesh and others,24 the judiciary, while deciding on a case involving the import of radiated milk attached broader meaning to the constitutional “right to life” and held that: “Right to life is not only limited to the protection of life and limbs but extends to the protection of health and strength of the workers, their means of livelihood, enjoyment of pollution-free water and air, bare necessaries of life, facilities for education, development of children, maternity benefit, free movement, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent with human dignity.”

In this case, the right to a safe and healthy environment was expressly recognised as being included in the right to life.

PIL judicial activism has also helped protect rivers from encroachment. In the case of Bangladesh Environmental Lawyers Association vs. Bangladesh and others,25 judicial intervention was sought to protect the only river flowing through Dhaka from illegal encroachment. The High Court Division directed the concerned statutory authorities to submit to the court an action plan setting out a definite time frame and measures to be undertaken to remove the encroachers. Following the petition, the government acted to remove the encroachers and the river now stands free from illegal occupation.

PIL was also invoked to check industrial pollution. In the case of Dr. Mohiuddin Farooque v. Bangladesh and others, the High Court Division gave directions to check the indiscriminate pollution of air, water and soil by diverse industries.26 An official notification of the government directed the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure that appropriate pollution control measures were undertaken by the identified polluting industries within three years. The notification also required said authorities to ensure

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that no new industry could be set up without the appropriate controls. When no measure was taken even after the lapse of eight years, the above petition was filed.

After a lengthy hearing, the court instructed the ministries to implement the directions given in the notification. The court held it imperative on the part of the director general and DoE to take penal action against those departments or persons responsible for the contravention of the Environment Conservation Act, 1995.

The High Court Division, in a recent decision in the case of Bangladesh Environmental Lawyers Association vs. Bangladesh and others, gave six directives in a comprehensive judgment27 to fight vehicular pollution.

In Mrs. Parveen vs Chairman, Rajdhani Unnayan Kartipakha,28 the locus standi of the petitioner was disputed as the respondent contended that the petitioner was not espousing any public cause or grievance. The petition was framed as a personal as well as public interest litigation. The petitioner challenged the planning authority RAJUK's proposed construction of a road and carve out some residential plots by filling up the Gulshan Lake and the lakeside adjacent to her residential house at Gulshan. She asserted that the RAJUK action would destroy the greenery and the beauty of the lake and effect the environment in the Gulshan Model Town. The action of RAJUK would violate the petitioner's fundamental right to the protection of law and the right to hold property. The court recognised that the petitioner had the locus standi. The court held that the petitioner had come before the court representing not only a personal interest, but the collective interest of all other residents who shared the beauty and greenery of the lake and the surrounding environment. 29 The unregulated ship-breaking industry produces profound negative environmental externalities in the areas that surround the sites of operation. It is reported that the industry is causing serious environmental pollution with a resultant loss of biodiversity in the ecosystem of marine life. In 2003, BELA filed a writ petition30 (No.-2911/2003) before the High Court Division to direct the ship-breakers and the relevant government agencies to ensure compliance under the Environment Conservation Act 1995, the Environment Conservation Rules 1997, the gas free certificate issued by the Department of Explosives, the Basel Convention 1989 for the import of ships for scrapping and so on.

Upon hearing the petitioner, the High Court Division issued a Rule Nisi calling upon the respondents to show cause as to why they should not be directed to ensure that shipbreaking operations are undertaken only after obtaining a certificate of environmental clearance as required under section 12 of the Environment Conservation Act, 1995 and on adopting detailed and appropriate safety and labour welfare measures as required under the Factories Act, 1965. The court also asked the respondents to show cause as to why ship-breaking should not be undertaken only after obtaining a gas free certificate from the custom department to prevent dangerous explosions and to protect workers from the risk of death and grievous heart and injuries. The court also ruled that the Bangladesh government should ensure that the import of ships for breaking purposes is

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regulated in line with the requirements of the Basel Convention, 1989.

In another case of BELA vs. Bangladesh, (2006), a writ petition filed by BELA challenging the legality of the entry of the vessel MT Alfaship (listed as one of the 50 dangerous ships by the Green Peace) into the territorial waters of Bangladesh for scrapping purposes. After hearing the case, the court directed the government to take steps for banning import of any of the 50 ships to Bangladesh which had been identified as the hazardous by the Green Peace.

In some environmental PIL cases, the judiciary invoked international environmental law to protect the environment and directed the government to adopt legislative and administrative measures under environment treaties, which Bangladesh ratified or acceded to. In a recent and groundbreaking judgement pronounced in the case of Bangladesh Environmental Lawyers Association (BELA) vs. Bangladesh,31 the High Court Division declared that allowing the import of hazardous waste and vessels containing hazardous materials without the proper scrutiny by the Ministry of Shipping constituted a flagrant disregard to the safety and security of workers in ship-breaking yards as well as demonstrating a blatant indifference to the integrity of the environment and people who live in the vicinity of the yards. The court observed that Bangladesh, being a signatory to the Basel Convention, is obliged to follow the norms laid down in that convention.

The court issued the following directions: 1. The Ministry of Environment and Department of Environment are directed to immediately take steps to ensure the closure of all ship-breaking yards which are operating without necessary environmental clearance as required by law.

2.

The Department of Environment shall deal with the application expeditiously and supply the clearance certificate only upon satisfaction that all the facilities required for the proper dismantling of the vessels, safety measures for the workers and in particular policies for the disposal of hazardous waste generated by the dismantling process are in place.

3.

The Ministry of Environment is also directed to frame rules and regulations for the proper handling and management of hazardous materials and wastes, keeping in view the Environment Conservation Act, 1995 and the Conservation Rules of 1997, and the Basel Convention, 1989.

Indiscriminate hill cutting in different municipal areas posed a serious threat to biodiversity and ecological balance. In several PIL cases, the indiscriminate, unlawful and unauthorised cutting and raising of hills was challenged.32 The court on hearing the cases directed the authorities to take steps against hill cutting.

From this discussion, it is clear that the activism of higher judiciary of Bangladesh has played an important role in protecting the environment, developing environmental

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jurisprudence, holding government agencies and private entities accountable for environment pollution and the application of international environmental law in the domestic sphere.

Contribution of PIL in Protection of Environment Judicial activism contributes to the proper implementation of environmental laws and allows the vast majority of the underprivileged classes access to the justice system. As a result of progressive interpretations by the judiciary of some constitutional and legal provisions, the “right to environment� has received express legal recognition.33 PIL has helped the implementation of various laws related the protection of the environment and the establishment of control over pollution in Bangladesh. PIL has remained a primary vehicle through which the higher judiciary asserts itself in the arena of environment and thereby developed the new form of jurisprudence, known as environmental jurisprudence. There are many examples of environmental PIL where the judiciary has displayed enthusiasm and concern for the environment.

The judiciary developed PIL in environmental matters with the aid of numerous methods as the relaxing of standing rule, suo motu actions, interpreting the law in a manner congenial to environmental protection, framing various remedies and applying international environmental law in the national legal system.34 PIL is the most effective way to provide innovative and accessible remedies to people affected by environmental degradation. From civil society's point of view, PIL means raising awareness and making environmental justice accessible to the common people and, consequently, enhancing their participation in environmental decision-making. PIL also helps initiates legal reform by filling the gaps in the law and the inconsistency in the regulatory regime between law, policies and institutional frameworks. Even a wholly unsuccessful PIL can serve several purposes. The publicity generated by a court action can be a very useful tool as part of the wider political process of attracting attention to environmental issues and persuading governments, businesses or individuals to change their ways.

Demonstrating the possibility of recourse to the courts may influence decision-makers to act differently in future.35 Judicial intervention and activism have made industry more aware of environmental concerns.

PIL also facilitates the accountability of the government for its failure to protect the environment.36 The judges, through judicial activism, have redressed the injustices committed by the agencies of the government or persons in contravention to the fundamental rights guaranteed by the constitution. PIL extended the meaning of fundamental rights under the Constitution of Bangladesh to include environmental protection.

However, it should be remembered that PIL is no substitute for environmental laws and regulation. In particular, three cautions have been articulated in regard to an optimistic use of PIL: first, judges and lawyers have a great responsibility towards avoiding an overuse of PIL. The legal profession must know where this valuable resource can be used most efficiently. Second, PIL can cause disillusionment if it lingers on for an inordinately

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long period.37 Third, the greatest care and vigilance, responsibility and sensitivity are needed before the extraordinary jurisdiction in PIL goes into action.38 Furthermore, PIL also raises questions of the technical expertise of the courts and its ability to decide complex environmental issues. Judicial activism alone cannot ensure the protection of the environment given the gravity and magnitude of the problem. Such a complex and huge problem must be tackled at many levels besides judicial intervention.

Conclusion PIL is considered as the recognition of the democratisation of judicial remedies and a much needed pragmatic approach to the concept of social justice. PIL is not merely isolated phenomenon concerning the problem of locus standi, but an integral part of the concept of distributive justice as distinct from that of justice for the privileged few.

The environmental jurisprudence in Bangladesh has been largely developed through the instrument of PIL. The judiciary of Bangladesh is assuming a greater role in the protection of the environment and is striking a balance between the challenges of development and the protection of nature. However, despite the enormous success of PIL, the judiciary has yet to recognise principles like polluter pays, precautionary principle, sustainable development, absolute liability and epistolary jurisdiction, which have been recognised by the judiciary of other countries.39 In a number of cases, the judiciary missed the opportunity to examine and apply these principles when invoked by the petitioner. Obviously such recognition could have promoted greater compliance with international environmental law.

PIL does not work in isolation. To gain success in PIL, collaborative efforts of various actors are needed. There must be specialist lawyers, with time, committment and a capacity to work on highly complex, lengthy cases for little or no fee. PIL undoubtedly needs an effective legal aid system to pay those lawyers who specialise in PIL cases but who are not in a position to run pro bono practices. In order to make PIL successful, the necessity of adequate financial support, strong networking and consultation among civil society organisations, constructive interaction between the private bar and NGO staff lawyers, cooperation from efficient and trained government agencies, a proactive judiciary and a vigorous, yet objective, media is vital.40 According to Razzaque, the judiciary's good will would be of little use if the public does not have access to funding to move the petition. This includes the initial expenses of the applicant, the overall cost of the case, the availability of legal aid and the cost order of the court.41 Moreover, PIL needs a creative, politically aware, activist court to use law as a tool for social justice to succeed.42

Abdullah Al Faruque is an associate professor, Department of Law, University of Chittagong, Bangladesh.

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Endnotes 1. Important studies on PIL includes: Sara Hossain, Shahdeen Malik and Bushra Musa (eds.), Public Interest Litigation in India, Pakistan and Bangladesh (Dhaka: University Press Limited, 1997); W Menski, AR Alam and MR Kasuri, Public Interest Litigation in Pakistan (Karachi: Pakistan Law House, 2000); Sangeeta Ahuja, People, Law and Justice: Casebook on Public Interest Litigation, Vol. 1 and II, (New Delhi: Orient Longman, 1997); Naim Ahmed, Public Interest Litigation: Constitutional Issues and Remedies, Bangladesh Legal Aid and Services Trust, 1999).

2. Colin T. Reid, “Environmental Citizenship and the Courts,” Environmental Law Review 2 (2000): 177–194.

3. Harish Salve, “Justice Between Generations: Environment and Social Justice” in: B.N. Kirpal et al (eds), Supreme But Not Infallible, (New Delhi: Oxford University Press, 2004): 360–380.

4. Syeda Rizwana Hasan, “Application and Reform Needs of the Environmental Laws in Bangladesh,” Bangladesh Journal of Law 9 (1& 2) (2005): 85–108, at 89.

5. Jona Razzaque, “Access to Environmental Justice: Role of the Judiciary in Bangladesh,” Bangladesh Journal of Law 4 (1& 2) (2000): 1–26.

6. The Environment Court Act 2000 sec. 4, as amended by the Environment Court (Amendment) Act 2002.

7. The Environment Court Act 2000 sec. 5, as amended by the Environment Court (Amendment) Act 2002.

8. Susan Casey-Lefkowitz, J. William Futrell, Jay Austin and Susan Bass, “The Evolving Role of Citizens in Environmental Enforcement,” National Environmental Enforcement Journal 11 (5) (1996): 40–50.

9. See, Muhd. Rafiqauzzaman, “Public Interest Litigation in Bangladesh: A Case Study,” Bangladesh Journal of Law 6 (1&2) (2002): 127 –144.

10. Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh, (The Hague: Kluwer Law International, 2004), 441.

11. Ibid., 11.

12. Werner Menski, “Public Interest Litigation: Deliverance From All Evils?,” Bangladesh Journal of Law 6 (1&2) (2002): 1–10, at 5.

13. R. Sartorius, “Social Policy and Judicial Legislation,” 8 American Philosophical Quarterly, 1971, 151.

14. John Bell, “Discretionary Decision-Making: A Jurisprudential View” in Keith Hawkins (ed.), The Uses of Discretion, (Oxford: Clarendon Press, 1992), 96–97.

15. John Bell, Policy Arguments in Judicial Decisions, (Oxford: Clarendon Press, 1983), 30.

16. Ibid., 31.

17. See, Justice Mainur Reza Chowdhury, “Legal and Institutional Framework in Promoting Environmental Management” in Bangladesh, available at http://www.unep.org/ law/Symposium /Documents /Country_papers/Bangladesh.doc 18. Unreported Writ Petition No. 937 of 1995.

19. Unreported Writ Petition No. 92 of 1996.

20. Unreported Writ Petition No. 948 of 1997.

21. Naim Ahmed, supra note 1, 147.

22. Ridwanul Hoque, “Suo Motu Jurisdiction as a Tool of Activist Judging: A Survey of Relevant Issues and Constructing a Sensible Defence,” The Chittagong University Journal of Law VIII (2003): 1–31.

23. 48 DLR, 434 HC 24. 48 DLR 438 HC 25. Writ Petition No. 4098 of 2000, Bangladesh Environmental Lawyers Association vs.

Bangladesh and others.

26. Writ Petition No. 891 of 1994, Judgment Delivered on 15 July 2001.

27. Writ Petition No. 300 of 1995, Judgment Delivered on 27 March 2002.

28. 18(1998) BLD 114, at 117.

29. Ibid., 124.

30. Writ petition No.-2911/2003.

31. Judgment on 05.03.2009 & 17.03.2009.

32. Dr. Mohiuddin Farooque vs. Bangladesh and others, Writ Petition No. 6020/1997, Bangladesh Environmental Lawyers Associattion vs. Bangladesh and others, Writ Petition

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No. 2020 of 2006.

33. Hon. Justice Mainur Reza Chowdhury, supra note 17.

34. Jona Razzaque, supra note 10, 12.

35. Colin T. Reid, supra note 2, 188.

36. See, Altafur Rahman, “Public Accountability through Public Interest Litigation,” Bangladesh Journal of Law 3(2) (1999):161–180.

37. Preface by S. P. Sathe in Sangeeta Ahuja, People, Law and Justice: Casebook on Public Interest Litigation, Vol. 1, (New Delhi: Orient Longman, 1997), xliv–xlv.

38. V. R. Krishna Iyer, Judicial Justice, (Bombay: N.M. Tripathi Private Ltd., 1985), 148.

39. Syeda Rizwana Hasan, supra note 4, 100.

40. Muhd. Rafiqauzzaman, supra note 9, 144.

41. Jona Razzaque, supra note 5.

42. Jeremy Cooper, “Public Interest Law Revisited,” Bangladesh Journal of Law 2(1) (1998): 1–25.

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Legal Awareness in Bhutan Lungten Dubgyur1 Introduction In this contemporary world where the government draws legitimacy from the will of the people, the involvement of law in daily events has become inevitable. There are many issues raised concerning the need for public engagement at multiple levels of decisionmaking, including legislation, in a democratic system. Transparency in the legislative process has become a catchphrase. Legislation has become an anthropomorphised idol of all the citizens for it plays a decisive role in determining the eventual prosperity, integrity and unity of the nation. Legislation is an instrument that regulates the behaviour of citizens in the society. If the legislation fails to evolve owing to a lack of popular participation, innocent people would suffer the fallout of legislative errors.

Thus, the involvement of society at all levels of legislation to ensure transparency in the democratic system is a sign of a healthy government.

The universal understanding of transparent legislation ordinarily includes, in order of precedence, drafting, discussions, consultations, debates, talk-shows, seminars, workshops, conferences, and symposiums and publications of such legislation while it is in the draft stage. However, most of these issues get shelved into the trajectory domain of academic research and “lip services” without much impact on the society at large.2 Some schools of thought state that the involvement of civil society in the legislative process would invite practical impediments in the evolution of refined laws. We have a neutral or natural propensity to denigrate the government for failing to provide required resources. We also hold the government accountable for not installing effective mechanisms, as is necessary to enable public participation. These attributes are not necessarily mandatory to enlighten our people with their rights guaranteed by the laws.

In pursuit of this goal, Bhutan initiated, for the first time, a legal awareness campaign with the theme, “Know Your Laws to Protect Your Rights” which targeted people across the country from 2001 to 2005.

In the advent of democracy in Bhutan, people are becoming increasingly aware of their rights and liabilities.3 Thus the dissemination of legal information has become ever more important. Hence, the Paro District Court with the help of the local government leaders initiated a legal awareness campaign in all the 7,118 households4 in ten gewogs (group of villages). The gewogs are Dogar, Dopshari, Doteng, Hungrel, Lamgong, Lugnyi, Naja, Shaba, Tsento and Wangchang. More than 4,000 people from different backgrounds participated in the campaign. The similar legal discourse was also conducted for the business community in Paro.

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The discourse included matters pertaining to democratic transition, constitutionalism, sources of laws, functions and its purposes, the rule of law, fundamental and procedural rights, gender justices, and covered a wide range of matrimonial issues such as the question of child custody, legitimacy of maintenance and alimony.

People Friendly Courts: Justice at the Door-Step It has been a persistent endeavour of the judiciary of Bhutan to make justice accessible to everyone. To this end, the honourable chief justice of Bhutan has strengthened and consolidated the legal system institutionalising the rule of law and access to justice by putting in place user-friendly Case Management System (CMS) and Case Information System (CIS).

It is a sustained endeavour to introduce not only those reform agendas that remedy case delays, judicial effectiveness and the prompt delivery of justice to our litigants public but also the need to enhance and strengthen the capacity of the staff of the judiciary. The principles of justice cannot emanate from the physical buildings if the actors are not adequately outfitted. Thus, under the aegis of the honourable chief justice, the judges and law officials enriched themselves through trainings, workshops, symposiums and seminars. The high court has also initiated many reforms5 aimed at disseminating information about judicial processes to the general public and concerned organisations.

Until recent times, the people had never seen the court system as an institution. People were oblivious of their rights and duties and were hesitant even to exercise those rights of which they did know. The clarion call for the people of Paro to know about their roles in a new democratic setup was only made possible through the court system. The first time that the people approached the court with a legitimate request inviting the court officials to deliberate on the laws was a positive development. It is an indication of increasing public confidence when they consider the judiciary their safe haven. Bhutan's justice system has, therefore, begun taking unprecedented moves toward bringing the rule of law into people's homes. In a country where more than half the population finds itself trapped in illiteracy, giving people their share of rights is of vital importance.6 A profound legal system is a boon to the society. It is a repository of the people's aspiration and trust. It mutually benefits both the judiciary and the people. The task of the judiciary becomes smoother, and litigants get justice without having to squander money and time. People in the earlier days believed in the sanctity of the law books and revered them as sacred. There was a view that such books were only meant for lawyers and court officials. Books related to laws were neither published in Bhutan nor available on any book stalls.7 To possess even a single law book was considered to be a source of discomfort in the society. Even today, many litigants are of the opinion that it is illegal to cite sections of law relevant to their cases during hearings. Until the launch of the legal awareness campaign under the theme “Know Your Laws to Protect Your Rights,� the only means of disseminating legal information to the people was through involvement in court cases—that too limited to litigants who filed lawsuits.

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His Majesty Jigme Singye Wangchuck, the fourth king of Bhutan, inculcated the judges with a sense of welfare in two core aspects: the access to justice (law) and health facilities (doctors). His Majesty Jigme Wangchuck commanded that the legal system be geared towards profound judicial reform aimed at making it user friendly, accessible, inexpensive, efficient and effective.8 Accordingly, the constitution emphasises that the judiciary is mandated to safeguard, uphold, and administer justice fairly and independently without fear, favour, or undue delay in accordance with the rule of law to inspire trust and confidence of the people and to enhance access to justice.9 Addressing the judges and the staff of Bhutanese judiciary on 11 June 2010 in Thimphu, the present king, His Majesty Jigme Khesar Namgyel Wangchuck, cautioned that: “… while few people understand laws, most of them are of the view that law is required only when suits are filed in the court. It is true but more than that law is indispensable for the welfare of the nation and the people. For example, law is inevitable from the day you are born till you breathe the last. It is required for anything you opt to do, say whether you are involved in a business, engaged in a marriage, seeking for a job, inheritance and of rights bestowed upon you by laws. In absence of law one's lives would be at stake.

“It is essential to know of the Natural law and of the man-made law.

Man-made law is the ones made by men like Marriage Act, Land Act and Inheritance Act whereas, Natural Law is the ones recognizing moral values like cause and effect, what is wrong and right and merit and sins. We can attach importance of this natural law to our good old traditions where the parent-child relation, unity of relatives, respect for friends and sanctity of the marriage. We must pursue anything with compassionate and altruistic concerns for others. The natural law would automatically thrive if we preserve this good culture and tradition. And it is a must that our people understood this natural law….”

It is has become a firm and popular belief in Bhutan that the gap between the written law and societal norms can be bridged by the judges,10 and that the role of the judiciary must be to protect the rights of the people and “uphold truth supported by justice.”

Notwithstanding that, the judges are charged to dispense justice through the interpretation of laws proscribed by the legislative branch. In any given society, deeply embedded norms underpin the dynamic between court practices and the popular perception of the delivery of justice.

Laws are drafted for specific reasons and later affixed with inconsistent values that are pervasive in social norms. It was the author's experience, and that of most judges in Bhutan, that in our normal affairs of duty we would have travelled to the remotest parts of the country as part of a “judicial investigation” or “field visit” either suo moto or on the

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requests of the parties to the case. It invariably helps to get first hand knowledge on the disputed site. Such field visits also have the enormous benefits of not only verifying issues related to the case but also in bridging gaps between the courts and rural communities. It was fascinating to realise how enthusiastically people in the villages always discuss issues related to law and justice when talking in informal gatherings. The pragmatic approach during these informal discourses highlighted the much-needed desire of the people to bring justice closer to their door step.11 Judges need to be more conscious and well informed of the ground realities. There is always a difference between abstract ideas with that of the “indigenous notion” of courts, laws and justice.

Four legal trainee officers12 attached to the Paro District Court were of the view that: “… the judges, imparting legal knowledge to the people speaks volumes of the people-friendly court. This untiring and altruistic task is, indeed, a commendable job and sends a clear message that the law is there to condemn the wrong and protect the innocent. By such initiation judges are able to bring people closer to justice and gain people's trust and confidence in the judiciary.”

A New Culture: Towards Democratic Transition The transition away from 100-year monarchy, established in 1907, began a new chapter in the history of the Himalayan kingdom.13 The kingdom transitioned into a “democratic constitutional monarchy,” effected with the signing of a written constitution on 18 July 2008. The year also marked the centenary celebration of the monarchy and the coronation of King Khesar after the fourth king decided to abdicate and handover the charge de affair of the state to the crown prince on 9 December 2006. Kinga summarises that the act of His Majesty was a huge scarifies to empower the people by introducing parliamentary democracy.14 The democratic transition has been seen by the people, the politicians and the media as a “gift” from the throne. The idea of a gift grew in popular discourses and common parlance but in actuality, the king specifically said that the transition “should not be construed as gift,” but as the sacred duty of the king. The king said that the governance of the state must not be left to a single handed polity but to the collective wisdom of the people. However, the people dubbed the democratic changes as a “precious gift” and considered it therefore the collective responsibility of all Bhutanese people to ensure its success.

The top down approach of introducing democracy paved the way towards the need for its conceptual understanding, in particular, the new experiences of democratic culture.

People are beginning to unveil the concept of democracy, and the urge for its conceptualisation, perception and knowledge have greatly increased. Therefore, efforts to endow common people residing in remote villages with awareness about the rule of law and democracy could not have come at a more appropriate time than when the country is undergoing a new culture of democratic transition. This is also the phase when

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people need to be educated not only of their rights, but of their duties and responsibilities in the ownership of democratic culture that represent the vision of our kings.15 When one examines the democratic transition in Bhutan, one must not forget to ask as to why there was a need to initiate such reforms. His Majesty the Fourth King Jigme Singye Wangchuck is a benign believer of the philosophy of happiness. He preferred Gross National Happiness to Gross Domestic Product or GNP. In 1972 His Majesty expounded the developmental philosophy called the “Gross National Happiness” (GNH) for the people of Bhutan. He conceptualised the ideal as a contemporary method of assessing the status of a nation as opposed to economic parameters. In a nutshell, the concept of GNH attempts to define an indicator that measures quality of life or social progress in more holistic and psychological terms than more common scales that evaluate only material wellbeing. To develop an effective mechanism to support this philosophy, GNH includes four pillars: the promotion of sustainable economic development, the preservation and promotion of cultural values, conservation of the natural environment, and the establishment of good governance.

The GNH, as a development concept, lays a robust foundation from which Bhutan's development plans can build up. In the same line, the drafting of the Constitution of Bhutan was long envisioned by the king and is engineered towards the accomplishment of GNH. Notwithstanding the strong protests from the people against the move to draft the constitution, the king commanded the formation of a group of diverse intellectual committee members and said that the document must not be drafted in haste but at a “time of peace.”

The determinants of human happiness and well-being are important in the quest for ecological sustainability and social justice. We can understand that happiness is that state of human well-being which leaves nothing more to be desired at the end.

Philosophers, theologians and social thinkers have wrestled with the ideas of happiness for centuries. It is nothing more than its seriousness, in the case of Bhutan, when the concept of happiness of the people is justly hallowed and engraved in the constitution that: the state shall strive to promote those conditions that will enable the pursuit of GNH.16 While speaking at the Madhavrao Scindia Memorial Lecture in New Delhi on 23 December 2009, His Majesty Jigme Namgyel Wangchuck said: “… Today, GNH has come to mean so many things to so many people but to me it signifies simply—Development with Values.

“We strive for the benefits of economic growth and modernisation while ensuring that in our drive to acquire greater status and wealth we do not

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forget to nurture that which makes us happy to be Bhutanese…

“Thus, for my nation, today GNH is the bridge between the fundamental values of kindness, equality and humanity and the necessary pursuit of economic growth. GNH acts as our National Conscience guiding us towards making wise decisions for a better future. It ensures that no matter what our nation may seek to achieve, the human dimension, the individual's place in the nation, is never forgotten. It is a constant reminder that we must strive for a caring leadership so that as the world and country changes, as our nation's goals change, our foremost priority will always remain the happiness and wellbeing of our people—including the generations to come after us.”

Just laws are deemed to be one of many indicators of happiness.17 The citizens desire peace; without strong laws to regulate the society, peace and tranquillity cannot prevail.

Thus, the need for a thoughtfully written constitution that spells out legal guarantees that all the attributes of GNH-defined happiness will be handed down to the people.

Arguably, the transition from monarchical rule to constitutional democracy, in the Bhutanese case, defied the traditional nature of constitutionalism as people emulated the constitution as a gift by the king.18 For instance, the people, in the historic first general election, went to the ballot box by comparing their ballot to a “norbu” or a precious jewel.19 General Perspective The aforementioned law apprentices were assigned to collect general comments from the people through a set of questionnaires20, so as to have a better idea as to how ordinary citizens respond when made aware of laws.

For instance, Tshencho Dema, a 52 year old woman, said “This campaign was very educational and useful. Such a campaign has dispelled our ignorance of the law. Except for those who are involved in legal wrangles, we were absolutely ignorant of all the legal provisions. In those days, people submitted themselves to the mercy of those who commanded the laws and stoically endured punishment. Now with the judiciary becoming people-friendly and dashos (judges) ushering the principles of law to our doorsteps, the law will undoubtedly benefit the people at all times.”

The following feedback was also recorded from people of varying age groups under different gewogs.

Shaba Gewog The first talk was held in Shaba Gewog21 where 83 year old Lam Rinzin, a former civil servant,22 said that bringing justice to the people of remote areas would go a long way to reforming our justice system, as would people-friendly courts. He reiterated that the younger generations were lucky and blessed to have laws brought nearer to their doorstep. Shaba Gup Rinchen (elected village headman) said that since the people of his

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gewog are now being educated with the basics of law and its relevant provisions they have enriched their knowledge. Now they are clear about court jurisdictions and venues to file a lawsuit.23 Naja Gewog Naja Gup, Kado, while sharing his opinions, believed that the court could witness a tremendous decline of litigations; at least 60 percent. He added that till now people filed lawsuits out of ignorance. Ap Kado, 72 years old, was pleasantly surprised to know that the king, constitution and the laws have guaranteed them so many rights. He also expressed his genuine concerns over the rights being abused or polarised by people in the name of democracy. Nevertheless, he was happy to know that there were also corresponding duties to safeguard the rights of the other people.

Dogar Gewog Ex-village headman Ap Yeshey Wangchuk, now 76 years of age from Sila Goenpa village, was not deterred by any harsh calamities and attended the talk after travelling about an hour. He said that awareness about laws had hitherto always been the sole domain of court officials. People hardly knew what acts were legal and what were not. Law books were confined to a few designated persons and were beyond the reach of ordinary people. Being obedient to the laws without the slightest of protest was the only alternatives for the people. “Now that we are enlightened with the important and relevant provisions of laws which I never even dreamt in my life. I wish I could live a few more years so that I can help people with their disputes without having to go to the court thus saving precious time and resources,” said the ex gup.

Fifty-seven year old Ap Tshendra was taken aback by a section on marital rape. With his conventional mentality, he commented that marital rape was something he has never heard in his life. He ridiculed the section and asked how it is possible for the spouses to be booked under marital rape? He said, “We never thought that it is a crime. But may be there was good reason of law to recognise mutual respect of each others wish.”

Hungrel Gewog Tandin is a farmer who is now 74 years old. For him, knowing about the rights of individuals while fighting cases by following the Civil and Criminal Procedure Code were very important steps taken to strengthen the judiciary. He said that this would boost the morale and legal authority of the court, empowering it to deliver justice.

Dopshari Gewog Namgay, an elderly person in the village, has been involving himself in an alternative dispute resolution (ADR) for the last 35 years of his life. Until then he never understood the differences between “guarantor or jabmi” and “witnesses” while writing agreements.24 He said, “So far I had always assumed that there is not much difference between jabmi and witness. Now I realised that it was two different terms and I will clarify this with my contemporaries.”

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Lhaba, 67 years old, served as village headman for several terms in his early years in Dopshari. He still serves as one of the village representatives. For him, knowing about the Civil and Criminal Procedure Code was very important, especially in the event that he is ever taken to court. “I know that only one fourth of the people who came to attend this talk know about such procedures. For the other three fourths, it is a new subject but will benefit them immensely in future.” He suggested that although all the topics covered were important, it could have been even better with the inclusion of a few more important clauses on environmental laws. He said that with the increase of population every year, many people litter the surroundings thereby directly polluting our environment and as a result spreads diseases in the communities.

Khandu is another participant who attended the talk. He said that among all the topics, knowing how to write a petition and agreement was most useful to him despite that fact that he is illiterate. “I can at least understand how important an agreement is and how it has to be written.” He said that although he is nearing 60 years of age and has fought cases in court, he had never understood many of the issues until that day. “Now I have understood, so I will spread the message in my family and friends.”

Doteng Gewog Most of the people who spoke on the campaign in Doteng Gewog said that such an activity was very useful. Some said that many commit crimes mainly because people are ignorant and not informed of laws. 60 year old Sangay from upper Doteng said that laws were never made public and people never had the opportunity to defend their cases properly. Whatever was done by the court was final and binding. “Now we know that if we are not satisfied with the decision of the lower court, one can always appeal to the higher court to redress our grievances. But we are also aware that we cannot launch a malicious or malafide prosecution with perverse intent to embarrass or harass another person without having a reasonable basis.”

Wangchang Gewog Sixty-six year old Ap Chencho said that he has never approached a court on any grounds and did not have any knowledge of law until the team of court officials visited his gewog.

He was fascinated by the sources of laws and the fundamental rights of persons. “In the olden days, the court was much dreaded by the people but now it is the house of protection,” said Ap Chencho.

Similarly 60 year old Dorji Wangchuk said “The campaign is coincides well with the institution of democracy. We know that the kings initiated major reforms in the judiciary by enacting many acts and by-laws to maintain peace and stability at all times. The chief justice and drangpons are representatives of His Majesty. Thus, it is like His Majesty is travelling to remote places and discussing laws with the people.” Ap Dorji Wangchuk said that he was most inspired by the talk on the constitution and its principles.

Lamgong Gewog People from Lamgong Gewog found the campaign very useful and educational. A group

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of women said that they were especially impressed to know about their matrimonial rights, rights to child custody, their entitlements to alimony and child support allowances in the event of a divorce. They also learnt about gender issues and sexual harassment. “We are happy that our marriage laws are pro-child and pro-woman.”

An old man from one of the remote parts of Lamgong Gewog said that he had always thought that all drangpons (judges) shared similar views and apply the same principles and clauses of laws while adjudicating the lawsuits throughout the courts in Bhutan. But he learnt that it is otherwise. Contrary to his expectations the judges in the higher court are more experienced and can rectify the judgements of the court of first instance. Lam Rinzin, a class twelve student of Tenzing Higher Secondary School, said that the campaign was very useful particularly for the common people who are ignorant of law.

He, however, was sceptical about how the judges could administer justice without fear and favour in a small and close-knit society.

Lugnyi Gewog Understanding the laws on physical assault was found to be most useful to 58 year old Dorji from Woochu village, under Lugnyi Gewog. He said that fighting is one of the most common crimes in any community and the awareness of the law will help to remind people of the consequences. As Dorji asserted that such educational activities will definitely strengthen the judiciary, and bring the law much closer to the people.

An elderly man from Lugnyi raised his concern on the provisions addresing the issue of cultural transition. He referred to the matter of wearing a traditional dress during “lochey” (annual ritual performance in the village) in which, conversely, many youngsters exhibit westernised traits and dress. Many of the elderly people who attended the talk expressed their concerns on the issue and warned that if this question was not viewed seriously the country may face a cultural revolution.

Gup Dorji Gyeltshen, who is serving as Lugnyi Gup for the fourth time said that “our judiciary has become more people-friendly and efficient, unlike in the past." He added that to "decide a case within a year was highly commendable.” He said that although the Paro District Court is the second busiest court with the second highest numbers of cases in the country, it has been able to solve almost all the cases within one year.25 He added that the judiciary under the reign of their majesties the kings has been able to gain increasing public confidence not only as the institution of justice but also as an institution that showcases the rich traditions and culture of Bhutan.

Tsento Gewog A farmer and a yak herder walked about four hours from Gunyi Tsawa, braving the severe winter cold of northern Paro just to attend the deliberations. The two expressed their satisfaction and said it was worth the sacrifice and trouble to get to the talk. The yak herder said that such a campaign has enriched their awareness and knowledge. He added that with the changing times, it was very important for everyone to understand legal do's and do not's.

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An old lady from Tsento Shari thought that she was coming to attend another meeting on development issues, but was to find out that it was a law related meeting, the first of its kind ever held. She said the talk was really useful and wished that more of her family members could have participated. “My respect for the court has increased as I undertood that the laws have their basis in Buddhist principle and I also came to know that our Drangpons have in-depth knowledge of not only laws but of our religion, culture and Driglam Namzha.”26 Paro Municipality A chef from Kisa Hotel who came to attend the programme said that it would greatly benefit the general public and will also help in reducing the number of cases filed in court. He said, “I am impressed with the initiative. I am sure that it would be beneficial if replicated in other dzongkhags”. Many businessmen and women who attended the talk said they were unaware of the fact that not paying taxes could also be charged under the Penal Code. They pledged that they would abide by the law's prohibition on the sale of goods like drugs and tobaco.27 Conclusion As expressed by the “people themselves” the laws were traditionally beyond the reach of the common people. The judicial process was kept secret with court hearings conducted in camera and shielded from public scrutiny. In the modern context, and, particulalry with the introduction of a democratic system of government, our people are increasingly aware of this new culture and are conscious of their rights, duties and there is a resurgent interest in understanding the provisions of the laws that govern them. The concept of an “informed society” should not only be propagated in words but also in action. Any barriers to the justice system directly affect the marginalised and the poorest segments of the society where the existance of social and political conflicts are expected to be more frequent. It is also true that social reality often takes precedence over a legal regime. The tenacity and adherence to the ways of political and social discourses in the daily life of the people are twisted into a precluded “legal situation” or “legal realism” which concomitantly eulogize into a “living law” of the society or community where one lives.

This evidently infers that any society, in their remotest consciousness or sub-conscious being, has a separate identity in one manner or another.

However, both “traditionalists” and “modernists” would concur that the law has always been used to maintain a just social order in a civilised society. The public order or a normative ideal of “legal orderliness” in linking with a democratic culture is a must in modern society. An orderly society needs a justice system that is more sensitive to the needs and aspirations of the people. For this, the judiciary certainly has an important role to play in a democracy as the ultimate arbiter of justice. There has been an overwhelmingly eagerness shown by common people in Bhutan to be educated about laws, to open up avenues and create greater transparency, and to be the beneficiaries of a proactive delivery of judicial services.

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Lungten Dubgyur is a justice of the High Court of Bhutan.

Endnotes 1. The paper was written while presiding as a judge of the Bench I of the Paro District Court. The author is also writer and published two books and wrote numbers of researched articles in the areas of Laws and Legal Reforms in Bhutan. The author would like to acknowledge brother justice Sangay Khandu for his invaluable comments and sister judge Passang Wangmo of Bench II for her continued support and help to explain the provisions related to marriage laws to the people in this entire campaign. The author would also like to thank Justice Ron Mirkel (former judge of the Federal Court of Australia) and his wife Dr. Beth Zeally Mirkel for the idea of writing this article as the legal awareness campaign coincided with their recent visit to Bhutan.

2. As referred to by Dr. Beth Zeally Mirkel to the author on 25 January, 2010 evening in Bhutan.

She was of the view that the Bhutanese practical lessons on such legal discourse could be an exemplar against what most western jurists offer only through “lip services” and very minimal practical orientation such as in case of Bhutan.

3. The members of the Dzongkhag Tshogdu (District Assembly) during its 90th session of 2009 requested the Chairman to consult the Paro District Court for the possibility of conducting legal awareness campaign to the people of Paro as requested by the people of Doteg Gewog.

Each District in Bhutan is sub divided into Gewogs or the village counties which comes under local government institution. As such, Paro District has for instance ten Gewogs. Each Gewog is administered by an elected Gup or village headman assisted by a Mangmi or assistant village headman. Both are the members of Dzongkhag Tshogdu.

4. For details about Paro Dzongkhag, refer www.paro.gov.bt 5. For detail readings on judicial reforms in Bhutan, refer author's book “The Parasol of Silken Knot” Chapter II “Review on Judicial Reforms in Bhutan” PP. (13-25), published by the Royal Court of Justice, Research Division, High Court (2005).

6. Refer The Journalist issue on “Judicial Reform: Taking Justice to people” dated 14 February, 2010.

7. Concurrently, Bhutan has 148 Acts as of date including International Conventions ratified by our Parliament besides numerous rules and By-laws.

8. While granting audience to the Judges of Bhutan during 13th Annual Judicial Conference held in Thimphu in the year 2003.

9. Article 21, section 1 of the Constitution of Bhutan.

10. There is obviously a vast gap between what the written laws prescribe when compared with the situational analysis of the requirement and anomalies of legislation. Details analysis of the legislative reforms by the author is available under Chapter III “Review on Legislative Reforms in Bhutan” (26–36), of the above cited book “The Parasol of Silken Knot” (2005).

11. As a judge of the Chukha District Court (2004-2006), I had to travel for about three to four days to reach a Gewog like Metakha, Dungna and Getena whenever there was requirement of site inspection related to land dispute. However, the summer of 2005 was most memorable wherein Dasho Dzongdag the then governor Dasho Dawala, Lam Neten (Chief Abbot) of Chukha (Rabdey) Monastic Body and I jointly traveled in the remote villages of Metakha and Dungna Gewogs spanning over weeks beating rain and leech infested forest explaining to people by the Governor on developmental issues while Lam Neten talked about culture, religion and on tradition. My talk was broadly focused on procedural, matrimonial and on property rights.

12. (Dema Choki, Sonam Tshering, Dhan Raj Tamang and Yeshey Phuntsho) were attached as trainee officer from 12th January to 12th February, 2010 with this court. They had been assigned

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to record the proceedings of the talk, questions asked and also to note the people's perspectives.

The people's perspectives are recorded in the latter part of this article.

13. His Majesty the Fourth King has commanded to initiate the drafting of a written constitution in 14th September, 2001.

14. See S. Kinga's chapter on “Bhutan's Democratic Constitutional Monarchy: Revisiting Kingship and Democratic Transition Theories” under the recently published book titled “Monarchy and Democracy in the 21st Century” by Bhutan Centre and for Media and Democracy (BCMD), Thimphu, 2010.

15. His Majesty expressing His vision to the constitution drafting committee on 13th November, 2001 said that “The Constitution should not ever be drafted with a view towards benefiting or favouring the king. The important objectives to be borne in mind while drafting it are (a) the sovereignty of the country, (b) the security of the country; (c) the national interest; and (d) the welfare of the people.”

16. Article 9, section 2 of the constitution of Bhutan.

17. Linking law and justice with GNH is provided by the author under Chapter IX “ Law, Justice and Gross National Happiness ” PP. (141-154), of the above cited book “The Parasol of Silken Knot” (2005).

18. For instance, most constitutions of the world were written in the beset of rebellion, occupation, breakup of sates, post colonialism, self-determination, overthrow of regime or expression of unison between multiple sates.

19. The first historic general election was conducted on 24 March 2008. The political parties and the candidates campaigned that the right to vote is a precious gift and the ballot paper was a “norbu” or precious jewel. Some candidates even said that going to a polling booth and casting their votes was like visiting a temple to make an offering so that people will not make wrong choice. For detail readings refer author's article on “The Making of the Bhutan's Constitution” published in October-December issues of South Asian Journal, 2008.

20. What did you learn from this campaign? Do you think that the talk would be useful? What improvements are needed to be done? The feed back included people's questions and answers session that were conducted after each session. The legal awareness talk or the sharing of information lasted for about four hours in average in each village from 10.00 AM to 02.30 PM. 21. The legal awareness talk commenced from Shaba Gewog with the offering of Marchang ceremony on 20th January, 2010 and concluded with offering Khadhar (silk scarf) and Nyendhar (money offering) in Drugyel Lhakhang in Tsento Gewog on 2nd February 2010. The Marchang ceremony is the celebration of good fortune by offering wine to appease the Gods and local deities. It is considered very auspicious to start any new venture with the offering of Marchang ceremony in Bhutan.

22. He served in his earlier days as the Dzongdag (Governor).

23. Pl. refer Kuensel, “Parops want to know their (legal) rights” dated 25 January, 2010 available at http://www.kuenselonline.com/modules.php?name=News&file =article&sid=14561 24. The term Jabmi is loosely referred to a person, who acts as a surety or guarantor, however, the Advocate or Jabmi Act of 2004, technically refers to a legal counsel.

25. The gathering was also briefed on the annual case statistics of the courts in Bhutan, where out of 193 cases that were pending before Paro District Court by 30th December, 2009, only one case remained unsolved for more than 12 months.

26. Driglam Namzha is specifically referred to as the code of conduct and ethic which involves virtuousness through Lue, Nag and Yid (body, speech and mind).

27. Sale of tobacco products are officially banned in Bhutan.

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The History of Political Parties in Pakistan Hasan Askari Rizvi

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olitical parties are integral to modern political systems and their role is vital to the success of democracy. Even non-democratic and dictatorial regimes rely on some political infrastructure like a political party or a movement to mobilise people and sustain power. These governments may allow only the official party; other parties or groups are either categorically disallowed or relegated to a subsidiary or limited role.

A political party organises people as an identifiable political configuration based on a political agenda or programme. Each political party is a “purveyor of ideas”1 that either represents the articulation and aggregation of interests and concerns of society in general or a particular class, region or socio-political formation. The party may identify with an abstract ideological formulation and advocate the solution of societal problems within the framework of its ideology. These ideological parties may be less inclined to cooperate with political players that do not fully share their ideology. However, the experience of the post-Cold War era suggests that such ideological parties are more inclined to work with other political parties on a minimum common agenda and adopt a pluralistic perspective in the political domain without formally abandoning their ideological, class and ethnic-regional identification. The political parties in the West and, to some extent, elsewhere have a tendency to operate as brokers of ideas and interests and become “aggregative and comprehensive rather than sectarian and exclusive.”2 Political parties aggregate interests and issues into broad policy options, mobilise and organise people and public opinion, recruit people to their fold and seek to acquire political power through the electoral process within the limits set out by the constitution and law. Political parties are also supposed to constantly review the performance of the government and suggest corrective measures within and without the parliament.

It is not possible to understand the dynamics of Pakistan's politics without examining the role of political parties. A large number of people in Pakistan are critical of the role the parties have played and hold them responsible for internal disharmony and political uncertainty. Military governments have generally described the political parties as the sole cause of political degeneration and view political leaders as inherently corrupt and self-centred. However, these military governments adopt two conflicting postures. On the one hand, they attempt either to exclude parties from the political process or restrain their role. On the other hand, military rulers co-opt political leaders who agree to work

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with them, patronising these leaders and parties and mounting strong pressure against any actors that question their legitimacy.

This paper examines the origins and the dynamics of political parties in Pakistan. It also provides an overview of the working of the major political parties with a focus on the post-1971 period.

The Roots and Dynamics of Party Politics The roots of Pakistani political parties can be traced to the pre-independence period.

The Congress Party was established in 1885 as a party that claimed to represent Indians of all regions and religions, although Muslim representation was minimal from the beginning. In December 1906, the Muslim educated elite established a purely Muslim political party under the name of the All India Muslim League, popularly known as the Muslim League. Both parties were established as advocacy groups. The Muslim League aimed at protecting and advancing the identity, interests and rights of the Muslims against the backdrop of the gradual introduction of political and constitutional reforms being undertaken by the British at the time. A reconciliation between the British and Muslims was also one of the original goals of the Muslim League. These goals evolved over time to include self governance, constitutional safeguards and guarantees for the rights and interests of the Muslims. The demand for a separate homeland was adopted in March 1940.

The origin of political parties in Pakistan was, therefore, different from the process in Europe and North America. In these countries, the emergence and expansion of political parties was linked with the development of representative government and, in the initial stages, political parties only comprised the members of the elected assemblies.

The Muslim League developed as a part of the nationalist struggle. In the initial stages, it was an advocacy group and had nothing to do with the introduction of elected assemblies. It developed outside the legislatures. Later, the party contested elections and entered the legislatures in pursuit of its political agenda. As a nationalist movement, its role in popular mobilisation outside the legislature was more significant for shaping the nature and dynamics of political parties in Pakistan.

As the party that led the independence movement, the Muslim League enjoyed the support of the Muslims across social and economic divides. After independence, the Muslim League could not successfully transform itself from a nationalist movement to a nationwide political party that commanded the loyalty of peoples across regional and political divides. It was unable to recognise the imperatives of nation- and state-building in the context of an independent state. It could not articulate a credible platform to this end and thus lost momentum.

Remaining in the mindset of a nationalist struggle, the Muslim League leadership argued that there was no need to establish other political parties and maintained, in fact, that any opposition to the Muslim League amounted to an opposition to Pakistan itself,

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since the Muslim League and Pakistan were one entity. This political trend conflicted with another tendency of the pre-independence period: a large number of senior political leaders did not give up the pre-independence habit of opposition, honed against the colonial government. They continued to oppose the new government by all possible means in the post-independence period. This resulted in political polarisation and adversely affected the prospects of democracy in Pakistan. The government questioned the patriotism of the opposition parties and the latter, in turn, challenged the legitimacy of the government.

The Muslim League lost its dominant political position in Pakistani politics within seven years of independence because it failed to inspire with its socio-economic agenda. The other factors that contributed to its decline included the Muslim League's internal organisational incoherence and the crisis of leadership after the demise of the Quaid-eAzam Muhammad Ali Jinnah in September 1948 and Prime Minister Liaquat Ali Khan in October 1951. The party came under the control of a feudal elite with a parochial outlook which was not committed to making the party an effective and vibrant political machine.

The Muslim League suffered from factionalism in all provinces. Some of its members established new political parties. These included the Awami Muslim League (1949—later the word Muslim was dropped to become Awami League), the Jinnah Muslim League (1950), the Azad Pakistan Party (1952), the Republican Party (1956) which included Muslim leaguers and others. The Muslim League's pre-eminence came to an end in 1954 when it lost the provincial assembly elections in East Pakistan (now Bangladesh) to the United Front, a coalition of several political parties. The new political parties and their coalitions suffered from the same deficiencies that ailed the Muslim League like weak organisation, internal incoherence, indiscipline and a failure to offer a meaningful political agenda.

Though political parties stand for democracy, elections and constitutionalism, their internal organisation is mostly undemocratic. Most political parties have oligarchic power structures and depend heavily on the leaders. The emphasis is on loyalty to the leader who is often projected as the charismatic leader who is the best judge of party policy. The Pakistan Peoples Party (PPP) is heavily dependent on the Bhutto family and Asif Ali Zardari manages the party affairs in a centralised, personal manner. The Pakistan Muslim League-Nawaz (PML-N) is dominated by Nawaz Sharif and, to some extent, by his brother Shahbaz Sharif. The PML-Q revolves around the Chaudhrys of Gujrat and the Awami National Party (ANP) is led by the family of Abdul Ghaffar Khan.

Altaf Hussain has an overwhelmingly powerful position and role in the Muttahida Quami Movement (MQM).

The political parties hold internal elections after specified intervals because the Political Parties Act requires that. Such elections are more of a formality than a real internal democratic exercise. The powerful leaders get re-elected again and again, as long as they wish. If a political party attempts to hold somewhat open elections, it tends to experience

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internal rifts. Different factions in the party are likely to accuse each other of manipulating the registration of new members, violating electoral procedures and using unfair means to win the elections. All this weakens the party and deters the party leaders from loosening their grip on the party and its elections.

An oligarchic power structure and an absence of internal democracy do not necessarily mean that the political parties cannot work towards strengthening democracy. The experience of Europe and North America suggests that democracy inside the political parties follows the democratisation of wider society. It is desirable that political parties are internally democratic, but this cannot be seen as a pre-requisite for democracy.

Not all Pakistani parties are dominated by feudal elements. The business and commercial elite have also risen in the party system in Pakistan. Some political parties are heavily middle and lower-middle class oriented. However, the changing pattern of leadership from feudal to others has not drastically changed their disposition and orientations. There is a tendency to offer a “catch-all� programme with an emphasis on socio-economic justice, the rule of law and democracy. Another noticeable tendency is that the top party leader attempts to establish a direct rapport with the people, bypassing the formal party structure. He is expected to visit different parts of the country, lead public rallies, address public meetings and interact with the local elite in addition to his party leaders.

The natural evolution of political parties was blocked time and again by the establishment of military rule. Military governments imposed restrictions on political parties and activities because they held civilian political leaders in extremely low esteem, accusing them of corruption and mismanagement and holding them responsible for the political and economic degeneration of the society. Field Marshal Ayub Khan, the first military ruler of the country, banned political parties and disqualified a large number of political leaders from taking part in politics or holding any party office from 1960 to1966. When he introduced the 1962 constitution, political parties were not revived.

Later, under strong political pressure, he agreed to revive political parties.

The Ayub regime introduced a new legislation, the Political Parties Act, 1962, to regulate political parties and their activities. This Act is still operational, although different military and civilian regimes have sporadically amended it.

Other military regimes were equally hostile towards the political parties and attempted to regulate and fragment them. The key issue for the parties became survival, rather than building up an effective organisational network or democratisation of party-structure.

General Zia-ul-Haq and General (Retd.) Pervez Musharraf employed intelligence agencies to manipulate political leaders and political parties. The intelligence agencies worked towards weakening those political parties that questioned the legitimacy of the military regime and co-opted some political leaders to strengthen the military rulers.

The Inter-Services Intelligence (ISI) was instrumental in building a coalition of the

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political right and Islamist parties, the Islami Jamhoori Ittehad (IJI), to contest the 1988 elections against the PPP. In the 1990 elections, the ISI funded the leaders opposed to the PPP. During the days of Pervez Musharraf, the ISI and the MI (Military Intelligence) functioned as the main channel of interaction between the military regime and the political leaders.

Pakistan's political scene is marked by the rise of two major political parties, the PPP and some faction of the Pakistan Muslim League (PML). In the post-2008 general elections, the PPP and the PML-N dominated the political scene. During the brief period of civilian rule from 1988 to 1999, the PPP and the PML-N alternated in power. This pattern was revived after the 2002 elections and reasserted itself after the 2008 elections. However, none of the major political parties is in a position to set up government at the federal level without building alliances with smaller and regional political parties. This enables the smaller parties to become part of the national mainstream but the coalitional power arrangement slows down decision-making and balancing the pressures from the coalition partners is a challenging task for the party leading the coalition.

Major Political Parties Pakistan had less than 10 political parties in the early years of independence. Two political parties dominated the first Constituent Assembly. These were the Muslim League, which inherited power from the British on 14 August 1947, and the Congress Party which comprised Hindu members from former East Pakistan. It separated from the All India Congress Party at the time of independence. The Congress Party disappeared in a couple of years because its leading personalities either left for West Bengal or joined other parties.

There are over 100 political parties in Pakistan in 2009/2010 but not all of them are registered with the Election Commission of Pakistan, a prerequisite for contesting elections. In August 2007, there were 58 registered political parties, of which only 45 contested the 2008 general elections at the federal and provincial levels. Following is an overview of the political parties that have been active in the political domain post-1971.

Pakistan Muslim League (PML): The Pakistan Muslim League (PML) was the successor of the pre-independence All India Muslim League. It came into existence in December 1947 when the pre-independence Muslim League held its council meeting in Karachi and decided to split the original organisation into two separate political parties for Pakistan and India.

The roots of the PML thus go back to 1906 when the Muslim elite in British India decided to set up a separate political organisation to protect and promote their rights and interests. The PML is the oldest party in Pakistan, the spearhead of the independence movement under the leadership of Quaid-e-Azam Muhammad Ali Jinnah, recognised as the founder of Pakistan. This gave the PML a clear edge over other parties that existed in 1947/48 or were established later.

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The PML inherited power from the British in the new state of Pakistan. It dominated the political scene “not only in the legislative and ministerial spheres, but also in provincial gubernatorial and high diplomatic fields. It had an overpowering majority in the first Constituent Assembly and in all the provincial assemblies.”3 However, the PML's dominant position gradually eroded and it lost its salience by 1954/55. The PML failed to transform itself from a nationalist movement to a national party and lost the momentum that characterised the last decade of the struggle for independence. Three factors explain its decline: the crisis of leadership, the failure to offer an inspiring political and economic agenda and internal incoherence and defections.

The crisis of leadership began after the demise of Muhammad Ali Jinnah in September 1948. Jinnah's successors lacked his stature and could not run the party as a coherent and effective political machine. The leadership crisis became acute after the assassination of Liaquat Ali Khan—the first prime minister of Pakistan and a prominent leader of the independence movement—in Rawalpindi in October 1951. The party came under the domination of the feudal gentry that had no commitment to making the party an effective organisation and no interest in strengthening democracy. “The League rapidly became the monopoly of a class [that] used it for the realisation of its own political ambitions and the advancement of its economic interests.”4 The leadership was more interested in strengthening its political clout by manipulating power through dubious means than it was in seeking the mandate from the people. Consequently, less attention was given to developing an inspiring socio-economic programme or to popular mobilisation. The failure to present “either a convincing programme or an inspiring leader” increased the PML's reliance on “local politicians and local issues”5 that undermined its all-Pakistan character. Lawrence Ziring rightly remarked that “instead of expanding its vistas, broadening its expression, appealing to a wider cross-section of society, the Muslim League tightened its circle, rigidified its practices and left little room for manoeuvre or adaption.”6 Internal rivalries and conflicts in the PML developed within a year of Pakistan's independence. In the North West Frontier Province (NWFP—now KhyberPakhtunkhwa), the conflict between Khan Abdul Qayyum Khan and the Pir Aminul Hasnat of Manki rocked the party; the latter left the PML. In the Punjab, factional conflict between Mian Mumtaz Daultana and Iftikhar Hussain Khan of Mamdot weakened the party. The latter formed a new party, the Jinnah Muslim League, in 1950.

Another party was the Jinnah Awami Muslim League, set up in 1951. Yet another, the Azad Pakistan Party, was formed in 1952 by former members of the Muslim League. In Sindh, feudal groups battled one another. In East Bengal (East Pakistan), some former Muslim Leaguers and others came together to establish the Awami Muslim League in 1949 which went on to became the focal point of opposition to the Muslim League.

Various opposition parties joined together to establish the first opposition alliance, the United Front, for the 1954 provincial assembly election in former East Pakistan which defeated the ruling Muslim League in the province.7

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Weak leadership and internal rifts made the PML vulnerable to manipulation by the governor general of Pakistan who exploited mutual jealousies and rivalries of the political leaders with the help of the bureaucracy in order to strengthen his hold over power so that he could force the prime minister to resign and impose a new prime minister and leader on the PML. The PML's electoral defeat in the 1954 provincial elections in East Pakistan brought an end to its pre-eminent position in Pakistani politics. In the subsequent period, it functioned like other parties that were poorly organised and lacked internal coherence.

The PML was divided into several factions over time. Each faction used the official name of the party, although the media distinguished them from each other by using the name of the leader or some title. Further, Pakistan's military rulers were always successful in winning over a faction of the PML that became the military ruler's official party. Ayub Khan, Zia-ul-Haq and Pervez Musharraf co-opted factions of the PML to civilianise their rule. The factions joining hands with the military rulers could not outlive the military rulers. This was in addition to the problem of defection of its members who joined other political parties or established new parties under different names.

Two major factions of the PML emerged in 1962. The PML leaders with strong proGeneral Ayub Khan leanings held a convention in Karachi in September 1962 to revive the PML which was later known as the Convention Muslim League. Others opposed to Ayub Khan summoned the PML council meeting in Dhaka in October 1962. This faction of the PML was described by the media as the Council Muslim League. Ayub Khan, who was extremely critical of the political leaders and political parties during the days of direct military rule, joined the Convention Muslim League in May 1963 and assumed its presidency in December 1963.

Convention Muslim League lost its political momentum after the exit of Ayub Khan from power in March 1969. A new group of PML emerged under the leadership of Khan Abdul Qayuum Khan, known as PML-Qayyum. Three Muslim Leagues contested the 1970 elections: Convention PML, Council PML and PML-Qayyum.

In 1972, the Convention and Council PML decided to merge and, in 1973, the Pir of Pagaro was elected its leader in order revitalise the new party. The united PML could not hold together for long. A group stayed on with the pir and was labeled PML-Pagaro (also named the PML-Functional). This group cooperated with the military government of General Zia-ul-Haq. Another group emerged under the leadership of Khawaja Khairuddin (PML-Khairuddin) that opposed the military government of General Zia-ulHaq. Another leader, Malik Qasim, lent his name to a PML faction (PML-Qasim) which included the remnants of the Khairuddin group and others.

After Zia-ul-Haq decided to lay a democratic veneer over his military rule by holding party-less elections and installed Muhammad Khan Junejo as prime minister in March 1985, he decided to revive political parties from January 1986 onwards. He co-opted the

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PML-Pagaro as the government party, described as the Official Muslim League (OML).

This also included some old and new political leaders who preferred to work with General Zia's military government. However, the Pir of Pagaro did not formally abandon his party and revived it formally after a couple of years.

After the dismissal of Junejo's government by President General Zia-ul-Haq in May 1988, the OML was divided into two groups: PML (Junejo) and PML (Fida Muhammad Khan). The latter enjoyed the support of Nawaz Sharif who was chief minister of the Punjab at the time. These factions joined together and contested the 1988 general election as the PML (Junejo).

The death of Junejo in March 1993 gave rise to a leadership conflict within the PMLJunejo. One group went with Nawaz Sharif, labeled the PML-Nawaz (PML-N) and the other continued with the old name, PML-Junejo (or PML-J), headed by Hamid Nasir Chatha.

Mian Manzoor Wattoo, chief minister of the Punjab (1993–1995), established his own faction of the PML, called the PML-Jinnah, in 1995 after withdrawing from the PML-J which no longer supported his continued tenure as the chief minister. He faced opposition from the PML-N on the same issue.8 The PML-N split in 2000/2001 when a section of its leaders disagreed with the policy of confrontation with the military ruler, General (Retd.) Pervez Musharraf, and advocated cooperation with the military government. The key leaders that rejected the PML-N policy of confrontation included Mian Muhammad Azhar, Chaudhry Shujaat Hussain and Chaudhry Pervez Illahi. These leaders began to function as a faction in the PML-N, especially after Nawaz Sharif, convicted in the aircraft hijacking case in 2000, was allowed by the military government to go in exile in Saudi Arabia in December 2000.

Mian Muhammad Azhar assumed the leadership of this faction. Later, the Chaudhrys were able to take control of the faction with the blessing of Pervez Musharraf and the faction was formally launched as a party in August 2002.9 It was named the PML-Quaide-Azam or PML-Q. Mian Muhammad Azhar was finally ousted from the party in December 2002 after he lost in two constituencies in the October 2002 general elections. He was replaced by Chaudhry Shujaat Hussain as the party leader. This party became the ruling party under Pervez Musharraf after the 2002 general elections and supported him until he resigned in August 2008.

The PML-N continued to oppose Pervez Musharraf. A number of other factions of the Muslim League also surfaced but did not have much impact. These included the Zia group led by General Zia-ul-Haq's son Ijaz-ul-Haq, the Kabir Wasti group (formerly Qasim group) and the Qayuum group led by Amanullah Khan Niazi.

The Kabir Wasti group joined the PML-Q, the ruling party under Pervez Musharraf, prior to the 2002 general elections. In May 2004 four factions of the PML merged with the PML-Q to establish a unified PML. These factions included PML-Functional led by

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the Pir of Pagaro, PML-J led by Hamid Nasir Chatha, PML-Zia led by Ijaz-ul-Haq and PML-Jinnah led by Mian Manzoor Ahmad Wattoo. Chaudhry Shujaat Hussain was appointed president of the unified PML.10 The National Alliance led by Farooq Ahmad Khan Leghari, former president, also joined the unified PML. The National Alliance included National People's Party, Sindh National Front, Sind Democratic Alliance, Balochistan National Party (A) and the Millat Party.11 Subsequently, the Balochistan National Party (A) did not agree with the merger and decided to maintain its independent status.12 The PML-N stayed away from the merger and continued to oppose the Musharraf government. The PML-Qayuum also did not merge with the PML-Q. Within a couple of weeks of the merger, the Pir of Pagaro decided to revive his faction (PML-F) as a separate entity.

The PML-N made significant gains in the Punjab after the return of Nawaz Sharif from exile on 25 November 2007. His earlier attempt to return to Pakistan on 10 September 2007 was foiled by the Musharraf government which detained him on the airport and sent him to Saudi Arabia.

The president of the PML-Q/unified Muslim League, Chaudhry Shujaat Hussain, faced small, sporadic revolts against his leadership in the party. However, the support of President Pervez Musharraf saved Chaudhry's leadership. He faced a major revolt in the PML-Q after Pervez Musharraf resigned the presidency in August 2008. Within two months a group of PML-Q parliamentarians demanded the resignation of Chaudhry Shujaat Hussain.13 The dissidents formalised themselves into a separate faction, described as the Like-Minded Group, in July 2009 by electing their office bearers. The main office-holders were Hamid Nasir Chatha (chairperson), Salim Saifullah Khan (president) and Humayuun Akhtar Khan (general secretary).14 The general council meeting of the Like-Minded Group, held on 20 August 2009, confirmed these office bearers.15 In June 2008, Sheikh Rashid Ahmad, a federal minister during 2002–2007 and a member of the PML-Q who lost his National Assembly seat in the February 2008 general elections, decided to set up a new party named the Awami Muslim League. It attracted hardly any political support. Mian Manzoor Wattoo, leader of the PML-Jinnah that got amalgamated with the PML-Q in 2004, moved closer to the PPP in 2008 and formally joined the PPP in January 2009.

In June 2010, the supporters of the former President Pervez Musharraf, living voluntarily in exile, floated a new group of the PML under the name of All Pakistan Muslim League (APML). They claimed that they had announced the formation of the APML with the blessing of Pervez Musharraf who would return to the country to lead the party.

In August 2010, six PML groups were active in politics: PML-N, PML-Q, PML-

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LikeMinded, PML-F, Awami Muslim League and APML. An unknown person, Dr Saleh Zahoor, claimed in Lahore in March 2010 that he headed another faction, called the Pakistan Muslim League-“Sher-e-Bengal.”16 In July 2010, some factional leaders began to explore the possibilities of unifying their factions and creating an alliance with some of the smaller political parties opposed to the PPP and the PML-N. The Muslim Leaguers have often engaged in such exercises in the past but they could not create enduring unification of different factions.

Pakistan Peoples Party (PPP): The PPP is one of the leading political parties of Pakistan that introduced several new trends in politics pertaining to political ideology, leadership and popular mobilisation. It evokes strong sentiments in politics, for and against. Whereas it has a strong vote bank its opponents are equally determined to oppose the party and its leadership. It has ruled four times at the federal level: December 1971–July 1977, December 1988–August 1990, October 1993–November 1996 and March 2008– at the writing of the paper.

The PPP was established in a convention in Lahore on 30 November–1 December 1967 under the leadership of its founder-chairperson Zulfikar Ali Bhutto who served in the cabinet of first military ruler, Ayub Khan, for almost eight years, from 1958 to 1966. He resigned the job in June 1966 due to differences with Ayub Khan and spent over one year in search of a new political role.

Having built his reputation as an active foreign minister with a strong pro-China and anti-India disposition, Zulfikar Ali Bhutto had developed a popular personal following.

His left-leaning orientation with an emphasis on socialistic economy attracted great attention against the backdrop of the alienation of the rural poor and urban workers from the government of Ayub Khan. He popularised the notion of Islamic Socialism as a political ideology and his leadership is described as both “transactional”17 and “transformational.”

The PPP talked of turning Pakistan into a socialist economy with an emphasis on industrial nationalisation and land reforms, arguing that the peasants and the workers must enjoy “the full fruits of their labour because they were the 'producers of the national income'.” Its programme also emphasised socio-economic justice for the disadvantaged sections of the society. The party motto is the four-fold slogan: Islam is our Faith; Democracy is our Polity; Socialism is our Economy; All power to the People.18 When Zulfikar Ali Bhutto formed the first PPP government on 20 December 1971, 10 basic industries were nationalised in early 1972: iron and steel, basic metal, heavy engineering, heavy electrical, motor vehicles, tractor plants, heavy and basic chemicals, cement, petrochemicals, gas and oil refineries. Banks and private sector educational institutions and rice husking were also nationalised. The land reforms were introduced in 1972 for reducing individual land holdings. These land reforms had a moderate impact because there were many loopholes that enabled the feudal to retain more land.

Another land reform was introduced in January 1977 but this could not be implemented

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because of the post-election agitation against the Bhutto government and removal of the government by the Army Chief Zia-ul-Haq in July 1977. The implementation of these policies faced strong opposition from the political right and Islamic groups. Some of the above nationalisation was reversed in the 1990s and later, first by the military government of General Zia-ul-Haq and later by other governments.

Nationalisation is no longer the policy agenda of the PPP and has not been since it assumed power for the second time in December 1988. It supports a free economy and de-nationalisation. However, it continues to advocate socio-economic justice, the rights and interests of workers and peasants and the state's responsibility to protect the disadvantaged section of the populace.

The PPP faced the wrath of two military governments: that of generals Zia-ul-Haq and Pervez Musharraf. The military government of Zia-ul-Haq came down very hard on the PPP. A large number of its activists were arrested and sentenced by military courts; some went into exile. Zulfikar Ali Bhutto was prosecuted on trumped up murder charges and was hanged in April 1979 on conviction by the Lahore High Court and the Supreme Court.

The party leadership passed on to Nusrat Bhutto, widow of Zulfikar Ali Bhutto. Later, the leadership was assumed by Benazir Bhutto, eldest daughter of Zulfikar Ali Bhutto, first as co-chairperson and later as chairperson. Both Nusrat and Benazir Bhutto spent years in detention, house arrest and exile.

Similarly, the PPP faced a difficult time under the military government of Pervez Musharraf because the PPP, like the PML-N, questioned the legitimacy of his rule.

Benazir Bhutto and her husband, Asif Ali Zardari, faced court cases on corruption changes. Some of these cases were initiated by the second government of Nawaz Sharif (1997–1999). The Musharraf government continued with these cases and filed some more cases against both. Most of the time during the Musharraf years, Benazir Bhutto was in exile. Asif Ali Zardari was either in jail or in exile.

The Musharraf government amended the Political Parties Act to disallow any convict to hold any party office or become its member. Such a party could not register with the Election Commission of Pakistan and thus was barred from contesting the elections.

This amendment was aimed at excluding Benazir Bhutto and the PPP from the electoral process because she had been declared an absconder and later convicted for not appearing in a court under the Accountability Law. Shortly before the October 2002 elections, the PPP registered with the Election Commission of under a new name, Pakistan Peoples Party Parliamentarian (PPPP), with Makhdoom Amin Fahim as its leader. The PPPP got the highest number of votes for the National Assembly but it came second in terms of seats.

The PPP faced internal disharmony from time to time. These problems began during the days of Zulfikar Ali Bhutto who kept a firm grip over the party. Some senior party leaders

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left the party after diverging from his domineering political management. After his death some of his colleagues did not feel comfortable with young Benazir Bhutto who assumed party leadership. They left the party, either to join some other party or set up their own .

Ghulam Mustafa Jatoi established the National Peoples Party (NPP) in August 1986.

Initially he attracted some of well-known PPP leaders but most of them left the NPP in a couple of years. In 1988, the NPP joined the right-wing-Islamic coalition—IJI—that was set up to contest the 1988 elections. In 2002, it joined the pro-Musharraf alliance, the National Alliance, which merged with the PML-Q in May 2004 to set up the unified PML. Later, the NPP re-established itself and it obtained one National Assembly seat in the 2008 general elections. This party is non-existent beyond the friends and allies of the Jatoi family in Sindh. After the death of its founder-chairperson, Ghulam Mustafa Jatoi, in November 2009, his son, Ghulam Murtaza Jatoi (member of the National Assembly) was elected the NPP chairperson in April 2010.

Another faction was established in early 1996 by Murtaza Bhutto, estranged brother of Benazir Bhutto. After his assassination in September 1996 his widow, Ghinwa Bhutto, took over the leadership of the party in November. She accused Benazir Bhutto and especially Asif Ali Zardari of masterminding the assassination of her husband, Murtaza Bhutto. This faction (PPP-Shaheed Bhutto or SB) comprised mainly the loyalists of Murtaza Bhutto in Sindh. It also temporarily attracted the support of some leaders who had deserted the PPP or had developed grievances against Benazir Bhutto. Ghinwa Bhutto also developed a property/inheritance dispute with Benazir Bhutto's family after Benazir's assassination in December 2007. The PPP-SB leadership and others opposed to Asif Ali Zardari made an unsuccessful bid to project Ghinwa Bhutto and her children, especially Fatima Bhutto, as the torch-bearers of the political traditions of Zulfikar Ali Bhutto and Benazir Bhutto.19 In 1997, a faction was set up under the name of PPP-Zulfikar Ali Bhutto (PPP-ZAB) in Lahore by Rana Shaukat Mahmood, Dr Ghulam Hussain and others. This faction did not last long.

Another faction emerged in April 2002 when Aftab Khan Sherpao established a PPP Forward Bloc, known as the PPP-Sherpao (or PPP-S) that cooperated with the military government of Pervez Musharraf. Earlier, Aftab Sherpao returned from abroad to face corruption changes. His cases were quickly settled in his favour, enabling him to return to politics and contest the 2002 general elections.

The PPPP faced an internal crisis in the immediate aftermath of the 2002 general elections. The military government and the intelligence establishment persuaded 17 members of National Assembly (MNA) to defect and set up a faction, called the PPPPatriots, that voted in favour of Pervez Musharraf's nomine, the PML-Q's Zafarullah Khan Jamali as the prime minister. Six of them were induced in the federal cabinet. Five members from the Sindh Assembly also defected to the Musharraf-installed government. These defections were possible because President General Pervez Musharraf did not revive the constitutional provision that disallowed parliamentarians

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to change their parties.

In June 2004, these breakaway factions, PPP-Patriots and PPP-Sherpao, merged to set up a new party that registered itself with the Election Commission of Pakistan as the Pakistan Peoples Party (PPP).20 As the original PPP led by Benazir Bhutto was not registered with the election commission, the latter allowed the breakaway groups to use the name of the PPP. However, in October 2007, the Sindh High Court declared that the merger of the PPP-Patriots and the PPP-S under the name of PPP was illegal.21 The PPPPatriots joined the PML-Q but the PPP-S maintained its separate entity.

Benazir Bhutto returned to Pakistan on 18 October 2007, under an arrangement with President Pervez Musharraf, to lead the PPP for the 2008 general elections. While the election campaign was its peak, she was assassinated on 27 December 2007 as she left the public rally in Liaquat Bagh, Rawalpindi.

Benazir Bhutto's assassination created a leadership crisis in the party. On 30 December 2007 the PPP Central Working Committee selected her 19-year-old son, Bilawal Bhutto Zardari, as chairperson in deference to her written will. As he was studying abroad, his father and husband of Benazir Bhutto, Asif Ali Zardari, was appointed co-chairperson who actually runs the party. No formal elections were held to select the party chairperson.

This rehabilitated Asif Ali Zardari into Pakistani politics despite his controversial record. He quickly established a firm control over the party by installing his loyalists to key positions. Some of Benazir Bhutto's loyalists were sidelined which caused resentment in the party.

The fourth PPP government was set up in March 2008 with Yousaf Raza Gilani as prime minister. On 18 August 2008, Pervez Musharraf resigned the presidency because the parliament had decided to impeach him. In the first week of September 2008, Asif Ali Zardari was elected president of Pakistan with an overwhelming vote by defeating the PML-N candidate. He continued to hold on to co-chairpersonship of the PPP, which enabled him to sustain his commanding position in the party. The opposition parties urged him to quit the party post.

Awami National Party (ANP): The ANP has left-leaning orientations with a strong imprint of Pakhtun ethnicity or nationalism. It gets its main support from KhyberPakhtunkhwa and Pakhtun areas of Balochistan. It also has a significant presence in Karachi among the Pakhtuns settled there. However, it is weak in the Punjab.

The ANP stands for a “free, developed, prosperous and democratic� Pakistan where the federating units are autonomous and the power of the federal government is limited to foreign affairs, communication and defence. The federating units can set up their own militia and use their resources to their advantage on the condition that it will not adversely affect the interest of another federating unit.

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The ANP recognises Pakistan as a multi-national country where the nationalities have a right to self-determination. It stands for the parliamentary system, joint electorates, downsizing the military and a political sphere from the interference of the military and the bureaucracy. It subscribes to non-violence as advocated by Khan Abdul Ghaffar Khan, popularly known as Baacha Khan.

The roots of the ANP can be traced to Khudai Khidmatgar, National Awami Party (NAP) and National Democratic Party (NDP). The Khudai Khidmatgar movement goes back to the British period when Khan Abdul Ghaffar Khan started this as an anti colonial and national service organisation. It functioned in the post independence period until the NAP was established.

The NAP was established in July 1957 by Maulana Abdul Hamid Khan Bhashani (former East Pakistan) and his leftist followers. He defected from the Awami League due to what he described as the pro-Western policies of its leadership. Several small liberal-left groups joined the NAP.22 The NAP in East and West Pakistan functioned autonomously. In the case of West Pakistan, the NAP enjoyed the support of former Khudai Khidmatgars, people with liberal-left orientations and regional-nationalists. Its major focus was on the dissolution of the One-Unit in West Pakistan and provincial autonomy and the protection of the identity and rights of nationalities. It also stood for the abolition of feudalism.

The NAP faced major internal crisis because Maulana Bhashani leaned towards China and some other leaders were more inclined towards the Soviet Union. This split was formalised in December 1967 when pro-Moscow leaders in East Pakistan met in Dhaka to establish a separate faction under the leadership of Professor Muzaffar Ahmad.23 In July 1968 this breakaway faction of the NAP met in Peshawar and elected Abdul Wali Khan as its president and Mahmudul Haq Usmani as its general secretary. For all practical purposes, Abdul Wali Khan commanded the NAP in West Pakistan only.

Yahya Khan's military government banned the NAP on 26 November 1971 on the grounds of “activities against [the] interest and security of Pakistan.� However, its members elected to the National and Provincial Assemblies were allowed to retain their seats.24 When Zulfikar Ali Bhutto assumed power from Yahya Khan on 20 December 1971 he withdrew the ban.

In 1972, the NAP joined provincial coalition governments in Balochistan and former NWFP with an Islamic party, Jamiat-i-Ulema-i-Islam (JUI). The Balochistan government was dismissed by the federal government in February 1973 after weapons were found in Iraqi Embassy in Islamabad, allegedly for transfer to Balochistan. The NWFP coalition government resigned in protest.

This started an open confrontation between the PPP government at the federal level and the NAP. In February 1975, the government banned the NAP for anti-state activity. This

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decision was confirmed by the Supreme Court. A number of NAP leaders in NWFP and Balochistan, including Abdul Wali Khan, were arrested and later put on trial for antistate activities. These leaders were released after the military dislodged the Bhutto government in July 1977.

Some of the NAP activists and others from the Pakistan National Party and the Mazdoor Kisan Party of Afzal Bangash decided in November 1975 to set up a new party, the National Democratic Party (NDP) under the leadership of Sherbaz Khan Mazari. A large number of NAP workers joined the NDP. It joined the anti-Bhutto opposition in the 1977 elections and the subsequent agitation against his government. However, as the opposition coalition, the Pakistan National Alliance (PNA) joined the cabinet of General Zia-ul-Haq, and withdrew from the opposition alliance in 1978 and worked closely with the political parties that opposed military rule by General Zia-ul-Haq. In 1986, Wali Khan and others decided to set up the Awami National Party (ANP). It comprised the activists from the NDP, the Pakistan National Party (PNP), the Mazdoor Kisan Party (Afzal Bangash) and Awami Tehrik. Abdul Wali Khan was elected its chief.

The ANP contested elections from 1988 onwards and joined coalition governments both with the PPP and the PML-N but, in both cases, the partnership proved a temporary affair. The ANP lost badly to the Muttahida Majlis-i-Amal (MMA), a coalition of six Islamic parties, in the 2002 general elections.

After Wali Khan's death in January 2006, his son Asfandyar Wali Khan, who was already holding its presidency since 1999, became the sole leader. The ANP emerged as the leading political party in Khyber-Pakhtunkhwa in the February 2008 elections and formed a coalition government in that province and joined the PPP-led coalition government at the federal level.

The ANP suffered from occasional factionalism. One such breakaway group, the National Awami Party Pakistan (NAPP) was led by Ajmal Khattak. In May 2003, the NAPP returned to the ANP. In the ANP elections held in the same month Asfandyar Wali Khan was re-elected president and Ajmal Khattak was elected patron-in-chief.

The ANP is opposed to the Taliban and their terrorist activities. A good number of its activists were killed by the Taliban during 2007–2009. Its leader, Asfandyar Wali Khan survived a suicide terrorist attack in October 2008. It joined hands with the federal government for military action against the Taliban and other militants in Malakand and the Tribal Areas in 2009.

Muttahida Quami Movement (MQM): Formerly Mohajir Qaumi Movement, the MQM is a relatively new political party but it has established itself as an important political player in Sindh and at the federal level. It is predominantly urban middle and lower middle class party of Sindh, especially Karachi, based on the ethno-linguistic identity of the Urdu-speaking Mohajir (migrant, refugee) community that came to Pakistan after independence, particularly from Uttar Pradesh, Bihar and Delhi. Today,

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the MQM is dominated by the second and third generations of the people who migrated from India. Most of them are born in Pakistan but the historical fact of migration and the Urdu language are the core sources of the MQM's identity.

Its success lies in articulating and aggregating the socio-political and economic concerns of the Urdu-speaking populace of urban Sindh and creating a strong political bond among them based on their anxieties and concerns as the community faced what is described as “relative deprivation.” Other communities began to compete with them from the 1960s and early 1970s, and they felt that their advantageous position in the Pakistani state system and society was under threat.

The Muslim refugees from India who settled in Karachi and other cities in Sindh were urbanised with a higher average literacy rate than the local Sindhi-speaking population.

They brought with them considerable entrepreneurial and administrative experience.

They were able to make their mark in government jobs and other professions because Karachi was the capital of Pakistan and Urdu became the official language. The Urduspeaking populace and the Punjabis dominated the bureaucracy and government jobs.

They began to lose their disproportionate advantage because of internal migrations from the former NWFP and the Punjab to Karachi in the 1960s. Other factors that ignited “Mohajir” nationalism included the gradual rise of other communities that began to compete with them in various walks of life, the designation of Sindh as a two language province (1972) and the division of Sindh's quota in services into rural and urban. The division of quotas in Sindh worked to the disadvantage of the Mohajirs. The arrival of Afghan refugees after Soviet intervention in Afghanistan (1979–1989) also produced demographic changes in Karachi that undermined the privileged position of Urduspeaking people.25 Karachi witnessed a rise in violence, drug trafficking and a deterioration of civic peace and stability.

This caused the socio-economic decline of the Mohajirs, prompting them to organise themselves politically.26 The first organised attempt to protect the community was made in June 1978 when young student activists like Altaf Hussain and others established the All Pakistan Muhajir Student Organization (APMSO) mainly to counter the Islamic Jamiat-i-Tulba (JTI), the student wing of the Jamaat-e-Islami that dominated Karachi University and other educational institutions in Karachi. This move countered the influence of the JTI and asserted a secular-ethnic identity in educational institutions and gave confidence to the community.

The Mohajir leadership associated with the APMSO mobilised the Urdu-speaking populace in the early 1980s and decided in March 1984 to set up the Mohajir Qaumi Movement (MQM). It established its credential as the most powerful political force in the next two years and, then in 1987, it swept the local bodies elections in Karachi and Hyderabad. The meteoric rise of the MQM caused a major setback to Islamic parties because the urban population in Sindh that used to identify with Islamic parties in the past. Now they began to subscribe to the newly discovered linguistic identity and found

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the MQM to be more assertive and categorical about their socio-economic concerns.

The MQM, led by Altaf Hussain (based in London), is a youthful and close knit organisation whose network is controlled by a small loyal cadre, particularly the sector commanders and their associates who closely monitor the community and make sure the ordinary people take part in the party activities.

The MQM has been very successful in mobilising “some of the largest demonstrations in Karachi and Hyderabad at short notice” and “has used propaganda techniques such as mass rallies, strikes, posters, graffiti, printed literature audio and video cassettes to maintain its close network.”27 The MQM provides basic services to its voters and runs several charitable projects for the community. It also protects its members from maltreatment by the police and local authorities. It covers its costs via a regular collection of funds from business and ordinary people. All members and supporters have to contribute funds to the party as regular subscriptions or special donations. From time to time to time there are complaints of the MQM cadre using intimidation and violence to suppress dissent in the party, raise funds and fight activists of other political parties and ethnic groups.

As violence by the MQM and other groups increased in Karachi, the army decided in June 1992 to take a firm action against those who engaged in violence and extortion. A large number of MQM activists and others were detained or went underground or into exile. In the same year Altaf Hussain left for London from where he runs the party. In 1992 a faction broke from the MQM and labeled itself the MQM-Haqiqi under the leadership of Afaq Ahmad and Amir Khan. Though the MQM-Haqiqi enjoyed the support of Pakistan's intelligence agencies, it could not take off. Its two leaders were arrested in 2004 on criminal charges. Both were awarded life imprisonment in 2010, which is due to be challenged in the higher court. However, the MQM-Haqiqi survived as a small group causing periodic irritation to the MQM. The MQM's interaction with other political parties is guided primarily by its desire to sustain its dominant position in Karachi and other cities in Sindh.

It swept national and provincial elections in urban Sindh in 1988, 1990, 1997, 2002 and 2008. Its committed parliamentarians at the federal level and in Sindh give bargaining power for political deals with the major political parties. It developed temporary partnerships with the PPP and the PML-N at different times between 1988 and 1999. It worked closely with Pervez Musharraf after the 2002 general elections. After the 2008 general elections, the MQM joined with the PPP at the federal level and in Sindh for setting up coalition governments.

The MQM is endeavouring to become a cross-ethnic and cross-regional party. It dropped the word “Mohajir” from its name, replacing it with “Muttahida.” Though a limited number of non-Mohajirs support the MQM in urban Sindh, the attempts to set

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up the party in other provinces, especially in the Punjab, have not been successful. It could not get a noticeable foothold in other provinces because the socio-economic contexts of these provinces are different from Sindh. A good number of Urdu-speaking people are settled in the Punjab but there are no sharp linguistic-ethnic fault lines that would make the MQM appeal very attractive. The MQM finds it difficult to outgrow its past and it continues to be viewed as an ethnic-regional party.

Smaller Political Parties: There are several smaller political parties that surfaced from time to time. Some of them functioned for a long time but their individual contribution to politics was limited. Others are still in the political game, but are not expected to impact politics significantly in their individual capacity. The Pakistan Democratic Party (PDP) was established in June 1969 with the merger of Nizam-i-Islam Party, the Awami League of Nawazbada Nasrullah Khan, the National Democratic Front and the Justice Party. The PDP was led by Nawabzada Nasrullah Khan who enjoyed respect in all political circles as a pro-democracy and anti-military leader. This party played a low key role but enjoyed little popular support. Consequently, its electoral performance was abysmal. However, its leader, Nawabzada Nasrullah Khan, was instrumental to setting up different political alliances from time to time. The PDP lost momentum after the death of Nawabzada Nasrullah Khan in September 2003.

Air Marshal (Retd.) Muhammad Asghar Khan, the first Pakistani commander-in-chief of the Pakistan Air Force, entered politics in opposition to Ayub Khan in November 1968. He established the Justice Party in March 1969 which was merged into the PDP in June 1969. Within a year, Asghar Khan established new political party, Tehrik-i-Istiqlal, that promised to uphold democracy and Islamic values as well as talked of changing the political system rather than faces in order to bring about fundamental changes in the political context. The Tehrik-i-Istiqlal actively opposed the government of Zulfikar Ali Bhutto in the early 1970s. Its electoral appeal has been extremely limited. But Asghar Khan makes no secret of his critical comments on the performance of different governments. The party faded into oblivion when Asghar Khan dropped out of active politics due to ailing health. The party does continue to exist on paper, and is now headed

by Rehmat Khan Wardag. After some time, Asghar Khan decided to return to politics, reclaiming the leadership of the Tehrik-i-Istiqlal, which divided the party in two factions.

The former captain of Pakistan Cricket team, Imran Khan, earned an excellent reputation by setting up a cancer research hospital in Lahore which offers free treatment to the poor. He established the Pakistan Tehrik-e-Insaf (PTI) in April 1996 as political party for democracy, Islam and fundamental changes in the political process. The PTI wants to create a just society based on humane considerations and uphold the selfesteem of the nation. Imran Khan's political disposition can be described as centre-right, at times overlapping with Jamaat-e-Islami The PTI supported Pervez Musharraf until mid-2002. Later Imran Khan became a vocal critic of Pervez Musharraf. Imran Khan also criticises the leadership of the two major

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parties for corruption and mismanagement and presents himself as the third option.

The PTI political ideology overlaps with the Jamaat-e-Islami and the PML-N, undermining the prospects of an autonomous and significant role in Pakistan politics.

Like the Islamist parties, Imran Khan opposed Pakistan's military operation in Swat and the Tribal Areas and often spoke like a Taliban apologist. The PTI's electoral performance has been poor. Although Imran Khan is a crowd puller, especially amongst the youth, his appeal does not translate into votes on polling day. Some of his colleague may have had excellent professional careers in the past but they do not have strong political roots.

Ataullah Mengal established the Balochistan National Party in 1996. A faction developed as the BNP-Awami. the original BNP, designated as the BNP-Mengal is headed by Sardar Akhtar Mengal, son of the founder of the party. It is limited to Balochistan and stands for Baloch national rights within or outside of Pakistan. The Jamhoori Watan Party is another party from Balochistan which factionalised after the assassination of its chief, Nawab Akbar Khan Bugti, on 26 August 2006. One faction is led by Aali Bugti and seems to enjoy a reasonable following in parts of Balochistan.

Another faction, renamed the Baloch Republican Party, is led by Brahamdagh Bugti from outside of Pakistan who pursues a separatist agenda for Balochistan and is alleged to sponsor the Baloch Republican Army as an underground military outfit. A third faction, launched by Talal Bugti, is confined to his close associates.

Another party, the Balochistan National Movement (BNM), decided in October 2003 to merge with the Balochistan National Democratic Party to set up a new party under the name of the National Party with Dr Abdul Hayee Baloch as its chief organiser. A number of BNM activists led by Ghulam Muhammad Baloch rejected the merger and vowed to keep the BNM alive. The Pakhtunkhwa Milli Awami Party is led by Mahmood Khan Achakzai and stands for Pakhtun identity, rights and unity. Its support comes from the Pakhtun areas of Balochistan. The Pakistan National Party was set up by Mir Ghous Bakhsh Bizenjo in July 1979 that comprised former members of the NAP-NDP and others with leftist-Marxist orientations.28 The Millat Party was established by Farooq Ahmad Khan Leghari, former president of Pakistan, in August 1998 but it integrated with the PML-Q in May 2004. Other parties that emerged in the past but do not now exist include Azad Pakistan Party, Pakistan Socialist Party, Krishak Saramik Party, Ganatantri Dal, Nizam-i-Islam Party and Republican Party.

The Communist Party of Pakistan (CPP) traces its roots to the Communist Party of India that decided in Calcutta (now Kolkata) to set up a separate party for Pakistan. Sajjad Zaheer was appointed its first secretary-general. It developed some following in former East Pakistan but it had negligible standing in West Pakistan. In 1951, some of the CPP activists were accused of involvement in what is described as the Rawalpindi Conspiracy Case, an alleged plan to overthrow the Pakistan government by some army officers and political leaders with Marxist orientations. The CPP was banned in July 1954 at a time when Pakistan joined the United States sponsored regional security alliances. Some CPP

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leaders returned to India while others joined the political parties, labour unions and intellectual forums with leftist orientations. These parties included the Azad Pakistan Party, the Ganatantri Dal (East Pakistan), and National Awami Party.

Though the ban on the CPP was never formally lifted, it resurfaced in the early 1970s. It has always remained limited to a small number of activists and intellectuals and has no popular following or electoral strength. Judging from the press releases from 2002 onwards, the CPP appears to be divided into two groups.

Pakistan has a number of small political parties, labour unions and student organisations with strong leftist orientations. Some openly subscribe to Marxism. These parties and groups also suffer from factionalism based on ideology, strategies and leadership. They have also weakened after the end of the Cold War and the end of the Soviet Union and Eastern European states. One writer argues: “The Left in Pakistan has not yet gone beyond the Cold War mindset; even the terminology it uses is outdated.�29 Some of these groups, especially the labour, organise small protests and identify with the causes of the disadvantaged section of the population, including support for abolition of feudalism. However, none has any noticeable electoral support. Most operate as intellectual movements or think-tanks, expressing their view on socio-economic and global issues to the press.

There have been at least three major efforts to create coalitions of leftist/Marxist groups and parties. In March 2006, an alliance of seven leftist groups was established. Known as the Awami Jamhoori Tehrik, it comprised of the National Workers' Party, the Labour Party, the Awami Tehrik, the Mazdoor Kissan Party, the Mazdoor Mahaz, and the Inqilabi Jamhoori Committee. A party with leftist orientations, the Awami Party was set up in Rawalpindi in November 2008.

In March 2010, a new party was launched in Lahore under the name of Workers Party Pakistan as a consequence of deliberations among several left and progressive groups in December 2009 and January 2010. The major components of the Workers Party Pakistan were the National Workers Party of Pakistan, the Communist Mazdoor Kisan Party and some other groups.30 The coalition-building exercises have not, it seems, improved their popular support. Their role continues to be marginal to the political and social change.

Islamic Political Parties: There are several Islamic political parties in Pakistan.

Some of them like the Jamaat-e-Islami (JI), the Khaksar Tehrik and the Majlis-e-Ahrar were established pre-independence. Several new Islamic parties were set up in the postindependence period. Their religious and political disposition can be described as orthodox and conservative and they are literalist in interpreting the religious text. They have a negative disposition towards western culture and endeavour to restrict its impact on Pakistani society.

Most have Islamic-sectarian (religious denominational) identification which limits

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their appeal to those who share the Islamic-sectarian disposition. The Jamiat-i-Ulemai-Islam (JUI) is identified with the Deoband Islamic tradition. The Jamiat-i-Ulema-iPakistan identifies with the Barelvi Islamic tradition. There have been two or three Shia political parties but could never attract much Shia vote. Some Islamic parties subscribe to Ahle-Hadees doctrine.

These parties demand the introduction of an Islamic political order. They talk of the supremacy of the Sharia but have never produced a constitutional document reflecting their vision of an Islamic state. There is a lack of consensus among the Islamists as to what the Islamic system stands for in terms of institutions and processes. Their denominational differences and religious orthodoxy makes it difficult for them to translate the principles into concrete institutions and processes.

Islamic parties face another dilemma after coming to power, i.e., how to balance the practical imperatives of retaining power with their professed ideological agenda. The MMA coalition government in Khyber-Pakhtunkhwa (2002–2007) was unable to address this dilemma, exposing itself to criticism that it could not fully implement its ideological-Islamic agenda.

These parties have dedicated and religiously motivated workers but their electoral appeal is limited. They polled the highest number of votes in the 2002 general elections which was 11.2 percent of the vote cast for reasons to be discussed later. Generally their vote has been five to six percent. This means that they cannot alone come to power through an open competitive electoral process.

The Jamaat-e-Islami (JI) was established in Lahore on 26 August 1941 by its founderleader, Maulana Abul Ala Maududi. Its office was shifted to Pathankot in 1942 and returned to Lahore in 1947 after the establishment of Pakistan. The JI, like the Khaksar Tehrik and the Majlis-e-Ahrar, opposed the Muslim-League-led movement for the establishment of Pakistan. However, after the establishment of Pakistan Maulana Maudoodi shifted to Pakistan worked towards establishment of Islamic system of government.

The JI was established as an Islamic renaissance movement and was in the forefront of the efforts to create an Islamic political and social order in Pakistan.31 The writings of Maulana Maududi inspired the Muslims far beyond the JI circle.

The JI is organised as a cadre party, granting membership to a small number of people as an acknowledgment of their commitment to the party, although one could be its follower without being a formal member. Initially it worked as social reform and Islamic renaissance movement but later it entered active politics that alienated some of its leading members.

The JI was banned by the government of Ayub Khan in January 1964. This ban was lifted by the Supreme Court in September of the same year.32 It was actively involved in the

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anti-Ayub movement (1968/69), performed poorly in the 1970 general elections and opposed Zulfikar Ali Bhutto's socialistic policies and authoritarian governance in 1972–1977.

The JI developed a close interaction with the military government of General Zia-ul-Haq and joined his cabinet in 1978. Even after the end of this cabinet in 1979, the JI supported the military government and its Islamisation policy. It actively supported the efforts of Pakistan and the United States to build Afghan-Islamic resistance to Soviet military intervention in Afghanistan. It also joined the Pakistan military sponsored effort to send Islamic militants to Indian-administered Kashmir to reinforce the popular uprising there in 1989/90 onwards.

The JI also maintained a favourable disposition towards the military government of General (Retd.) Pervez Musharraf, at least until 2004. It adopted an extremely anti-US posture and opposed Pakistan's policy of joining hands with the US to counter terrorism in and around Afghanistan. It expressed a subtle sympathy for the Taliban and opposed Pakistan's military action in Swat (2009) and the Tribal Areas (2009/2010). The JI boycotted the 2008 general elections and began to demand mid-term elections in 2010.

Jamiat-i-Ulema-i-Islam (JUI): The JUI was first established in October 1945 by those Islamic scholars that rejected the negative policy of Jamaat-i-Ulema-i-Hind towards the demand for Pakistan. Maulana Shabbir Ahmad Usmani was elected its first president. It organised several Pakistan conferences in support of the Muslim League.33 The JUI was launched again after the inception of Pakistan. In December 1947, Maulana Shabbir Ahmad Usmani was elected its first president and the party became identified with the Deobandi Islamic denomination. After Usmani's death, another well known Islamic scholar, Maulana Syed Suleman Nadvi, was elected president. Like other Islamic parties, it advocated the Islamic constitution and, in 1951, joined with other Islamic scholars and parties to formulate 22 points for Pakistan's Islamic constitution, emphasising religious orthodoxy.

Other important JUI leaders were Maulana Mufti Mahmood and Maualana Ghulam Ghaus Hazarvi. The JUI was quite active in the 1968/69 anti-Ayub agitation and contested the general elections in 1970. It formed coalition governments with a secular party, the NAP, in Balochistan and former NWFP in 1972. When the Balochistan provincial government was dismissed in February 1973, Mufti Mahmood, chief minister of the former NWFP, resigned in protest.

Since then the JUI remained in opposition to Zulfikar Ali Bhutto and it joined the opposition alliance, the PNA, to contest the 1977 elections and participated actively in the agitation against Bhutto in March–July 1977. In 1980, Mufti Mahmood died and his son Maulana Fazlur Rahman was elected general secretary. Maulana Abdullah Darkhwasti was elected its president.

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The JUI suffered from internal rifts. Initially, it got divided into Hazarvi and Thanvi groups.34 Later, the party was divided into the Fazlur Rahman and the Maulana Sami-ulHaq groups. Fazlur Rahman refused to cooperate with the military government of General Zia-ul-Haq. The Sami-ul-Haq faction adopted cooperative disposition towards the military government. Thus, there emerged two factions: the JUI-Fazlur Rahman (JUI-F) and the JUI-Samiul Haq (JUI-S). In 2007, two leaders expelled from the JUI-F attempted to set up a faction called the JUI-Haqiqi Group. Maulana Khalil Ahmad and Najeem Khan were elected its chief and general secretary respectively. However, this effort did not take off. Another faction labelled the JUI-Ideological was established by Maulana Ismatullah in June 2010 after dropping out of the JUI-F. Its future is also uncertain. In August 2010, the JUI-F chief, Maulana Fazlur Rahman, was re-elected chief (amir) for next three years. There were proposals to make him lifetime chief.

The electoral support of both factions of the JUI is limited to a couple of districts in the NWFP and Balochistan. However, both factions gained non-electoral support after the Soviet military intervention in Afghanistan in December 1979 by actively joining the joint Pakistan-US efforts to build Afghan-Islamic resistance to Soviet troops in Afghanistan. It established contacts with Afghan refugees and sponsored Islamic seminaries in the former NWFP mainly for Afghan refugees and encouraged them to join the resistance movement. This enhanced the influence of both factions in the area.

An important Islamic seminary, Darulaloom Haqqania, Akhora Khattak, adjacent to Peshawar, headed by Maulana Sami-ul-Haq, leader of the JUI, became the major centre of advocacy for militancy for the war against Soviet aggression, encouraging young students to go for Jihad in Afghanistan. Some of the resistance leaders, especially the activists of the Taliban movement, studied in this seminary or stayed there as guests. The Maualana was quite influential when the Taliban were controlling Afghanistan.

The JUI also maintained close links with Afghan resistance and the Taliban movement.

An offshoot of the JUIS was an extremely orthodox and militant sectarian group, Sipahe-Sahaba-e-Pakistan (SSP). This separated from the JUI. An extremely violent offshoot of the SSP is the Lashkar-e-Jhangvi. Both these militant groups were banned in 2002.

All factions of the JUI are critical of Pakistan's decision to abandon the Taliban and join the war on terrorism in September 2001. They are critical of American military action against the Taliban in October–November 2001 and opposed Pakistan's military action in the Tribal Areas.

Jamiat-i-Ulema-i-Pakistan (JUP): The JUP was launched in Multan in March 1948 by religious scholars of the Barelvi Islamic tradition. Its first president was Allama Abul Hasnat. The JUP enjoyed the support of religious leaders influential mainly in rural areas like “pirs” and “mashaikhs” and others who valued shrines and sufi tradition of tolerance and accommodation. However, the JUP also advocated the enforcement of Islamic political order and emphasised that all legislation should be in accordance with Islamic teachings and principles.

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It entered active politics directly by contesting the 1970 general elections under the leadership of Maulana Shah Ahmad Noorani who commanded the JUP until his death in December 2003. It joined the agitation against the Bhutto government in 1977 and demanded the establishment of “Nizam-e-Mustafa” as the shared agenda of the opposition parties.

The JUP had developed a strong support base in urban Sindh, especially Karachi, but this support base eroded with the rise of the MQM in mid-1980s. Its votes shifted to the MQM, who championed the interests of the Urdu-speaking populace. Since 2006, a new religious group in the Barelvi Islamic tradition, the Sunni Tehrik-e-Pakistan has made political inroads into Karachi, although the MQM continues to dominate urban Sindh.

Immediately after the death of Shah Ahmad Noorani in December 2003, his eldest son, Shah Muhammad Anas Noorani, assumed the leadership of the JUP. He resigned this position in March 2008 in the face of growing internal differences. The JUP got factionalised into several factions in 2008/09.

One faction is led by Sahibzada Abdul Khair Zubair who took command of the party after Anas Noorani resigned. The second faction is led by Sahibzada Fazl Karim and the third faction is the JUP-Nifaz-i-Shariat group headed by Engineer Saleemullah Khan. In January 2010, Pir Syed Masoom Hussain Shah Naqvi claimed to have been elected unopposed central president of the JUP, replacing Pir Syed Anees Haider Shah who was appointed chairperson of the Supreme Council.35 Earlier in 1989, Maulana Abdul Sattar Niazi established his faction of the JUP which was nominally reunited with the JUP in 2000. A JUP faction under the name of the Nizam-iIslam Party was established by Mohammad Hanif Tayyab in the mid-1980s which hardly functioned as an effective political group.

Though the JUP favours Islamic political order for Pakistan, it is critical of the Taliban movement and other militant groups that use violence to pursue their agendas. There are strong Islamic-denominational differences between the JUP which pursues Barelvi Islamic tradition and the militant groups, most of which subscribe to Deobandi, Wahabbi and Salafi Islamic traditions. The JUP and other Barelvi groups were never directly involved in Islamic militant activity in Afghanistan, Pakistan and Kashmir. The instances of clashes between the Deobandi and Barelvi groups for the control of mosques increased during 2007–2010.

The JUP and other Barelvi groups became more critical of the Taliban and other militant groups when they attacked shrines in the Tribal Areas and Khyber-Pakhtunkhwa. In June 2009, a religious scholar, Maulana Sarfaraz Naeemi, was assassinated in Lahore in a suicide attack. The Fazl Karim group and others demanded strong action against the Taliban and their allies who trained suicide bombers. They also supported Pakistan military's security operation against the Taliban in Swat/Malakand and the Tribal Areas. These groups became more vocal in demanding stern action against the militant

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Deobandi groups (Taliban and sectarian groups and their factions) that were blamed for the suicide attack on the Data Darbar shrine in Lahore on 1 July 2010.

Muttahida Majlis-i-Amal (MMA): The MMA is a coalition of six Islamic parties set up to contest the 2002 elections. It comprised these Islamic parties: the JUI-F, the JUIS, the JI, the JUP, Jamiat-e-Ahle Hadith of Professor Sajid Mir (JAH-S), and Tehrik-eJafria Pakistan (TJP) headed by Maulana Syed Sajid Naqvi.

Despite sectarian-denominational differences, these leaders decided to work together as the MMA to advocate an Islamic alternative to the existing politico-economic arrangements, emphasising the supremacy of Quran and Sunnah.

The MMA's success in the 2002 general elections can be attributed to several factors.

First, the unity among the major Islamic parties improved their electoral performance because they did not cannibalise each other's support. Second, the MMA cashed in on strong anti-US sentiments at the common person level due to the killing of Pakistani Pakhtuns in the course of the US attack on Afghanistan in October–November 2001. A good number of Pakhtuns from the NWFP went to Afghanistan to support the Taliban who suffered heavily when the US attacked Afghanistan. Third, the MMA also benefited from the favour of the military government of Pervez Musharraf that wanted the MMA to perform in the elections in order to weaken the PPP and the PML-N.36 The MMA performed excellently in the NWFP in the 2002 general elections both in the National Assembly and provincial assembly. It established government in the NWFP with Akram Khan Durani as the chief minister. This government lasted until October 2007. The MMA maintained a sympathetic disposition towards the Taliban.

The MMA was dominated by the JI and JUI-F which caused resentment in smaller political parties. The JUP left the alliance and other parties like the Jamiat-e-Ahle Hadith (JAH-S), and Tehrik-e-Jafria Pakistan (TJP) complained about neglect. The JI and the JUI-F also developed differences with each other in 2007. The MMA was thus unable to hold together for the 2008 general elections. The JI boycotted the 2008 general elections. The JUI-F participated in the elections and joined the PPP-led coalition government at the federal level after the elections. Some unsuccessful efforts were made in 2010 to revive the MMA. Conclusion Pakistan started with a dominant party system. The Muslim League that led the independence movement inherited power from the British. Other parties were too weak to challenge its commanding role. This changed to a multi-party system because the Muslim League lost its pre-eminence and several new political parties entered the political fray. This multi-party system could be described as unwieldy and unstable because the parties proliferated in number and these lacked internal coherence. Their political programmes were vague, reflecting highly regional and ethnic considerations or relying on religious and sectarian appeals or using catch-all slogans rather than

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presenting well-articulated plans of action. The members changed political loyalties frequently and the parties formed temporary alliances with each other. However, only 15 to 20 parties have mattered for the electoral process and politics at federal and provincial levels.

A noteworthy development during 1988–1999 and since 2002 is the emergence of two political parties as the leading political entities. These are the PPP and some faction of the PML (PML-Q in 2002 and PML-N in 2008) which get the most votes. However, neither the PPP nor the PML gets a clear majority in the National Assembly. These parties have to enter into coalition arrangements with smaller and regional parties to set up the government. Even if one of the leading parties gets a majority in a provincial assembly, there is a tendency to set up a coalition government. This enables the regional and smaller parties to enter the national mainstream but the coalition government often lacks sufficient political determination to address complex socio-political and economic problems.

With the exception of Islamic political parties, the role of ideology has defused in the political parties. Ideological differences are not very sharp, although the political parties differ in emphasis on political, social, economic and security issues and these can be arranged on a left-right political scale.

Islamic parties project themselves as ideological based on the principles and teachings of Islam. In Europe, the Christian Democratic parties relied heavily on Catholic Church in the early years. These parties eventually diluted their religious character and acquired the features of regular parties. In Pakistan, the Islamic parties have not so far been through this transition and continue to identify with religious conservatism and a literalist approach towards religious scripture. However, their exclusive claim on Islam is questionable because other political parties do not disown Islam. Their political clout increased when the military governments of Yahya Khan, Zia-ul-Haq and Pervez Musharraf sought their cooperation for pursuing their domestic and foreign policy agenda.37 There is a heavy dependence of the parties on their leadership, i.e. an individual or a powerful political family. The political parties consciously build the charisma of the top leader who often runs the party in a personalised manner with the help of a small group of advisors. Internal democracy is weak, although elections are held periodically.

The authority pattern in the political parties resembles what Robert Michels describes as the “Iron Law of Oligarchy” suggesting that a small group of leaders control the party even when the party subscribes to and practices democracy.38 However, the poverty of democracy inside a political party is not necessarily an obstacle to the party working for democracy, constitutionalism and the rule of law in the society.

Internal feuds and factionalism have afflicted most political parties, compromising their efficacy. The Muslim League (PML) “has been most susceptible to fragmentation than

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any other party because of weak organisation, lack of a programme and poor leadership.”39 Periodic interventions and manipulations by the bureaucracy, the military and the intelligence agencies distort the political process and do not let the political parties gain confidence and grow into effective political machines.

Pakistan's political parties and leaders are deeply divided and they often engage in polemics against each other and trade charges and counter-charges. The government and the opposition pursue incessant confrontation and endeavour to delegitimise each other. They do not realise that their efforts to delegitimise each other and the inability to rise above their partisan interests adversely affect civilian democratic institutions and processes. The democratic process and political parties are also threatened by the rise of religious extremists and militant groups that use violence to pursue their narrow religious agendas.

Hasan Askari Rizvi is senior political and defence analyst and former visiting professor of Pakistan Studies at Columbia University's School of International and Public Affairs (SIPA).

Endnotes 1. Eric Rowe, Modern Politics: An Introduction in Behaviour and Institutions (London: Routledge & Kegan Paul, 1974), .66.

2. Roy C. Macridis, “Introduction: The History, Functions, and Typology of Parties,” in Political Parties: Contemporary Trends and Ideas, ed. Roy C. Macridis (New York: Harper & Row, 1967), 15.

3. K. K. Aziz, Party Politics in Pakistan, 1947-58 (Islamabad: National Commission on Historical and Cultural Research, 1976), 71.

4. Mushtaq Ahmad, Government and Politics in Pakistan (Karachi: Space Publishers, 1970), 131. See by the same author, Politics Without Social Change (Karachi: Space Publishers, 1971), 57–58.

5. Keith Callard, Pakistan: A Political Study (London: George Allen & Unwin, 1957), 49.

6. Lawrence Ziring, Pakistan: The Enigma of Political Development (Folkestone, Kent: Dawson, 1980), 114–115.

7. M. Rafique Afzal, Political Parties in Pakistan (Islamabad: National Commission on Historical and Cultural Research, 1976), 60–86, 93, 97; M. Rashiduzzaman, “The Awami League in the Political Development of Pakistan,” Asian Survey (Vol.10 No.7, July 1970), 547–587.

8. Safdar Mahmood, Political Roots and Development 1947-1999 (Karachi: Oxford University Press, 2000), 121–130; Mehdi Hasan, “'In League with History,” The News, January 8, 2006.

9. Pervez Musharraf, In the Line of Fire: A Memoir (London: Simon & Schuster, 2006), 166–167.

10. The News, March 31 and May 13, 2004.

11. Daily Times, April 21, 2004.

12. Hasan Askari Rizvi, State of Democracy Report, April 1 to June 30, 2004 (Lahore: Pakistan Institute of Legislative Development and Transparency, 2004), 26.

13. Daily Times, October 25, 2008; Nation, October 29, 2008.

14. Daily Express, July 5, 2009.

15. The News, August 21, 2009.

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16. Daily Express, March 8, 2010.

17. Anwar H. Syed, The Discourse and Politics of Zulfikar Ali Bhutto (London: Macmillan, 1992), 3.

18. Hasan Askari Rizvi, Pakistan People's Party: The First Phase, 1967-71 (Lahore: Progressive Publishers, 1973), 15.

19. While addressing a public meeting in Sindh in April 2009, Ghinwa Bhutto declared that Asif Ali Zardari and his party could not be a successor to Z. A. Bhutto. Rather she and her party represented him. Daily Express, April 5, 2009.

20. See Dawn, June 2, 2004; Nation, June 18, 2004.

21. Nation, October 26, 2007.

22. M. Rashiduzzaman, “The National Awami Party of Pakistan: Leftist Politics in Crisis,” Pacific Affairs Vol.XLlll No.3m (Fall 1970): 394–409.

23. M. Rafique Afzal, Political Parties in Pakistan, 1958-1969 (Islamabad: National Institute of Historical and Cultural Research, 1987), 115.

24. Pakistan Chronology (Islamabad: Directorate General of Films and Publications, Ministry of Information and Media Development, 1998), 352.

25. Farhat Haq, “Rise of the MQM in Pakistan,” Asian Survey Vo.25 No.11 (November 1995), 990–1004.

26. Feroz Ahmed, “Ethnicity and Politics: The Rise of Mohajir Separatism,” Viewpoint (Lahore) (August 18 and 25, September 1 and 8, 1988).

27. Iftikhar H. Malik, State and Civil Society in Pakistan (New York: St. Martin's Press, 1997), 224, 225. See also by the same author, “Ethno-Nationalism in Pakistan: A Commentary on Muhajir Qaumi Mahaz (MQM) in Sindh,” South Asia (Australia) Vol. XXVlll No.2 (December 1995), 49–72.

28. B.M. Kutty, ed., In Search of Solutions: An Autobiography of Mir Ghaus Bakhsh Bizenjo (Karachi: Pakistan Study Centre, University of Karachi, 2009), 17.

29. Babar Ayaz, “An Agenda for the Left,” Dawn, April 3, 2010. See also Muhammad Ali Siddiqi, “Pakistan's New Left,” ibid., March 3, 2010; Asha Amirali, “The New Left Revisited,” ibid., March 9, 2010; Arif Azad, “Left Politics in Pakistan,” ibid., March 16, 2010; Haider Nizamani, “New Left or No Left,” ibid., March 18, 2010.

30. See Dawn, March 20, 21, 2010 31. Khalid Bin Sayeed, “Notes and Comments: The Jamaat-i-Islami Movement in Pakistan,” Pacific Affairs Vol.XXX No.1, (March 1957), 59–68.

32. For the narration of the ban on the Jamaat-e-Islami, judgments of the high courts of West and East Pakistan and the Supreme Court of Pakistan, see Tanzeel-ur-Rahman, Jamaat-i-Islami: Insaf ka Darwaza par (Urdu) (Karachi: Pakistan Law House, 1965).

33. M. Rafique Afzal, Political Parties in Pakistan, 1947-1958 (Islamabad: National Commission on Historical and Cultural Research, 1976), 36.

34. Mushtaq Ahmad, Politics Without Social Change, (Karachi: Space Publishers, 1971), 123-126.

35. Nawa-i-Waqt, January 25, 2010.

36. See Hammad Ghaznavi, “The Rise of the Right,” The News, December 15, 2002. See also Shaukat Qadir, “The Emerging Right,” Daily Times, December 21, 2002.

37. Hasan Askari Rizvi, “Islamic Fundamentalism and Democracy in Pakistan,” in South Asia in the Global Community: Towards Greater Collaboration and Cooperation, ed. Hernaikh Singh (Singapore: Institute of South Asian Studies, National University of Singapore, 2007), 87–107.

38. Robert Michels, “The Iron Law of Oligarchy,” in Comparative Politics: Notes and Readings, eds. Roy Macridis and Bernard Brown (Homewood, ILL: The Dorsey Press, 1972), 213–220.

39. Hussain H. Zaidi, “Why Muslim League is Prone to Breakup,” Dawn, September 27, 2009.

See also Anwar Syed, “Factionalism in PML,” ibid, March 17, 2002.

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Geelani and the Politics of Accession in Jammu and Kashmir Yoginder Sikand

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ot many Kashmiri Muslims share his particular hard-line version of Islam or his passionate advocacy of Kashmir's accession to Pakistan, but still, 82-year old Syed Ali Shah Geelani commands widespread respect among his people for his firm stance on azadi or freedom of Jammu and Kashmir from Indian rule, a stance that he has never wavered from. With Kashmir up in flames again, Geelani's word is now almost law to the intrepid Kashmiri youth out in the streets defying the might of the Indian state with stones. The overwhelming response to his calls for strikes and demonstrations that have rocked the Kashmir Valley for several weeks now (September 2010—in protest against the killing of youths by Indian armed forces) clearly indicates that Geelani is back at the centre-stage of Kashmir politics.

Geelani is one of the few Kashmiri leaders to have written extensively on the Kashmir conflict, authoring over a dozen books (all in Urdu) on different dimensions of the issue.

A collection of press statements, letters to Indian and Pakistani prime ministers and other leaders (many written during long bouts in various Indian prisons), interviews given to Kashmiri and, especially, Pakistani journalists, and public addresses, Geelani's Kashmir: Nava-e Hurriyat (“Kashmir: Voice of Freedom”) deals with various aspects of the Kashmir issue as he views them.1 Based on an analysis of Nava-e Hurriyat, this article lays out Geelani's understanding of the genesis of the Kashmir conflict, his critique of Indian rule, his advocacy for Kashmir's accession to Pakistan, his opposition to independence for Jammu and Kashmir or the “third option”, his understanding of the relationship between Islam, politics and the state, and his views on jihad, nationalism and inter-community relations within what he deems as the normative Islamic paradigm—all issues very central to the ongoing conflict in and over Jammu and Kashmir. The article also discusses a central paradox: If, as numerous surveys indicate, only a minority, and a diminishing one at that, of the Muslims of Jammu and Kashmir support the state's accession to Pakistan, why is it that Geelani, who has consistently advocated the state's merger with Pakistan, continues to be regarded as the icon of the Kashmiri Muslim resistance movement? This is related to another paradox: What accounts for Geelani's charismatic appeal among many nonJamaat Kashmiri Muslims, most of whom do not agree with (and some vehemently oppose) the hard-line version of Islam as represented by Geelani and the Jamaat-eIslami?

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Geelani on the Genesis of the Kashmir Conflict Throughout the book, Geelani reminds the readers that the roots of the Kashmir conflict lie in the partition of India, when the then Indian princely states, which numbered almost 600, were given the choice between joining India or Pakistan. In making this decision, the rulers of these states, of which Jammu and Kashmir was one of the largest, were to be guided principally by the wishes of the majority of their subjects, which, in turn, were seen to be determined by their religion. Thus, if the majority of the population of a princely state were Muslim, the state was seen to be rightfully part of Pakistan, while states with a Hindu majority were to join India. In addition, the decision of these states was also to be determined by other factors, such as geographical contiguity with either India or Pakistan, as the case might be, the direction of the flow of rivers that ran through them, and the presence of routes connecting them with either India or Pakistan. On all these counts, Geelani argues, Jammu and Kashmir ought to have acceded to Pakistan (Syed Ali Shah Geelani, Kashmir: Nava-e Hurriyat [Srinagar: Mizan Publications, 1995], 61). Hence, he writes, India's repeated claims that the state is an “unbreakable part” (atoot ang) of India are without any merit whatsoever (15).

Further building his argument that Muslim-majority Jammu and Kashmir should have formed part of Pakistan, rather than what he calls “Hindu” India, Geelani claims that Muslims are a community/nation (qaum) wholly separate from the Hindus. He equates India with Hindus, overlooking the fact that India's Muslim population outnumbers that of Pakistan. He projects Muslims (as he does Hindus) as a monolithic, homogenous community, defined by a singular interpretation of religion, and bereft of cultural, ethnic, and other divisions. He depicts Muslims as radically different from Hindus, claiming that there exists no commonality between the two. “It is absolutely true,” he wrote in a letter written in 1994 to the then chief minister of Jammu and Kashmir, Farooq Abdullah, “that the Muslims are a complete separate nation on the basis of their religion, culture, civilisation, customs and practices, and thought. Their nationalism and the foundation of their unity cannot be based on their homeland, race, language, colour or economic system. Rather, the basis of their unity is Islam and Islam alone, and their belief that there is no God but Allah and that Muhammad is Allah's prophet”. Hence, he insisted, Hindus and Muslims were “two different nations” (14), possibly implying that they were simply incapable of living together amicably. That is why, he argued, the Muslim League had demanded and won, a separate Muslim Pakistan based on this “two nation theory”. This is also why, he suggested, Muslim-majority Jammu and Kashmir must be a part of Pakistan, rather than India.

With Muslims and Hindus being seen as by definition opposed to each other on virtually every count, Geelani argues that the logic of the “two nation theory,” which he claims even Hindu leaders had finally accepted by 1947, demands that Muslim-majority Jammu and Kashmir should become part of Pakistan. On the other hand, he suggests, if the state were to be part of India, it would be tantamount to a virtual apostasy for the Kashmiri Muslims, who would, so he claims, have to give up their Islam-based nationality for one based on Indian-ness, which he implicitly equates with Hinduism.

Given the underlying Hindu framework on which Indian nationalism is based, Geelani

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seems to argue that this would result in Kashmiri Muslims losing their sense of a separate identity based on Islam. Accession to India would result, he claims, in Kashmiri Muslims having to live perpetually under “Hindu slavery” (13).

Challenging the Claim of Kashmir's Accession to India Despite what Geelani argues was the compelling case for Jammu and Kashmir joining Pakistan, events dictated otherwise. Geelani's description of critical events in Jammu and Kashmir in the wake of the partition of 1947 provide an interesting and compelling counterpoise to the official Indian narrative, highlighting various aspects that are ignored in the latter in order to build the case for justifying Indian control over Jammu and Kashmir. By excavating numerous developments that are conspicuously absent in the official Indian narrative—the slaughter of tens of thousands of Muslims in Jammu by Hindu mobs, anti-Muslim Hindu chauvinist groups and the Hindu Maharaja's forces, the perceived Hindu and anti-Muslim nature of the Indian state, the pathetic conditions of India's Muslims, and India's refusal to act on its promises to the international community to allow the Kashmiris to determine their own political future—Geelani's counter-narrative brings out vividly the underlying roots of the pervasive and continuous opposition to Indian rule among many Kashmiri Muslims.

Geelani argues that the “Hindu” rulers of the newly-independent Dominion of India plotted to prevent what he regards as the natural and logical accession of Jammu and Kashmir to Pakistan. To begin with, he writes, they prevailed upon the departing British to have the district of Gurdaspur, in present-day Indian Punjab, to be given to India although it then had a Muslim-majority and, therefore, ought to have become part of Pakistan. The reason for this departure from the logic that informed the partition of the Punjab was, he argues, to provide India land access to Jammu and Kashmir, the road to Jammu leading through Gurdaspur (17). Then, in July 1947, a month before the partition, he goes on, the Hindu maharaja of Jammu, in league with Hindu chauvinist forces such as the Rashtriya Swayamsevak Sangh and the Hindu Mahasabha, ordered the disarming of all Muslim soldiers and policemen in the state and confiscated all weapons owned by Muslims. The Maharaja, Geelani relates, “left no stone unturned in order to suppress and destroy the Muslim-majority in Jammu and Kashmir” (16).

Shortly after, on the orders of the Maharaja, the state's army, working in tandem with these viscerally anti-Muslim Hindu groups, set about slaughtering Muslims in the Jammu province on a vast scale. In this orgy of violence, tens of thousands of Muslims lost their lives, and many more were forced to flee across the border to Pakistan. Geelani notes that even as this dance of naked violence was taking place in Jammu, calm prevailed in the Muslim-dominated Kashmir Valley, where the small Hindu minority remained unaffected by the horrors of the partition, being protected by their Muslim neighbours.

Following the disarmament of the state's Muslim population who for over a century had laboured under heavy disabilities under Hindu Dogra rule, and the large-scale violence directed against them, Geelani writes, Muslim tribesmen from Pakistan's northern regions entered Kashmir in order “to save their Kashmiri Muslim brethren.” In contrast

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to Indian authorities and scholars, who term this as a “tribal invasion” and as having been motivated by a lust for loot and plunder, Geelani describes this armed incursion as a well-meaning response of the tribesmen to the plight of “their oppressed Kashmiri Muslim brothers” (132).

In the wake of the tribal incursion/invasion, Geelani writes, the Maharaja fled Srinagar and headed to Jammu, appealing to India for help. India agreed to do so only if the Maharaja acceded to India. Thereupon, the Maharaja is said to have signed the Instrument of Accession, but whether this actually happened, Geelani claims, is “doubtful” (61). Even if one supposes that the Instrument of Accession were at all genuine, he says, it was in any case “conditional”, “temporary” and “limited”. Even Indian leaders agreed, he relates, that this was a stop-gap measure and that once peace were restored in the state the people of Jammu and Kashmir would be given the right to determine their political future through a free and fair plebiscite. In other words, he contends, the Instrument of Accession did not mean that Jammu and Kashmir had become an integral and permanent part of India. Further, Geelani argues, the Maharaja's decision to join India did not represent the desire of most Kashmiri Muslims, who, if given the chance, would have opted for Pakistan instead (15).

Reminding his readers of undeniable historical facts that the Indian establishment might no doubt now find embarrassing, Geelani notes that it was India—and not Pakistan, nor the people of Jammu and Kashmir—that took the Kashmir issue to the United Nations (UN). In late 1948 and then again in early 1949, the UN Security Council passed two resolutions, which were accepted both by India and Pakistan, calling for the settlement of the Kashmir conflict through a free and fair plebiscite in which the people of the state would be allowed to decide for themselves to join either India or Pakistan.

Geelani points out that Indian leaders repeatedly issued statements wherein they promised to hold such a plebiscite. Despite this, Geelani notes, in 1954 India's rulers began singing a different tune, reneging on their promise to the international community to grant the people of Jammu and Kashmir the right to determine their political future through a free and fair plebiscite. In that year, he says, India manoeuvred to seek to incorporate Jammu and Kashmir as a part of India and to bring it under what Geelani terms “Indian imperialistic control” (61). This, he says, it sought to do by instigating what he considers the unrepresentative Jammu and Kashmir state assembly (elected, he suggests, through widespread rigging of votes so as to form a pro-India government) to declare the state's permanent accession to India (63). Since then, he says, India has used this action as its main argument to justify its control occupation of Jammu and Kashmir.

It is for this right of self-determination through plebiscite that what Geelani repeatedly refers to as “the people of Jammu and Kashmir” or simply, “the Kashmiri people,” have been consistently demanding ever since 1947. This is something, he says, that the world community (as represented by the UN) and India itself have solemnly promised them. It is also a basic human right, he insists. By continuing to deny the Kashmiris what Geelani calls their birth-right and a basic human right, India's claim of being the “world's largest

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democracy” is very evidently a complete sham (111).

The Militant Path Geelani repeatedly stresses that the “people of Jammu and Kashmir” have, since 1947, been pressing India to fulfil its promise of arranging for a plebiscite for them to determine their political future on the lines called for by the UN Security Council Resolutions. He says, they have been consistently struggling, using peaceful means of protest, ever since 1947 (49). Groups like his own Jamaat-e-Islami, he says, even decided (in the early 1970s) to contest elections for this very purpose so that, as elected representatives, they could forcefully articulate the demand for self-determination and plebiscite. Geelani himself was elected to the state assembly as a candidate from the Muttahida Muslim Mahaz (“The Muslim United Front”), most recently in 1987. That election, he writes, proved to be a turning point in the history of the Kashmiri struggle for self-determination. He claims that the Muslim United Front was poised to win the elections by a considerable majority but that this was sabotaged by the Government of India, which feared that it would refuse to toe its line if it came to power (119–120).

Geelani repeats a point made by numerous observers—that the widespread rigging of this election in Jammu and Kashmir (as well as all previous ones) and the indiscriminate arrests and brutal treatment of Muslim United Front workers and candidates clearly suggested to the Kashmiris that peaceful methods to win the right to self-determination would never work due to Indian intransigence. Once again, he says, India's slogans of democracy were exposed as a complete farce. It was now clear to the people of Kashmir, he says, that India would never allow a truly democratically-elected government to come to power in the state, for, he claims, such a government which reflected the genuine aspirations of the majority of the people of Jammu and Kashmir would advocate the state's separation from India (51). It was then, he says, and seeing no other option, that in 1989 some Kashmiri youth decided that the time had come to take to the militant path to force India to fulfil its promise and allow the people of Jammu and Kashmir to determine their own political future.

In explicating this background about the origins of the militant struggle in Kashmir, Geelani is careful to point out that it was resorted to more than half a century after 1947, when over five decades of peaceful struggle for the right to self-determination had completely failed. In other words, he suggests, the ongoing militant movement in Kashmir is not at all the meaningless violence for its own sake that its Indian critics accuse it to be. Geelani denounces the Indian state and media's description of the militant movement as “terrorism,” which, he argues, is a crude means to seek to rob it of its legitimacy and to defame it in the eyes of the world. He charges India with hypocrisy in describing the struggle in Kashmir as “terrorism” or “communalism”, arguing that it is no different from, and as valid as, India's struggle for freedom from British rule. In a letter written in 1990 from prison in Naini jail, Allahabad, to Chandra Shekhar, the then Indian prime minister, Geelani stressed: “Indians fought the British for the sake of freedom both at the political

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level and through armed struggle. Gandhi used non-violence and the political platform, while Bhagat Singh and Netaji Subhash Chandra Bose used the path of armed struggle. So, then, how can you [India] deny the Kashmiris the same right and seek to crush them militarily?

The British tried to use force to quash the Indian freedom struggle…but failed and had to leave India. The same will happen to India [in Kashmir]” (49).

The militant movement in Kashmir, Geelani claims, is not aimed at spreading terror in India, unlike what Indian sources often allege. Rather, he insists, it aims at forcing India to agree to let the people of Jammu and Kashmir decide their own political future. Once that happens, he says, the people of Jammu and Kashmir would be willing to have good neighbourly relations with India. In other words, Geelani points out, the movement is not impelled by a blind, irrational hatred for India (or Hindus), as is alleged by numerous Indian commentators. But, he repeatedly insists, the armed struggle will carry on till India relents and agrees to act on its promises to the people of Jammu and Kashmir and the international community. No stop-gap or halfway measures, such as greater autonomy for Jammu and Kashmir within the ambit of the Indian constitution, restoring the pre-1953 status of the state, or elections, he says, can or will lead to the Kashmiris calling off their armed resistance to Indian rule. This can only happen, he says, when they are able to exercise the right to political self-determination through the plebiscite as envisaged by the UN Security Council resolutions (172). In repeatedly stressing this point, Geelani makes very clear that no amount of economic assistance from India will cause the Kashmiris to weaken their resolve. “So as long as the rulers in Delhi keep parroting the slogan that [Jammu and Kashmir is] an inseparable part of India,” he stresses, “no solution to the Kashmir problem can be found.” (54). In a letter to the then newly-elected American President Bill Clinton in 1993, Geelani wrote: “As long as the Government of India refuses to accept the basic and inherent right of the 12 million people [of Jammu and Kashmir] to determine their political future and act on the UN Security Council resolutions in this regard, this [militant] movement will continue” (109).

At the same time as Geelani insists that the people of Jammu and Kashmir be allowed to decide between joining India or Pakistan, he repeatedly stresses that what he terms as the “people of the state” would never agree to being with India and would accept no deal brokered between India and Pakistan that legitimises Indian rule in Jammu and Kashmir (178).

Kashmir: Pakistan or Independence?

As numerous surveys have indicated, perhaps a significant majority of the Muslims of Jammu and Kashmir, including even in the Kashmir Valley where the ongoing militant movement is most intense, aspire to a separate, sovereign, state, independent of both India and Pakistan. These surveys also indicate a sharp decline in support among the

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Muslims of the state for a merger with Pakistan. This is due principally to increasing awareness of the realities of Pakistan—its chronic political instability, its slavishness to American dictates, its lack of democracy, Punjabi hegemony resulting in the many grievances of non-Punjabi ethnic groups, the corruption of Pakistan's rulers, the deeprooted military-bureaucrat-landlord nexus, pervasive and mounting sectarianism and violence perpetrated, among others, by self-styled Islamic groups, and the country's dismal educational system and widespread poverty. In the face of all this, many Muslims in Jammu and Kashmir would rather live in an independent country of their own than be part of Pakistan, or of India for that matter.

In contrast to many other Kashmiri Muslims, including Kashmiri Muslim ethnonationalists, however, Geelani, like the Jamaat-e-Islami of Jammu and Kashmir and several other Islamist groups active in the region, passionately advocates Kashmir's accession to Pakistan and has been consistently opposed to the project of an independent Jammu and Kashmir. The slogan of azadi or “independence” that fired the imagination of many Kashmiri Muslim youth is given an entirely different twist by Geelani. For him, it does not mean, as it literally does and as many other Kashmiri Muslims take it to be, “freedom” from Indian rule and an independent state of Jammu and Kashmir, but rather, independence from India and accession to Pakistan.

Throughout Nava-e Hurriyat Geelani evokes the slogan of azadi but interprets it to mean both accession to Pakistan as well as unrelenting opposition to an independent Jammu and Kashmir. It is as if only by joining Pakistan that Kashmir can find azadi, the term here being reduced simply to anti-Indianism or freedom from Indian rule.

Arrogating to himself the right to represent and speak for the entire anti-Indian constituency in Kashmir, completely silencing the substantial pro-independence (as well as the minority pro-India) voices among the Kashmiri Muslims, he declares, “There can be no two opinions on the fact that the entire struggle of the Kashmiri people is for the sake of Islam and for accession to Pakistan” (119). Islam and Pakistan are thus conflated with, and projected as inseparable from, each other. Conversely, proindependence Kashmiri ethno-nationalists (as well as, of course, pro-Indian Muslims and non-Muslims in Jammu and Kashmir) are treated, in Geelani's scheme of things, as being by definition opposed to Pakistan as well as to Islam.

Throughout the book Geelani stresses that Kashmir must join Pakistan, and he offers various reasons for this, besides the principles mentioned earlier regarding the rules that princely states were to abide by in choosing between India and Pakistan. These follow from his particular understanding of Islam and of Muslim communal identity, shaped particularly by his ideological mentor, Syed Abul Ala Maududi (d.1979), the founder of the Islamist Jamaat-e-Islami.

Like other Islamist ideologues, most notably Abul Ala Maududi, Geelani argues that the only identity a Muslim can or rather should, possess and recognise is that of being Muslim. Maududi regarded nationalism, even Muslim ethno-nationalism, as being unIslamic, akin to polytheism and idolatry, and as divisive of the worldwide Muslim ummah. In his view, which Geelani shares, Muslims all over the world share the same

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nationality or qaumiyyat—that of being followers of Islam. Hence, Maududi insisted, Muslims the world over must strive to form a single global polity on the basis of (his understanding of) Islam. For Muslims in different parts of the world to set up their separate nation-states, based on the notion of ethnic nationalism was, for him, nothing short of anathema. This is why Maududi fervently opposed the Muslim League in prepartition India and its demand for Pakistan, which was based on Indian Muslim nationalism rather than Islam. It is, of course, another matter that no sooner had Pakistan come into being than Maududi decided to shift to the newly-established country.

Geelani shares Maududi's visceral opposition to Muslim ethno-nationalism. This extends also to Kashmiri Muslim nationalism which underlies the Kashmiri Muslim nationalist project of an independent state of Jammu and Kashmir and that probably reflects the aspirations of the majority of the Muslims of Jammu and Kashmir. For him, such an ideology and political project are divisive of the global Muslim ummah. They also threaten to promote alternate, indeed rival, forms of identity to that of the one and only identity that, in his view, Muslims should possess and publicly articulate—of being Muslims and nothing else. As Geelani argued in an essay published by the Jamaat-eIslami of Jammu and Kashmir in 1992, which is reproduced in Nava-e Hurriyat, Muslims the world over are a single community (millat), whose “point of unity” (nukta-e ijtimaiyyat) is the kalima tayyiba, the declaration of belief in Allah as the sole deity and in Muhammad as Allah's Prophet. Accordingly, he went on, “it would certainly violate this concept of Muslim unity if a Muslim community sets up its separate identity when it has ideological, cultural and communal relations with another Muslim country with which it shares a border” (76). In other words, he suggested that because Muslimmajority Kashmir has a border with Muslim-majority Pakistan, and because the Muslims of Kashmir and Pakistan enjoy close “ideological, cultural and communal relations” with each other, it was impermissible, and indeed “un-Islamic”, for the Kashmiris to set up an independent state of their own. He argued that for the Kashmiris to establish an independent state would “be against the wider, collective interests of the global Islamic community” (millat-e-islamiya) (76). In an interview with a Pakistani journalist, he stressed that talk of the “third option”—an independent Jammu and Kashmir—was “harmful” for the Kashmiris themselves (160), contending that Islam itself mandated that Muslim-majority Jammu and Kashmir merge into Pakistan.

Intriguingly, in so defending Jammu and Kashmir's merger with Pakistan and opposing the project of an independent Jammu and Kashmir, Geelani remained studiously silent on the existence of multiple Muslim-majority countries, many of them styled as “Islamic states”, which have borders with other such Muslim states but yet show no enthusiasm to dissolve their borders into a grand, single Muslim political entity which, presumably, Geelani regards as Islamically normative.

Further reflecting his visceral opposition to Kashmiri Muslim ethno-nationalism and the demand for an independent, but Kashmiri Muslim-dominated, state of Jammu and Kashmir, Geelani repeatedly stresses in the book that the most acceptable solution to the Kashmir conflict lies in implementing the UN Security Council resolutions that provide

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for a plebiscite allowing the people of Jammu and Kashmir just two choices—deciding to join either India or Pakistan. He repeatedly, and enthusiastically, points out that the resolutions do not envisage a third option—an independent Jammu and Kashmir. He is confident that if the UN resolutions were followed, a demand that he makes numerous times in the book, the majority of the people of the state would, because they are Muslims, vote for Pakistan. He stresses that in such an eventuality he and his Jamaat-eIslami would urge the people to opt for Pakistan, because this, he says, is what is mandated by (his understanding of) Islam.

Opposing an Independent Jammu and Kashmir What, then, of the third option—of an independent Jammu and Kashmir? It is clear that a significant majority of the Muslim population of the state would indeed support this project, although, of course, the non-Muslims of the state, being almost wholly with India, would oppose it, fearing Kashmiri/Muslim domination.2 That relatively few Muslims of the state, particularly from the Kashmir Valley, would choose to remain with India is undeniable. The continuing and mounting human rights violations, including widespread killings and torture, in Kashmir by agencies of the Indian state (which Geelani describes in chilling detail) has, admittedly, only hardened the resolve of many Kashmiri Muslims to seek azadi, freedom from India. But this does not mean that antiIndianism in Kashmir translates automatically into pro-Pakistani sentiment.

Yet, even in the face of the desire for an independent state of their own on the part of probably the majority of Muslims in Jammu and Kashmir, Geelani has consistently continued to press for the state's merger with Pakistan and to vehemently oppose the demand for an independent Jammu and Kashmir. Stressing his opposition to the “third option,” Geelani castigates it as a “play” (khel) of Kashmiri Muslim ethno-nationalists, whom he refers to contemptuously as mere anasir or “elements” (190). In order to counter this popular demand, he claims that talk of the “third option”—an independent for Jammu and Kashmir, based on the state's August 1947 boundaries—is an “Indian conspiracy” to strengthen India's claim on the disputed territory. In an interview in 1993 with a Pakistani journalist, he insisted that Jammu and Kashmir must become a part of Pakistan, rather than an independent country, arguing, “If we win the right to selfdetermination, we want to restrict the choice to just two options [India or Pakistan], and we will appeal to the people to vote for Pakistan”. To “bring up the issue of the third option,” he went on, was “destructive” (nuqsandeh), adding that “we want to save the entire Muslim community from this tragedy” (159). He contended that if the “third option” were allowed, anti-India votes would be divided between supporters of an independent Jammu and Kashmir and those who wanted the state's accession to Pakistan, and that in such a situation those in favour of the state's accession to India might easily win. Thus, in a press conference that he addressed in 1992 on being released from a long spell in jail, Geelani declaimed: “The ongoing struggle in Kashmir has brought the issue on the world stage, and so the rulers of India have devised a dangerous political trap by talking of the third option. Through this they want to divide the

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people. India knows that some people will want to join Pakistan and that some will raise the slogan for independence, and then these will fight each other and their votes will be divided. This will benefit India.

In my view this [talk of the third option] is a crafty weapon that India is wielding in order to divert us from the basic position on the issue of Kashmir [the choice between India and Pakistan through a plebiscite as envisaged by the UN Security Council resolutions]” (66).

At the same time, it appears that Geelani is indeed aware that the majority of Muslims in Jammu and Kashmir may not be enthusiastic about his plea for their state's merger with Pakistan and may actively support the “third option” that he so vehemently denounces.

This is why he appears to reluctantly admit that if it is no longer possible (for reasons he does not elaborate) for the UN Security Council resolutions on Jammu and Kashmir to be implemented, then the three parties to the conflict—India, Pakistan and what he terms as the “authentic representatives” (haqiqi numainde) of the people of Jammu and Kashmir—should organise a tripartite conference under UN supervision, and that if in this conference they unanimously agree on an independent Jammu and Kashmir conforming to the state's boundaries as in August 1947 he would agree to this proposal (178). It is clear that this is not the ideal solution for Geelani, however, who indicates that he would accept such a deal “only as a last measure” (160) and “under duress” (178).

Claiming the Authoritative Voice A key issue involved in the tripartite conference on Jammu and Kashmir that Geelani calls for is: who are the “authentic representatives” of the people of Jammu and Kashmir who would participate in this conference to be decided? This is a particularly complex question given the extreme heterogeneity of the people of the state, in terms of religion, sect, caste, ethnicity, and language, not to speak of gender and class.

Geelani insists that the Kashmir conflict is not a bipartite dispute between India and Pakistan. Rather, there are three parties to the dispute: India, Pakistan and the “people” (awam) of Jammu and Kashmir. Hence, he argues, the dispute cannot be solved between just the governments of India and Pakistan. The conflict is not a territorial one between India and Pakistan, he points out but, rather, one that relates to the life of the over 12 million inhabitants of the state (55). Hence, no solution to the conflict is acceptable, he says, if it goes against the wishes of “the people of the state,” who must have a central say in such a solution, because the conflict and its solution concerns their very existence and future (64).

Scattered throughout Geelani's book are repeated references to the need for the “authentic representatives” of the awam or “people” of Jammu and Kashmir to be represented in any tripartite conference on Kashmir to decide the state's future. But as to who these representative individuals and groups are Geelani remains, perhaps deliberately, fuzzy. It would appear that, to him, these “representatives” are essentially Kashmiri Sunni Muslims who seek independence from India, given that whenever Geelani speaks of “the people of Jammu and Kashmir” or “the Kashmiri people” it is in

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such a manner as to seem to equate the terms with the anti-Indian Muslim constituency, in particular the Sunni Muslims of the Kashmir Valley. This is clearly indicated throughout the book, as, for instance, when Geelani argues that “the people of Jammu and Kashmir” are vociferously opposed to India, and that “every person” in the state “hates India” (197), ignoring the undeniable fact that the non-Muslims of the state, as well as significant sections of Muslims outside the Kashmir Valley (and not an insignificant number of Muslims in the valley as well) do not share this perception at all.

When Geelani announces that, “there is not a single person in Jammu and Kashmir who is agreeable to dialogue and compromise with India or living under its control” (242), it is clear that the vast numbers of people of the state—the non-Muslims of the state as well as many Muslims—who believe otherwise simply do not exist in his imagination and that, as far as he is concerned, their aspirations have no value at all in determining the political future of the state and are not part of what Geelani refers to as the “people of Jammu and Kashmir”, on whose behalf he claims to speak.

In this way, in Geelani's writings anti-Indian Kashmiri Sunni Muslims come to be seen as standing in for all the people of the state, while the sizeable remaining population of Jammu and Kashmir (Hindus, Dalits, Sikhs, Buddhists, Christians, many Shia Muslims and non-Kashmiri Pahari Muslims, as well as not a negligible number of Kashmiri Muslims) who are definitely pro-India are completely ignored. But not every Kashmiri Muslim leader who demands freedom from India who is seen as an “authentic representative” of the people of the entire state in Geelani's scheme of things. Rather, to Geelani, the mantle of “authenticity” falls on people like himself, Islamists who advocate Kashmir's accession to Pakistan. Secular and/or nationalist Kashmiri Muslims who advocate an independent Jammu and Kashmir are depicted as “inauthentic” and, hence, disqualified from claiming to represent the Kashmiris in tripartite negotiations.

This, for instance, is suggested in Geelani's response to a query from a Pakistani journalist in 1993, when he claimed that “there can no doubt that the Kashmiri people have been engaged in this struggle for the sake of Islam and for accession (ilhaq) to Pakistan” (92). Likewise, in a letter written in 1993 to the then Pakistani Prime Minister Nawaz Sharif, Geelani described Pakistan as the “land of the dreams” of “all Kashmiris” because it was “won in the name of Islam” (133). In this letter, he argued, ignoring completely the aspirations of the Kashmiri Muslim ethno-nationalists, that accession to Pakistan is “what the Kashmiri people have been demanding since 1947” (142). Geelani thus appeared to claim that Kashmiri Muslim ethno-nationalists who are as opposed to their state joining Pakistan as they are to it being part of India have no resonance at all with the “people” of Jammu and Kashmir, whom he erroneously describes as homogenously pro-Pakistan and Islamist. This would logically mean (although he does not say so in so many words) that they are in no way “authentic” representatives of the people, and hence are not qualified to speak on their behalf in any tripartite conference to chalk out a solution to the Kashmir dispute.

In a pamphlet he penned in 1992, titled “Solution to the Kashmir Conflict,” which was published by the Jamaat-e-Islami of Jammu and Kashmir and which is reproduced in

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Nava-e Hurriyat, he argued that the “third party” in negotiations over the status of the state would be “the real representatives who desire freedom (azadi pasand)” (64). He remained, perhaps deliberately, ambiguous as to who these individuals and organisations would be. Asked by a Pakistani journalist to identify them, he cryptically answered, “The people who can reliably represent Kashmir are present. Searching for them will not take much time” (175). He even went to the extent of arguing, presumably referring to himself and people of his ilk, “We can form this representative group ourselves” (178), adding that this group would consist of people from both Pakistanadministered Kashmir (“Azad Kashmir”) and from Indian-ruled Kashmir “who are fighting for azadi”, and who would “truly represent the wishes of the people” (179–180).

Further underlining his argument that, in his view, the “true” representatives of the people of the state would be those who shared his position (Maududist-style Islamist politics and merger with Pakistan), he argued that in any proposed tripartite talks the delegation of “the true representatives of Jammu and Kashmir” and the Pakistani delegation “would certainly support each other.” “They will be close to each other and will not oppose each other,” he went on. “I believe,” he insisted, “that there cannot be any difference in the thinking of the representatives of Kashmir and that of the Pakistani delegation” (181). Quite naturally, then, the individuals and groups whom Geelani considers “authentic representatives” of the people of Jammu and Kashmir who, in his view, would be qualified to participate in the tripartite talks would be ardent advocates of the merger of the state with Pakistan.

Geelani on the Non-Muslims of Jammu and Kashmir Various non-Muslim communities occupy more than a third of the population of the Indian-administered part of Jammu and Kashmir. Hindu-majority Jammu and Buddhist-majority Leh account for well over half of the geographical area of the state.

They have consistently opposed the azadi movement, being vehemently opposed to the state's accession to Pakistan and even to an independent Jammu and Kashmir, and are almost entirely pro-India. Despite their significant numbers, these non-Muslim inhabitants of Jammu and Kashmir are, as noted before, almost wholly invisiblised in Geelani's representation of the “people” of the state.

Only once in Nava-e Hurriyat does Geelani refer to the need for the non-Muslim inhabitants of Jammu and Kashmir to be represented in any proposed talks about the Kashmir conflict. He makes this passing reference not on his own volition but only when specifically asked (by a Pakistani journalist) if the non-Muslims of the state, too, would have any representation in the talks. His answer to this question is brief and somewhat vague. All he says is, “In the tripartite talks, Kashmiris from both sides of the Line of Control will be represented, as will the non-Muslims who live in Jammu etc. We accept their rights” (178).

Geelani appears wholly indifferent to the political aspirations of the non-Muslims of the state and to their apprehensions about the prospect of living as obviously marginalised and severely-discriminated against minorities in Pakistan if Kashmir, as he insists, merges with that country, or in the Maududist-style “Islamic state” that he so

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passionately argues for. Thus, in a reply to a question by an Indian journalist as to what his reaction would be if the Hindus of Jammu and the Buddhists of Ladakh voted in the proposed plebiscite to join India, he said that he would ascertain their views and “act accordingly,” but quickly dismissed the possibility of this happening at all by denying outright that they would like to join India (197).

In reply to a question about the implications of the struggle for the substantial nonMuslim population of Jammu and Kashmir, he replied, “If our struggle was based on religious hatred, it would certainly have impacted on the non-Muslims on Kashmir, but the world knows that nothing of this sort has happened.” “In Kashmir,” he went on, referring to allegations about non-Muslims being targeted by militants, “you will see no such thing” (207). The non-Muslims of the Kashmir Valley, Geelani insisted, were fully protected by their Muslim neighbours, and “they have not been made to be victimised in any way by a sense of insecurity.” Throughout the book, Geelani refuses to even acknowledge, leave alone refer to, the selected killings of non-Muslims that have taken place over the years at the hands of militants in the state, the overwhelming opposition of the non-Muslims of the state to the militant movement and to the demand for the state's freedom from India, and the climate of fear in which non-Muslims in many Muslimdominated parts of the state continue to live.

Wholly insensitive to the aspirations of the non-Muslims of the state, and contradicting his own consistent claim that the ongoing movement in Kashmir is inspired by and for Islam and for the cause of an Islamic state, Geelani argued that “right from 1947, our struggle for self-determination has been non-communal (ghair firqavarana) and still is and shall remain so in the future. It is based on moral values, and will not discriminate on the basis of religion, colour, race, caste and region. This is not just our politics but also our religion and faith” (52). Accordingly, he dismissed Indian claims that the movement was “communal” as “baseless propaganda” aiming at delegitimising and defaming it.

Geelani insists that the “Islamic state” that he sees the Kashmiri Muslims as struggling for, will not discriminate against its non-Muslim citizens. “Ever since Muslims became a majority [in Kashmir],” he claims, “we have been expressing our commitment to love of humanity, religious tolerance, peace and communal harmony. We have behaved well with our Hindu, Sikh and Christian brethren, and, with God's help, will continue to do so in future” (172). But how this claim squares with his insistence on establishing an “Islamic state” on the model devised by his mentor Maududi, wherein non-Muslims would definitely occupy a second-grade status as dhimmis, is, not surprisingly, left wholly unaddressed.

Islam and Politics Echoing his mentor Maududi, Geelani argues that Kashmir, whether as an independent country or, ideally for him, as part of Pakistan, must become an “Islamic state.” “Our goal is the establishment of Islamic government (islami hukumat),” he contends (20). The “freedom,” he says the Kashmiris are struggling for, “is for the sake of Islam” (173).

Indeed, and quite contrary to obvious reality, he regards the ongoing struggle against

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Indian rule in Kashmir as motivated primarily by this concern, not by economic impulses, and not even by ethno-nationalist concerns as Kashmiri Muslim ethnonationalists would see it. Thus, viewing the struggle through the prism of Islam he seeks to delegitimise the Kashmiri Muslim ethno-nationalist agenda at the same time as he seeks to present the struggle as a distinctly religious, as opposed to a mere political or ethno-nationalist, one.

To Geelani, Islam is “incomplete” without state power. The “Islamic state”, he believes, is a pivotal node of Islam, for it is only through such a state, he seems to argue, that what he regards as Islamic laws that cover every conceivable aspect of a Muslim's personal as well as collective lives, can be imposed on its subjects. A secular, democratic state, by definition, is anathema, for that would mean, as Maududi had repeatedly claimed, the “rule of man” rather than the “rule of God” (hukumat-e ilahiya). Geelani insists, providing his own example, that every Muslim must struggle to establish an Islamic political dispensation wherever he or she lives, regarding this as an essential task in the struggle for the “establishment of the faith” (iqamat-e din) (65).

Interestingly, although Geelani repeatedly insists that the goal of the Kashmiri “movement” is an “Islamic state”, he does not provide any details at all about the polity that he dreams of and which he sees as mandated in Islam. At his hands, the “Islamic state” is reduced to a mere slogan, conjuring up visions in the minds of his listeners and readers a system allegedly providing perfect social justice and equality, which he repeatedly contrasts with the unrelenting oppression that he describes the Muslims of Jammu and Kashmir labouring under Indian rule. That Geelani simply bandies about the “Islamic state” as a slogan, a device to mobilise popular support for his opposition to Indian rule, without providing any blueprint of such a state or explaining how it would be able to deal with the complex demands of modernity is hardly surprising. In this he is simply following in the footsteps of scores of other Islamist ideologues across the world for whom the “Islamic state” is little more than a tool to mobilise support against ruling regimes by evoking memories of an alleged “golden Islamic past”. It is also probable that their silence on the details of the “Islamic state” is a well-thought out tactical move. Were these ideologues to spell the details of their political project in clear, detailed terms, it is likely that it would cost them the support of a sizeable section of otherwise potential followers whose understanding of Islam, and of the relationship between Islam and politics, differs widely from theirs.

The “Jihad” in Kashmir Great confusion exists about the role of religion, specifically Islam, in the ongoing Kashmiri Muslim struggle against Indian rule. Many Kashmiri Muslim ethnonationalists who aspire to an independent, democratic, and secular state would publicly announce, particularly before non-Muslims, that their struggle has nothing to do with religion per se, and that it is purely “political”. Since they aspire to establish an independent state with borders corresponding to those of the state of Jammu and Kashmir as in August 1947, including Hindu-majority Jammu and Buddhist-majority Leh, they feel it necessary to claim before non-Muslim audiences that their movement is

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not inspired by religion or religious communalism. To admit the contrary would, they feel, taint their movement as “communal”, even “fundamentalist”, and as representing Muslim hegemony over the non-Muslims of the state, thereby robbing it of legitimacy in the eyes of the international community. Further, since for them their Muslim-ness may be simply incidental, no more than an identity inherited at birth, they may not regard Islam as the essential driving force of their struggle just as it is not of paramount concern in their own personal lives. Yet, as the non-Muslims of the state see it, even Kashmiri Muslim ethno-nationalists are motivated by their religious and communal identity in very fundamental ways, and their discourses and demands are very powerfully shaped

by Kashmiri Muslim communitarian concerns and what they might regard as hegemonic designs. Were they not Muslims, even in a cultural sense, they point out, it is unlikely they would be clamouring for independence from India.

In contrast to the Kashmiri Muslim ethno-nationalists, who tactically and deliberately fudge over the issue of the role of Islam and Muslim communal identity in the azadi movement, Geelani frames the movement entirely in Islamic terms. He declares that the ongoing militant movement against Indian rule in Kashmir is not an ordinary war, but rather a jihad, a struggle mandated by Islam and for the sake of Islam, quite distinct from the nationalist/political struggle that Kashmiri nationalists see it as. He does not invoke references to Quran, Hadith or the fiqh texts, the Muslim juridical tradition wherein rules of jihad are elaborately discussed, to justify this claim. Presumably, he does not need to, assuming that for his Kashmiri Muslim audience such justification is unnecessary and that his claim is self-explanatory. Not being a traditionally trained “alim” or Islamic scholar, despite the public image of him as one, it is also possible that his familiarity with these texts is limited.3 In his introduction to Nava-e Hurriyat, Saleem Mansur Khalid, a leading ideologue of the Jamaat-e-Islami of Pakistan, presents Geelani as the “most reliable of all jihadi leaders in Kashmir,” and his book as “the most reliable expression of this jihad.” Khalid alleges that “oppression and cruelty” is “inherent” in the Hindus. He speaks of “hypocrisy and cruelty” and “animalism” as being “integral” to the “very nature of the leaders of the Hindus,” and of the various non-Hindu communities of India being “heavily oppressed” by the Hindus (7). The very “nature” of the Hindus, he appears to suggest, necessitates jihad against them. In this way, he seeks to sanction the militant movement in Kashmir as an Islamically-legitimate jihad.4 Geelani does not make such gross essentialist arguments about the Hindus as a people, although, revealingly, he does not contradict Khalid. At the same time, he seeks to justify his argument that the ongoing militant struggle is a jihad, as distinct from a political struggle or an ethno-nationalist liberation movement, by framing Indian atrocities in Kashmir and, indeed, India itself, in religious terms, by arguing that the underlying motive of those engaged in the militant movement is Islam, rather than Kashmiri nationalism or simply anti-Indianism, and by projecting the final goal of the movement to be the establishment of an “Islamic state.” In framing the struggle in this way, he also seeks to delegitimise the Kashmiri Muslim ethno-nationalists who do not share his

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Islamist vision.

Geelani depicts India as inherently and viscerally anti-Muslim and anti-Islam, using this as his basic argument to justify his claim that the ongoing militant movement in Kashmir is a jihad. “India,” he claims, “is a bigger enemy of Islam and Muslims than even Israel” (147). He refers to the dismal conditions of the Indian Muslims, whom he describes as “heavily oppressed” (189) at the hands of what he portrays as a Hindu state and Hindu chauvinist forces, and mentions the frequent bloody anti-Muslim pogroms, often sponsored by agencies of the state, as “proof” of India's alleged anti-Muslimism and of India's “Hindu” identity. He mocks India's claims to secularism and democracy, dismissing them as a “complete sham,” Ever since India won its independence, he writes, “not a single day has passed when the blood of innocents has not been shed.” All of India's minority communities, including the oppressed “low” castes, he contends, have been victims of this “barbarity,” being allegedly faced uniformly with grave and continuous threats to their lives, properties, self-respect, culture, religion, places of worship, language and identity, but the worst off have been India's Muslims. Hence, he points out, “it is but natural” for the Muslims of Jammu and Kashmir, to refuse to live with India and to oppose Indian rule, even by force, in the form of what he calls jihad.

Geelani interprets the large scale Indian army atrocities in Kashmir as an expression of what he claims is India's inherent anti-Islamism and anti-Muslimism. This perception must be recognised as a major factor for the widespread and continued opposition to Indian rule among many Kashmiri Muslims. Under Indian rule, Geelani claims, “the Islamic identity” of Kashmir, and the “life, property, respect, religious places, religion and faith” of the Kashmiri Muslims are under grave threat. The Kashmiri Muslims, he writes, without adducing any proof, are faced with deadly Indian “cultural aggression” (31). India, he adds, has consistently denied the Kashmiri Muslims “all opportunities to progress economically and educationally” (253).

Geelani considers what he calls the jihad in Kashmir to be a trans-local phenomenon, not limited just to the confines Kashmir itself. The trans-local aspect of the jihad in Kashmir necessitates, Geelani writes, that non-Kashmiri Muslims take an active role in it. Thus, in an appeal issued in 1992 to the Afghan “mujahideen” Geelani pleaded with them on behalf of what he termed “the oppressed people of Jammu and Kashmir” to “come forward to help liberate them from India” and, in this way, to “express their bond of Islamic brotherhood and religious commitment” (82–83). In a telephonic interview with a group of Pakistani journalists in 1993, Geelani insisted, “It is the duty of the people of Pakistan to help their oppressed Kashmiri brethren win freedom from slavery … In the light of the Quran, it has now become incumbent on the people of Pakistan to engage in the jihad [in Kashmir]. They must now stand up and participate in the practical (amali) jihad to help their Kashmiri brethren.” Participating in the “Kashmir jihad,” he went on, was “now a binding duty (farz), incumbent not just on the Pakistani Muslims but, rather, the entire worldwide Muslim ummah” (92).

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Conclusion Syed Ali Shah Geelani is seen by vast numbers of Kashmiri Muslims as the symbol of their collective resistance to Indian rule, which they regard as illegitimate. Key in constructing this image of a charismatic hero has been Geelani's consistent opposition to what he and many Kashmiris see as Indian occupation. Unlike other noted Kashmiri Muslim leaders, he is regarded as “honest,” “committed,” to have never compromised his stand on freedom from India, and as having suffered immense privations, including long spells in jail, for daring to oppose Indian rule. His charisma is also based on the perception of him as a pious, committed Muslim—an image that he also strives to project—and as having allegedly dedicated his entire life, including his long and tumultuous political career, simply for the sake of (his version of) Islam. In Nava-e Hurriyat, Geelani very deliberately portrays himself as the model Muslim, his every action allegedly determined by, and dedicated to, Islam. Thus, he piously proclaims: “I have dedicated my whole life to the establishment of the faith (iqamat-e din). Till this very day, all the efforts I have made, whether personal or social and collective, have revolved round this agenda. I have always tried to use all my abilities to ensure the supremacy of God's Word” (65).

Geelani's charisma also rests in the perception that, in contrast to various other Kashmiri leaders, he has never caved in to Indian pressure or blandishments. In Nava-e Hurriyat he relates that at the height of the militant movement, in 1990, when incarcerated in jail in Jammu, he was approached by a top Indian intelligence officer who offered him the post of chief minister of Jammu and Kashmir. However, he writes, he refused the offer, telling the officer, “Minister-ships and ambassadorships have no importance at all for me. Even if I sacrifice my life for our cause I will not think it to be that I have made a bad bargain. My goal is so lofty that it cannot be measured by any worldly criterion” (164).

In his Nava-e Hurriyat, as in his longstanding political career, Geelani forcefully articulates the manifold grievances of many Kashmiri Muslims—opposition to Indian rule, widespread human rights violations by the Indian armed forces, India's reneging on its commitments to the international community, its consistent denial of the right to self-determination of the Kashmiris through plebiscite, the perceived Hinduistic and anti-Muslim character of the Indian nation-state, and the plight of the Indian Muslims, which he attributes entirely to Hindu chauvinism. Consistently referring to all of the above, he portrays himself as the authoritative voice of the Kashmiri people and as spearheading the movement for azadi, which he projects as the solution to all these various challenges.

At the same time as Geelani forcefully foregrounds azadi, freedom from India, as the core of his political project, he remains silent on the details of the political dispensation—the “Islamic state” and “Islamic system”—that he sees himself struggling to establish in Jammu and Kashmir in place of Indian rule. He offers nothing even

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remotely resembling a blueprint of this “state” and “system”. This is certainly a very consciously thought-out strategy, reflecting the intellectual limitations of Islamism itself as a political project for practical governance, and of the fact that the trope of the “Islamic state” serves, in Kashmir today as in many other cases, essentially as a slogan and device for mobilising popular dissent and opposition to existing regimes. This silence on the details of the “Islamic system” that Geelani aspires to must also related to deeply-contested notions of Islam itself, in Kashmir as elsewhere, with considerable opposition among many Kashmiri Muslims themselves to the very understanding of Islam and its relationship with politics and the state as articulated by Islamists such as Geelani and his Jamaat-e-Islami. The desire to maintain a “united front” and to prevent further fissures within the anti-Indian Kashmiri Muslim constituency demands, therefore, silence on the practical details of his Maududist-inspired Islamist vision that may not have many takers among the Kashmiri Muslims.

Ironically, despite the widespread perception of Geelani as the icon of the azadi movement, Geelani's understanding of azadi differs radically from that of the Kashmiri Muslim ethno-nationalists, who may be said to reflect the aspirations of a sizeable majority of Kashmiri Muslims. While Geelani repeatedly uses the term azadi, it is clear that he takes it to mean not just freedom from Indian rule but also the accession of Jammu and Kashmir to Pakistan. This is in sharp contrast to how Kashmiri Muslim ethno-nationalists understand the term—as freedom from India and the establishment of an independent state of Jammu and Kashmir. It can thus be posited that Geelani's widespread popularity among many Kashmiri Muslims, based on the perception of him as a leading champion of azadi, is not quite what it seems. To many Kashmiris he is a hero for his consistent opposition to Indian rule and to widespread human rights violations by the Indian armed forces. But when it comes to his advocacy of a Maududiststyle “Islamic state” and the merger of Jammu and Kashmir with Pakistan, a large section of even those who regard him as a hero would vehemently disagree. In other words, it is largely in his fiery anti-Indianism that his charismatic appeal lies and to which his popularity among many Kashmiri Muslims today may be attributed. Many of these very same Kashmiri Muslims would, at the same time, stoutly oppose his ultimate political project—merger with Pakistan—and his particular version of Islam, as represented by Maududi and the Jamaat-e-Islami.

The inconsistencies and contradictions in Geelani's approach to azadi are also reflected in his understanding of the awam, the people of Jammu and Kashmir, whose political voice he claims to be, equating the anti-Indian constituency among the Sunni Kashmiri Muslims with the entire population of the state. Consequently, the aspirations of the substantial non-Muslim minority in Jammu and Kashmir come to be completely silenced, while the Kashmiri Muslim ethno-nationalists, who oppose his agenda of merger with Pakistan and his Maududist-style “Islamic state,” are summarily branded as nothing short of traitors to Islam, as Geelani understands it. Accordingly, it can be said that despite the widespread perception of him as the icon of azadi and hero of the Kashmiri Muslim resistance, Geelani's political project and his Islamist vision represent the aspirations of only a relatively small, and apparently diminishing, minority of pro-

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Pakistan Kashmiri Muslims.

Yoginder Sikand works with the Centre for the Study of Social Exclusion at the National Law School, Bangalore, India.

Endnotes 1. Syed Ali Shah Geelani, Kashmir: Nava-e Hurriyat (Srinagar: Mizan Publications, 1995). The book, written in Urdu, was originally published in Pakistan by the Islamabad-based Institute of Policy Studies, an affiliate of the Jamaat-e Islami of Pakistan.

2. Advocates of an independent Jammu and Kashmir and those who urge the state's accession to Pakistan have failed to take into account the vociferous opposition to their political projects among the state's substantial non-Muslim minority, who would regard both such options as seeking to impose Kashmiri/Muslim domination on them, in the same way as many Kashmiri Muslims regard Indian rule as Indian/Hindu domination.

3. However, it is interesting to note, not a single well-known Indian Muslim scholar has issued any statement or fatwa declaring the militant movement in Kashmir as a jihad. On the contrary, many such scholars, with far greater Islamic scholarly credentials than Geelani himself, consider it to be, at best, a nationalist movement or a political struggle that erroneously invokes Islamic legitimacy, and several have even gone to the extent of declaring it to be an Islamically-unacceptable fitna or fasad or 'strife', the very opposite of jihad, and, therefore, illegitimate. They also claim that the Kashmir case does not fulfill all the various requirements for declaring a jihad according to their understanding of the Islamic scriptural sources. See, for instance, Wahiduddin Khan, Peace in Kashmir (http://www.islampeaceandjustice. blogspot.com, accessed on 14th September, 2010).

Geelani, however, does not refer to these scholars or engage with their arguments.

4. Needless to say, this is a view that many Indian Muslim scholars would vehemently oppose as representing a complete distortion of the teachings of their faith.

5. Gilani does not concern himself with the implications of his characterization of India as 'antiIslam' and of his call for jihad against India for the Indian Muslims, who vastly outnumber the Muslims of Jammu and Kashmir. The future of the Indian Muslims in the face of what he characterizes as a jihad binding on all Muslims does not concern him, and nor does he refer to what role he thinks the Indian Muslims should play in the 'jihad'. Describing the Indian Muslims as heavily oppressed by the Indian/Hindu state and Hindu chauvinist groups, presumably he feels that their position could hardly get worse if jihad is declared against the Indian state.

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Floods in Pakistan—A Brief Overview Zaigham Habib and Muhammad Nawaz

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akistan has experienced the worst flood in the last 80 years. The devastating 2010 flood caused huge losses of infrastructure, homes, Kharif crops (autumn harvest) and livestock besides its indirect impact through diseases, environmental degradation and social problems. The flood has been unique in its character, the evolution in the watershed, the spatial spread and the infrastructural damage. The size and duration of the flood was unprecedented for the managers of the Indus Basin. As the flood peaks moved down the system, management responses became erratic and chaotic, resulting in an extensive inundation of the populated areas, agricultural land and large scale infrastructural erosion. After more than a month, when river flows had drastically reduced, flood water was still flowing through lakes and drains or standing in low level areas of Sindh and Balochistan provinces.

The emergency measures, comparable to a war footing, were successful on the evacuation front, which controlled the loss of human life. But the Indus Basin experienced a new level of flood damages, affecting about 30 percent of its plains and 20 million people while displacing an unprecedented 8 million people. According to preliminary estimates, the floods destroyed 1.3 million houses and standing crops on 1.4 million acres of land. More than 50 percent of the roads and irrigation infrastructure in the flood affected areas needs serious repairs.

Although the exact economic cost is yet to be determined, preliminary estimates suggests the cost being as high as four to five trillion rupees. The way forward is quite challenging and requires a great deal of scientific planning and costly measures such as the construction of dams to adapt to such events which may occur more frequently.

This article looks into the major causes of the 2010 flood, its unique behavior, impact, economic costs, the flood management capacity of the system as it stands and as it should be, future projections and finally recommends measures as a way forward into the highly uncertain and variable hydrological future.

Causes of 2010 flood The Himalaya regions and Pakistan are prone to extreme natural events due to climatic and environmental changes, and the geography of the country (ICC reports 2001 and 2007). The last 10 years have witnessed exceptional extreme events, such as two years of severe draughts and historically minimum river flows in 2001–2003, small glacier lake outbursts during 2007–2009 and landslides in the Hunza Valley (Karakorum range) during a snow storm in January 2010. A shift in monsoon pattern and torrential rains

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has already caused local floods in Balochistan, Sindh and southern Punjab.

The major driver of the current flood is the prolonged high intensity monsoon rainfall possibly triggered by climate change. The year 2010 started with a drought in January and February, followed by a heat wave in March and a tropical cyclone in May. June recorded another heat wave with temperatures rising to 53.7o C, the highest in the last 50 years. On 24 July 2010 a strong monsoon developed over the Bay of Bengal. However, at the same time, a westerly weather system also emerged. The two weather systems interconnected, resulting in westerly winds being stagnated for a longer time. On the night of 28 July, heavy rainfall started and continued till 29 July. After two days another monsoon developed which, too, was a rare event in the recent past. NASA's Tropical Rainfall Measuring Mission (TRMM) also reported 200 percent higher rains in July and, for about two weeks in August, up to 24 mm a day above-average rains in monsoon regions of Pakistan. This unusual pattern of weather was the major cause of the high intensity, prolonged rainfall in the upper catchments of the rivers which resulted in heavy flooding at River Inflow Monitoring (RIM) stations. In addition, the intense rainfall (average 200 mm) downstream the RIM stations on the plains, mountains and hills added a huge quantity of drainage water to the overflowing rivers, thus inundating large tracks of low lying lands in the vicinity. In addition to the rains, the possibility of excessive glacier melt also exists. A heavy and prolonged downpour can potentially increase the melting of soft snow. Separate estimates of rain-runoff and glacier melt are not available, but much more than expected river flows in the Indus indicates towards it.

Climate change is likely to increase both the intensity and frequency of extreme events such as floods, droughts, cyclones and heat waves during the 21st century (Bates et. al 2008). Out of the last 15 years, 12 years have been recorded as the warmest since 1860 (GCISC 2008) worldwide. The recent drought in Russia, record breaking heat wave in Japan and floods in Pakistan are the signs of a major shift in the climate pattern in this part of the world. During the period from 1992–2010, more than five mega floods occurred in Pakistan along with the worst drought in its history during 1998–2001. This indicates that the weather system in Pakistan has been going through unprecedented variations during the last 20 years which makes the country highly vulnerable to climate-induced shocks in the future.

The Indus River System (IRS) inflow at RIM stations increased 25 MAF during July–August 2010 compared to the same period in 2009, showing a 70 percent increase (see Figure 1). As a result of this flood, the total flow downstream Kotri Barrage is about 50 MAF so far (WAPDA, 2010). Currently, the live water storage capacity in Pakistan is 11.5 MAF which is 8 percent of the average annual river flow (and needs to be 40 percent according to the international standards). The per capita storage is 82 cubic metres which is significantly lower compared to the 300 cubic metres and 2,200 cubic metres in India and China respectively. This insignificant storage capacity gives license to floods to turn violent downstream.

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Figure 1: Comparison of Indus River System Inflows at RIM during July–Aug 2009 & 2010

Source: http://www.wapda.gov.pk (Accessed during July, August, September for river flow data)

There are several other factors which acted as a catalyst to intensify the recent floods.

Among them are the degradation of the watershed areas due to deforestation and unsustainable land use. Watershed areas act as a sink for the rains by absorbing it in the root zone of grasses and forest and deep down into aquifers. It also minimises the water runoff velocity in the upper catchments, thus controlling flash floods as well as the subsequent soil erosion. The second important factor is the decreasing silt carrying capacity of the river flows during normal years. The river seldom reaches the sea to flush away its silt load except during the monsoon season. This deposit of silts in the bed and sides reduces the river cross section area which causes an overflow during the flood season. The third contributing factor is the large settlements and agricultural practices in katcha areas (land in and around the Indus river bed) on both sides of the River Indus which also acted as a blockade against the overflowing river, increasing its speed. In summary, natural as well as human-induced factors together contributed to make the 2010 flood one of the most destructive in the known history of this part of the globe.

Impact The flood resulted in heavy direct and indirect losses to Pakistan. The exact damage assessment is yet to be undertaken. However, preliminary estimates suggest 1,760 deaths and 2,000 injuries, 7.5 million people displaced and 20 million affected, 79 districts affected, more than one million houses collapsed, 5 million acres of cropped land inundated, thousands of kilometres of roads with bridges washed away and colossal loss to the electricity, telephone and irrigation infrastructure as reported by the United Nations, National Disaster Management Authority (NDMA) and provincial governments.

According to Pakistan Agricultural Research Council (PARC 2010), about 5 million acres of agriculture land has been affected by the 2010 flood. The major crops which have been damaged include cotton, rice, sugarcane, maize, pulses, fodder, vegetables and orchards. The livestock sector has also suffered a heavy blow as more than a million animals have died and 14 million have been affected through diseases and malnutrition,

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in addition to the damage to animal sheds, fisheries and poultry farms. Similarly, complete or partial damage to the irrigation infrastructure include 201 primary, 396 secondary and 8,200 tertiary irrigation channels and 10,637 tube wells/others (FAO 2010).

The environmental impact of the flood is difficult to determine. However, initial assessment indicates severe damage to the forestry, wildlife habitat, fish and the alteration in habitat of Indus dolphin and hog deer (PWP-UNDP 2010). According to PARC (2010), 96,000 acres of forest land has been affected by flood. Degradation of both the surface and groundwater by effluents from agriculture lands, industries and petrol stations in affected area is another serious environmental issue. High velocity flash flood washed away thousands acres of top soil which not only reduced agriculture land fertility but also caused sedimentation of the dams.

The flood's impact on the social fabric is even more harder to quantify but significant among them include the deaths and injuries, depriving the families of their earning hands and causing psychological disorders, unemployment due to the loss of livelihood, abandoned cultural assets, crimes, flood-induced beggary and increase in the school dropout ratio due to the loss of income and inflation.

Economic Cost The direct cost of the 2010 flood in terms of damages to infrastructure, livelihood and agriculture is estimated to be about three trillion rupees so far, and is expected to rise as the water recedes. The indirect financial cost includes the waste of 50 MAF of freshwater to the sea which could have easily earned a trillion rupees in the agricultural sector besides its huge hydro power generation capability. The cost of curative and preventive medical cover is yet to be known. Inflation will add significant cost to the total as the gap between the supply and demand is widening. Additional costs will be incurred during the next Rabi season (spring harvest) wheat crop in terms of the land preparation and provision of water, seed and fertilizers at a higher cost. The government indicated the projected economic growth rate would decline from initial 4.5 to 2.5 percent for 2010/11.

The social cost in terms of joblessness, diseases, pressure on urban resources, crimes and other similar impacts is not easy to quantify but will certainly burden the national economy significantly. In terms of the environmental costs, the society will pay a huge price in terms of using polluted water from shallow wells, sowing polluted soils and siltation of dams.

The total economic cost of this flood is spread across various sectors and will require special skills and approaches to estimate once the water recedes. However, it is estimated that the cost may go up to Rs 4–5 trillion or beyond.

Flood Management After the floods of 1973 and 1976, the Federal Flood Commission (FFC) was established in January 1977. The FFC is the principle institution for flood planning and control in Pakistan. Its mandate includes the preparation of the National Flood Protection Plans,

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approval of the flood control schemes, reviewing the flood damages, improving the flood forecasting and the warning system, monitoring and evaluation, and so on. The Pakistan Meteorological (MET) Department and the FFC were further strengthened after the flood damages in 1992. New tools (models, databases) and procedures were added to improve the forecast, share information and evaluate different flood management plans.

The flood management unit is represented by different organisations. It prepares a tentative flood protection plan at the beginning of the monsoon season, keeps it updated and shares it with all stakeholders including the provincial governments. The unit has access to global weather satellites, topographic sheets of the country with district and hydrological boundaries, local rain monitoring networks (weather radars, gauges on the tributaries and nallas), and various computer models covering the catchments areas and physical network.

The current experience of flood management highlighted difficulties on many accounts.

The local regimes of heavy rains, flash floods and hill torrents remain outside the flood management and protection plans. These plans focus on the large rivers and a few areas with previous history of flooding. Hence the monitoring and forecast does not provide information about the route, quantity and duration of the flash floods. The real time rainfall is monitored in all the major districts, but the generated flows (runoff) are not estimated. The river flows at the key locations (reservoirs and barrages) are considered and announced in weakly and daily forecasts. The large volumes of torrential flows and consequent damages in rural and urban areas of Khyber-Pakhtunkhwa, Sulemanki and Khirther ranges indicate the need to process and announce detailed information about expected flow volumes and the routes etc. of the expected floods on a daily basis. It would not require a new monitoring system, but a comprehensive approach and planning process.

The planned regime for flood management was mainly disturbed by delayed, higherthan-expected and prolonged flows in the long tracts of River Indus from Chashma Barrage to the sea. Unpredicted flood behaviour from Taunsa Barrage to Kotri Barrage were critical in the decision-making process of the flood management unit. The peak flows endured for exceptionally long periods upstream of the barrages, causing major problems. These factors were neither considered nor the forecasts revised to justify and accommodate this behaviour, which is only mentioned as a result of the “new hydrological conditions.” An operational consequence was that the provincial irrigation departments and provincial administration had to make decisions on the spot which were different from the original plans and standard procedures.

The most prominent forecast by the MET and Flood Commissions was advertised by the government of Pakistan on 5 August 2010 (Table 1). According to the forecast, the maximum flooding, at 900,000–100,000 cusecs, was at Mithon Kot (the joining point of the flows from all tributaries towards the east of the Indus). The flows at Guddu and Sukkur Barrage were 700,000 and 350,000 cusecs. Both locations were expected to have 900,000 cusecs of water within the next 24 and 48 hours. The Kotri was expected to have 700,000 cusecs on 10–11 August. As shown in the table, the maximum flows arrived substantially late. The delay was about 3 days between Guddu and Sukkur and 10

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days between Sukkur and Kotri barrages. This substantial slowing down could have been contributed by the combined impact of multiple factors including breaches, cut and unplanned flow diversions. The obstruction and narrowed river path perhaps played a bigger role not only in the delaying, but also the accumulation of the flood flows in certain river reaches.

Table 1: Forecast of FFC and Reported Flows in Indus – 100,000 cusecs (cubic ft/second) 5th August Forecast

Actual Flows Reported by the Irrigation Department

Barrage Act. Flow

1 2 3

Mithon Kot Guddu Sukkur Kotri

Expect ed Flows

Foreca st date

>9 >9 >7

6th 7th 10/11 th

. 7th August

11 th August

18th August

22nd August

27th August

10.36 11.09 2.08

10.5 10.2 3.7

7.51 7.84 8.5

6.06 6.54 9.65

9-10 7 3.5 1.9

9.62 7.75 1.9

Luckily, the main structures of all barrages remained intact while eventually more-thanexpected flows passed through their gates. Apparently, confusion about actual flow handling capacity of the barrage structures led to unnecessary precautions and extra pressure on bunds. For example, 1.2 million cusecs water passed through Sukkur Barrage against its presumed capacity of 1 million cusecs.

Future Projections The Task Force on Climate Change found that the average temperature increased 0.6o C during the 20th century, with an increase of about 0.8o C over the northern part (GoP-PC, 2010). The report predicted an increase of 1.3–4.4o C during the 21st century. If this happens (which is likely to be the case), the glaciers in the upper catchments of the major rivers will melt rapidly and, augmented by monsoon rainfall, will result in flash floods for a few decades followed by long periods of droughts. Pakistan seems to be turning into another Bangladesh where floods will be a usual phenomenon. Although the intensity of future floods may not be predicted accurately, it is highly expected that the frequency of floods will rise in the years ahead. The greatest of all concerns is a flood of this scale striking again next year or in 2015 or 2025.

The Way Forward The current live storage capacity in Pakistan is 11.5 MAF (originally 15.75 MAF) which will further decrease due to the rapid siltation of the dams. Under the frequent floods scenario, the extent of damage will further increase in the future. Pakistan needs to develop a win-win flood control strategy which will deliver even if floods of this scale do not occur (which is highly unlikely).

This not only requires damage control during the floods but, more importantly, long term planning to enhance the flood carrying capacity of the system, minimise risks to lives and livelihoods, and ensure the efficient functioning of all relevant public sector institutions.

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The flood forecast and protection plans have been scanty, neither covering the watershed fully nor representing the actual hydrological conditions of the Indus basin waterways and drainage system. The flood-control setup did not have comprehensive planning and the ability or mechanisms to improve the original assumption and to provide correct information and guidance critically required to take sensitive decisions such as induced breaches.

The flood forecast must evaluate and fully document the emergency actions required at different levels of high to super floods. The possible consequences of these actions must be assessed which include the inundated areas outside the flood plains, the population to be affected, the financial losses and technical details like the detailed operational procedures and recession path of the water.

The behaviour of Indus reaches below Chashma was erratic and unexpected. There are obvious factors like deforestation in the catchment and sailaba (flood plains) areas, and use of the range lands virtually eroding safety margins of the small tributary rivers.

Unplanned settlements and private and public infrastructure in the flood plains of the large rivers obstructed drainage paths, decreasing the protection against rain-runoff.

Encroachments all along the rivers are justified because of reduced river flows for many years. Yet they are an excellent example of the short sightedness and disintegrated planning. It is true for the eastern rivers as well, which luckily remained at the low-flood level this year. A vital management question is how to keep the water-ways of rivers Ravi and Sutlej intact and alive, while minimal flows are available in the eastern system with a probability of sudden floods.

The future is gloomy; however, it also has hidden opportunities. Whereas natural events cannot be stopped, proper planning and timely actions can minimise their impacts to a large extent.

WAPDA Vision 2025 has identified a number of feasible water storage sites which after completion will minimise the losses by more than 50 percent if a similar flood occurs again. Including among them are Skardu, Basha, Akori, Yogu, Munda, Mangla raising project which will provide additional storage capacity of 30 MAF (WAPDA 2002) while the recent flood inflow is 50 MAF so far. Going down this path will not only minimise the flood damages but also bring huge economic benefits such as annual income of Rs 600 billion by using the stored water for agriculture and hydel power generation of about 8,000 MW. The country needs big dams within the next 10–15 years to adapt to the future floods. This increased storage capacity will enable the country to carry over the flood water from the wet year to dry year(s) during the drought period (existing dams carryover water only from Kharif to Rabi season). Similarly, timely construction of already identified 30 small and medium dams will store 6 MAF of destructive runoff generated within local catchments in all the four provinces. These small dams will not only control the destructive hill torrents but also irrigate thousands of rain-fed lands to improve the livelihood of the poorest of the poor living on the marginal lands.

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Another anti-flood measure is the watershed management, aiming to capture as much water as possible in the upper catchments' soil and groundwater reservoirs. This will also minimise flood velocity, soil erosion and dam siltation downstream. A national campaign for the revitalisation of natural water ponds locally called johars be initiated to harvest rainfall for avoiding flooding and storing water for drinking, irrigation and groundwater recharge purposes (the State of Rajasthan, India, recently constructed/improved 10,000 johars).

The 21st century is the century of knowledge and scientific approaches to complex problems. Flood forecasting will be essential to minimise the flood damages in the future. The scientific approach must be employed to explore various scenarios for rainfall-runoff, glaciers melting, river flows, storages diversions, breaches and so on, for the economic, social and environmental analysis and timely decision-making.

This Flood Control Strategy needs to be developed and implemented on a scale equal to a war footing. Although the recommended measures need huge financial resources and time, ignoring them will cost the country many times more. Political commitment can materialise this grand vision like it did in the 1960s by initiating the gigantic Indus Basin Replacement Works. China and India are two neighbourhood examples where the devastating floods have been tamed and transformed into an economic resource to a large extent by constructing a network of dams. Foreseeing extreme floods and drought in the decades to come, Pakistan has to think and act now to convert the future floods into economic opportunities.

Zaigham Habib is water expert and development consultant. Dr Habib is a member of Think Tank Committee on Water Resources organised by Pakistan Engineering Council and the Task force on Climate Change-Planning Commission Pakistan.

Muhammad Nawaz is senior research associate at the Planning Commission Pakistan.

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Towards Energy Independence in Pakistan Aasir Kazmi and Shahbaz Khan Objective Oil plays a pivotal role in the economy of Pakistan. Today, Pakistan consumes around 380,000 barrels per day (bpd) of crude oil and its products; however, out of the same only around 70,000 bpd is contributed by indigenous production and the rest is imported from abroad at an annual cost of approximately USD 9–11 billion i.e. around 30–33 percent of the country's aggregate import bill. This abundantly highlights the imperative need to look for all possible avenues to reduce this import dependence.

This article is an attempt to examine the role of crude oil in the national economy and advocate some measures for the accelerated exploitation of indigenous resources which may help in reducing the current dependence on imports and being more self-reliant in this regard.

Background Pakistan has long been considered a petroleum province. Strategically, located at the foot of Central Asia, it has an interesting history of prospective hydrocarbon basins, both onshore and offshore, as explained in the following paragraphs. i. Exploration a) Onshore The first exploratory well in this part of the world was drilled in 1866 near Kundal, in the Mianwali district in Punjab. This is the same era when petroleum exploration activities were taking root on a commercial level in Baku, Azerbaijan and Pennsylvania, USA. The first commercial discovery was only announced in 1848 at Baku followed by the discovery of Pennsylvania in 1859. The well at Kundal was not a singular effort; rather, activities continued during the last quarter of 19th century with attempts to locate oil by drilling shallow boreholes, mainly in the Suleiman fold belt in Balochistan area. The most notable success during this period was at Khattan where 13 wells produced 25,000 barrels of oil between 1885 and 1892. The impetus for this drilling was to establish a convenient source of fuel for the railway system which the then Anglo-Indian government was constructing to secure the Indian/Afghan border. The oil companies and the authorities kept on pursuing more oil in the region and eventually, the first of a series of sizeable commercial oil discoveries was made at Khaur in 1915 in the Pothwar basin, Punjab. It would be of interest to note that during the early 1930s this region was producing around 1,000 bpd of crude oil. Thereafter and up till 1947, three more oil discoveries were made in the same region, establishing a rather prolific petroleum system in the Pothwar plateau. This is especially important in view of the fact that the

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logistics of exploration and drilling equipment machinery are a challenge even today, when means of communication have definitely made tremendous improvement; thus the reader can well imagine the challenges the engineers, drillers and project leaders must have faced in shifting the machinery to the locations in remote areas in those days.

Still, the very fact that around 99 wells (66 exploratory and 33 appraisal/ development wells) had already been drilled in this part of the world, called Pakistan today, by 1947 speaks volumes about the potential of this region in the eyes of oil explorationists; although the major discoveries of Persia, Iraq, Kuwait, Qatar, Central Asia and Saudi Arabia made during the early decades of the start of oil and gas exploration and production activities vis-à-vis the geopolitical turbulence of the subcontinent in the backdrop of the independence movement, gradually shifted their focus to the Middle East.

Soon after independence, the discovery of major gas deposits at Sui, Zin and Uch in Balochistan, and Khairpur, Kandkot and Mazarani in Sindh projected the impression that Pakistan's geology was oriented more towards natural gas than oil. As international petroleum companies were more interested in finding oil, they left Pakistan en mass, and petroleum exploration came almost to a standstill by 1960. This created a need for Pakistan to create an indigenous exploration and production capability and consequently Oil & Gas Development Corporation (presently Oil & Gas Development Company Limited) was established in 1961 in the public sector. Interestingly, despite Pakistan's strong pro-US policy since the start, OGDC was created through Soviet cooperation. Pakistan started her exploration activities with Russian experts, equipment and materials and made the country's first post independence oil discovery at Toot during 1967, again in the Pothwar region. According to the Pakistan Energy Yearbook 2009, nearly 13 million barrels of crude oil has already been exploited from the said field as of July 2009, out of the aggregate proven reserves of 16 million barrels. The said discovery has, to date, enabled us to save around USD 650 million in lieu of oil imports. OGDCL continued exploration during the 1960s and early 1970s, making a number of discoveries—particularly at Meyal and Dhodak during 1968 and 1974 respectively—thereby adding around 66 million barrels to the country's reserves inventory. These discoveries and the growing information on regional petroleum prospects brought Pakistan back to the international scene for foreign investment and a number of foreign exploration and production (E&P) companies took concession acreages in the Indus basin in the province of Sindh during 1976–77. This led to the discovery of the second oil province in the southern Indus basin with the milestone discovery at Khaskeli in district Badin in Sindh in 1981 which added reserves of around 13.6 million bbls to the national inventory and resulted in saving around USD 680 million in foreign exchange for the country.

As a result of this momentum, the mid-to-end 1980s remained the most prominent period with respect to petroleum exploration in Pakistan. From 1983–1987, a total of 65 exploratory wells were drilled at an average of 13 wells per year with a success ratio of 1:2.7 and resulted in 14 oil and 1 gas-condensate discoveries. This resulted in the addition of around 242 million bbl to the national inventory with savings of around USD

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12 billion for the country. During the 1990s, OGDCL again made several oil discoveries in Pothwar region notably at Chak Naurang, Missa Kaswal, Sadkal (Fateh Jang), Rajian, Kal (Chakwal) and so on. But the discovery of oil in Khyber-Pukhtunkhwa, at Chanda during 1999, will always be considered the major breakthrough by OGDCL. Thereafter, around 10 exploratory and 13 development wells have been drilled in the province in the past 10 years. Out of these, only 4 have remained unsuccessful, indicating a highly promising success ratio of more than 80 percent in the said region.

Today, the oil sector of the country is organised and regulated by Ministry of Petroleum and Natural Resources (MPNR) which was created in April 1977 under the aegis of Prime Minister Zulfikar Ali Bhutto. Prior to that, it was a part of Ministry of Fuel, Power and Natural Resources since 1947. The director general of Petroleum Concessions (DGPC), under the patronage of the MPNR, is responsible to promote acreages, maintain national petroleum database, award concessions and monitor E&P activities. The following data, as per MPNR, summarises the region's onshore exploration activities up till 30 June 2009: l l l l l

l

Total prospective area of Pakistan: 827,268 sq-kms.

Area under exploration/development leases: 203,281 sq-kms (25 percent of total prospective area).

Number of exploratory wells: 742 wells (including 66 wells drilled before 1947).

Number of appraisal/development wells: 990 wells (including 33 wells drilled before 1947).

No. of discoveries: 221 - Oil : 54 - Oil & Gas/Gas/Gas-Condensate: 167 Drilling success ratio: 1:3.7 vis-Ă -vis 1:10 in Middle East and Persian-Arabian Gulfs, 1:14 in Russia, 1:8 in Azerbaijan, 1:15 in Burma, 1:9 in Norway and 1:13 Venezuela.

b) Offshore Pakistan's offshore basin, with an acreage of about 300,000 sq-km is the second largest in the world after the Bengal delta and is divided into two parts: the Indus offshore and the Makran Coast. Though the exploration in the offshore region started in 1961, it has so far remained limited to the drilling of only 16 exploratory wells out of which 12 were located in the Indus offshore and 4 in the Makran Coast, at a drilling density of about 0.4 wells per 10,000 sq-km as opposed to 100 wells per 10,000 sq-km in the PersianArabian Gulfs. This low frequency of drilling is despite the fact that according to the latest Indus Basin Study (April 2009), conducted by the government of Pakistan (GoP), the country's offshore basin is analogous to several high producing basins of the world in terms of its geological setting, e.g. the Mississippi Delta (Gulf of Mexico, the US), the Niger Delta (Nigeria), the Mahakam Delta (Indonesia), the Mackenzie Delta, (Canada) the Gipsland Basin (Australia) and so on. Thus the prospects of locating up-stands, like the giant Mumbai High of India which has the reserves of 6.1 billion barrels and

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produces around 260,000 bpd daily, cannot be ruled out, provided at least modest efforts are exerted. The initial required investment, in this regard, is estimated to be around USD 100 million. ii. Reserves Scenario According to the Ministry of Petroleum and Natural Resources, Pakistan, the aggregate proven reserves of the country as of 1 January 2010 stand at 947.6 million barrels as against the estimated prognostic reserves of 27 billion barrels. This implies that only three percent of the aggregate indigenous reserves' potential has been so far explored.

This seems ironic if juxtaposed with a common perception prevailing in the society that Pakistan does not have sufficient supplies of indigenous oil to meet its growing demands. All signs are there that there is immense existing potential just waiting to be exploited by putting in the due efforts. In this regard, the following needs to be kept in view: a)

Only around 25 percent of the total prospective area of the country has been explored to date and 80 percent of the same is located in Sindh. This is primarily due to the accessibility and uncomplicated geology of the said province relative to other potential regions like Balochistan, Khyber-Pukhtunkhwa and FATA. It must be highlighted that, due to a lack of technical expertise and technology in the field of oil exploration in Pakistan, even the area which has already been explored has not been fully exploited in terms of the recovery of deep in-place hydrocarbons; the reserve size of which is estimated to be around 2–3 billion barrels of crude/condensate.

b) Owing to the technological constraints of seismic acquisition and processing techniques, mostly only the structural traps have so far been drilled; stratigraphic and more subtle traps are yet to be explored, studied and exploited This is chiefly due to a historical emphasis on structures vis-à-vis the difficulty in seismically imaging stratigraphic trap components. However, as per the relevant Indus Basin Study, 2009, around 10–12 percent of the aggregate prognostic reserves i.e. 3 billion barrels reside in stratigraphic traps.

We understand that these reserves can be tapped with an investment of around USD 80–100 million for geo-physical studies from reputed seismic consultancies to explore the “stratigraphic potential” of Pakistan. It goes without saying that the benefit of these studies to the country could run into billions and trillions of dollars provided they are carried under able supervision; a small working group of exploration experts and leading reservoir scientists of the country constituted under the aegis of the Ministry of Petroleum and Natural Resources. c)

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Although Pakistan reflects quite an attractive drilling success ratio of 1:3.7 vis-à-vis 1:10 in the Middle East and Gulf regions, the on-shore and off-shore drilling densities in Pakistan—8 and 0.4 wells per 10,000 sq-kms vis-à-vis 80 and 100 wells respectively per 10,000 sq-kms in the above areas i.e. Middle East & Gulf region—neatly highlights the reasons for the country's current dependence on

imports. iii. Production Statics According to PPIS (Pakistan Petroleum Information Service 2009) around 644 million barrels of indigenous crude oil stood produced up till 31 December 2009 and the current average daily oil production i.e. 66,500 bpd vis-à-vis the balance recoverable proven indigenous reserves i.e. 303 million barrels which translates into an apparent reserve life of only 14 years even while only maintaining the same rate of production. On the face of it, the situation looks quite alarming. However, these reserves can easily be in the range of at least five billion barrels while keeping in view the given high success ratios and potential reserves of the country provided at least modest, if not vigorous, efforts are made in locating and harnessing for the economic development of the country. At present, Sindh dominates oil production with a share of 59.63 percent followed by Punjab, Khyber-Pukhtunkhwa and Balochistan (20.43 percent, 19.85 percent and 10 percent respectively). iv. Demand and Supply—Import Dependence Pakistan's energy mix resembles that of major oil producers, for example Iran. However, it is very different from neighbouring India and China, which depend on coal for more than half of their energy needs. As of FY 2008/09, crude oil accounts for around 31 percent of the energy supply mix of the country, whereas the rest is fulfilled through natural gas (48 percent), hyrdro power (11 percent), coal (9 percent), nuclear energy (0.6 percent) and LPG (0.4 percent). The transport sector is the largest consumer of petroleum products at 48 percent, followed by power sector, general industry and domestic sector at 35 percent, 11 percent and 6 percent respectively. The said share of oil (31 percent) was as high as 49 percent during 2001–02. The sharp decline is attributed to high POL prices and deliberate demand contraction policies of the government by encouraging increased usage of natural gas. Table 1 would further help the reader in comprehending the afore described phenomenon: % Share Gas in Energy Supply Mix

% Share Oil in Energy Supply Mix

% share other sources in Energy Supply Mix

Price of POL (USD/Bbl)

Indigenous Oil Production (Bpd)

Oil Consumption (Bpd)

Net % Imports

Oil Import Bill (Billion USD)

2001-02

31

49

20

28

62,069

331,150

81.26

2.75

2002-03

32.3

44.2

21

30

62,134

331,254

81.24

2.95

2003-04

35.5

40.1

20

38

61,817

330,722

81.36

3.74

2004-05

38.8

36.2

19

49

66,079

325,516

80.07

4.75

2005-06

40

34.1

20

59

65,577

347,593

81.13

6.07

2006-07

42.3

33.8

20

65

67,438

381,459

82.32

7.45

2007-08

45.5

31

19

100

69,954

390,150

82.91

11.69

2008-09

47.9

32.2

19.9

80

65,845

385,500

83.76

9.334

Year

Source: Pakistan Energy Year Book 2009

Despite having immense hydrocarbon potential, Pakistan relies heavily on oil imports and nearly 82 percent of its liquid fuel requirements are fulfilled with imported oil. In the last three years (2006–2009), the gross imports of liquid fuels have averaged 17.6 million tons per annum thereby generating an average import bill of around 9.5 billion

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dollars per annum. This accounted for around 30 percent of the country's aggregate import bill and badly affected the balance of payments and trade during the given period.

Till 2001 this dependence stood at 28 percent of the import bill. Therefore, in order to reduce this dependence, the government of Pakistan introduced and actively promoted Compressed Natural Gas (CNG) in 2001 as an alternative fuel for the transport sector. As a cheaper and environmentally friendly alternative, the shift to CNG proved immensely popular and in a few years Pakistan became the world's largest CNG consumer surpassing Brazil and Argentina in 2006 and 2008 respectively. This shift resulted in attracting huge private investment and reducing the country's overall share of oil in the commercial energy mix. However, the resultant increase in the consumption of natural gas by two percent per annum in the said sector with almost no increase in the gas production in the country, especially during 2006–2009 soon started manifesting in the form of acute shortages of gas for both the domestic and power sectors. This shortage again resulted in the increase in consumption of POL in these sectors. The country's worst gas shortage, which left a shortfall of nearly one billion cubic feet per day during the last winter (December 2009–February 2010), can also be studied in this context. In the absence of any substantial new gas finds, the oil demand is again expected to increase during the next three years by around 5-7 percent annually.

Factors Retarding the Pace of E&P Activities in Pakistan Between 1999 and 2009 the frequency of drilling exploratory wells in the country remained between 20–25 wells per annum as compared to 200–250 wells per annum in the Gulf & Middle East. A summary of the main reasons for this slow pace of exploration, especially when it is most needed, is given below: a) Oil Geopolitics Many pundits and theoreticians have predicted that the crude oil reserves are fast depleting and might be extinguished by the end of the 21st century, compelling the world to opt for alternate sources of energy; however, it appears that the global and regional energy security is unlikely to be threatened as much by the shortage of oil as by the disruption of its supplies across the globe due to growing associated geopolitical conflicts both in numbers and intensity.

Referring to US Energy Information Administration (EIA) 2009, the aggregate proven oil reserves of the world, as of 1 January 2010, stand at around 1.160 trillion barrels out of which nearly 0.09 trillion barrels (7.7 percent) have already been exploited as of 31st December 2009 since commercial sales first began in 1861. The EIA estimates that the global consumption of oil, which at present is about 85 million barrels per day, is expected to reach 97 and 117 million barrels per day by 2015 and 2030 respectively.

About three-fourth of this increase in demand is expected to come from the developing countries and around 45 percent from China and India alone. If viewed in this context alone it appears that the above proven reserves might not be sufficient to meet the world's crude requirement beyond the year 2100; however, in addition to these conventional reserves, the world contains immense potential deposits of unconventional oil resources as well, like heavy oil, oil sands, and oil shale, the reserves

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of which, according to analysts, vary between 13 and 16 trillion barrels of oil. Thus, viewed in this perspective, only 10 percent of the prognostic oil reserves of the planet have been tapped so far. Therefore, it appears that the so called “peak oil” theorists are, probably unwittingly, serving the interests of oil producing giants and the relevant geopolitical powers by driving up oil prices and associated profits with their repeated declarations of the oncoming global scarcity of crude oil. The oil crisis in 1973, 1979 and 2008 also need to be studied in this context. It is of interest to note that though production averages place the daily global production at 85million bbl/day, some sources place the daily global consumption averages at far less. This means that some countries are stockpiling huge quantities with the apprehension of a fast approaching “oil peak” and the political significance which the given additional stock may attain in that scenario.

With the end of the Cold War and the disintegration of the Soviet Union in 1991, Central Asia (CEA) has become an important geo-strategic region because of its immense reserves of hydrocarbons and its proximity to several great powers. With proven oil reserves of around 190 billion barrels, the dynamics of the geopolitical conflicts in the region is manifold because all the relevant powers, though mainly Russia and the US, keep struggling to control all the strategic oil and gas reserves of the region including energy pipelines and pertinent transportation corridors. Historically also, Central Asia has mostly served as the battleground for outside powers. Rather than having a identity in its own right, it has remained a cauldron of ethnic identities, tribal and clan loyalties, and religious fervour. As elaborated below the projecting influence into the area is no longer only Russia, but also Turkey, Iran, China, Pakistan, India and the US as well: l

Leading the world in oil consumption with 25 million barrels per day, out of which around 50 percent is met from imports, the US interest in the region is obvious. In this regard, the Silk Road Strategy (SRS) initiated in 1997 and approved via the “Silk Road Strategy Act” by the US Congress in March 1999 now constitutes an essential building block of US foreign policy in the region. Defined as the “Trans-Eurasian Security System,” the successful implementation of the SRS requires concurrent militarisation of the entire Eurasian Corridor—from the eastern Mediterranean to China's western frontier bordering onto Afghanistan—as a means to securing control over extensive oil and gas reserves and associated paraphernalia such as pipeline routes etc. In this regard, the formation of GUAM in October 1997 was also intended to integrate the former Soviet republics (Georgia, Ukraine, Azerbaijan and Moldova) into cooperative military arrangements with the US and NATO, which would prevent them from re-establishing their ties with the Russian Federation. Its objectives can be well understood by the fact that one of its major summits held in , Moldova, on 22 April 22 2005 was attended by a special representative of the US Department of State for Eurasian Conflicts, Steven Mann, OSCE Secretary General Ján Kubiš and the presidents of Romania and Lithuania as observers, Russia having been completely ignored. For the past few years Bulgaria and Japan also appear to have become active in the alliance.The invasion of Afghanistan in 2001 and the US presence in the country since then is also a part of the overall long term strategic

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lobjectives of the US in Central Asia in the above context; especially when the powerful

circles of Pakistan also keep hankering for a role in Afghanistan while espousing the exotic theory of “strategic depth.” This also establishes that whatever public postures the US may adopt with respect to evacuating Afghanistan, and whatever cut-off dates they may announce in this respect, they will not leave the country until they have a) neutralised the Taliban influence, b) trained a pro-US Afghan army able to survive, to a large extent, on its own; and c) those espousing the theory of “strategic depth” have been compelled to change their approach. l

It may be of interest to note that, as reported by World Bank Report 2001, the foreign reserves of Russia in 2001 were approximately USD 26 billion; by April 2010 they had increased to around USD 460 billion. On the contrary, while the former USSR had made great profits in oil exports till the emergence of Mikhail Gorbachev, since then the US and its allies succeeded in causing a sharp decline in the prices from USD 30/bbl to USD 12/bbl. The reduced prices consequently resulted in an annual loss of around USD 20 billion for the former USSR which greatly contributed to the collapse of its economy and the political disintegration of the country.

Currently being the second largest oil and gas exporter in the world, Russia continues to dominate political decision-making throughout the Caucasus, Central Asia, and former Soviet Socialists Republics in general. Although some of the CEA countries have gradually integrated with Western organisations such as the EU and NATO and Russia's influence has decreased in the said nations, Russia is still the primary power in both the Caucasus and Central Asia and it keeps trying to augment its primacy in the region. A few examples of this effort by Russia include: the quitting of many countries like Uzbekistan of GUAM; the Russian victory over Georgia—and by proxy Western powers—in August of 2008; many hydrocarbon deals signed between Moscow and the Central Asian states during 2005–2010; recent resurgence of Russia in Ukrainian politics and the recent events in Kyrgyzstan where a pro-US regime was removed from power with the tacit support of anti-US political forces are only a few examples of this effort by Russia. All signs are indicate that the Russian bloc is trying to reinforce dominance as far south as Afghanistan.

l Comprising of a workforce of 1.5 million people, Chinese National Petroleum

Corporation (CNPC) is the largest organisation in China after the Chinese army.

China was an exporter of crude oil till 1993. However, due to the galloping pace of its development with an annual growth rate of around eight to nine percent, it has now become an importer of around 4.1 million barrels of oil per day i.e. 54 percent of its aggregate consumption. This dependence is expected to increase in the future by at least 5 percent every year and by 2020 is expected to reach around 64.5 percent. Thus China's indigenous oil would only be meeting around 35 percent of its oil needs. This is only when oil accounts just for 21 percent of the current energy mix in China, while coal is shouldering more than 70 percent of the load. Whereas, as the country gets more industrialised, the growing global concern of carbon emissions may also compel it to diversify more and thus lessen this dependence upon coal and be more

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ldependent upon imported oil; especially when its own indigenous reserves of natural

gas are also less than one-third of those of the US i.e. approximately 780TCF, thus ruling out the switchover to this source as well as far as indigenous sources of energy are concerned. Hence, for both the hydrocarbons it can be foreseen that China will get more and more dependent on imports in the future.

Currently, China is mostly reliant on crude oil from the Middle East which is quite distant from China and most of the transportation routes from Middle East are controlled by the US and its allies. Thus, the dissolution of the USSR and creation of independent states in Central Asia created an opportunity for China to look for alternate sources closer to home; especially when it has common borders with three of them i.e. Kazakhstan, Kyrgyzstan and Tajikistan and reportedly Kazakhstan alone holds around 60 to 70 billion barrels of proven reserves of crude oil. China has already purchased some fields in Kazakhstan, and has run at least one 1500 mile long crude oil pipeline, running from here to Xinjiang, which already has a capacity of 200,000bpd, scheduled to be augmented to at least 400,000bpd by 2013.

As explained earlier, China does not have huge reserves of natural gas; in order to meet the growing needs of its economy it needs to have reliable sources of import. In this regard the following is of interest: l A mega 1833 km gas pipeline originating in Turkmenistan, then running across

Uzbekistan and Kazakhstan and entering Xinjiang, China, is currently in progress at a cost of around USD 7.5 billion. The first stage inaugurated in December 2009 is complete and the second stage, of running a parallel line, is expected to be completed in 2011. Another 1400 kilometre (km) long line contributing around 1500 million standard cubic feet per day (MMSCFD) of gas from Karachaganak, Kashghan and Tengiz gas fields would join this line at Shymkent, Kazakhstan, by around 2014. The aggregate design capacity of the line is planned to be at least 4.5 billion cubic feet per day (BCFD) with around 3.0BCFD being contributed by Turkmenistan and the rest

by Kazakhstan. l Via a production sharing agreement (PSA) signed in July 2007 lasting for at least 30

years China has secured its rights at the source of the above gas i.e. Bagtyyarlyk gas fields in Turkmenistan. China is quite heavily involved in the development of these gas reserves which are considered the third largest in the world after Russia and Iran. l China has already booked almost all of the surplus gas of Uzbekistan in addition

to entering into highly lucrative contracts with many other Central Asian republics.

One of the most famous people of the recent Iranian history was Dr Mohammad Mossadegh. He was democratically elected the prime minister of Iran by the Iranian parliament in 1951 by a vote of 79–12. However, his government was toppled in 1953 by a CIA-staged coup and he was imprisoned by the Shah of Iran Mohammad Reza Shah Pahlavi. He had nationalised the Iranian assets of the British owned Anglo Iranian Oil

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Company (AIOC), which later renamed itself as British Petroleum. The assets had been under the control of the AIOC since its inception i.e. the mid-1920s. With a crude production of around 0.7 million bpd Iran was a leading oil producer at that time.

While sitting on proven oil reserves of around 140 billion barrels and proven gas reserves of around 975TCF—the second and third largest reserves in the world respectively—Iran undeniably has a pivotal significance not only at the regional but international level. This is especially true because Iran is one of the littoral states of the Caspian sea as well, which itself contains huge reserves of oil. Also potentially the most economical pipeline route for Caspian crude oil to the Persian Gulf and onward to the West lies through Iran.

Another important aspect of Iran is its strategic location athwart Strait of Hormuz through which passes around 40 percent of the crude oil exports of the world. On several occasions it has warned the US that it has the potential to block this passage which would disrupt supplies from Saudi Arabia, Kuwait and Iraq. This causes alarm for the US especially when viewed in the perspective of Iran's growing military might, its missile and nuclear programs and especially the commercial ties it enjoys with Russia, China, France, Japan, Malaysia, Turkey, Italy, Switzerland, Belarus, Germany, Indonesia and Oman. Also, Iran is the only country which has the potential to increase its crude production by three million bpd from its current level at quite an accelerated pace.

Russia, China and Iran try to counterbalance the above military developments by the US and NATO through the Shanghai Cooperation Organization (SCO) and the Collective Security Treaty Organization (CSTO). The SCO is primarily a military alliance between Russia, China and Central Asian states like Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan, whereas, Iran and Pakistan have an observer status in the same. The Collective Security Treaty Organization (CSTO) plays a key geopolitical role in relation to transport and energy corridors and operates in close liaison with the SCO. The CSTO comprises of Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan.

Turkey does not hold significant energy resources in its own right. However, over the period of years and due to its geographical location straddled between Asia and Europe, it has gradually emerged to be an “energy bridge” between the Middle East, the Caspian area and Europe. Turkey also appears to have taken full advantage of US apprehensions with respect to Russia, and its significance as a bridge is only going to grow further in the future. The following facts are noteworthy: l

With oil and natural consumption of around 700,000 bpd and 3000 MMSCFD respectively Turkey is itself a large consumer of imported energy when it hardly produces around 40,000 bpd of crude oil and 800 MMSCFD of natural gas.

l

Currently two main natural gas pipelines run from Russia to Turkey. The first has a capacity of around 1.3BCF/day and runs across Moldova, Ukraine, Romania and Bulgaria and ends at Western Istanbul. The other is called Blue Stream Pipeline and has a capacity of at least 1.6BCF/day and length of 2500 kms. More than 800 kms of

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lthis pipeline passes under the Black Sea ending at Samsun, a Turkish city on the Black

Sea coast. Through this network, Turkey is dependent upon Russia to fulfil around 65 percent of its natural gas needs. l

Another 692 km long natural gas pipeline, with a capacity of around 1.9BCF/day, transfers Azerbaijani gas from the Shah Deniz-I field to Turkey via Georgia. This pipeline carries natural gas not only for the Turkish domestic market but also for Greece. Iran also has equity of 10 percent in the consortium which owns and operates this pipeline.

l

A 2500 km long pipeline, with a capacity of around 1.3BCF/day of natural gas was inaugurated in 2002. It runs from Tabriz in Iran to Ankara, Turkey.

l

The famous 1760 km long Baku-Tbilisi-Ceyhan Crude Oil Pipeline (BTC) transports oil runs from Azerbaijan and traverses through Georgia to the Eastern Mediterranean coast at Ceyhan, Turkey.

l

Diplomatic networking about another potential mega pipeline, titled Nabucco, which will pass through Turkey, has gained momentum over the past few years. It is strongly supported by the EU and the US. This 3300 km long pipeline, with a capacity of 3BCF/day is being considered as an attempt to reduce European dependence on Russian gas. According to proposals, the line will not even pass through Russia but rather will be connected to the South Caucasus Pipeline (SCP) originating in Azerbaijan and the Iran-Turkey line at Ezrum, Turkey. It will terminate at Baumgarten an der March, Austria, after passing through Bulgaria, Romania and Hungary.

Thus far there are serious concerns with respect to the availability of gas for this pipeline and Russia and Iran have openly rattled sabers against it; however, if it materialises, it would prove to be a major capitalist artery passing through Turkey and thus further enhancing the regional and international importance of the country with respect to energy security.

India currently ranks at number five among the global consumers of crude oil with a consumption of around 2.8 million bpd. India's consumption of crude oil is expected to rise up to at least 5.8 milion bpd by 2025. It fulfils 70 percent of this requirement with imports and this ratio is projected to increase to 92 percent in 2030. Similarly, India is dependent upon imports for fulfilling 30 percent of its aggregate natural gas requirements. In the given perspective Central Asia and adjoining countries—with their vast reserves of oil and gas—gain a particular significance for India. In this regard, the following is of interest: l

At a subtle level India seems to be vying with China for acquiring access to the diminishing energy sources all over the world. According to different oil and gas journals:

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a)

India has recently invested heavily in the exploration blocks in Brazil in addition to buying a 15 percent stake in a Brazilian offshore oil field. b) The Indian giant, Reliance, is teaming up with other global organisations in international projects of oil and gas. c) In 2006, India acquired 50 percent stakes in the Colombian oil firm, Omimex de Colombia, by paying around USD 450 million. d) In 2000, India introduced a new petroleum policy more in line with its growing needs. It appears to have started paying off because since then Carrin, the Edinburgh-based energy firm, has spent more than USD 2 billion in the Balmer Field in India. By 2011, the field having proven reserves of at least 3.5 billion barrels, is expected to be producing 175,000 bpd, thus off-setting at least 7 percent of its imports. e) India is currently in the process of establishing a strategic reserve of oil having a capacity of 36.5 million barrels and the same is expected to be commissioned by the 2014. l

It seems that the US views India as a potential counterweight to China's regional power. The acquisition of the Farkhor Air Base in Tajikistan by India and its growing role in Afghanistan seem to be steps in that direction.

l

Indian oil and gas companies are heavily investing abroad to secure strategic sources of energy. Indian ONGC Videsh Ltd. (OVL) has already spent about USD 4.5 billion abroad for achieving that objective.

l

In order to fulfil its galloping energy needs India is befriending even far located oil suppliers like Mexico, Venezuela, and Canada.

Pakistan—A brief insight The primary objective of presenting these details is to highlight the prevalent realties in Pakistan and the preparedness of other countries to meet future challenges vis-à-vis their energy needs.

The given geopolitical perspective and the evident awareness on the part of all the critical countries—with respect to their energy issues and corresponding remedial measures—surrounding Pakistan puts a heavy responsibility on us. A review of Pakistan's history and all the pertaining critical social indictors lead us to depressing conclusions with respect to the country's past and highly disturbing forebodings about its future. A country possessed with all the ingredients required for a success story i.e. an abundance of natural resources, large tracts of fertile soil, adequate quantities of water and hard working human resources, was never really able to even take-off, let alone fly. If it has survived till today, even after the truncation in 1971, it is mostly attributable to international factors. It is time that Pakistan's rulers realise their responsibilities towards the citizens and the international community and undertake necessary reforms in their policies. Otherwise the country's nuclear arsenal alone, currently considered to be a guarantor of its security, may itself prove to be reason for its undoing.

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Pakistan's security outlook is responsible to a large extent for its current state of affairs and the same derives its origin from the circumstances in which it was created. Ever since the army gained ascendance in state affairs they have gradually coloured the vision of all Pakistani's to their liking and preference. Resultantly, India and Pakistan have fought four wars i.e. during 1948, 1965, 1971 and 1999.

Since the beginning, Kashmir has remained a bone of contention between India and Pakistan on the eastern border. And on the western border, Afghanistan never accepted the Durand line. During the Afghan proxy war from 1979 till 1986, Pakistan's security agencies were the main conduit of weapons for Afghan militants and grew monstrously in size and importance in the power dynamics of the country and gradually began to literally dictate its foreign and defence policies. Strange terms, hitherto unknown, began to be heard quite often such as “ideological frontiers,” “strategic depth,” “soft underbelly” and so on. Thus it is not surprising that the much sought after peace expected to prevail in Afghanistan after the evacuation of the Russian forces in 1989 is still nowhere to be seen. Various external and internal forces have caused profound harm to the country many times during the past at least 30 years. While the war had already brought immense instability and strife to Pakistani society, including the introduction of arms and drugs on a massive scale and safe sanctuaries for extremists in the country's tribal belt (under the security agencies and the US), a new factor gradually gained ascendance in the Afghan arena: the “Taliban,” on many occasions quite openly owned by our establishment as their progenies. As reported repeatedly in the newspapers in 1991/92, an old retired Pakistani general even patronisingly calls them his children. In this regard, the following may help the reader in comprehending the complex dynamics in operation during the days when the Taliban were created and began to cast their increasing influence upon the progress of events: l

After only a short gap from the end of the decade-long war between Iraq and Iran, Iraq entered its forces in Kuwait in August 1990, thus temporality bringing under its control more than 25 percent of the proven reserves of oil. It would be interesting to analyse who benefited most from the Iran-Iraq war. Probably the arms dealers and those who were able to sell more oil vis-à-vis Iran.

l

In 1991, the former USSR formally ceased to exist and all the eight states around the biggest inland lake of the world, i.e. the Caspian Sea, gradually declared independence from Russia. These states collectively contain around 200 billion bbl of crude. It is worth highlighting that the first major commercial oil discovery of the world was made in Baku, Azerbaijan around 150 years ago.

l

The capture of Kuwait by Iraq in 1991 and the support which Iraq enjoyed from public opinion in the Middle East for taking on the US had proven to be an eye opener in many respects for the US, which fulfils more than 50 percent of its oil needs from imports thus necessitating the pivotal role of energy security for the country. This consequentially resulted in the US opting for a policy of diversified and safer sources of oil supply. Central Asia gained significance when the US and its

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loil companies, as a result of this policy, started clamouring for Central Asian

hydrocarbon resources. l

The Taliban started emerging in 1994 and by 1996 they had virtually taken over all of Afghanistan. It goes without saying that there was extensive planning and mobilisation of resources even prior to 1994 in this respect. It is also quite evident that the US, even on the diplomatic front, quite conveniently ignored the initial excesses of Taliban. It appears that they had been created, at least partly, with the intention to play a pro US role in the conflict between Russia and the US which had already started simmering and was to intensify later, for the control of hydrocarbon resources of Central Asia.

The mad arms race between India and Pakistan has taken a quantum leap during the past 15 years. India's defence expenditure was about USD 8.34 billion in 1995 against USD 2.96 billion for Pakistan. During FY2004/05, the said figures stood at USD 16.7 billion for India and USD 3.32 billion for Pakistan. In terms of percentage of GDP, the Indian defence expenditure comes to be 2.89, whereas it is 5.19 for Pakistan. Thus, though the gross defence expenditure of Pakistan is quite lower than that of India, it is much higher in terms of the percentage of GDP as given below:

Source: SIPRI Yearbook 2004

These statistics are themselves quite revealing. The shopping sprees of arms and ammunition by Pakistan and India would mislead the casual observer into believing that both countries had already solved all their socio-economic problems.

The missile race between the two neighbours has continued on a quid pro quo basis since 1998. According to the SIPRI Yearbook 2004, arms imports by India increased by more than 100 percent between 2002 and 2003. According to the same report, India stands second in the list of the buyers of major conventional weapons in the period between

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1999 and 2003, with a total arms import bill of USD 11.8 billion; while Pakistan was at the ninth spot with an arms import bill of USD 2.5 billion dollars. Every successful arms acquisition deal by one country triggers off demand for better weapons in the other. This race has resulted in bleeding the already meagre resources of Pakistan to such an extent that it may not be able to sustain itself anymore if it continues on this path, while a majority of its masses remain deprived of basic amenities like electricity, clean water, education and so on.

In this regard, the following table is quite revealing and paints a sad picture: Public Expenditure (Rs. Billion)

2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09

Defence

Education

Medical

131 149 160 185 212 241 250 277 313

76 79 90 124 140 171 217 254 276

24 25 29 33 38 40 50 60 74

Industrial & Year Infrastructural Development 90 126 129 161 228 365 434 452 365

Interest Payments

Other

Total

249.3 273.9 235.3 226.2 219.7 260 387.1 489.7 624

147 173 255 227 280 325 463 746 780

717.9 826.3 898.2 956 1117 1401.8 1800 2279 2431

Source: Pakistan Economic Survey 2008-09

Pakistan is the world's sixth most populous country, with an estimated population of over 170.3 million and around 60.3 percent of its population living on less than USD 2 a day according to United Nations Development Programme (UNDP). Reportedly, this population will be 200 million by 2020 and more than 50 percent of it will be concentrated in 8 big cities of the country.

Even after the end of the Afghan War, a large section of the Pakistani establishment continued to support and nurture the Taliban and other associated militant groups with the alleged intention of using these groups for proxy warfare in Indian-administered Kashmir and to support the doctrine of “strategic depth� in Afghanistan. However, as the US invasion of Afghanistan during October 2001 brought this strategy under increased international scrutiny, Pakistan was compelled to exercise a reluctant volteface and be a US ally in the global War on Terror against militant groups and Al-Qaeda. The Indian threats to undertake corrective strikes upon alleged terrorist dens on Pakistani soil also compelled their perpetrators to put a leash upon the militants' operative in Indianadministered Kashmir. The changed scenario resulted in a backlash by the militants; as of the end of 2009 alone, around 6,300 terrorist attacks had been reported in Pakistan with an average frequency of 2,050 attacks per annum. In addition to other factors, this has proven to be a major impediment for the oil and gas E&P companies in Pakistan, both local and foreign. b) Resource Capacity Related Issues The government of Pakistan has a major stake in the oil and gas sector, both as policy

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maker, regulator as well as owner and manager of many of the operating entities; thus, to a large extent, government entities dominate the oil and gas business.

The government appears to have always tightly controlled the petroleum industry of Pakistan though it claims to have introduced a pro-market reform programme, since early 2000, with the objective to create a competitive, privatised oil and gas sector.

Reforming the above sector constitutes a significant challenge particularly in the given scenario; however, if a government really achieves that then it would result in longlasting radical changes in the socioeconomic condition of the country. However, by observing the general apathy with which the petroleum ministry has been treated by almost every government in the past, it appears that there has never been any realisation at any level in the echelons of state power of the importance of giving due attention to this subject; the government could potentially turn around the whole economy in a very short span of time. The mishandling of the situation can be gauged well just by going through the pay scales, salaries and benefits of the pertaining regulator staff in government, which are absolutely paltry given their assigned tasks and the magnitude of the associated challenges. This results in sluggishness at every tier and a lack of experience on the part of the relevant workforce. (Please see given recommendations). c) Force Majeure--Socio Economic Volatility The E&P activities in the country have remained very limited due to the inaccessibility of many potential areas like Balochistan, remote Khyber-Pakhtunkhwa and Sindh's tribal areas. This is the reason many companies either had to relinquish certain blocks or are perennially under force majeure because of the antagonism of the local communities and the deteriorated law and order institutions in the relevant areas. Although some of these regions are highly prospective, such as Balochistan and the Pishin Belts, Kohat, the Hangu/Kohlu districts, northern Punjab and the FATA basins, most of them are inaccessible for oil and gas E&P activities. In this regard, the following discussion would be helpful: Whatever little development Pakistan has made so far, it has failed to translate into a satisfactory level of human development. This is primarily due to the fact that so far, Pakistan has failed to weld together its linguistically diverse population. Over 20 languages are spoken in the country, with more than 300 distinct dialects. Its history has continued to be marred by provincial jealousies and, in particular, by the deep resentments in the smaller provinces of Sindh, Balochistan, and Khyber-Pukhtunkhwa against what is seen to be a monopoly by the Punjab over the benefits of power, profit, and patronage.

Of the districts normally classified as “high deprivation,� 92 percent are in Balochistan, 62 percent in Khyber-Pukhtunkhwa, and 50 percent in Sindh with only 29 percent in the Punjab province. This has been a major and chronic cause of tensions among the provinces and the federal government.

Although the province has been subject to frequent military operations in 1948,

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1956–1960 and 1973–1977, the present unrest in Balochistan has risen dramatically since former president, General (Retd.) Pervez Musharraf took charge in October 1999.

The resurgence of the Taliban and military operations against Baloch political forces, during this period, has badly affected the region.

Today, Balochistan has the highest proportion of the population (48 and 51 percent in urban and rural areas respectively) living below the poverty line. It is interesting to note that the province producing 25 percent of the aggregate gas production of the country consumes only 3.4 percent, compared to 51 percent in the Punjab alone, which contributes only 4.75 percent of overall gas production. According to the UNDP Human Development Report 2003, Dera Bugti, the wealthiest district of the country in term of gas production, ranks last among the 91 districts of the country on the Human Development Index. Also, the percentage of the population living in an advanced state of deprivation stands at 88 percent in Balochistan, 51 percent in Khyber-Pukhtunkhwa, 49 percent in Sindh and 25 percent in the Punjab.

While the literacy rate of Balochistan is only 34 percent, the province observed a 30 percent growth of religious schools/madrassahs during the term of office of the Muttahida Majlis-e-Amal (MMA) and the Musharraf-led Pakistan Muslim LeagueQuaid-e-Azam (PML-Q) coalition from 2002 to 2007. This, along with the denial of basic education and lack of basic infrastructure, industries and agriculture has resulted in an explosive situation; the whole province appears to be simmering with anti-state sentiments.

Without the restoration of tranquillity and peace in the country in general, and Balochistan in particular, as well as the alignment of the masses and their leadership behind the objectives of the government, most of the country will remain under force majeure and unable to access its potential for oil and gas exploration.

The following is an attempt to highlight some of the basic issues of the inhabitants of the relevant areas which, though rich in oil and gas, are currently under force majeure.

These issues must be addressed. l

A historic mistrust of the government, its policies and its institutions by the communities and their leaders;

l

A lack of basic social infrastructure i.e. schools, roads, parks and hospitals etc. If provided to the relevant communities, this infrastructure would serve to unchain the socio-cultural primitiveness and result in accelerated E&P activity in the whole country (please see given recommendations);

l

The record of the government regarding the provision of domestic gas connections to the areas where gas has so far been discovered;

l

Unemployment, on the back of limited technical expertise and abject literacy

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lrates, has remained a major issue in the local communities which further

aggravates the situation and has proven to be a major hindrance in carrying out smooth operations (please see given recommendations).

As of FY 2008/09, revenues from oil and gas formed approximately 1 percent of the total provincial revenues of the Punjab, 6 percent of Khyber-Pakhtunkhwa, 14 percent of Sindh and 17 percent in the case of Balochistan. However, at the national level, these proceeds amount to about three percent of federal revenues and about one-third of one percent of the national GDP. This contribution can increase tangibly, if due attention is paid to the resolution of the earlier mentioned grievances under the ambit of a comprehensive change in approach on the part of the government in this regard.

The following section is a humble attempt to suggest a course of action in this regard.

Recommendations Despite having crude oil reserves potential of at least 27 billion barrels, Pakistan meets only 20 percent of its oil demands from indigenous production and ends up spending nearly USD 9 billion per annum in lieu of its import out of the country's aggregate annual fiscal budget of around USD 44 billion. The given facts in this regard speak for themselves: no serious efforts have so far been made by any government to alter this balance even though the target is not only achievable but indeed achievable in quite a short period of time. The pertinent facts have already been discussed in detail in the preceding sections but are summarised below to help the reader in comprehending the following discussion: 1) Summary of Energy Potentials in Pakistan a)

The first well in the area now called Pakistan was drilled in 1866; 99 wells were drilled by 1947.

b) Out of the total hydrocarbon prospective area, hardly 25 percent has so far been brought into the ambit of exploration/development leases. Even in that case, the exploitation has not really been thorough and comprehensive because of factors such as a lack of professional capacity, technological tools and so on. c)

Although the drilling success ratio of Pakistan is one of the highest in the world i.e.

1:3.7 vis-Ă -vis 1:10 in the Middle East and the Gulf region, the on-shore and offshore drilling densities in Pakistan i.e. 8 and 0.4 wells per 10,000 sq-kms against 80 and 100 wells, respectively, in the Middle East and the Gulf region, are among the lowest.

d) Pakistan's offshore basin is the second largest offshore basin in the world after the Bengal delta; however, so far, only 16 exploratory wells have been drilled and no vigorous efforts seem to be evident in this regard despite the fact that our offshore basin is analogous to some of the highest producing basins in the world.

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e)

Extensive discoveries have been made in the Khyber-Pakhtunkhwa province since 1999. However, due to various factors, the pace of their development has been very slow. Secondly, despite all indications that the area has great potential to become an engine of development and the energy basket of the country, it is yet to get corresponding attention from the government.

2) Master Oil Plan by the Government of Pakistan In view of the facts submitted earlier and preceding enumerations, the authors are of the opinion that in order to stimulate growth of domestic E&P industry and reduce dependence on oil import, a three year Master Oil Plan can be chalked out by the Government of Pakistan (GoP) as per the following outlines: The GoP should formulate a USD 1 billion fund under the patronage of Ministry of Petroleum and Natural Resources (MP&NR). In this regard, the following may be considered: a)

The said investment can be borrowed from China, Russia, Japan and Venezuela.

The above countries can invest, respectively, at the ratio of 50, 30, 15 and 5 percent.

b) Only progress payments should be made to The GoP in accordance with the tentative project implementation schedule given later in the paper. c)

The above loan can be repaid in five years at applicable interest rates from earnings in royalties as mentioned later in the relevant section.

d) There appears to be a commonality of interest vis-a-vis the US at least among three of the above listed four potential donors; whereas Japan has always been quite forthcoming in funding projects in Pakistan provided concrete plans are submitted to them. The following section might help in this regard.

3) International Partners for the Master Oil Plan Historically, China views Pakistan as an important link in its ambitious plans to develop overland transport routes for Middle Eastern oil, hoping to reduce its dependence on the US dominated sea-lanes. In this regard, China has already invested heavily in developing a deep sea harbour at Gwadar in Balochistan. Further development of the same appears to be progressing quite sluggishly which is probably attributable to the current law and order problems in Balochistan.

China and Pakistan are also quite seriously contemplating a trans-Himalayan pipeline to carry Middle Eastern crude oil to western China. The pipeline, running from the southern Pakistan port of Gwadar and following the Karakoram highway, would be mostly financed by Beijing. Imports through this pipeline would allow Beijing to reduce the portion of its oil shipped through the unsafe Strait of Malacca, a narrow, 805 km (500 mile) stretch of water between Peninsular Malaysia (West Malaysia) and the Indonesian island of Sumatra, which at present carries up to 80 percent of its oil

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imports. As constructing the pipeline across the Himalayas would itself be an expensive and challenging engineering feat, a railway track running from Gwadar to China is also being considered.

Keeping in view the above, China, rather than extending a USD 500 million (50 percent of the earlier proposed USD 1 billion fund) loan to Pakistan may proffer business of around 2 billion in the developments of the Master Oil Plan such as contracts for drilling rigs, blanket purchase orders for Chinese line pipe and so on.

Russia, desiring an undisputed hegemony of the European energy markets prefers Iranian oil and gas exports be diverted away from Europe and the Caspian region.

Accordingly, it has shown keen interest in the IP gas pipeline from the beginning, both as a contractor as well as an investor. Therefore, Pakistan should devise a methodology to involve Russia in the IP pipeline as well as the earlier suggested Master Oil Plan. In addition, Pakistan can try to engage Russia for technological transfers in space sciences particularly for satellite based Geographic Imaging Services pertaining to the 4D exploration of hydrocarbons.

The above arrangements could entail business worth around USD 1.5 billion for Russia in lieu of the loan investment of around USD 300 million.

Relations between Japan and Pakistan have always been quite strong. Since the 1950s, it has helped Pakistan in the gradual modernisation of its cotton industry which has proven to be the spine of Pakistan's economy. Japan has been a major source of economic assistance, a leading trading partner and an important source of foreign investment. With Japan's funding assistance Pakistan has so far completed a number of major projects including the Indus highway, many power projects, the rural roads construction project, PIMS' Children Hospital in Islamabad, the Kohat Tunnel, and the Ghazi Brotha Dam. Thus, against a reasonable loan of say USD 150 million, Japanese can be easily involved in the development of Pakistan's downstream petroleum industry particularly in setting up of a petrochemical processing industry with a processing capacity of 100,000 tonnes per day on preferential terms.

The GoP may extend special rebates and holidays against relevant taxes/duties to the above Japanese firms, at least during the construction phase of above project.

Ever since President Hugo Chavez has taken charge in Venezuela, his country has helped a number of nations in meeting their oil needs at quite economical costs, sometimes by employing novel ideas. The authors believe that, if approached appropriately, they would be willing to help by entering into a mutually conducive business relationship.

4) Break-up of Funds for the Master Oil Plan The GoP may extend the earlier mentioned amount as subsidy for exploration, drilling and production of oil as per the following broader allocations:

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Exploration: USD 100 million a) Promotional surveys (aero-magnetic, gravity and seismic): USD 60 million b) Basin studies: USD 40 million Drilling and Production: USD 850 million a) Maximum contribution per each exploratory well: USD 3.5 million b) Maximum contribution per each appraisal/development well: USD 1 million c) Maximum contribution for each gas surface/ processing facility: USD 10 million.

Ten such infrastructures have been considered for development under this scheme Socio-Economic Fund: USD 45 million a) Small scale industrialisation: USD 30 million b) Local community development: USD 5 million c) Security charges fund: USD 10 million Regulator Staff Fund: USD 5 million 5) Geologically Viability of Regions By reviewing the latest Indus Basin Study of 2009, relevant studies by the Geological Survey of Pakistan (GSP) and the BMI report of 2008, the whole sedimentary area of the country have been segregated into the following broader composites to be henceforth called “energy baskets� to highlight their significance for the economy of the country: Proven and Potentially Viable Regions a) Kohat Pothwar Basin b) Central Indus Platform Basin c) Lower Indus Platform Basin d) Suleiman Fold Belt Basin e) Kirthar Fold Belt Basin Potentially Viable Regions a) Balochistan Fold Belt Basin b) Northern Punjab Basin c) Pishin Fold Belt Basin d) FATA belt e) Makran Fold Belt Basin (including Makran offshore) f) Offshore Indus Basin 6) Steps for the Implementation of the Master Oil Plan Under this master plan, the GoP should award, from the above energy baskets, 50 exploration licences per annum to the E&P companies through open tendering. In this regard, the block awarding process needs to be streamlined as much as possible. Also the prequalification criteria should be eased to encourage new local entrants; though such entrants may be required to first enter into a technical services agreement with established E&P companies and gain the requisite experience to independently handle

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operatorship(s) in the future.

Under this plan alone, the GoP should ensure the drilling of 100 wells per annum for 3 consecutive years at the ratio of 60 exploratory to 40 appraisal/development wells. In this regard: a) The pertaining E&P companies shall drill the above wells and install the required surface facilities at an aggregate cost of around USD 4.5 billion with the GoP contributing at least 20 percent of this cost as per the aforementioned allocations. b) The E&P ventures falling into the ambit of the above plan shall be exempted from corporate sales tax and import/custom duties etc. until such time that the loan amount stands fully repaid, which should be done within five years at the end of the initial three-year period of intensive development. These rebates would save nearly USD 500 million per annum to the given ventures. c) The royalty per field may be charged at 20 percent instead of the current rate of 12.5 percent during the said loan repayment period i.e. five years. The increase would result in an additional fiscal impact of only USD 400 million per annum to the given ventures. d) The allocation in petroleum consortium agreements (PCAs) for training should be increased by 100 percent, which would result in the availability of additional amounts of around USD 2.5 million and USD 15 million per annum respectively during the exploration and production phases. These funds should be spent to set up state of the art technical training institutes in the country to furnish required staff for the oil and gas sector and capacity building and training of the relevant staff of the Ministry of Petroleum and Natural Resources. The training programmes of the government officials shall cover both technical and management disciplines (e.g. geology, geophysics, engineering, project management, accounting and legal) and include on-the-job training and participation in in-house workshops, seminars, symposia and so on. e) The contribution in PCAs for social welfare should be increased by 100 percent, which would result in the availability of additional amounts of around USD 2.5 million and USD 24 million per annum respectively during the exploration and production phases. The said funds can be spent in the pertaining area through the relevant district/ provincial authorities for setting up small scale industries and the provision of social infrastructure including roads, parks, telecommunication system and waste management. The GoP should also share the cost in the projects from the earlier mentioned socio-economic fund of USD 30 million. f) The government's share, in each concession/zone, through its subsidiary i.e. GHPL share shall remain the same i.e. as per the existing E&P policy 2009. g) Out of the given fund of USD 5 million, the following incentives should be awarded to the relevant staff of the Ministry of Petroleum for the period of three years: l l l

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100 percent increase in gross salaries from Grade 1 to 22.

One gross salary per discovery to Grade 1 to 22 staff.

One gross salary/performance bonuses to Grade 1 to 22 staff, for expediting

lapprovals/claims etc. and corresponding penalties for proven delays in

approvals.

The performance of the above staff should be monitored on a quarterly basis against given targets and if anybody is found negligent then the above incentives must not only be cancelled but the ones already disbursed to the relevant individual should also be recovered. h) The relevant E&P companies and government authorities should try to adhere to the required schedule i.e. the completion of all basin studies/surveys/exploration for the both the energy baskets, the annual allocation of 50 exploration licences, the drilling of 60 exploratory and 40 appraisal/development wells per year and the installation of required surface facilities over the three years. The task may seem very challenging but with astute planning the given targets can be achieved quite easily.

The implementation of the master plan will generate a flurry of activity in the whole economy as its implementation requires around 800 professionals of various relevant disciplines and at least 60 drillings rigs. i)

In order to implement the above Master Oil Plan, a small advisory committee should be formulated under the aegis of the Federal Minister of Petroleum and Natural Resources, as per below: Federal Minister, MPNR Chairperson of Parliamentary Petroleum Committee Joint Secretary, Petroleum Oil Explorationist/Geo-scientist Upstream/Midstream Expert Downstream Expert Petroleum Economist/Analyst Coordinator/Expeditor

Chairperson Member Member Member Member Member Member Member

All he suggested positions are honourary positions and do not entitle any of the members to any additional benefits/privileges then what they currently enjoy in their respective positions. If required, three sub-committees can be constituted at a later stage under the supervision of the three respective experts. The primary task of this advisory committee should only be to advise on major issues, monitor the progress of the implementation, identify any loopholes and suggest measures for their rectification. For all routine implementation only the existing institutions of the government will be deployed.

The advisory committee should also make an attempt to intervene and open locked areas in the country, especially Balochistan; expedite approvals from relevant ministries; intervene and resolve local issues/conflicts for accelerated development of newly

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discovered fields like TAL and Nashpa etc.; review possibilities of accelerating the development plans of the existing discoveries; review possibilities of enhancing production by applying secondary and tertiary recovery techniques on existing discoveries; highlight requirements of the required infrastructure.

7) Creating Accessibility to Balochistan and Beyond All the Baloch sardars (tribal leaders), whose tribal land(s) fall in the relevant lease area(s), should be taken on board. Their assurances of full cooperation should be sought during the relevant exploration and drilling activities against the following set of incentives: The relevant Baloch tribe(s) should be authorised to acquire up to 15 percent of the shares including earnings in profits, as per the following. As to the exploration phase, no provision for shareholding would be applicable. However, in each case, the said tribe(s) should be co-opted into a formal tripartite agreement with the state and the relevant energy company through which the tribe(s) would be paid monthly security charges from the allocated fund of USD 10 million against the provision of security to the operations of the company in the area. In addition, the state would also commit some allocations, in the agreement, for the given area from the above mentioned amount of USD 30 million. This is in addition to the social welfare commitments the authors recommend be made via the pertinent PCAs. Once a discovery is made, the relevant tribe(s) should be entitled to purchase ownership rights/shares in each concession falling in their respective areas as per the following: minimum 5 percent shares from the commencement of production and maximum 15 percent shares with gradual increments above 5 percent related to proven certified reserves. The tribes would not pay any cash for the above purchases. Rather, the price of shares will be adjusted from their pertaining profits during the production phase.

These incentives should be made subject to certain corresponding deliverables by the relevant tribe(s) including a fixed major chunk of the given profits being spent on a set of specific, measurable and visible projects of socio-economic development of the area and the province. In order to ensure transparency in this regard an authority or board or a consultative body having equal representation of all the relevant tribes should be constituted for the effective and judicious management of the generated revenue.

In case of any proven default on the part of the pertaining tribe(s), either with respect to the concerned E&P company or the handling of profits, clearly stipulated contractual penalties shall apply e.g. the suspension of sharing rights and consequential profits for a certain period. The GoP can provide written guarantees to the sardars that the locals would be preferred in employment while the sardars should provide counter guarantees that there would not be any disturbance in the work flow.

Over the initial 3-year period at least 100 fresh Baloch engineers and 200 associate engineers belonging to the concerned areas of operations should be inducted into the

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projects in progress under the Master Oil Plan and trained to take responsibilities in future. In this induction, all attempts should be made to have a fair representation of each pertaining tribe in the inductees. Also at least one state of the art technical training institute should be established from the generated funds via the relevant training budget allocations in the PCAs, which should churn out at least 100 Baloch associate engineers every year. In this regard, a deliberate attempt may be made to have a fair representation of each tribe in the students.

All attempts should be made to develop local contractors by the pertaining companies and award all sorts of general services contracts to them subject to them fulfilling the required criteria. All armed forces, including the Frontier Constabulary (FC), should be systematically withdrawn from the relevant areas.

These measures would not only facilitate the successful management of the operations in addition to bringing prosperity to the relevant districts of Balochistan, but would also open up new vistas for other E&P companies to enter into the province and discover oil and gas.

This scheme can also be adopted to resolve force majeure in other parts of the country, especially remote districts of Sindh and Khyber-Pukhtunkhwa provinces.

8) Projections The activities proposed in the Master Oil Plan would be exclusive of routine E&P operations in the country. The whole proposed regime of rebates in taxes, additions in royalty, training and welfare funds should apply only for a period of five years from the inception of oil production i.e. till the repayment of the given loans. Thereafter, all the relevant PCAs should automatically revert back to the prevalent framework. As to any risks in the given investment, the following should be kept in view: a) The whole amount is suggested to be spent only in phases over a period of at least three years. b) The amount suggested to be spent upon surveys and studies needs to be spent in any case for any viable and comprehensive development in the indigenous petroleum sector in the future and a major chunk will be spent during the first year. c) Hardly USD 150 to 200 million will be spent during the first year in addition to the expenditure upon the studies/surveys. Also, the first 100 wells should be drilled in areas already proven to be energy baskets. Thus there is absolutely no chance of this investment going to waste. d) Subject to efficient planning, production can be started from oil discoveries even during the first year with the deployment of early production facilities, which would further strengthen the economic viability of the whole proposition. e) The drilling of the second batch of 100 wells may commence after extensive data is

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already available from the surveys/studies concluded during the first year. f)

The suggested loan investment would be project specific i.e. only progress payments are to be released by the donors against the achievement of corresponding milestones.

The E&P activity proposed above under the Master Oil Plan after three years would, tentatively, result into the following: a)

Around 300 wells (exploratory: 180, appraisal/development: 120) having been drilled under this plan, which would consequently result in at least 55 oil, gas and gas/condensate discoveries and a net increment of oil production alone by 180,000 bpd.

b) With the above increase in domestic oil production by around 180,000 bpd, the aggregate indigenous production would increase to around 250,000 bpd. The additional production would generate an additional revenue of around USD 14 million per day and additional royalties of around USD 1 billion for the GoP. An estimated earning of USD 90 million would be made by the GoP in lieu of production bonuses within the first five years of production. c)

The plan would result into an incremental increase in domestic gas production by 2,000 MMSCFD, thus aggregating the indigenous gas production to around 6000 MMSCFD. In addition to other benefits, this additional gas would gain USD 0.6 billion per annum of additional royalties for the GoP. Pakistan consumes nearly 7 million tonnes (150,000 bpd) of imported furnace oil in power and manufacturing sectors due to paucity of gas volume. The above increase in gas production i.e. 2,000 MMSCFD via the proposed E&P activity would be sufficient to offset the import requirement.

d) Aggregate direct annual income to the GoP from the above proposed scheme itself would be at least USD 1.6 billion, which can be spent for the development of the country and the repayment of the given loan as well. e)

Despite the above increases in royalties, training and social welfare budgets in PCAs, the given ventures would still end up saving around USD 96 million per annum compared to the conventional mode of business in this regard.

f)

The country would have an excess production of around 28,000 bpd, virtually transforming Pakistan from a net oil importer to a potential net-exporter.

Conclusion Only by accelerating the current pace of E&P activities can we turn around our economy in a short span of time, i.e. within a period of three to four years, by achieving the following:

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a)

Pakistan would achieve autarchy in oil demand i.e. the domestic oil production would be increased from 70,000 bpd to around 250,000 bpd. b) Pakistan may even become a net oil exporter as compared to its current status of net oil importer. c) The domestic gas production would increase from 4 BCFD to 6 BCFD; thereby doing away with the country's dependence upon furnace oil imports. d) The above steps would, on one hand, make available additional outlays of around USD 12 billion per annum to the national economy and on the other hand would substantially diminish the existing trade deficit.

The authors sincerely believe that the proposed plan has all the potential to begin a new chapter in the socioeconomic development of Pakistan. The prosperity and stability which the plan is expected to bring to the country are also essential for its integrity, especially in the above explained geostrategic perspective. Otherwise, its poverty coupled with its surplus of arms, nuclear weapons and fast escalating terrorism, may prove to be its undoing. Day by day the country appears to be becoming more and more out of synch with the developments even in its immediate surroundings and this is too dangerous an attitude to be left to its own devices for long by the international powers.

Aasir Kazmi is assistant production engineer and Shahbaz Khan is manager production, MOL Pakistan Oil and Gas Company.

Nomenclature BPD MMSCFD BCF TCF

Barrels per day Million standard cubic feet per day, 106 Billion cubic feet, 109 Trillion cubic feet, 1012

Bibliography 1. Pakistan Economic Surveys & Federal Budgets.

2. Geological Surveys of Pakistan 3. Indus Basin Study 2009 4. Pakistan Energy Yearbook 2009 5. Pakistan Petroleum Information Service 2009 6. Energy Information Association 2009 7. BMI Report 2008 8. SIPRI Yearbook 2004 9. IOP-Brochure by MP&NR 10. First Capital Research Papers 2008 & 2009 11. Oil and Gas in Federal Systems by The World Bank, March, 2010 12. Analysis of Public Expenditure on Education in Pakistan, MPRA Paper No. 2722, November 2007 13. The Political Economy of Growth without Development, a case study of Pakistan by World Bank June 2001.

14. Energy Sector Assessment for USAID/Pakistan, June 2007.

15. Newspapers, Magazines & Websites.

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A Tale of Two Revolts: India 1857 and the American Civil War;

By Rajmohan Gandhi; Penguin/Viking Hardback 2009; Pp 402; Price Ind Rs 599

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Book Review

A New Choreography of Two Nineteenth Century Wars P Radhakrishnan In 2007 India had extravagant celebrations of the 150th year of the 1857 Revolt (the term author has given to what is more commonly known as the War of Independence or the Great Mutiny) and declared the Revolt as India's first war of independence. That was the “unkindest cut of all” as Mahatma Gandhi would have liked to say. This was for at least six reasons.

One, this celebration of violence went against the spirit of Gandhian strategies of nonviolence in India's freedom struggle, but for which India would not have won freedom even in 1947.

Two, a month after this celebration the United Nations General Assembly declared that 2 October, the birthday of Mahatma Gandhi, “leader of the Indian independence movement and pioneer of the philosophy and strategy of non-violence,” would be celebrated as the International Day of Non-Violence. The UN webpage started with a quote from the Mahatma: “There are many causes that I am prepared to die for but no cause that I am prepared to kill for.”

Three, in the celebration context Prime Minister Manmohan Singh's affirmation that every citizen must value the ideals and feelings that guided the freedom movement missed the point that the freedom movement was not the 1857 Revolt.

Four, since India had been conquered portion by portion, subjugation was, by 1850, an old story in Madras, Bombay (now Mumbai) and Calcutta (now Kolkata). As revolts had already occurred in areas subjugated earlier, celebration of the 1857 Revolt to the exclusion of the earlier revolts appeared partisan, and can even widen the North-South divide. An important article, “The Impact of the 1857 Revolt in Tamil Nadu” by N Rajendran in People's Democracy of 15 April 2007, is a telltale of the earlier revolts. But it seems to have gone unnoticed.

Five, as observed by Rajmohan Gandhi, though a majority of north India's Muslims and high-caste Hindus sympathised with the rebels, many of the lower castes, alienated by the scruples and disdain of the higher castes, did not; in Bengal, even the Hindu high castes did not back the sepoys, while in the Punjab, Sikhs and Muslims dissociated from the revolt or supported the British; most importantly for the British, the Bombay and Madras armies largely ignored the passions flowing from the Bengal army's sepoys

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(127).

Six, the political appropriation of the revolt has already set in motion competing claims to India's freedom struggle. “Tribute to India's freedom struggle,” “the story of an unforgotten warrior”, are the characterisation of Pazhassi Raja in the news stories on the recent film by that name.

Rajmohan Gandhi's book unwittingly adds grist to the prevailing political pyrotechnics centring on perceived, real, or conjured up events of a distant past. It is not the content of his book that matters but the fact that it is about the 1857 Revolt, and the timing of the release of the book after the national celebration of the revolt as India's first war of independence.

Turning to the book, the Indian Revolt (1857–1858) and the American Civil War (1861–1865) are two of the most harrowing and consequential struggles of the nineteenth century. Rajmohan Gandhi takes a joint view of both: “while others continued their digging into the history of 1857 in India or of the American Civil War for a new archaeology, I realised I could offer a new choreography” (ix–x).

What emerges clearly from Gandhi's book is that the Indian Revolt was not India's war of independence: “Hindus and Muslims had allied with one another during the Revolt.

Every rebel leader (Nana Sahib, Hazrat Mahal, Tatya Tope, Ahmadullah, Lakshmibai, or whoever) counted on lieutenants and soldiers of both faiths. Large territories in northern and central India rejected British rule. Even so, the Revolt was not a national alternative to that rule. Aimed at destroying British power, it proposed neither an alternative set of rulers for India as a whole nor an alternative way of ruling. [Bahadur Shah] Zafar, in Delhi, conveyed prestige but no authority. Nana Sahib was a king in his own mind, in the minds of a few others in Bithur, and for a few days in Gwalior, but nowhere else. While Hazrat Mahal and her son were acknowledged in Avadh, Khan Bahadur Khan in parts of Rohilkhand, and Lakshmibai in Jhansi, no one led the Revolt as a whole. Tatya Tope was a brilliant leader, but only of his force—the Revolt did not have a unified military command.

Most importantly, perhaps, no one seemed to visualise how a liberated 'India' would be ruled or, indeed, how any 'India' would emerge from a sum of several rebellions.” (195–196) An India ruled by another country was very different from an independent America. Yet Gandhi sees connections or similarities between the revolt and the Civil War. In both, religion was a major factor. A feeling that Hinduism and Islam were in danger fostered the revolt, and the use of force against Christians and the British was presented as a religious obligation. The American situation was easier because of a common religion. In

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the bitter North-South divide the southerners' defence of slavery by citing the Bible was rebuffed by the northerners' defence of its abolition as a Christian duty.

In both, the outcomes were similar, with affirmations of existing power relations, of the government of British India over rebellious native rulers and soldiers; and of the industrial North over the agricultural South in America. In both, tradition was often deemed more important than life, with Hindu and Muslim sepoys in India and white southerners in the US preferring death to the destruction of a way of life.

Both countries saw contests between freedom and oppression, equality and indignity, authority and rebellion, and order and anarchy. America's slaves wanted freedom, and many American whites supported their demand. “Freedom” or “independence” was a cry in India too, but it was not yet a united or a national cry; and with many leaders of the Indian rebellion restoration of lost personal privileges seemed a stronger urge than independence. Gandhi brings out some other important connections as well but all of them cannot be mentioned in this review.

Gandhi's mentioning of the Russian novelist Leo Tolstoy, then fighting and also critiquing the 1854 Crimean War; Karl Marx, whose analysis of the ongoing 1857 Revolt, written week by week in London appeared in the New York Tribune; and more importantly, the Irish journalist William Howard Russell, of The Times of London—the first war correspondent as he is famously characterised by Gandhi, who witnessed both conflicts, and from whom Gandhi draws heavily—is well-conceived.

Gandhi says in the Preface that apart from anything else his book examines how five inhabitants of India—who were relatively young when the revolt and the civil war occurred and who went on to influence India during and after their lifetime—reacted to the two revolts. These five people were Sayyid Ahmed Khan, Ishwarchandra Vidyasagar, Jotiba Phule, Allan Octavian Hume, and Bankimchandra Chatterji. Gandhi does not seem to have succeeded in this enterprise and has problems in integrating these individuals from their socio-cultural contexts into what is essentially a war story.

Gandhi's discursive style and the rather unusual length of five of the six chapters (64–68 pages each) may leave the readers dazed. Nevertheless, as a tale of two revolts, his book is a panoramic tour de force. As of the reaction of the five individuals, Gandhi may have to bring out a separate volume shifting from history to sociology.

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