Archive for December, 2008
from Kafila by Lawrence Liang
I have asked two colleagues who have been working on civil liberties in the war against terror to do an analysis of the Amendment to the Unlawful Activities Prevention Act and the National Investigation Agency Act, and its implications. But in the meanwhile, here is a useful analysis by Rajeev Dhavan where he describes the amendment as a return of POTA and TADA. As if to fulfill Shuddha’s prophecies, the government according to Dhavan has created a law where everyone is suspect India’s Unlawful Activities Prevention Act (UAPA): The Return of POTA & TADA
After months in pre-trial detention under brutal investigation, the police will extract even untruths. The Bill casts a shadow on all of us. It is founded on the principle that everyone is suspicious or a suspect, with no fine distinction between the two. We are creating a suspicious state to empower suspicious officials and citizenry to act suspiciously against any supposed suspect. This Bill goes further than TADA or POTA in its creation of a suspicious state. India must fight terrorism, but the last thing India wants to be is a terrorist anti-terrorist state. – Rajeev Dhavan
by Rajeev Dhavan, 19 December 2008
India’s attempt to put its own legal house in order is reflected in two Bills — ‘The National Investigation Agency (NIA) Act’ and the amendments to the ‘Unlawful Activities Prevention Act (UAPA)’. Home minister P. Chidambaram’s Bills bring TADA and POTA back with a bang and innovate a National Investigation Agency (NIA).
Hitherto ‘policing’ was exclusively a ’state subject’. India’s CBI could take over investigation and prosecution on (a) court orders or (b) with the consent of the state. The NIA Bill changes that to let the NIA hijack any prosecution or investigation from the state at will. The proposed NIA Bill is constitutionally competent. The Constitution’s Union List (List 1 Entry8) permits a “Central Bureau of Investigation”.
Criminal procedure for prosecution is in the concurrent (List III, Entry 2). The NIA will be operationalised only for statutory offences relating to atomic energy, the UAPA, aviation, maritime, navigation, weapons of mass destruction, sedition and such offences, money laundering and counterfeiting. Under POTA and TADA, the massive misuse came from the states to alarm the Supreme Court, now the potential misuse will come from both the states and the Union, which can hijack the case. Political and communal targeting runs through our anti-terrorist legislation. Federalism will also be in partial jeopardy.
India is about to create a powerful FBI of its own, whose independence and political vulnerability are not beyond alarm; nor the new style special courts beyond criticism. No review agency is provided. With these caveats the NIA was long overdue.
The UAPA Amendment Bill is dangerous. Our examining principle should be: counterterrorism measures should not facilitate, or have the potential, for state terrorism. This is why the UPA launched a wholly new strategy in 2004. TADA or POTA were thrown out and the ordinary law [Criminal Procedure (Cr.P.C)] was brought back.
FREE BINAYK SEN Facebook Group invites slogans and poems for release of Dr Binayak Sen for 2009 calender.
Sent your entries to Kamayani at ymail.com or Post it in FREE BINAYK SEN Facebook Group
See the mail from Kamayani below
The Campaign invites slogans and poems for release of Dr Binayak Sen for 2009 calender.
We do not have much time left and we do have funds too.
But we can make and online calender
All the entries received will be put up on the group and the binayak sen site for POLLS
and best 12 entries for slogans and poems can be Selected for the Calender
and later we could think of publishing a booklet of all the entries as part of the campaign
If someone can fund the calender nothing like
PLEASE SEND YOUR ENTRIES BY 5TH JAN
AWAITING YOUR RESPONSES
Article Rejected by Times of India
The attack on Mumbai is over. After the numbing sorrow comes the blame game and the solutions. Loud voices amplified by saturation TV: Why don’t we amend our Constitution to create new anti-terror laws? Why don’t we arm our police with AK 47s? Why don’t we do what Israel did after Munich or the USA did after 9/11 and hot pursue the enemy? Solutions that will lead us further into the abyss. For terror is a self-fulfilling prophecy. It thrives on reaction, polarization, militarization and the thirst for revenge.
The External Terror
Those who invoke America need only to analyze if its actions after 9/11 increased or decreased global terror. It invaded oil-rich Iraq fully knowing that Iraq had nothing to do with 9/11, killing over 200,000 Iraqis citizens but allowing a cornered Bin Laden to escape from Afghanistan. It recruited global support for Islamic militancy, which began to be seen as a just resistance against American mass murder. Which begs the question of who created Bin Laden in the first place, armed the madarsas of Pakistan and rejuvenated the concept of Islamic jehad? Israel played its own role in stoking the fires of jehad. The very creation of Israel in 1948 robbed Palestinians of their land, an act that Mahatma Gandhi to his credit deplored at the time as an unjust way to redress the wrongs done to Jews during the Holocaust. What followed has been a slow and continuing attack on the Palestinian nation. At first Palestinian resistance was led by secular forces represented by Yasser Arafat but as these were successfully undermined, Islamic forces took over the mantle. The first, largely non-violent Intifada was crushed, a second more violent one replaced it and when all else failed, human bombs appeared.
Thirty years ago when I first went abroad there were two countries my Indian passport forbade me to visit. One was racist South Africa. The other was Israel. We were non-aligned and stood for disarmament and world peace. Today Israel and America are our biggest military allies. Is it surprising that we are on the jehadi hit list? Israel, America and other prosperous countries can to an extent protect themselves against the determined jehadi, but can India put an impenetrable shield over itself? Remember that when attackers are on a suicide mission, the strongest shields have crumbled. New York was laid low not with nuclear weapons but with a pair of box cutters. India is for many reasons a quintessentially soft target. Our huge population, vast landmass and coastline are impossible to protect. The rich may build new barricades. The Taj and the Oberoi can be made safer. So can our airports and planes. Can our railway stations and trains, bus stops, busses, markets and lanes do the same?
The Terror Within
The threat of terror in India does not come exclusively from the outside. Apart from being hugely populated by the poor India is also a country divided, not just between rich and poor, but by religion, caste and language. This internal divide is as potent a breeding ground for terror as jehadi camps abroad. Nor is jehad the copyright of one religion alone. It can be argued that international causes apart, India has jehadis that are fully home grown. Perhaps the earliest famous one was Nathuram Godse who acting at the behest of his mentor Vinayak Savarkar (still referred to as “Veer” or “brave” although he refused to own up to his role in the conspiracy), murdered Mahatma Gandhi for the crime of championing Muslims.
Jump forward to 6th December, 1992, the day Hindu fanatics demolished the Babri Mosque setting into motion a chain of events that still wreaks havoc today. From the Bombay riots of 1992 to the bomb blasts of 1993, the Gujarat pogroms of 2002 and hundreds of smaller deadly events, the last 16 years have been the bloodiest since Partition. Action has been followed by reaction in an endless cycle of escalating retribution. At the core on the Hindu side of terror are organizations that openly admire Adolph Hitler, nursing the hate of historic wrongs inflicted by Muslims. Ironically these votaries of Hitler remain friends and admirers of Israel.
On the Muslim side of terror are scores of disaffected youth, many of whom have seen their families tortured and killed in more recent pogroms. Christians too have fallen victim to recent Hindutva terror but as yet not formed the mechanisms for revenge. Dalits despite centuries of caste oppression, have not yet retaliated in violence although a small fraction is being drawn into an armed struggle waged by Naxalites.
It is clear that no amount of spending on defense, no amount of patrolling the high seas, no amount of increasing the military and police and equipping them with the latest weaponry can end the cycle of violence or place India under a bubble of safety. Just as nuclear India did not lead to more safety, but only to a nuclear Pakistan, no amount of homeland security can save us. And inviting Israel’s Mossad and America’s CIA/FBI to the security table is like giving the anti-virus contract to those who spread the virus in the first place. It can only make us more of a target for the next determined jehadi attack.
Policing, Justice and the Media
As for draconian anti-terror laws, they too only breed terror as for the most part they are implemented by a State machinery that has imbibed majoritarian values. So in Modi’s Gujarat after the ethnic cleansing of Muslims in 2002, despite scores of confessions to rape and murder captured on hidden camera, virtually no Hindu extremists were punished while thousands of Muslims rotted in jail under draconian laws. The same happened in Bombay despite the Shiv Sena being found guilty by the Justice Shrikrishna Commission. Under pressure a few cases were finally brought to trial but all escaped with the lightest of knuckle raps. In stark contrast many Muslims accused in the 1993 bomb blasts were given death sentences.
Many of you participated in the rally that was organised outside the Parliament on the 16th of December. The rally was a success. We all would like to once again thank the NTUI who took initiative and made this rally a success. We can also be proud of the fact that today the 17th saw some members of the the Indian Parliament take on the issues of Dr. Binayak Sen’s continued incraceration by the Chhattisgarh police.
We were informed by certain MPs that today morning during question hour in the Rajya Sabha when the disucssion was to taking place on “Naxal Violence”, D. Raja MP (CPI) raised supplementary questions on this issue. His first specific question to the HOme Minister demanded that the UPA Government make its stand clear on Salwa Judum, whatever be the directions and the engagement at the level of Supreme Court. His second specific question also directed to the HOme Minister was what the UPA Government was doing in the context of Dr. Binayak Sen. When the second question was raised more than a dozen MPs joined in the chorus demanding an answer.
To the first the HOme Minister made it clear that in no way did the GOI support that Law and order be handed over to non State Actors, like what Salw Judum was. Despite an intervention made by Prakash Javadekar of the BJP who tried to state that it was a poeple’s own spontaneous movement, it was firmly stated by the HM that law and order was the responsibility of the State.
Secondly to the question on Dr. Sen, he said that the issue of Dr. Sen’s incarceration had been brought to his notice and that he was siezed of the matter and would be examinig it shortly.
So this was what transpired today morning.
Yesterday following the rally and public meeting outside Parliament house some of us stayed back and had a small meeting at the Constitution club. Two types of decisions were taken. One ws to explore the possibility of stepping up the agitation for the release of Dr, Sen in Raipur itself. Several suggestions came which included that of a long dharna in Raipur by activists from all over the country as well as filling jails if required.
Secondly, it was felt that modest goals like people reaching Raipur for the trial, contacting medicos in Delhi and elsewhere and doing medical camps would help in generating awarness about the wrongful confinement of Dr. sen.
It was felt that the two were not contradictory and could go hand in hand.
NEW DELHI: The central government might have supported Salwa Judum in the Supreme Court but for the first time home minister P Chidambaram has said the government is not in favour of such groups.
In a reply to CPI’s D Raja during question hour in Rajya Sabha on Wednesday, Chidambaram said, “Non-state actors should not take the responsibility of law and order.”
On Raja’s specific demand for the release of activist Binayak Sen from jail, Chidambaram said, “Dr Binayak Sen’s case is under my consideration.”
However, earlier he clarified that the Centre has nothing to do with Salwa Judum in Chhattisgarh. He also said that the Salwa Judum matter is sub judice.
Chidambaram’s statement comes at a time when the Chhattisgarh government itself admitted in the apex court recently that “necessary action be ensured for rehabilitation of uninhabited families by district level rehabilitation committee…”
The state government has also said, “Necessary relief money be given in cases of properties damaged by Salwa Judum activists/security forces, besides naxalite violence, after village wise analysis.”
The state government has also said that the security forces should not be allowed to stay in school/ashram buildings, and facilities like ration distribution, healthcare and toilets in the relief camps be ensured.
www.binayaksen.net and www.tasveerghar.net call upon netizens and all those interested anywhere to make posters on the theme of ‘Another India is Possible’. The idea is to encourage artists and others to think afresh of what a positive vision of a future India could be like- in an imaginative, constructive but provocative way.
The posters could be digitally produced or hand-made but they need to be available in soft copy form to be put up on a specially created website for this purpose. Some of the suggested topics are: (a) Democracy (b) Justice (c) Dignity (d) Human Rights (e) Children (f) Indigenous People (g) Gender (h) Access to Health (i) Safe Environment (j) Social Harmony.
The campaign will culminate on 31st January 2009 and the best 50 posters will be compiled into a ‘Visual Election Manifesto’ to be presented to all the political parties prior to the next national general elections. A panel of eminent artists and social activists will vet the posters and special prizes will be announced during the campaign for the best poster (s) in different categories.
CONTACT: email@example.com or firstname.lastname@example.org
Anyone trying to figure out, after the recent Mumbai attacks, whether India will ever win its war on terrorism should take a close look at a court case currently underway in the central Indian province of Chhattisgarh.
On 2nd December 2008, a High Court judge in Bilaspur summarily rejected a bail application filed by Dr Binayak Sen, well known public health and human rights activist currently detained in a Raipur jail, confounding all known principles of law, fair play and justice. As if that were not enough a few days later the provincial police authorities, taking their political vendetta against Dr Sen further, filed supplementary charges against him, adding on another 43 witnesses to the 83 already listed in the case.
While real terrorists plant bombs and shoot down people at whim in major Indian cities, scores of innocent young men, political dissidents and human rights activists like Dr Sen languish in the country’s prisons falsely accused of terrorist links and activities.
Dr Sen, has been behind bars since 14 May 2007 under a draconian anti-terrorist legislation, the Chhattisgarh State Public Security Act. The good doctor, renowned worldwide for his public health work among the rural poor, has been arrested on trumped up charges of ‘treason, waging war against the state and abetting activities of the outlawed Communist Party of India (Maoist)’.
More specifically, state prosecutors claim Binayak, as part of an unproven conspiracy, passed on a set of letters from Narayan Sanyal, a senior Maoist leader in Raipur jail to Piyush Guha, a local businessman with allegedly close links to the left-wing extremists. He was supposed to have done this while visiting Sanyal in prison both in his capacity as a human rights activist and as a doctor treating him for various medical ailments.
The fact is that till now the trial of Dr Sen , which began in a Raipur sessions court late April 2008, has not thrown up even a shred of evidence to justify any of these charges against him. By end November 2008, of the 83 witnesses listed for deposition by the prosecution 16 were dropped by the prosecutors themselves, 6 declared ‘hostile’, while 30 others have deposed without corroborating any of the accusations against Dr Sen.
Dr Sen has never denied meeting Sanyal, which he did with prior permission and in the presence of jail authorities. To prove there was a ‘conspiracy’ the prosecutors for example have to establish that apart from meeting Sanyal in prison, Dr Sen also met Piyush Guha in person some time or the other, in order to pass on the letters. So far not a single prosecution witness has confirmed this charge and without the thread connecting him to Guha however there is no connection at all between Dr Sen and the cases against the other two defendants, Sanyal and Guha.
With the floor falling out of the entire case against Dr Sen, a desperate prosecution, during the course of the trial, has even been caught red handed by defence lawyers, trying to plant forged evidence of his ‘links’ with the Maoists. A number of witnesses too, under obvious tutelage from the police, have been found trying to ‘improve’ their original written statements presented to the court.
Even more distrubingly, in their attempt to keep Dr Sen in prison for as long as possible the court hearings themselves are being dragged on with breaks of up to a month or more at times thus making the trial itself a punishment. Several neutral observers following the case, including from the Commonwealth and the European Union, have expressed concern at the denial of Dr Sen’s right to an open and speedy trial.
Given the paucity of evidence in the trial of Dr Sen so far, in all fairness, the Raipur court should have dismissed the case against him altogether by now. Certainly the weakness of the prosecution’s position should entitle at least granting of bail to Dr Sen, a person of international standing and reputation, with a record of impeccable behaviour throughout his distinguished career. In May 2008, in an unprecedented move 22 Nobel Prize winners had even signed a public statement calling him a ‘professional colleague’ and asking for his release.
Normally bail is refused only in cases where the courts believe the accused can tamper with evidence, prejudice witnesses or run away. In Dr Sen’s case none of these apply as shown by the simple fact that at the time of his arrest last year he chose to come to the Chhattisgarh police voluntarily and made no attempt to abscond despite apprehensions of his possible detainment.
Last year too the same Bilaspur court had rejected a similar bail application after which on 10 December, the Indian Supreme Court in Delhi too had refused to admit a Special Leave Petition to consider bail. The Supreme Court bench initially heard the petition and even asked the Chhattisgarh government to file a reply but very mysteriously dismissed the same petition at its next hearing without any explanation.
The real ‘crime’ for which Dr Sen is being punished for is his courageous work exposing the human rights violations carried out by police forces in Chhattisgarh. As national vice president of the Peoples Union of Civil Liberties, one of India’s oldest human rights groups, Dr Sen produced several reports criticising the Chhattisgarh government’s ‘Salwa Judum’ campaign, which arms vigilante civilian groups to fight the Maoists.
The Salwa Judum campaign, according to many of its critics, is a thinly veiled attempt to relocate villagers – in the name of ‘protecting’ them from Maoists- while in fact plotting the handover of their land to corporations eyeing mineral wealth in the area. By focusing national attention on the brutalities accompanying this campaign Dr Sen obviously seems to have stepped on some powerful and sensitive toes somewhere.
Instead of recognising their social contributions the Indian State, by wrongly branding Dr Sen and many others like him as ‘terrorists’, is making a complete mockery of not just democratic norms and fair governance but its entire anti-terrorist strategy and operations. Detaining innocent people on false charges for political reasons, while turning a blind eye to real terrorists running amok all over the place is surely a recipe for perpetual disaster.
The subversion of the Indian judiciary for such political purposes constitutes an even graver threat to Indian society. The sheer injustice involved in bending principles of law is bound to fuel deep anger against the Indian State and breed cynicism about the credibility and efficacy of Indian democracy itself.
Satya Sagar is a journalist, writer, video maker based in New Delhi, India. He can be contacted at email@example.com
December 10, 2008
Nothing really happened on that day
A few crows bled
Others were strangulated
In a corner of a sky
That turned gradually red
I told you
About these crows
My departure yielding
To another sky
Yet somebody far had been
Brought down suddenly
And cast away behind iron seasons
The crows bled soaking
I had held aloft
And its redness
Slit the earth too
Would you recognise me then
Would you still mingle your voice
Would you breathe on my shadow
Would you fear catching the corner of
Dr Binayak Sen, a medical doctor and human rights defender, was arrested on 12 May 2007 in Chattisgarh, India. He is currently in prison awaiting a trial that has been repeatedly delayed.
Police allege that he passed letters between imprisoned members of a banned leftist group. However, Amnesty International believes the charges against him are politically motivated, aimed at stopping his human rights work. Dr Sen, a pioneer in providing accessible health care to the rural poor, has been documenting the impact of conflict in the region on the rights of marginalised communities.
Excerpts From an Email From Kavita Srivastava
[. . .] The Chhattisgarh High Court dismissed the Bail application of Dr. Binayak Sen on the 2nd December, 2008. Similarly the bail application of Piyush Guha was also dismissed. Dr. Binayak Sen’s lawyers Anjana Prakash and Mahendra Dubey had argued first on the 8th of September and the second time on the 2nd of December as to why Dr. Sen should be granted bail. The judgement was reserved by the Justice Sunil Sinha. However, on the 3rd itself Mahendra Dubey learnt about the order and so read it from the Court files. (Copy will be available soon). The gist of the order given by the Judge Sunil Sinha, who had heard the bail application in 2007 too, is as follows:
– that since the dismissal of the bail application last year by this Court, there been no substantial change in the circumstances of the case, therefore the bail application is being dismissed at the stage of motion hearing itself.
Which means that the Court did not consider the application worth admitting for hearings. However, it also means that the bail has not been “rejected” on merits a second time, but that the application was never entertained by the Court.
Whatever way we see it, it means that Dr. Sen’s remains in Jail, his civil liberties, still not restored.
It is clear that the High Court did not want to take a decision on the bail and wants to leave it to the Supreme Court. The situation is really dismal. Perhaps there is no option but coming to the Supreme Court again. AND THIS TIME WE HAVE TO WIN.
[. . . ] Delhi [. . . ]plan Human Rights day and a campaign from the 10th to the 16th December concluding with a rally on the 16th against the State’s Acts of Silencing political dissent. Rajendra Sail Sahab from Chhattisgarh has written to us about plans in Raipur where they are releasing a book in Hindi on the Dr. Binayak Sen trial observations. In Jaipur we are planning a rally on the 10th dedicated Dr Sen’s release and other Human Rights issues with which we are involved.
This is an appeal to all friends to Observe Human Rights Day take upfront the issue of Dr. Sen. Secondly since the Parliament session will begin on the 10th [December 2008] itself it is our chance to put pressure on the Indian Parliament this time.
[. . .] WE will [. . .] campaign for the release of Dr. Binayak Sen and against the State for silencing political dissent which we plan to hold from the 10th to the 16th [December 2008].
In Solidarity with the people of Mumbai
In defence of Peace, Secularism and Democracy
Against Hate, Violence and Fascism
Performances by Vidya Shah, Ustad Zamir, Shubendu Sen, Qazim, Wagesh Jha and students of Jamia
Tikona Park (Jamia Nagar), 6th December, 5.30 pm onwards
For Tikona Park, go down the road on Jamia Millia Islamia. You will reach a fork: take the road on the right hand and you will come to tikona park)
- jamia teachers’ solidarity group (Manisha: 9811625577/ Ghazi Shahnawaz 9898221506)
- AWAM theatre group (Aslam: 9990748079)
- south asia initiative for peace (Apoorvanand: 26495976)
- residents of jamia nagar (Mahtab: 9811209345)
Another South Asia is Possible
As the horrific details of the terrorist massacres in Mumbai emerge there is deep sense of shock and sheer disbelief among the people of India and indeed around the entire world. Together with all this there is also great sorrow and even despair among those everywhere who understand the value of life and what the loss of each individual being really means.
What does one call those, who with planned precision butcher completely innocent people and in as many numbers as possible, with not a shred of discrimination, mercy or remorse? What ever could be the justification for this act of cold-blooded inhumanity in any religion or ideology and what purpose could it serve towards any political or national objective? What blueprints of the future will they paint with the oozing red blood of someone’s mother, child or father, their life cut short in a moment of sheer insanity?
Was it plain revenge, for real and imagined wrongs of the past, that motivated the killers and whoever financed, trained and facilitated their murderous intentions? If so, when will this cycle of ‘revenge’ and ‘counter-revenge’ ever really end ? And who gave these terrorists the licence to ‘represent’ any religion or people anyway? Are we to accept quietly the diktat laid out by fanatics of all hues that they are our future, the future is already here and looks like a graveyard where bodies are not just buried but also cremated?
Should we the people of South Asia, home to one-fourth of all humanity and the repository of the world’s most ancient cultures, meekly accept this dreadful future as a fait accompli and become a sub-continent of permanently sealed fates? Are we to succumb to the language of terror and counter-terror for the rest of our lives, our tongues in constant motion spewing venom or permanently locked from cold fear? Is this the world we want to leave behind for our children, of high-security borders, of bullet-proofed bodies and souls, our hands in blind paranoia shooting at our own moving shadows?
The answer has to be a resounding No! For there is anything that is the central quality of all forms of life on Earth it is the ability, indeed the ferocious passion, to resist its own demise and of all that it cares for. What the tears of every mother who lost her child and every child that lost its parent in the mindless cycles of violence of our region tells us is the time has come to stand up and prove beyond doubt that we are alive, deeply in love with life and every wonderful gift it brings with it.
Indeed, what the tragedy of Mumbai and the countless ones from Islamabad, Colombo or Dhaka before it, plead with each one of us is to pause, reflect, breathe deeply and collectively change the course of our sub-continent forever.
We will not let a handful of political maniacs convert all of South Asia into a battleground of suicide bombers and homicidal hawks or turn us against each other in the name of country or religion. We will not let the artificial borders of our nation-states, inherited from colonial history, become the tripping-wires of genocide, holocaust and the apocalypse. We will not let the merchants of death trample upon even the slightest sign of life flowering in our lands or extinguish the faintest hope that dwells in the hearts of our people.
In the fight against terrorists of all kinds or politicians who place abstract nation, religion, ideology or pursuit of wealth above all that we value most in our lives there are no more Indians, Pakistanis, Afghans, Bangladeshis, Nepalis or Sri Lankans. We are first and foremost human beings and indeed we are the united people of South Asia who will strive for peace, justice and democracy and win the most beautiful future for our children. We want to live and let live, not kill or end up as collateral damage in the manipulated conflicts of our evil masters.
Another South Asia is not just Possible but begins right now with the raising of our collective voice against hate, violence, war and terror!