By M.R. Shamshad
A Meghalaya high court judge had to recently pass a clarificatory order stating that he is not a “religious fanatic.” The need for a clarification sprang from his judgment two days earlier calling the National Register of Citizens (NRC) process in Assam “defective” because it left out “original Indians.” He said that the ‘Sikhs’ who came to India were rehabilitated, but ‘Hindus’ were not. The ‘Hindus’ who entered during Partition, he said, are still considered foreigners.
In Justice S.R. Sen’s view, all Hindus, Sikhs, Jains, Buddhists, Parsisetc – irrespective of the date they entered India and have since been residing here – should be declared ‘Indian citizens’. Muslims are excluded from his list. He also expects the government to take a conscious decision to protect innocent ‘Hindus’ and eight other non-Muslim religious groups.
The judge further states that several conversions “took place by force”. Strangely, he does not see Muslims in India as ‘citizens’ and says that members of the community whose families have been residing in the country for generations and abiding laws, “should also be allowed to live peacefully”. He proceeds to ‘appeal’ to all the Hindus of “Barak Valley and Assam Valley” to come together to find an amicable solution.
These observations of the high court are in direct conflict with the constitution and the constitutional principles declared by the Supreme Court. It also violates judicial principles of judgment writing and the sub judice rule because the NRC issue is pending before an apex court bench headed by the Chief Justice of India. Such sweeping remarks about the NRC process being ‘defective’ is serious judicial overreach.
When the high court exercises its power to examine the violation of legal or fundamental rights under Article 226 of the constitution, it cannot apply interrelated legal provisions. Whether a law shall apply or not depends upon undisputed or adjudicated facts of the case. In this jurisdiction, the judge is not required to get into contested facts. In this case, the judge has given his views on issues which are not ‘undisputed facts’. He has quoted three books in 16 pages of his 37-page order to say all the above. He has treated the averments in books as adjudicated or admitted facts.
Can a judge be permitted to do this?
One of the three judges of the Allahabad high court, while deciding the Ram Janmabhoomi-Babri Masjid title case, wrote about one set of historians and writers that they “were mostly petty employees of the East India Company” and “nobody made any detailed investigation whatsoever”. He also stated that “none tried to find out the actual events which took place and correct historical facts”. This is another example of an extreme when dealing with writers and historians.
The present judicial order is divided on religious lines of ‘Hindus’ and ‘Muslims’ and reflects a protectionist attitude towards one community. The judge has conveyed a personal message to the ‘Hindus’ of ‘Barak Valley and Assam Valley’ saying that ‘our culture, traditions and religions are same’. A judge certainly has a fundamental right to freedom of religion. But can a judge’s ‘personal religious belief’ be channelised through a court?
In 1996, a three-judge bench of the Supreme Court led by Justice J.S. Verma declared that the term ‘Hindutva’ by itself does not invariably mean the Hindu religion but ordinarily, it is understood as a way of life or a state of mind. The court further said that the term is not to be equated with, or understood as religious Hindu fundamentalism. The said observation has already done some damage to our secular polity. It appears that now, such observations have also created serious damage to the judicial discipline for institutions to follow.
The present judgment reflects the strong personal consciousness of the judge’s religion and has damaged the impartiality of our judicial institutions. The judge is under an obligation to communicate his views through constitutional principles and not through his personal favour and prejudices and in that process glorify a section of society or a particular belief system. The scope of this judgment crosses all limits of secular constitutional principles as declared by the Supreme Court stating that ‘secularism is a part of the basic structure of the constitution’.
In 2009, Justice K.T. Sankaran of the Kerala high court declared that ‘there is a movement or project which is called “Romeo Jihad” or “Love Jihad”’ conceived by a section of Muslims. He stated that the idea appeared to be to “convert girls belonging to other religions to Islam” and thereafter directed an investigation – which proved the concept of ‘love jihad’ was propaganda.
However, this unnecessary observation of the judge caused immediate, irretrievable damage to the community as well as the impartiality of the institution. Even after the probe had found nothing of the sorts, many columnists kept referring to the observation of the high court as if it were the gospel truth.
The present judgment of the Meghalaya high court has been damaging to the system of higher courts. Even if it is subsequently set aside, the loss of reputation of the judiciary is irretrievable.
Till now, there has been a clarification that the culture of law and law-making in our country should be on secular lines. After this judgment, a clarification is needed that the culture of judgment writing should also be on secular lines and if a judge crosses these limits, appropriate remedial measures must be taken.
What Do the Echoes of Operation Kabaddi Really Say?
By Ali Ahmed
Two unconnected headlines at the start of the week are connected in this article. In one, the spokesperson of the United Nations Secretary General expressed the limitations of mediation as a conflict resolution mechanism for the conflict in Kashmir, arguing that both sides – India and Pakistan – needed to be on board for the Secretary General to exercise initiative under his good offices mandate enabled by UN Charter Articles 98 and 99.
While Pakistan repeatedly brings the Kashmir question to the attention of the UN – most recently during the visit of the President of the General Assembly to Pakistan last week – India takes the cover of the Shimla Agreement that buried the UN role in Kashmir by calling for a bilateral settlement of the dispute.
With India reluctant, there is little possibility of mediation figuring as a conflict resolution tool or the UN taking center stage in bringing to a closure its longstanding interest in the Kashmir question (To recall, the second longest serving UN observer mission is along the line of control (LC)).
However, there is one situation that can potentially propel UN center stage. This would be so if the actions hinted at in the second headline come to pass.
Among the contents of a book by a Jawaharlal Nehru University academic, Line on Fire: Ceasefire Violations and India-Pakistan Escalation Dynamics, is reportedly the revelation of an Indian plan to capture a few posts along the LC in late 2001, in a operation codenamed Operation Kabaddi. Apparently the operation was aborted by the intervention of 9/11 and onset of the United States’ led Operation Enduring Freedom in the region.
The book has it that the plan envisaged the capture of some 25-30 Pakistani posts along the LC in order to prevent the infiltration of terrorists into Kashmir, after preparations had been completed in end September. In the event, the plan could not be actioned even though there was a possible incident on October 1 that could have triggered the multiple attacks across the LC: the terrorist strike on the Kashmir Legislative Assembly in which some 38 people were killed.
The plan is precursor to the latter day surgical strikes of end September 2016. The surgical strikes did not have the same scope or magnitude, and with good reason.
Any operation – even if not as ambitious as made out in the book – would focus the UN Security Council on the escalatory possibilities connected with the outstanding issue that remains on its agenda as the ‘India-Pakistan question’ since the passage of its Resolution 39 (1948) on January 20, 1948. Mindful of the possibility of being forced to the table by a Security Council resolution, India sensibly restricted the scope of the surgical strikes, assuring Pakistan the following day that the operation had ceased.
Even so, the army’s ongoing reforms reportedly cater for leveraging its conventional advantage. After playing footsie with Cold Start – the freshly minted doctrine in wake of Operation Parakram in 2002-03 – by acknowledging its existence in fits and starts over its lifespan, the army owned up to it definitively, early in the tenure of the current army chief.
The army is currently engaged in a reform initiative in which the integrated battle groups that found mention in the doctrine are firmed in. The idea is of dedicated formations – likely heavier than brigade sized combat commands – formed for territory centric or destruction tasks. Pre-designated and programmed and having the requisite resources – firepower and engineer – intrinsic, these would be in a position for an early launch from a ‘cold start’, as envisaged in the evocative, if colloquial, name of the doctrine.
The JNU academic and author of the book Professor Happymon Jacob, hopes to focus attention on the continuing escalatory possibilities resulting from incidents along the LC which numbered some 3,000 last year, and the need for formalising the ceasefire dating to November 2003. The ‘ceasefire’ was not the result of a document, but is an understanding. This only reinforces Jacob’s fears of escalation, apprehensions that in light of the nuclear dimensions to war it can only bring the security minders of the international community – the Security Council – down on South Asia in quick time. The international community has a genuine interest in preventing a nuclear war outbreak, since the consequences are potentially global.
While India would press for having Pakistan in the dock for provoking the conflict in first place by a terror incident or a series of incidents that it could interpret as an armed attack, there is no guarantee that the Security Council will stop at that. This could release the Secretary General from his limitation encapsulated in the first news article referred to above, which incidentally was also voiced earlier in April last year.
India would be required then to engage with Pakistan meaningfully over Kashmir, something it is loath to do.
India therefore needs to reappraise its hardline in regard to Pakistan and in Kashmir. The hardline creates the conditions for a bust up over Kashmir. The army chief among his numerous media interventions has indicated that India has options up its sleeve along the lines of surgical strikes, but of a different sort and order that he did not dwell on in detail, keeping surprise in mind. In future such strikes cannot be as tame as the surgical strikes, fobbed off by the Pakistanis as a non-event.
Any future such strikes would need to be of the order of the hype that has since attended them, rather as they are depicted in the somewhat misnamed recent release Uri, which dramatises the surgical strikes. If the up-gunned Integrated Battle Groups are up and running by then – the exercises to prove their new design are due this summer – then their employment would have to reckon with the unintended outcome: international attention forcing India to the table to discuss Kashmir meaningfully.
For India, meaningful talks imply getting Pakistan to vacate its occupation of areas of the erstwhile kingdom of the maharaja. Keeping its claims alive, only last week India protested a Pakistani court order extending its sway over Gilgit-Balitistan as interference in India’s internal affairs. Its chief objection to the Chinese lifeline to Pakistan, the China-Pakistan Economic Corridor, is that it trespasses Indian territory. While India’s contention would no doubt figure in the talks forced on India, the casus belli (case for war) would likely lie in the tinder accumulated in Kashmir which would have to be reckoned with. Though distasteful, it would be a consequence of any Indian military action.
Proceedings at a book release function over the weekend organised by the Center for Land War Studies do not lend confidence that there is enough appreciation of the unintended consequences of military response. A significant reservation voiced by the speakers comprising retired members of the military brass who contributed to the CLAWS publication – Military Strategy for India in the 21st Century – was that there is little government-military interface on the nature of India’s military options.
This is little different from the criticism governments have faced over the past, which indicates this government’s security mindedness has been little different from its predecessors’, notable in light of its assiduous distancing from the past and its tom-tomming of the same. The difference is its hardline, which can land the region in a soup in quick time, absent mechanisms, other than routine diplomacy, for engaging Pakistan.
While to peaceniks the unintended outcome – meaningful talks perhaps mediated by the international community – of military action in line with Operation Kabaddi is not unwelcome, this is perhaps not an outcome sought by NSA AjitDoval’s team. In which case, Doval is best advised to read the CLAWS publication on military strategy and be mindful of the inadvisability of military options, and preventively defuse the conditions that keep Operation Kabaddi plans well dusted.
How eluding is our justice system
By Shabbir Aariz
Given the human imperfections and infirmities, perfect justice remains a divine attribute belonging to the throne of God. All humans being alike, therefore, dispensation of justice by one human being to another is not only difficult but impossible. Any hope of perfect justice at the human hand is a mirage. Yet the justice that lies within human grasp need not to be jeopardized in pursuit of perfection. Needless to say that even such pursuit in not felt in our system. Subversion of even the existing system after about three quarters of century of freedom and a constitution is loud and clear. The path of justice has not remained that straight where the freedom of the people could be defended against attacks from various quarters. The inclination to injustice increases instead of decreasing. Things seem to have reached to such a pass where defiance is celebrated and the system of safeguards is destroyed. The noblest desire, aspiration and hope in the society is always for fair and speedy delivery of justice which is becoming a dream with every passing day and which is needed to remain a constant goal of the system.
The Indian justice system, as various studies suggest, is too slow, too costly and too complex. It is a paradox that courts and police in India remain the least preferred mechanism for resolving disputes and access to and quality of justice further remain a question mark. The system has failed marginalized, disadvantaged and under privileged population. Democracy is never possible where the capacity of justice is lacking. India’s criminal justice system is so ailing and imperfect that even after decades trials are not concluded. As if this was not enough, we have seen in immediate past, people were found innocent after years of incarceration and their trials moving on slow pace at times out expediency. The law is not dead but appears to have slept. It no longer seems to have remained a sacred work to determine the rights, property, life and civil duties of the people. It has to be the prime duty of our judicial system to preserve the civility and reason instead of, though important as they are, the dignity of the administrators and rulers. We have been hearing of reforms also in the system but nothing has changed in reality so far. This insensitivity to reform or to change, has resulted in bad and erroneous verdicts even at the highest level also. Some of such verdicts are then forced down the throat of the other people or backed with bullets. This is more because of the fact there is shyness in accepting the fact that the mind has enormous capacity for error, self-deception, illogic, sloppiness, confusion and silliness which are required to be diminished. Judges are sworn in to decide according to the laws and not according to the good pleasure as there is no piety in that. A judge has responsibility as leader for setting the level of the administration of justice. Over two thousand years ago, Socrates said, “four things belong to a judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially.” This mantra needs to be followed by all earthly systems of justice all over the globe. More particularly in a society one like India where over the years numerous verdicts from the highest court have become the subject of debate for wrong reasons. And equally those cases pending disposal for not a number of years but for generations. Judges have used extra-legal phrases and based their verdicts on such phrases and perceptions created totally extraneous to the law and circumstances. In the recent past , the overall pathetic situation of the justice system brought the then Chief Justice of India, Justice T. S. Thakur publically to tears and that holds the sufficient testimony to our ailing justice system at the highest level.
There may be a number of reasons for the system not coming up to the level of expectations and some are glaring. There has been a long standing practice of treating the judicial appointments at higher level as political patronage and outcome of nepotistic fiefdoms of well connected. Though now made permissible by the Supreme Court, judges as persons and courts as institutions have enjoyed greater immunity from criticism while being humans with common human frailties and fallibilities. This has resulted in loss of faith in the justice system on the one hand and in creation of a parallel system like khapp panchayats to set unhealthy trends in the society. It is therefore, imperative for those in position to seriously accord their thought and attention to the health of this third and important pillar of the state which makes it more urgent in a democratic system of the society. Unless it is so done, the system shall continue to elude those who seek justice.
(Well known poet and writer, the author can be reached at: [email protected])
Chinese Islamophobia was made in the West
In response to the rising international criticism regarding the detainment of more than a million Uighur Muslims in so-called “re-education camps”, China’s Foreign Minister Wang Yi defended the country’s actions, stating, “the efforts are completely in line with the direction the international community has taken to combat terrorism … if we can take care of prevention, then it will be impossible for terrorism to spread and take root.”
Other Chinese officials defended their country’s actions, claiming that Islam is an “ideological illness,” positioning the concentration camps as “hospitals” needed to “cure” people from this sickness. China’s ambassador to the US, Cui Tiankai stated that the country is trying to turn the Uighurs into “normal people,” and a pro-government newspaper tweeted: “The West should be consistent over its own value system. How can it be fine to kill terrorists with missiles, but a humanitarian crisis when Xinjiang attempts to turn them into normal people?” Such statements describe the faith of over 1.7 billion people as an illness from which they need to be cured.
Viewing Islam as an abnormality and the cause of “extremism,” is not exclusive to China, rather it finds its home in the West’s Countering Violence Extremism (CVE) programs, which view expressions of Muslim identity as uniquely associated with “extremism” and “radicalisation.” Programs aimed at “preventing extremism,” have resulted in the stigmatisation and criminalisation of Muslim communities.
Today’s public discourse on terrorism consists of a fixation on Islam and the expression of Muslim identity as indicators of “extremism,” “radicalisation,” and “terrorism”. It is not a line of thought constrained to the People’s Republic of China, rather this viewpoint permeates much of Western academic research and policies. Termed “new terrorism” studies, this field of work arose post-9/11 in an effort to explain, not understand, 21st-century political violence and argued that Islam was the root cause for individuals choosing to engage in violence. In the US, this framework led to destructive wars abroad, surveillance of Muslim communities at home, and broad violations of human rights.
In 2011, a US government white paper likened the hijab to “passive terrorism.” The author viewed an article of clothing – a headscarf worn by many Muslim women who feel it is part of their religion – as an indicator of support for violence. This same cultural racist argument underpins the hijab and veil bans that are sprouting up across Europe. Politicians and activists who support such measures argue that a piece of cloth is equal to violence and thus pass legislation that forces women to undress, resulting in the gross violation of individuals’ human rights. Such policies are built on a false and unfounded premise that identifies markers attributed to Muslim identity (growing a beard, attending mosque, wearing a hijab, etc) as indicators of “radicalisation” and “extremism.” China too has adopted this framework as veils and “abnormal” beards are forbidden in the Xinjiang region.
Chinese officials’ dangerous claim that Islam is an “illness” can also find precedent in the comments made by western politicians who have long used anti-Muslim claims to promote their hostile agendas. In 2014, Oklahoma state representative, John Bennett, described Islam as a “cancer in our nation that needs to be cut out.” Donald Trump’s former National Security Adviser Michael Flynn described Islam as a “malignant cancer,” and asserted that “fear of Muslims is RATIONAL”. A 2016 tweet from Flynn shares eery similarities to China’s current claims, as he declares “Islamic ideology [is] sick and must B healed”. In 2015 on The Kelly File, conservative political commentator Glenn Beck argued that there is a “disease in Islam” and it must be addressed.
Such dangerous claims pathologising a belief system are not restricted to the United States. In March 2017, far-right Australian politician, Pauline Hanson, stated: “Islam is a disease; we need to vaccinate ourselves against that.” In 2017, Caroline Santos, a candidate for United Kingdom’s right-wing UKIP, described Islam as a “cancer” in a tweet praising far-right figure Tommy Robinson.
Noted anti-Muslim figures like Ayan Hirsi Ali and AsraNomani have also attributed common Muslim phrases of “Allahu Akbar,” (God is Great), and ‘inshAllah” (God willing) as being associated with extremism and terrorism. Nomani and Hirsi Ali are known right-wing figures who have made a career out of promoting dangerous and discriminatory views about Muslims, but their claims that Arabic terminology is a “red flag” for extremism and/or terrorism is not relegated to a niche political view.
In 2018, Swiss officials fined a man for saying “Allahu Akbar” in public, and defended their actions arguing that a “passersby could have mistaken him for a terrorist.” Today in China, Muslims who have been heard greeting one another with the common phrase, “As-Salam Alaikum,” (peace be upon you) have found themselves detained in the ever-expanding networkof concentration camps.
China is instituting the very calls made by western politicians to “cut out” Islam, by criminalising any expression of Muslim identity, including removing Qurans from people’s homes, restricting fasting during the month of Ramadan, and forbidding Muslim parents from giving their children Muslim names. In an effort to “heal” Muslims from this “dangerous ideology,” the government has established 28 detention camps, described by Amnesty International as comparable to “wartime concentration camps,” aimed at mass scale eradication of Uighur Muslim identity. Detainees in the camps are forced to endure psychological and physical torture, renounce their faith, and pledge allegiance to the Chinese communist party.
Under the guise of preventing terrorism, governments have been able to institute discriminatory and deadly policies targeting Muslim communities. Proponents of such measures justify their actions with the demonstrably false and discriminatory argument that identifies Islam as an explanatory factor in political violence.
What we’re currently witnessing in China is the product of a framework that points to Islam and the expression of Muslim identity as the root cause of terrorism, a viewpoint that finds its roots in, and is a staple of, Western political discourse.