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VOLUME 8 ISSUE 1&2 JANUARY-APRIL 2009COMBAT LAWTHE HUMAN RIGHTS & LAW BIMONTHLYSecretary, Madras High Court Advocates Association –beaten by the policeTAMIL NADUPOLICE ATTACK ON LAWYERS AND JUDGESCongrats Gujarat HC!Kodnani sent to jailSC SAVES KANDHAMALCIVILIAN KILLINGS IN SRI LANKAPraful Bidwai I John Dayal I Sudhirendar Sharma I Satya Sivraman I V Krishna AnanthAhilan Kadirgamar, Cenan Pirani I Dipa Dube I Jan Birch I Samneh Mohmmadi I Prashant Bhushan

COMBAT LAWjanuary-april 2009VOLuMe 8, ISSue 1 & 2EditorHarsh DobhalSenior Associate EditorSuresh NautiyalAssociate EditorSujata KrishnamurthiAssistant EditorNeha BhatnagarCorrespondentsMallika Iyer (Mumbai)Sheela Ramanathan (Bangalore)DesignMahendra S BoraDeputy Manager, CirculationHitendra ChauhanEditorial Office576, Masjid Road, JangpuraNew Delhi-110014Phones : +91-11-65908842Fax: +91-11-24374502E-mail your queries and opinionsto: editor@combatlaw.orglettertoeditor@combatlaw.orgcombatlaw.editor@gmail.comWebsite: www.combatlaw.orgFor subscription & circulationenquiries email to:subscriptions@combatlaw.orgPhone: +91-09899630748Any written matter that is published inthe magazine can be used freely withcredits to Combat Law and the author.In case of publication, please write tous at the above-mentioned address.The opinions expressed in the articlesare those of the authors.Printed and published byColin Gonsalves for Socio LegalInformation Centre having its office at576, Masjid Road, Jangpura,New Delhi-110014Printed at Shivam SundaramE9, Green Park Extension,New Delhi-110016Photo courtesy: WinTV & othersC O N T E N T SState Brutality in South AsiaThe mass police violence inside the premises of Madras High Courtin February this year is perhaps only one of its kind in the historyof Independent India when in a bizarre show of baton power, policebrutally attacked unarmed members of the legal fraternity. The sordiddrama that went on unabated for four hours has indeed left the judiciaryin Tamil Nadu in a quandary. The police excesses cannot be condonedby any yardstick. More than anything else, the police brutality,extensively covered by media, only proves that the police have overthe years gained a 'confidence' and indeed a sense of impunity, whichis possible only under dictatorships and not in a democracy. Policethat going to hold them accountable nor are the courts going to punishthem easily.The story of Dr Binayak Sen in Chhattisgarh is a case in pointwhere the state police have slapped blatantly false charges to punishhim for his exposure of police atrocities against tribals in Bastar district.Dr Sen, arrested under a stringent anti-terrorist legislation forbeing an 'associate' of the banned Maoists, has already spent over 22months in jail and denied bail repeatedly. This persecution of a humanrights defender and an outstanding public health doctor is being doneobviously on behalf of their political bosses in Chhattisgarh as well asintelligence top brass at the Centre in Delhi who – in keeping withglobal fashion after 9/11 – see human rights activism as a proxy for terrorismitself. To understand how 'police raj' is flourishing in not Indiabut all of South Asia one has to take a look at neighbouring Sri Lanka,which has gone from being a model democracy in its initial years afterIndependence from British Rule to becoming a quasi-fascist state runby a cabal of chauvinist Sinhala politicians and hawkish military officials.Trying to use force as the main means of ending the country'slong standing problem of Tamil militancy, without resolving theunderlying political issues, the Sinhala elite has embraced dictatorialways and condemned the entire country to a perpetual cycle of violenceand counter-violence. If there is another lesson India needs tolearn from Sri Lanka, it has to do with the terrible consequences ofmajoritarian politics – as practiced by the Sinhala majority leadershipagainst minority Tamils in the country. The views expressed in thisjournal on Sri Lanka are, naturally, those of the writers, however,Combat Law believes that the alliance between the Rajapaksa governmentand the Sri Lankan Armed Forces could possibly lead to militaryrule in Sri Lanka under a camouflage of democracy. This would haveterrible consequences for the people of Sri Lanka as a whole.In India too the rise since the mid-eighties of the Hindutva brandof 'hate politics', which attacks religious minorities like the Muslimsand Christians as being of 'foreign origin', will bring the same resultsin this country as Sinhala chauvinism has brought in Sri Lanka. Andthat is exactly what is happening in the country today with the secularspace eroding fast and Indian democracy getting polarised increasingly.The memory of the burning alive of Graham Staines and hissons had not even faded when Hindutva fanatics went on a rampageagainst the Christian minority across Orissa, starting from Kandhamaldistrict. These developments are a grim reminder of the scale ofgrowth and reach of organised communalism. And this has not happenedall of a sudden. The Hindutva outfits have worked relentlesslyfor years, a routine task silently carried out by RSS and its over 35 affiliateorganisations working on various fronts – ideological, charity, service,educational institutions, students and trade unions, women'sgroups and political organisations.This combined issue of Combat Law is looking at these unfortunatedevelopments that pose an imminent threat to our democracy.Harsh Dobhal

C O N T E N T SLETTERS TO THE EDITOR 5LEGAL AIDRIGHTS VS DEVELOPMENTRight to legal aidIt has been emphasised that more severe charges liketerrorist crimes merit more competent legal aid–Colin Gonsalves6Sacrificing rights for developmentThe courts have failed to protect thesocio-economic rights of the commonpeople. Part of this reason lies in the classstructure of the judiciary–Prashant Bhushan7WOMEN'S RIGHTSTRAFFICKING14 20COMMUNALISM22Right to shared householdA woman who is a victim of domesticviolence has the right to continue residingin the shared household–Dipa DubeInnocence trappedIn absence of determination on part ofthe concerned authorities, traffickedchildren are prone to abuse–Samaneh MohammadiGenocide in KandhamalThe unabated attacks on Christiansin Kandhamal are a testimony tothe fact that Orissa, after Gujarat,is fast becoming the next hate labof xenophobes–Jan Birch43COMMUNALISMDangerous sanctuariesA refugee camp is a terrible place andindeed robs its inmates of their innatedignity–John Dayal45RAIPUR SATYAGRAHA49Excerpts from theGujarat HCjudgement onKodnani caseGoing to prison for a prisonerActivists campaigning for release ofrenowned humanitarian activist DrBinayak Sen have come up with a newstrategy to win public support for theircause–Satya Sivaraman2C O M B A T L A W j A N U A R Y - A P R I L 2 0 0 9

C O N T E N T STAMIL NADU5663Brutal attack on legal fraternityThe boycott of courts by the lawyersacross Tamil Nadu meant to expresssolidarity with the civilian Sri LankanTamil victims–Dr V Krishna Ananth77Fascist attack on the barThe attack on the lawyers and the judges in theMadras High Court was not a one-off incidentbut as part of a continuum of police violence–Colin Gonsalves73Madras High Court orders in connectionwith the brutal policeaction against legal fraternityAssault on an institutionThe police hostility against the lawyers andjudges in the Madras High Court was notonly an assault on the community, but alsoan attack on the legal institution–Kartik Sharma80SRI LANKAA tale of forceddepartures and hopeIn the relief camps of SriLankan Tamils in India,there are extraordinary storiesof people who undertookjourneys full of hardshipsand danger, nursingthe hope for an independentElam–Kartik SharmaCivilian killings must endIndia must launch a diplomaticcampaign to insist on Colomboto declare ceasefire, create safecorridors and permit reliefdelivery–Praful Bidwai8583The Tragedy of politics in Sri LankaWidespread human rights abuses are rampant inSri Lanka, supported by the international communityin the name of 'war against terror'–Ahilan Kadirgamar and Cenan Pirani89The final solutionMediation or facilitationof any political processrequires hearing all theparties to the disputeand India must overcomeits reluctance to negotiatewith the LTTE–Ramu Manivannanw w w . c o m b a t l a w . o r g 3

C O N T E N T SPAKISTANREFUGEE CRISIS92Finding NeverlandCondemned to live intwilight zones, Burmesein India have no refugeestatus–Aswant KatwalGlimmer of hopePeople's power has won in Pakistan afterthe success of Long March and a questionmark now hangs over Zardari's ability togovern the country–Praful BidwaiMIGRATION97Lucid dreamsUndeterred by the imagery of corpses anddangerous waters, the urge to escapevillages seems to be getting strongeramong youth in Egypt and war-tornAfrican countries–Lina Atallah and Nida Mariam98ENVIRONMENT94ABORTION100Is abortion Right?The debate of whether women shouldhave the right to abortion rages onwith a recent Bombay High Courtruling–Anubha RastogiEDUCATION102Take the right callA judicial colloquium on right to educationattempts to take stock of thetremendous deterioration in conditionsof primary schools in India–Kiran JyotiWORDS & IMAGESHow not to protect theWestern GhatsThe current regime is mute to multiplethreats to the flora and fauna inthe unique and sensitive ecologicalcorridor of Western Ghats–Sudhirendar Sharma106 109104OPINIONAn open letter to all judges ofthe SC and HCs on disclosure ofassets by judgesSPECIAL REPORT110Reorienting the securityparadigmThis book is an addition to the literatureon a subject, which needs moreexploration. The essays cover a rangeof subjects and vary in their depthand complexity–Ruhi KandhariThe colour of gratitude isgreenWith this book, Supreme Court onForest Conservation, the authorshope that there will be more judgementsthat support and conserve theenvironment–Krishnendu MukherjeeG-20: Money crimes,climate chaos?The unprecedented protests against theG-20 summit serves a warning that theordinary people across the globe haveno faith in capitalist politicians andbankers–Harsh Dobhal4C O M B A T L A W j A N U A R Y - A P R I L 2 0 0 9

L E T T E R S'Outcaste' identityTroubled shrineDear editor,I must congratulate you on theunbiased article on Shri AmarnathShrine controversy (‘Inventing acontroversy’, July-Aug 2008) by SantKumar Sharma. Peoples DemocraticParty has been playing a very negativerole in the politics of Jammu &Kashmir with utter disregard tonational interests. This is a classicexample of dirty politics to createcontroversy for electoral gains at thecost of peace, harmony and nationalinterests.The role of Shri Amarnath ShrineBoard (SASB) should be to facilitatethe Amarnath yatra and to ensurethat the yatra is secure, comfortableand without any hazard. The economicgains to the local communityalso must be safeguarded and theirwell being taken care of, particularlythe porters, pony owners and thepoor.Now that apparent peace hasbeen restored, I have apprehensionsthat the trouble in the form of terrorstrikes in the Jammu region mayincrease. Therefore, the SangharshSamiti and the people of Jammuhave to be alert.—Col (Retd) Subhash BakshiBy e-mailDear editor,The last issue of Combat Law(Volume 7, issue 6, Nov-Dec 2008)devoted to the labour problems inthe country has come out very well.It comprehensively covers mostaspects related to thelabour related problemsand the judiciary’sattitude towardsthem. It is unfortunatethat even after decadesof Independence, mostof the sections of ourlarge society remainneglected and in factmarginalised. They arenot just in the consciousnessof the country. These‘outcaste’ sections find itvery difficult to survive dueto the negligence.The editorial of the issue rightlypoints out that the level of litigationin any country is the sign of thevibrancy of democracy. But, the levelof litigation in India remains patheticand litigation has dramaticallydeclined in view of the sharp reversalof labour law jurisprudence. In viewof the discourse, do not we need tothink that the labourers are alsohuman beings with desires and aspirationsand that the role of the judiciaryessentially needs to be that ofmaintaining a delicate balancebetween the contesting groups andhave a sympathetic attitude towardsthe labour class in particular.This attitude has beendefined by advocateGayatri Singh in her article“Judiciary jettisons workingclass” wherein sheexplains that the ideologyof globalisation, privatisationand structuraladjustmentsbegan to hold sway bythe mid-1990s and theapproach of the legalsystem began tochange from a prolabourstand to onemarkedly against labour. Itis also pertinent to quote the formerChief Justice of India, A M Ahmadi,who emphasised that socialism in thePreamble of the Constitution nevermeant that we shall remain poor allthe time but meant that we are entitledto generate wealth, but the extrawealth that we generate must be distributedamongst the masses.Finding GurkhalandDear editor,The story on the Gurkhas of UK('Soldiers in the courthouse', Nov-Dec 2008 by Gopal Siwakoti Chintan)was enlightening. This is the firsttime I read something on theGurkhas in the Indian media. Thiscommunity deserves every bit ofrespect and the court order shouldcome as a welcome decision to everyone.The landmark judgement passedby J Blake should be hailed as one ofthe best rulings given by the Britishcourts in favour of these Gurkhas. Healso directed the Home office tocome up with new immigration—Natasha NautiyalLLB 1st year,University of Delhipolicy for the Gurkhas and this is thebest the UK could do for the soldiersthat have laid their lives defending acountry that does not even considerthem as their own. The resultof this policy review will decide thefuture of how many more Gurkhaswould be allowed to settle inthe UK.Gurkhas did not win thisovernight and it took them considerablenumber of years to get justice.This is a great win for these brace soldiers.I hope that this will help themto establish themselves as much asthe Britons.—Rajeev Bhushanw w w . c o m b a t l a w . o r g 5

legal aidColin Gonsalvesemphasises thatmore severecharges liketerrorist crimesmerit morecompetentlegal aidRight to legal aidThe bomb blast in the courtpremises of Uttar Pradesh andthe subsequent speeches oflawyers at meetings exhorting theircolleagues not to appear for theaccused in the resultant bomb blastcases once again raises the criticalissue of legal aid for the accused incases relating to terrorism. There wasa similar attempt made in Gujaratafter the Godhra incident wherethere was a strenuous attempt madeto pass a resolution at the Bar to theeffect that no lawyer would appearfor the Godhra accused. It must besaid to the credit of the lawyers inUttar Pradesh that attempts to pass asimilar resolution have, at least at thetime of the writing of this article,been thwarted by others who, in thefinest tradition of the Bar, haveargued that every accused personhas a right to legal aid which is notpremised upon the nature of theoffence. In fact, more serious theoffence more urgent becomes theneed for legal aid.In Hoskot's case, interpretingArticle 39(a) of the Constitution, theSupreme Court held that it wasmandatory for the state to providefree legal aid. This requirement wasnot satisfied by the appointment of ajunior lawyer. The accused were to befully informed about their rights andpreferably provided with legal assistanceof their choice. Reasonableremuneration was to be paid to thelawyer. Free transcripts of the relevantdocuments were to be given andfacilities extended for the filing ofan appeal.In Ranchod Mathur's case, theSupreme Court held that indigencecould never be a ground for refusinglegal aid. The court condemned thepractice of sessions judges notappointing advocates for the pooraccused even in grave cases. Whatwas needed, the court said, werecompetent counsels not patronisinggestures such as assigning rawentrants to the Bar.Lawyers who argue that personsaccused of committing a terroristoffence are not worthy of legal representationmisunderstand the natureof a criminal trial and the constitutionalrequirements of legal aid. If aperson may be falsely accused of aminor offence surely that contingencyis possible even for a seriouscrime. In fact, it could be said that inserious crimes of political nature thetendency of the police and the stateto rope in persons unconnected withthe crime only to settle old politicalscores, is more acute.Likewise, where a terrorist crimeis given a communal hue by themedia and politicians, there couldwell be a tendency for the police toarrest persons without evidencemerely because they belong to a particularcommunity and had, on someearlier occasion, a brush with the law.It is precisely when the accusationsare grave and of a political nature, asindeed most terrorist crimes are, thatthe constitutional safeguard of legalaid be more strenuously enforced.There is much case on the propositionthat in capital cases senior counselsought to be provided by thecourt if the accused is indigent.The second error made by thosewho advocate a boycott of theaccused relates to the nature of acriminal trial. The purpose of a criminaltrial is not the punishment of theaccused but the discovery of truth.The adversarial system has beendesigned to break down false cases,uncover lies and thereby do justice topersons falsely accused by the police.Even a well-meanings police officeracting bonafide could come to a genuineconclusion that a person isguilty of a crime and yet discoverduring trial that he has made a terriblemistake. The role of a lawyer insuch a system is critical. Withouta lawyer a criminal trial wouldbe a farce.The consequences of a wrongconviction are disastrous for the restof the society. If the persons accusedin the UP bomb blast cases are notthe real wrongdoers and their convictiontakes place due to the absenceof lawyers to defend them, the naïvepublic may heave a sigh of reliefthinking that the criminals have beenincarcerated, whereas dangerous elementsmay be roaming free. Theprice for such shortcuts is alwayspaid by society such that it bears theburden of a criminal justice systemwithout justice. This is why legal aidis constitutionally provided notmerely for the accused but for thesafety of the whole of society. ■6C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

igHTs V. deVelOpMenTThere can be littledoubt that the Indiancourts have failed toprotect the socioeconomicrights of thecommon people, thevast majority of theIndian population.Prashant Bhushanopines that part of thisreason undoubtedlylies in the classstructure of the IndianjudiciarySacrificing rights for developmentAnyone familiar with Indiawould be aware of theremarkable paradoxes of thecountry characterised by obscenewealth in the hands of a few “billionaires”among whom are four of theten richest men in the world, existingside by side with appalling povertywhere more than 78 percent of thepopulation lives on less than Rs 20(45 cents) per day. The paradox of a“Shining India” comprising of thelargest force of IT and financial servicesprofessionals aspiring to makeIndia an economic “superpower”,living alongside the largest slumpopulation in the world who livewithout electricity, running waterand sanitation, amidst unimaginablefilth. More than 100,000 farmers havecommitted suicide in the country inthe past ten years. It ranks lower thanmany Sub Saharan countries in theHuman Development Index.In 1991, India adopted the WorldBank-IMF model of “StructuralAdjustment”, popularly known asthe LPG programme, characterisedby liberalisation, privatisation andglobalisation. Since then, the rate ofGDP growth increased substantiallyfrom 3-4 percent to reach 9 percent in2007-08. During this period the numberof millionaires increased manifoldas did the average income of thetop ten percent of the population.The number of persons living inacute poverty during the same periodhowever continued to grow. TheArjun Sengupta report shows that 78percent of the Indian population (836Million) now lives on less than Rs 20(45 cents) per day. 1 The average availabilityof nutrition to people alsodeclined during the same period,most clearly indicating that this spurtin growth, far from being inclusive,was achieved at the expense of thepoor and marginalised sections ofsociety. According to one of India’sleading economists, Utsa Patnaik,w w w . c o m b a t l a w . o r g 7

igHTs V. deVelOpMenT“Expenditure data from the NationalSample Survey Organisation’s 61stRound (2004-05) shows that ruraland urban per capita cloth consumption,real food expenditure, and calorieintake have all declined from theiralready low levels since 1993-94. Thiscountry remains a Republic ofHunger with a larger proportion ofordinary people being relentlesslypushed down to worse nutritionalstatus. As the tables show, the proportionof rural population unable toaccess 2,400 calories daily climbedfrom 75 percent in 1993-94 to a recordhigh of 87 percent by 2004-05. Thecorresponding percentages for urbanIt was held thathandcuffing ofprisoners andundertrials wasinhuman and aviolation of theirArticle 21 rights. Itwas held in ManekaGandhi’s case thata person could notbe deprived of herpassport withoutnotice and ahearingIndia, where the nutrition norm islower at 2,100 calories, are 57 percentand 64.5 percent.” 2That was not surprising, since alot of this “growth” was achieved byacquiring the traditional lands ofpoor farmers, particularly tribals, formining, real estate projects and“Special Economic Zones”, promotedby business houses. As therich/poor divide increased duringthis period, we have seen the growthin the strength of Left wing Maoistinsurgencies that now control a significantpart of the country.In an attempt to deal with thisnumbing poverty of the majority ofthe people who are unable to evenaccess the judicial system of thecountry, the Supreme Court, 30 yearsago, created a new jurisdiction thathas come to be known as “PublicInterest Litigation (PIL)”. The basisof this jurisdiction was the creativeand expansive interpretation of theArticle 21 right to life and liberty. Thecourt declared that the fundamentalright to life did not merely guaranteecitizens the right to an animal existenceor merely protection frombeing put to arbitrary and unreasonablebodily harm by the state, but tolive a life of dignity. This meant thatcitizens had the right to food, water,shelter, education and health etc.,which were all progressivelydeclared by the Supreme Court to bepart of Article 21. In a further innovation,the court also declared thatArticle 21 also encompasses the rightto live in a clean and decent environment.The court also declared theserights to be enforceable and by aseries of judgements mainly duringthe 1980s it directed the executive toprovide these basic amenities in variousways. 3 Thus, it declared that ithad the Constitutional right and theduty to direct the government to providethese amenities if citizens weredeprived of them. Not only this, italso liberalised the concept of LocusStandi, by declaring, that in a countrylike India, where the majority ofcitizens are too poor and withoutresources to approach the courtsthemselves, anyone could approachthe courts on their behalf pro bono.The PIL revolution, as it came to beknown, initially generated greathope that the courts would force theexecutive to adhere to theConstitutional mandate of fashioningIndia as a “Socialist, Secular,Democratic, Republic.” During the1980s, there were several path-breakingjudgements from the courts thatkept this hope alive.There were judgements liberalisingcivil liberties. It was held thathandcuffing of prisoners and undertrialswas inhuman and a violation oftheir Article 21 rights. 4 It was held inManeka Gandhi’s case 5 that a personcould not be deprived of her passportwithout notice and a hearing. Inseveral cases, the court laid downextensive guidelines about the treatmentof prisoners and undertrials,particularly women. 6 However in theinfamous Habeas Corpus case duringthe emergency of 1975-77, whenfundamental rights had been suspended,the court held that even awrit of Habeas Corpus did not lieduring an emergency, even againstillegal detention. 7More recently, in the 1990s thecourt also laid down extensive salutaryguidelines about the manner inwhich the police could deal withpeople while carrying out arrests. 8 Italso held that in a case of torture inpolice custody, the courts exercisingwrit jurisdiction could also directlyaward compensation to the victim orhis family and also order the prosecutionof the offender. 9However from the mid 1990s, wecan see that the court has often sacrificedcivil liberties on the ground of“State security”. This is apparent inthe manner in which it has upheldthe Constitutional validity of severalhighly draconian legislations such asthe Armed Forces Special PowersAct (AFSPA), The Terrorist andDisruptive Activities Act (TADA)and the Prevention of Terrorism Act(POTA). 10 The impunity given to thesecurity forces under the AFSPA hasenabled them to torture, rape and killthousands of people in Kashmir andthe north east (where the Act is inforce), without any accountability.TADA and POTA both containedprovisions making confessions madein police custody admissible andmade it virtually impossible for anyoneaccused under the Acts to getbail. Though TADA and POTA havebeen repealed, similar provisionshave been engrafted in the UnlawfulActivities Prevention Act (UAPA)(without, however, the admissibilityof police confessions). Under thecover of the Maoist insurgency, thepolice have been increasingly resortingto targeting human rightsactivists under these draconian laws.One of the cases which illustrates theincreasingly illiberal attitude of theSupreme Court towards civil libertiesis the much publicised case of DrBinayak Sen. He is an internationallycelebrated medical practitioner froma premier medical college of thecountry, who has spent his life in settingup community health clinics insome of the most backward tribalareas of India, where there were no8C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

igHTs V. deVelOpMenTpublic health facilities. He wasawarded the prestigious JonathanMann award for public health services.While working there, he cameacross many cases of gross humanrights abuses of the tribals at thehands of police and a private mercenaryarmy called Salwa Judum that isfunded and armed by the state. Hetherefore also started working withthe People’s Union for Civil libertiesas its general secretary for the state ofChhattisgarh. In May 2007, he wasarrested under the UnlawfulActivities Act and the ChhattisgarhPublic Security Act on the charge ofhaving carried out two letters from aMaoist in jail to his comrade outside.Sen had been meeting him in connectionwith his medical condition aswell as his complaints of humanrights violations in jail. None of theseletters are alleged to contain any subversivematerial. Yet he is chargedwith having assisted a member of abanned organisation. For the last 22months, the Supreme Court hasdenied him bail while the trial dragson. Though more than 22 Nobel laureatesfrom around the world hadappealed for his release, the courtdid not even deem it fit to even givea reason for refusing bail and rejectedhis bail by a one word order“Dismissed”. This case strikinglyillustrates the illiberal attitude of theApex Court towards the civil libertiesof the poor and underprivileged,including those who work for them.This attitude is also apparent in arecent judgement of the SupremeCourt by which it struck downthe Constitutional validity of theIllegal Migrants (Determination byTribunals) Act, which had beenenacted to provide for a judicial tribunalto determine any disputeregarding the nationality of a person.Prior to that, the police used the draconian‘Foreigners Act’ to harass anddeport anyone (particularly poorBengali Muslims) accusing them ofbeing foreigners, without affordingany recourse to a judicial determinationof any dispute on that. Thosechallenging the IMDT Act hadalleged that the protracted proceedingsbefore a judicial tribunal werecoming in the way of the summarydeportation of persons accused bythe police of being foreigners. 11Being conscious that an Act ofParliament could only be struckdown if Parliament lacked legislativecompetence to enact it, or if it violateda specific provision of theConstitution, the court opined thatthe Act violates Article 355 of theConstitution, which mandates theCentral government to protect thestates against external aggressionand internal disturbance! It went onto say that the onerous provisions ofthe Act and rules makes it virtuallyimpossible to expel foreigners andtherefore the Act encourages infiltrationof illegal migrants fromBangladesh, which amounts to externalaggression against India!The court also ruled that theapplicability of the IMDT Act only toAssam made it discriminatory andviolative of Article 14, since otherstates did not have to adhere to themore stringent provisions of theIMDT Act before pushing out personsdesignated as foreigners. In sayingso, the court completely overlookedthe fact that the IMDT Act assuch was applicable throughoutIndia. However, the government hadnot notified it for other parts of thecountry except Assam. But that wasan executive lapse and other pendingpetitions sought precisely the directionfrom the court – that the governmentbe directed to notify the IMDTAct for other parts of the country. Ifthe tribunals under the Act werenot acting expeditiously (whichcourts hardly even do), they couldhave directed the government totake whatever steps were requiredto fix it.In fact one would have expectedthe Supreme Court that is constitutionallymandated to protect the fundamentalrights of citizens, to havedeclared the Foreigners Act unconstitutional,as it allows the authoritiesto throw out citizens alleged to beforeigners, without a judicial determination.Instead, the court says, “Adeep analysis of the IMDT Act andthe rules made thereunder wouldreveal that they have been purposelyso enacted or made so as to giveshelter or protection to illegalmigrants who came to Assam fromBangladesh on or after March 25,1971 rather than to identify anddeport them.” Clearly, this judgementreflects an authoritarian andfascist mindset that the police musthave the authority to throw out anyonethey want without the impedimentof independent judicial scrutiny.And this, coming from the courtthat had been fully informed aboutthe high handed and inhuman mannerin which the authorities had beentreating citizens under the ForeignersAct, is atrocious. The court’s attitudecompletely justifies the observationcontained in the report of theCitizen’s Campaign for PreservingDemocracy, where it was said, “Rightfrom roundup and arrest, to the supposed‘hearing’ and deportation, nolawful procedure is being followedby the authorities. The entire processThe impunitygiven to thesecurity forcesunder the AFSPAhas enabled themto torture, rapeand kill thousandsof people inKashmir and thenorth east (wherethe Act is in force),without anyaccountabilitycontributes to and manifests criminalisationand communalisation ofthe state and the corruption of itslegal and judicial institutions”.Another clearly noticeable trendis that the court has been often liberalin making grand pronouncementsabout rights—it is often slow toimplement them. In many cases, theactions of the court betray an ambiguityabout the seriousness of itsbeliefs in those rights. For example,in DK Basu’s judgement 12 on therights of arrestees and detainees hasbeen wantonly flouted by the authorities,but rarely has the court appliedthe principles of Nilabati Bahera 13 inw w w . c o m b a t l a w . o r g 9

If one examines the recent recordof the Supreme Court in its environmentalactivism, two trends areimmediately clear. First, when environmentalprotection comes into conflictwith socio-economic rights ofthe poor and the marginalised, thepoor usually get short shrift and secondly,when environmental protectioncomes into conflict with powerfulvested commercial and corporateinterests or what is perceived by thecourt to be “development”, environmentalprotection usually getshort shrift.As the court’s powers increasedwith the widening use of PublicInterest Litigation (PIL), the executivealso began to view it as a handymethod for the government to dowhat it wants to do under the coverof the court, without having to bemade democratically accountable forits acts. Thus, if the poor slumdwellers were to be removed to makeway for fancy apartments, shoppingmalls or 5 star hotels, the courts werefound as a convenient tool. The governmentwas afraid to take responsibilityfor such decisions because ofthe fear of democratic backlash in thenext election (fortunately the pooralso have equal votes as the rich). Thecourts were ever willing to clothesuch “unpopular decisions” with theauthority of law, since they are notaccountable, democratically or otherwise.Howard Zinn, author of APeople’s History of the United States,puts it beautifully: “The Rule of Lawdoes not do away with unequal disrigHTsV. deVelOpMenTawarding compensation to the victimsor ordering the punishment ofoffending police officers. The widegap between the rights declared bythe court and their actual implementationis evident even more starkly inthe judgements on socio-economicand environmental rights.In the 1980’s, the Supreme Court,in case after case, while liberally construingArticle 21, held that itincludes the right to shelter 14 , theright to food 15 , the right to education16 , the right to health care 17 andthe right of street vendors to earn alivelihood by hawking on thestreets. 18In Olga Tellis 19 , the court held thatpavement dwellers residing on thepublic pavements of Mumbai had aright to hearing before they were tobe evicted by the municipal authoritiesand a right of resettlement if theywere evicted. In Bandhua MuktiMorcha, 20 the court held that workerscan’t be held bondage because ofloans that they or their ancestors hadtaken from their employers. Thecourt has gone on to hold that internationalcovenants that India hadsigned could be read into municipallaw for invoking socio-economicrights from the Article 21 . Thus inVishaka, 21 the court issued variousbinding guidelines to prevent thesexual harassment of women.The court has, however, beenmost inventive in using Article 21 tocreate the right to environmentalprotection. In a series of judgments,it held that the right to a clean andhealthy environment is also a part ofArticle 21. While doing so, individualbenches of the court used theirown subjective understanding ofwhat was needed for a healthy andclean environment. Some importantprinciples were also evolved, such asthe precautionary principle. Theprinciple was stated thus:“The precautionary principlesuggests that where there is an identifiablerisk of serious or irreversibleharm, including, for example, extinctionof species, widespread toxic pollutionor major threats to essentialecological processes, it may beappropriate to place the burden ofproof on the person or entity proposingthe activity that is potentiallyharmful to the environment.”It is also explained that if theenvironmental risks being run byregulatory inaction are in some way“uncertain but non-negligible”, thenregulatory action is justified. Thiswill lead to the question as to what isthe “non-negligible risk”. In such asituation, the burden of proof is to beplaced on those attempting to alterthe status quo. They are to dischargethis burden by showing the absenceof a “reasonable ecological or medicalconcern”. That is the requiredstandard of proof. The result wouldbe that if insufficient evidence is presentedby them to alleviate concernabout the level of uncertainty,then the presumption shouldoperate in favour of environmentalprotection.” 22In several judgements, the courtordered stoppage of polluting effluentsinto various rivers, closing downof polluting industries near the Tajand in Delhi, forcible conversion ofall commercial vehicles plying inDelhi to compressed natural gas fuel,clearing of the ridge in Delhi of allstructures, etc. And then there is along running case regarding deforestation23 (TN Godavarman) in whicha permanent bench has been constituted,which sits almost every weekconsisting of the chief justice and twoother judges. This bench made aseries of orders to stop non-forestactivities in forest areas and even toclose down saw mills in and aroundforest areas in the country. It evenpassed an order declaring that nonon-forest activity could be carriedout in a forest area without the permissionof the court. 24 The ForestConservation Act 1980 required thepermission of the central governmentfor such non-forest activity inforest areas. In this case, the court byjudicial fiat mandated the permissionof the court for permitting such activityin any forest area of the country.Thus, each case has to come to theSupreme Court for permission.However, before examining a casethe court directed them to be examinedby an expert committee set upby the Court, known as the CentrallyEmpowered Committee, whoseadvice the court normally follows.However, the court’s action in suchmatters has often been whimsical,with poor tribals getting short shriftwhile powerful corporates getfavourable treatment.10C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

igHTs V. deVelOpMenTtribution of wealth and power, butreinforces that inequality with theauthority of law. It allocates wealthand poverty in such indirect andcomplicated ways as to leave the victimbewildered.”In the last few years, tens of thousandsof slum dwellers living inDelhi and Mumbai have been evictedby the high courts of respective citieson the ground that they were pollutingthe environment. The Delhi HighCourt passed orders to demolishmore than 40,000 temporary slumdwellings on the banks of Yamuna onthe presumed ground that they werepolluting the river though there wasno such evidence to prove that. Thedemolition was ordered withoutserving notice to the slum dwellersand no alternative housing was allocated.This deprived them of shelterand thus violated their Article 21rights as declared by the SupremeCourt in Chameli Singh’s case. 25 TheSupreme Court refused to stopdemolitions that effectively threwthe poor slum dwellers out on thestreets in the searing heat of the summer.However, when the same landwas thereafter sought for the constructionof fancy apartments, complexesand shopping malls (ostensiblyfor the commonwealth games),the Supreme Court did not deem it fitto stop the construction. This was incomplete violation of the norms ofthe environmental protection agencythat no permanent structures couldbe set up on the riverbanks. Infact,the Supreme Court stayed the orderof the Delhi High Court that orderedfurther investigation into the matterby another expert committee.The same double standards wereapparent in the case of Delhi ridgewhich was ordered to be cleared bythe Supreme Court of all structures,including temporary shanties housingpoor people, on the ground thatit was ecologically sensitive 26 (MCMehta) and part of the lungs ofDelhi. However, when five starhotels and shopping malls were constructedon the same ridge withoutany environmental clearance, whichwas required by the law, the courtdid not stop the construction andallowed them to come up on thesame land where small temporarydwelling units of the poor were notallowed. The Court went on to say inits judgement:“Had such parties inkling of anidea that such clearances were notobtained by DDA, they would nothave invested such huge sums ofmoney. The stand that wherever constructionshave been made unauthorisedlydemolition is the only optioncannot apply to the present cases,more particularly, when they unlike,where some private individuals orprivate limited companies or firmsbeing allotted to have made contraventions,are corporate bodies andinstitutions and the question of theirhaving indulged in any malpracticesin getting the approval or sanctiondoes not arise.” 27The recent attitude of the courttowards slum dwellers is summarisedby the observation of JusticeBN Kirpal in Almitra Patel’s case 28 inwhich he said in the context of givingalternative land to evicted slumdwellers, “Rewarding an encroacheron public land with free alternate siteis like giving a reward to a pickpocket.”So in the eyes of the court, largecorporates cannot indulge in malpracticeand slum dwellers are pickpockets!India has a large tribal populationwhich has traditionally lived withinforests and their rights have not beenrecognised or declared for more thana century with the result that manyof them continue to live in foreststhat have been declared as reserve orprotected forests, without declarationof their rights, in them. Recently,Parliament passed the Forest RightsAct giving rights to forest dwellersover the land on which they wereresiding for more than a certain numberof years. This Act has been stayedby several high courts on the groundthat this will lead to destruction offorests, however, forests have beenbest preserved mostly in these areaswhere forest dwelling tribes havebeen living. However, the SupremeCourt has been very solicitoustowards large corporates like Poscoand Vedanta in allowing them miningleases in large tracts of pristineforestland. This was allowed by theCourt, despite the fact that thesemining leases in forestlands woulddisplace thousands of tribal familiesand that the Supreme Court’s ownexpert committee had strongly recommendedagainst giving these leaseson environmental grounds. 29In the Narmada Bachao Andolan(NBA) case, 30 Justice Bharucha, pointedout that the Sardar SarovarDam project was proceeding withouta comprehensive environmentalappraisal and without the necessaryenvironmental impact studies. Themajority of judges still went on toapprove the project and allowed it togo on without any comprehensiveenvironmental impact assessmentthat was compulsory even accordingto the governments’ rules and notifications.The underlying reasons andideology behind the subordination ofthe cause of the environment to thecause of “development”, is also evidentfrom the majority judgement.There are several passages in thew w w . c o m b a t l a w . o r g 11

igHTs V. deVelOpMenTmajority judgement, extolling thevirtues of the kind of developmentbrought in by large dams. The judgementgoes on to gratuitously emphasisethe myth that the Bhakra damwas responsible for the green revolutionin the country. This came despitethe fact that the court had specificallyrestrained the petitioner, NBA,from making any submissions on thepros and cons of large dams. Thecourt also went on to make disparagingremarks against the NBAas being an anti-developmentorganisation.The same subordination of environmentalinterests to the cause of“development” is evident in theSupreme Court’s judgement in theTehri Dam case, 31 where the government'sown expert committee hadgiven an elaborate report pointingout a series of violations on whichthe ministry of environment hadgiven environmental clearances tothe project. The committee pointedout that a number of studies thatwere necessary to evaluate the environmentalimpact of the project hadnot been conducted and had recommendedthat these be immediatelyconducted. Justice Dharmadhikariheld that in order to ensure compliancewith the conditions of environmentalclearance, it was necessary toconstitute an independent expertcommittee that would monitor thecompliance with these conditions,and further construction of the damcould only proceed only after theexpert committee agrees. The majorityjudges, however, did not evenbother to ensure compliance with theconditions of environmental clearanceof the project. Again, the judgementmakes remarks extolling thevirtues of development projects likesuch large dams.This attitude showing the courtfavouring “development” over therights of ousted or the environmentis most clearly evident in the mannerin which the court has sought topush the mega project called “interlinkingof rivers”. On IndependenceDay in 2003, a paragraph was addedin the President’s speech that interlinkingof rivers could perhaps solvethe problems of floods and droughtin the country. This paragraph wasenough for a lawyer appointed bythe Supreme Court as amicus curiae(to assist the court) in the Yamunapollution case to file a short applicationpraying that the court shoulddirect the government to take up thisproject. As if on cue, the Bench headedby the then Chief Justice BNKirpal issued notices to all the statesand the Centre. On the next day ofhearing, which was the day beforethe retirement of the then chief justice,an order was passed which isnow effectively being treated by thegovernment as a direction by thecourt to undertake this project andcomplete it within the shortest possibletime. The order noted that onlythe Union of India and the state ofTamil Nadu had filed responses tothe notice issued by the court. It statedthat the Union of India pointedout that the project would cost Rs5,60,000 crores, would take 43 years,and would need the consent of thestates. Tamil Nadu had filed aninnocuous affidavit, virtually sayingnothing. The court noted that noother state had filed any affidavitand therefore it could be assumedthat none had any objection to theimplementation of this project! Afterorally noting, that funds cannot beany constraint for the governmentfor a project in national interest, thecourt observed in its order that theproject should be completed withinten years! It also went on to advisethe government that in case consentwas not forthcoming from the states,the government should considerpassing a legislation to obviate consentof the states for this project.All this for a project which willdisplace hundreds of thousands ofpeople, have unprecedented environmentalconsequences and wouldrequire funds equal to the total irrigationbudget of the country for thenext 44 years. And all this withouthearing any interested party, noteven the states, without any discussionor debate whatsoever, withoutcompleting even feasibility studies,leave aside the question of social,environmental, economic or optimalityassessments!In Tata Housing DevelopmentCompany vs Goa Foundation, 32 thecourt again went against the report ofits own expert committee in allowingthe construction of a housing colonyon land that had been held by thecommittee to be forestland. The courtheld that the committee had wronglyclassified this land as forestland, byholding that the committee had deviatedfrom its own norms. The courtalso relied on the reports of someother private experts filed by the TataHousing Development Company.Without entering into an elaboratediscussion of the merits of this judgement,it may only be noted, that suchmicroscopic examination of a reportof the court's own expert committeehas never been done at the instanceof a poor or weak petitioner. Forexample, the court did not criticallyexamine or interfere with the reportand recommendations of the centrallyempowered committee appointedby the court, regarding fishing bypoor local fishermen in theJambudvip islands. The court'sorders based on the committee’sreport had effectively deprived hundredsof poor fishermen of theirlivelihood who were using theJambudvip islands.Individual judges according totheir own subjective preferenceshave whimsically applied the right toenvironmental protection withoutclear principles guiding them aboutthe circumstances in which the courtcould issue a mandamus for environmentalprotection.The trend of recent cases, therefore,suggests that (1) the court has12C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

igHTs V. deVelOpMenToften subordinated civil liberties tothe perceived imperative of statesecurity, particularly in the context ofthe recent “war on terror”, (2) thecourts’ liberal and expansive pronouncementson socio-economicrights under Article 21 have not beenmatched by a determination toimplement those rights, (3) that sincethe liberalisation of the Indian economy,even the courts’ rhetoric onsocio-economic rights have beenweakening, (4) that very often thecourt has itself ordered the violationof those rights, violating in the processeven the principles of naturaljustice, (5) that whenever socio-economicrights of the poor come in conflictwith environmental protection,No criterion hasbeen establishedfor choosing andselecting judges.The understandingof, or the sensitivitytowards the problemsand concerns of thepoor is certainly notdesired in theselection of thejudges. On top ofthis, there is noaccountabilityof the higherjudiciary in Indiathe court has usually subordinatedthose rights to environmental protection,(6) that whenever environmentalprotection comes into conflictwith what is perceived by the courtto be “development” or powerfulcommercial vested interests, environmentalprotection is usually subordinatedat the altar of “development”,or such powerful interests. There areseveral exceptional judgements thatdefy these trends, particularly fromthe high courts.All the above seriously calls intoquestion the commitment of theIndian courts to the rights of the poorand to the constitutional imperativeof creating an egalitarian socialistrepublic. There can be little doubtthat the Indian courts have failed toprotect the socio-economic rights ofthe common people of India whoconstitute the vast majority of theIndian population. Part of the reasonfor this undoubtedly lies in the classstructure of the Indian judiciary. Thehigher judiciary in India almostinvariably comes from the elite sectionof the society and has become aself-appointing and self-perpetuatingoligarchy. The Indian judgesappoint themselves with the help of aremarkably self-serving judgment bywhich the power of appointment wasappropriated from the governmentby the judiciary. In the absence ofany transparency or even anymethod or system in the manner ofappointments, the process lendsitself to large-scale arbitrariness andnepotism. No criterion has beenestablished for choosing and selectingjudges. The understanding of, orthe sensitivity towards the problemsand concerns of the poor is certainlynot desired in the selection of thejudges. On top of this, there is noaccountability of the higher judiciaryin India. There is no performanceaudit of judges by which they couldbe made accountable for their conduct.Even public criticism of judgeshas often been held to be contempt ofcourt. They have also virtually insulatedthemselves from the Right toInformation Act. It is, therefore, notsurprising that the common peopleof India do not regard the judiciaryas an institution that offers the hopeof justice to them. Many have indeedcome to regard it as the last bastionof an entrenched oligarchy that rulesthe country.endnotes1. Report of the National Commission forEnterprises in the Unorganised Sector,chaired by Arjun Sengupta 2007.2. Frontline, Volume 25 - Issue 06 :: Mar.15-28, 20083. Olga Tellis v. Bombay MunicipalCorporation, (1985) 3 SCC 545; Desh RajKhurana & Ors. v. Delhi Administration(1987) 1 SCALE 321;People ’s Union for Civil Liberties v. Unionof India (1997) 3 SCC 433, ConsumerEducation and Research Centre v. UOI(1995) 3 SCC 42; Vellore Citizen WelfareForum v. Union of India AIR 1996 SC 27154. Prem Shankar Shukla v. DelhiAdminstration AIR 1980 SC 15355. Maneka Sanjay Gandhi & Anr v. RaniJethmalani, AIR 1979 SC 4686. Sheela Barse v. State of Maharashtra,1983 (2) SCC 96;7. Additional District Magistrate,Jabalpur v. Shivakant Shukla (1976)2 SCC 5218. D.K. Basu v. State of West Bengal, 1996(9) Scale 2989. Neelabati Behera v. State of Orissa 1993(2) SCC 74610. Kartar Singh v. State of Punjab, (1994) 3SCC 569; People’s Union for Civil Liberties& Anr. v. Union of India (2004)9SCC580 11Sarbananda Sonowal v. Union of India,(2007)1SCC17412. DK Basu v. State of West Bengal, AIR1997 SC 61013. Neelabati Bahera v. State of Orissa, AIR1993 SC 196014. Chameli Singh v. State of Uttar Pradesh,AIR 1996 SC 105115. People’s Union for Civil Liberties v.Union of India (1997) 3 SCC 433,AIR1997SC120316.Unni Krishnan JP v. State of AndhraPradesh, AIR 1993 SC 217817. Consumer Education and ResearchCentre v. Union Of India (1995) 3 SCC 42,AIR 1995 SC 92218. Sodan Singh v. New Delhi MunicipalCommittee (1989) 4 SCC 15519. Olga Tellis v. Bombay MunicipalCorporation, (1985) 3 SCC 54520. Bandhua Mukti Morcha v. Union ofIndia, (1984) 3 SCC 16121. Vishaka v. State of Rajasthan, AIR 1997SC 301122. Andhra Pradesh Pollution Control Boardv. Prof. MV Nayadu (1999) 2 SCC 71823. TN Godavarman Thirumulkpad v. Unionof India, WP(C)No. 202/9524. TN Godavarman Thirumulkpad v. Unionof India, AIR 1999 SC 242025. Chameli Singh v. State of Uttar Pradesh,AIR 1996 SC 105126. MC Mehta v. Union of India, (2004) 12SCC 11827. TN Godavarman Thirumulkpad v. Unionof India, (2006)10SCC49028. Almitra H Patel & Anr v. Union of India,(2000) 2 SCC 16629. TN Godavaraman Thirumulpad vs.Union of India (UOI) and Ors. (2008) 9 SCC71130. Narmada Bachao Andolan v. Union ofIndia and Ors., (2000) 10 SCC 66431. ND Jayal vs. UOI, (2003) 7 SCALE 5432. TATA Housing Development Company v.Goa Foundation, (2003) 7 SCALE 589w w w . c o m b a t l a w . o r g 13

WOMen's rigHTsRight to SharedHouseholdRight to matrimonial homeis a significant componentenvisaged in the Protectionof Women from DomesticViolence Act. Thus, awoman who is a victim ofdomestic violence has theright to continue residing inthe shared household.But does the statuteautomatically translate intothe reality on the ground?Dipa Dube attempts tocritically analyse theimplementation of the ActStatistically it is safer to be onstreets after dark with a strangerthan at home in the bosom ofone's family, for it is there that accident,murder and violence are likelyto occur." 1Domestic violence is one of thekey concerns of feminist movementall across the world. It is directlylinked to the unequal position ofwomen in a patriarchal society acrossboth class and community. Violencemay be addressed as an act of aggressionthat crosses the boundary ofanother person's autonomy andidentity. It is a coercive instrument to"assert one's will over another, toprove or feel a sense of power." 2 Theterm domestic violence implies to theincidents of familiar or intimate batteringhaving reference to an idealisedfamily unit functioning in aprotected and secluded manner,appropriately shielded from the public.It has been defined as a pattern ofabusive behaviour in any relationshipthat is used by one partner togain or maintain power and controlover the intimate one. It is a broadterm encompassing child abuse,spouse abuse, sibling abuse, elderabuse etc. However, in general, it isbroadly focused on spousal violenceor domestic violence against women.The United Nations Committeeon Convention of Elimination of AllForms of Discrimination AgainstWomen (CEDAW) in its GeneralRecommendation No XII (1989) recommendedthat state parties shouldact to protect women against violenceof any kind especially thatoccurring within the family. TheVienna Accord of 1994 and theBeijing Declaration and the Platformfor Action (1995) also acknowledgeddomestic violence as a serioushuman right issue. "It was therefore,proposed to enact a law keeping inview the rights guaranteed underArticles 14, 15 and 21 of theConstitution to provide for a remedyunder the civil law which is intendedto protect women from being victimsof domestic violence and to preventthe occurrence of domestic violencein the society". 3The Protection of Women fromDomestic Violence Act, 2005 hasaccordingly been passed. It aims toprovide increased protection towomen as victims of domestic violence.It is designed to help womenduring the most intense phase ofabuse. It not only provides a supportmechanism but also acts as a tool forwomen to negotiate for their rightsfrom a position of equality.A significant right conferred byway of the Act is a woman's right tomatrimonial home. Strange, thoughit may seem, but a woman, who is avictim of domestic violence, has theright to continue residence in theshared household and may evenretain the residence with an orderfrom the magistrate. This is indeed apositive step towards the recognitionof her rights and control over thematrimonial domain. But in reality,how far it is practicable continues tobother our minds. The articleattempts to probe into the boundariesof such recognition anddenial and critically questions thejudicial decision-making in TarunaBatra's case.14C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

WOMen's rigHTsShared householdHousehold refers to a place wherethe aggrieved person lives or haslived in a domestic relationship. Suchhousehold may be owned or tenanted,jointly or severally, and includes ajoint family holding, irrespective ofwhether the aggrieved person has aright, title or interest in the sharedhousehold.Under Section 2(s) of the PWDVA2005 the "shared household" means ahousehold where the personaggrieved lives or at any stage haslived in a domestic relationshipeither singly or along with therespondent. It also includes a householdwhether owned or tenantedeither jointly by the aggrieved personand the respondent, or owned or tenantedby either of them in respect ofwhich either the aggrieved person orthe respondent or both jointly orsingly have any right, title, interest orequity and includes such a householdwhich may belong to the jointfamily of which the respondent is amember, irrespective of whether therespondent or the aggrieved personhas any right, title or interest in theshared household.A plain reading of the definitionindicates that an aggrieved person(meaning, the wife) is entitled to herrights in a shared household irrespectiveof whether the sharedhousehold is in the name of therespondent (husband) or his relatives.For the same reason, a jointfamily household has been includedwithin the meaning of shared household.A beneficial interpretation ofthe term 'shared household' shouldtherefore, recognise a woman's rightto reside in the shared household,irrespective of the nature of ownership.As has been held in AmrendraPratap Singh vs Tej BahadurPrajapati 4 by the Supreme Court(SC), where the object of the legislationis to prevent a mischief and toconfer protection on the weaker sectionsof the society, the court wouldnot hesitate in placing an extendedmeaning, even a stretched one, onthe word, if in doing so the statutewould succeed in attaining the objectsought to be achieved.However, interpreting section2(s) of the Protection of Women fromDomestic Violence Act, 2005, theSupreme Court has held that the definitionof shared household asincluding a household where theperson aggrieved lives or at anystage had lived in a domestic relationship,will mean that whereverthe husband and wife lived togetherin the past that property becomes ashared household. It is quite possiblethat the husband and wife may havelived together in dozens of places,e.g. with the husband's father, husband'spaternal grand parents, hismaternal parents, uncles, aunts,brothers, sisters, nephews, nieces etc.All these houses of the husband's relativeswill be shared households andthe wife can well insist in living in allthese houses of her husband's relativesmerely because she had stayedwith her husband for some time inthose houses in the past. Such a viewwould lead to chaos and wouldbe absurd. 5Right to resideSection 17 of the Act, 2005 emphaticallyasserts that:(1) Notwithstanding anythingcontained in any other law for thetime being in force, every woman ina domestic relationship shall havethe right to reside in the sharedhousehold, whether or not she hasany right, title or beneficial interest inthe same.(2) The aggrieved person shall notbe evicted or excluded from theshared household or any part of it bythe respondent in accordance withthe procedure established by the law.The PWDVA Act, 2005 by Section17 enacts the right of a woman, toreside in a shared household. It createsa statutory right in favour of"every woman in a domestic relationship",an expression, given the widemeaning assigned to "domestic relationship"by section 2(f), includingnot only the wife or a female bloodrelative, but also a female friend whohas shared, even for a short period,the same residence with the man. InVimalben Ajitbhai Patel vsVatslabeen Ashokbhai Patel & Orsand Ajitbhai Revandas Patel & Anrvs State of Gujarat & Anr 6 (per SBSinha J), it was opined that thedomestic violence Act provides for ahigher right in favour of a wife. Shenot only acquires a right to be maintainedbut also there under acquiresa right of residence. The right of residenceis a higher right.Section 19 furthermore providesthat the magistrate may on being satisfiedthat domestic violence hastaken place pass a residence orderrestraining the respondent from dispossessingor disturbing the possessionof the aggrieved person from theshared household. It directs therespondent to remove himself fromthe shared household, restraining therespondent or his relatives fromentering the shared household,restraining the respondent fromalienating or disposing of or encumberingthe shared household,restraining the respondent fromrenouncing his rights in the sharedhousehold except with the leave ofthe magistrate, or directing therespondent to secure alternateaccommodation for the aggrievedperson of the same level as enjoyedby her in the shared household or topay rent for the same. However, nosuch order shall be passed againstany person who is a woman directingher to remove herself from theshared household. Sub-section (2)empowers the magistrate to imposeadditional conditions and pass anyother direction in order to protect thesafety of the aggrieved person or herchild. Sub-section (3) provides forexecution of a bond by the respon-w w w . c o m b a t l a w . o r g 15

WOMen's rigHTsdent for prevention of the domesticviolence. Sub-section (5) empowersthe magistrate to pass an orderdirecting the officer-in-charge of theconcerned police station to give protectionto the aggrieved person or toassist in implementation of the residenceorder.Taruna Batra and afterIn SR Batra and Anr vs Smt TarunaBatra 7 , Smt Taruna Batra was marriedto Amit Batra, son of the appellants.After the marriage TarunaBatra started living with her husbandin the house of the appellant on thesecond floor. Subsequently, AmitBatra filed a divorce petition againsthis wife. The latter shifted to her parent'shouse. Thereafter, however, shebroke open the locks of the appellant'shouse to take possession of thesecond floor where she resided, eventhough the husband in the mean timehad shifted to another place. In anapplication for temporary injunction,the trial court restrained the appellantsfrom interfering with the possessionof Taruna Batra. On appealbefore the senior civil judge, Delhi, itwas held that Taruna Batra was notresiding at the second floor of thepremises in question. The matrimonialhome could not be said to be aplace where only wife was residing.Smt Taruna Batra had no right to theproperties other than that of her husband.Hence, he allowed the appealand dismissed the temporary injunctionapplication.On a petition under Article 227 ofthe Constitution, the learned singlejudge of the high court held that thesecond floor of the property in questionwas the matrimonial home ofTaruna Batra. He further held thateven if her husband Amit Batra hadshifted to Ghaziabad that would notmake Ghaziabad the matrimonialhome of Taruna Batra. The learnedjudge was of the view that merechange of the residence by the husbandwould not shift the matrimonialhome, particularly when the husbandhad filed a divorce petitionagainst his wife. On this reasoning,the learned judge of the high courtheld that Taruna Batra was entitled tocontinue to reside on the second floorof her matrimonial home.The Supreme Court speakingthrough Markandey Katju J, however,held: "There is no such law inIndia, like the British MatrimonialHomes Act, 1967, and in any case, therights which may be available underany law can only be as against thehusband and not against the fatherin-lawor mother-in-law. Here, thehouse in question belongs to themother-in-law of Taruna Batra and itdoes not belong to her husband AmitBatra. Hence, Taruna Batra cannotclaim any right to live in the saidhouse. The mother-in-law of TarunaBatra has stated that she had taken aloan for acquiring the house and it isnot a joint family property.Furthermore, Taruna Batra was notresiding in the premises in questionand cannot claim any injunction forthe simple reason that she was not inpossession at all of the said propertyand hence the question of dispossessiondoes not arise."Interpreting section 2(s) of theProtection of Women from DomesticViolence Act, 2005, the court heldthat the definition of shared householdas including a household wherethe person aggrieved lives or at anyThe Protection of Women from DomesticViolence Act, 2005 has accordingly beenpassed. It aims to provide increasedprotection to women as victims of domesticviolence. It is designed to help women duringthe most intense phase of abuse. It not onlyprovides a support mechanism but also actsas a tool for women to negotiate for theirrights from a position of equalitystage had lived in a domestic relationshipwill mean that wherever thehusband and wife lived together inthe past that property becomes ashared household. It is quite possiblethat the husband and wife may havelived together in dozens of placesand therefore saying that all thesewill be shared households would bechaotic and absurd. It is well settledthat any interpretation, which leadsto absurdity, should not be accepted.The wife is only entitled to claim aright to residence in a shared household,and a 'shared household'would only mean the house belongingto or taken on rent by the husband,or the house which belongs tothe joint family of which the husbandis a member. Furthermore, a claimfor alternative accommodation undersection 19(1)(f) of the Act can only bemade against the husband and notagainst the husband's in-laws orother relatives.An evaluation of the judicial dictumpresents a somewhat clear picture-- where the husband has right,title and interest in the property, hiswife or aggrieved party may claim aright of residence therein; but whereit is in the name of the in-laws orother relatives, as the case might be,the wife acquires no right whatsoever,even though she might havestayed therein being in a domesticrelationship. But while this may bean unambiguous statement, it issomewhat erroneous in its interpretationand application.First, the accepted principle ofinterpretation is that between twopossible views, the interpretationthat furthers the intention of the legislatureand the object of the legislation,particularly in social welfarelaws, is the one that should be preferredby the courts. The object of theDomestic Violence Act is "to providefor more effective protection of therights of women". However, theSupreme Court, in the face of theclear definition of 'shared household',rejected the submission thatthe second floor premises of AshokVihar were the shared household ofthe wife – Taruna Batra. 8Another sound principle followedby the courts is to give decisionsbased on concrete facts and circumstancesof the case before them.In the present case, the issue before16C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

WOMen's rigHTsthe court was whether Taruna Batra,who had admittedly stayed on thesecond floor of the house of the husband'smother, had a right to staythere under the Domestic ViolenceAct, as it constituted her 'sharedhousehold' under the law. Instead ofinterpreting the law based on theconcrete facts of the case, the courtventures into hypothetical and imaginarysituations that the husband andwife may have lived in dozens ofplaces like the husband's parents,grandparents, uncles, aunts, nieces,nephews, etc. Therefore, according tothe judgement, if places where thehusband and wife lived togetherwere to be accepted as 'shared household'then it would lead to chaos andwould be absurd. On the basis of thisspecious reasoning, the judgementdeclared, "any interpretation whichleads to absurdity should notbe accepted". 9Thirdly, while a prudent andcareful scrutiny of the above interpretationof law by the Apex courtmay sound good and practicable toguard against unscrupulous wives, itmay well in reality fail in its objective.The reasons for this are varied:1. In the Indian societal set up, itis not uncommon for sons to residewith their parents and other familymembers in a common household.The concept of nuclear households,though on a rise, is yet to gain itsstronghold on Indian soil, the parentsresiding with the son, is takenas an acceptable and appreciableconduct. 102. Purchase of property in thename of parents, and especiallymothers, is not unknown in our traditionalsocial set up. Infact, many atimes, the son fulfills his moral obligationby purchasing property fromhis income in the name of his parent,or jointly.3. Another possibility that isequally reflected is the existence ofjoint household, being run on theincome and other earnings of all themale members therein. Acquisitionof property is a part of the combinedfamily earnings.In all the above situations, anaggrieved woman is left with nooption but to return to her parentalabode, if at all, it exists or its doorsare open. 11Fourthly, even though a woman'shousehold after marriage is her inlawshouse, even though her marriageis solemnised with the consentand blessings of the families (commonin India). Even though she hasto respect, care for and maintain thehusband's family members, as if theywere her own, she gains no rightwhatsoever over the same. Her rightsare limited and lawfully belong tothe husband and over which she hasa legal claim. It is a travesty of justicefor the woman who, though responsiblefor love, nurture and protectionof family bonds, are left at the receivingend when it comes to assertionand acceptance of their rights. A contraryquestion may be posed at thisjuncture: why a married womanshould at all bother, lest take care, ofher husband's parents or siblings,when in fact she has no legal relationshipexisting? She is the wife ofthe man and has her rights, dutiesand other liabilities arising therefrom and ending therewith. No furtherresponsibility or obligation maybe put on her. But would the same beacceptable, without raising eyebrows?No, our traditions, cultureand patriarchal structure demandsthe same from every woman who ismarried and a fall from the duty istermed as a vice.Next, as has been rightly asserted12 , the position may prove detrimentalfor women married to NRIs,w w w . c o m b a t l a w . o r g 17

WOMen's rigHTssince in all such cases, the womancontinues to reside with the husband'sfamily and may indeed beturned out without the least flutter.Lastly, Batra has provided analternative line of thought as well asa means of escape for all those whointend to deprive the woman of herrights. An illustration may be seen inthe case of P Babu Venkatesh,Kandayammal and Padmavathi vsRani. 13 Invoking the provision underSection 23(2) of PWDVA, 2005, therespondent sought for an ex-parteresidence order. In the affidavit filedby the respondent, she stated thatshe was driven away from the matrimonialhome in the middle of thenight and had been living withoutany food, cloth and shelter.Therefore, she sought for an ex-parteresidence order that was granted bythe magistrate. The respondentthereafter filed a petition invokingSection 31 of the Act alleging thereinthat the petitioners have locked thepremises dishonouring the residenceorder passed by the magistrate.The court held that "both of themhad resided in the subject house,which is now in the name of the secondpetitioner. Further, after the disputehad arisen between the parties,the first petitioner, who was the originalowner of the property, alienatedthe same in favour of his mother, thesecond petitioner herein. Therefore,factually, the ratio laid down by theSupreme Court in Taruna Batra's casecan be distinguished. If the contentionof the petitioners is accepted,every husband will simply alienatehis property in favour of somebodyelse after the dispute has arisen andwould take a stand that the housewhere they last resided is not ashared household and therefore thewife is not entitled to seek for residenceright in the shared household.The wife has a right to residence andthe same has to be enforced as perlaw."Later day cases, have somewhattried to distinguish itself from Batraand undo the damage done, but theprecedent has continued to haunt alldecision making where women havebeen thrown out of their houses inthe middle of the night and left tofend for themselves in the streets.In Smt Shumita Didi Sandhu vsSanjay Singh Sandhu & Ors, 14 thequestion for consideration waswhether the plaintiff has any right tostay in the suit property in which herhusband has no right, interest orshare and belongs to her father-inlawand mother-in-law. Incidentalquestion for determination waswhether it could be treated as matrimonialhome of the plaintiff?In the instant case, the plaintiffhad strained relations with thedefendant number one, her husband.She was residing along with him andin laws in the ground floor of the suitproperty. Subsequently, however,unable to bear the torture and abuseof the defendants she left the place.After a period of time, she returnedback to take possession of the firstfloor of the suit property. In the presentcase, she claimed for permanentinjunction restraining the defendantsfrom forcibly dispossessing her fromsuit property.Referring to Taruna Batra's case,the Delhi High Court held that thehusband has legal and moral obligationto provide residence to his wife.Therefore, wife can claim right of residenceagainst her husband. If theA plain reading of the definitionindicates that an aggrieved person(meaning, the wife) is entitled to herrights in a shared household irrespectiveof whether the shared household is inthe name of the respondent (husband)or his relativeshouse in question where she livedafter marriage belongs to her husband,it would certainly be treated asmatrimonial home. Likewise, if thehouse in question belongs to HinduUndivided Family (HUF) in whichher husband is a coparcener, eventhat can be termed as matrimonialhouse. However, where the housebelongs to parents-in-law inwhich husband has noright, title or interestand they hada l l o w e dt h e i rs o nalong withdaughter-in-law to stay in the saidhouse, it would be a permissive possessionby the daughter-in-law, butwould not give any right to her tostay in the said house. What wouldbe the position if there is no disputebetween the husband and wife butthe parents of the husband do notwant their son and his wife to stay inthe said house for certain reasons.Obviously, their son, who is only apermissive licensee cannot claimlegal right therein. If son cannotclaim any such right against his parentsto stay in a house that belongs tohis parents, his wife obviously wouldalso have no case to claim such aright.Certain other instances may howeverbe quoted where the Batrajudgement has been relied upon bythe respondents but the magistrateshave granted residence orders bysuccessfully distinguishing the caseat hand from the Batra judgment onfacts and have interpreted the law infavour of the aggrieved woman. Twosuch instances are stated below:In an order passed by theMetropolitan Magistrate (NCTDelhi) dated 03.01.07, wherein theshared household was in the name ofthe mother-in-law, it was held that:"It is an admitted position in thiscase that the premises…(presently in18C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

WOMen's rigHTswhich thecomplainant is stayingdue to order…) is jointly owned byrespondents no 2 and 3, that is thefather-in-law and elder brother-inlawof the complainant and that it isnot a joint family. As the husband isnot the owner of the above said property,therefore in view of the judgmentof the Supreme Court, thisproperty cannot be termed as sharedhousehold property and thereforedue to change of circumstances inview of the said judgment of theSupreme Court's interim order... isvacated. However, as the complainantis living at present at thegiven address and is in possession ofone room of the ground floor of thesame, therefore by way of abundantcaution, it is directed that the respondentsshall not dispossess the complainantwithout due process oflaw. 15The second case is from MadhyaPradesh, 16 wherein a residence orderwas granted despite argumentsbased on the Batra judgment wererelied upon by the counsel for therespondent. In this case, the housewas in the name of the mother-inlaw.The court held that just becausethe house was in the mother-in- law'sname did not indicate the source ofincome used to acquire the property.In such circumstances, where thesource of income could not be ascertained,aresidenceo r d e rcould notbe denied tothe woman."In SR Batra,the Supreme Courthas interpreted theshared household andhas decided that theshared household is thehome of the husband orone rented by him orhome that is of a jointfamily of which thehusband is a member.Property of the motherin-lawcannot be called ashared household. Rightsaccruing from a matrimonialhome can be obtained againstthe husband and not the father-inlawor the mother-in-law. The privateresidence of the mother-in-law cannotbe called a shared household. Butin the instant pleading the respondentshave not produced any documentsto show that this residencebelongs exclusively to respondent,they have not revealed the appropriatesource of income for acquiringsuch property. In such a situation, itseems that the residence at... belongsto the joint family and hence thecomplainant has a right in it. Hencethe right to residence under section19 is being ordered in favour of thecomplainant".Conclusion"The facts stated in the Preamble andthe Statement of Objects and Reasonsappended to any legislation are evidenceof legislative judgement. Theyindicate the thought process of theelected representatives of the peopleand their cognisance of the prevalentstate of affairs, impelling them toenact the law. These, ….will be takeninto consideration by the courts …" 17Another basic rule of interpretationof statute is that "courts must presumethat a legislature says in astatute what it means and means in astatute what it says there." 18Furthermore, "Every part of a statutebe presumed to have some effect,and not be treated as meaninglessunless absolutely necessary." 19 Thatbeing so, the judicial outburst inTaruna Batra's case with regard to"shared household", being absurdand chaotic, was unwarranted anduncalled for. It is indeed a negationof the interpretative principles whichare in vogue. It is also in clear variationof the purpose and object of thestatute. Law catalyses the progressionof human society and in this,such judgments are bound to stall thecurve of human development. Amore rationalistic, thoughtful andprogressive judicial mind is calledfor to make the statute a reality.—The writer is an AssistantProfessor at Rajiv Gandhi Schoolof IP Law in IIT Kharagpurendnotes1. See, Sydney Brandon in M. Brandon (ed.),Violence in Family, 1976 p. 1.2. Mamta Rao, Law Relating to Women andChildren, Eastern Book Co, Lucknow,1stEdn., 2005 p. 152.3. Aruna Parmod Shah v Union of IndiaMANU/DE/0626/2008; Ajay Kant & Ors vSmt. Alka Sharma 2008 CriLJ 264.4. AIR 2004 SC 3782.5. SR Batra and Anr. v Smt. Taruna Batra2007(2) ALD 66 (SC).See, BR Mehta v AtmaDevi & Ors AIR 1987 SC 2220.6. 2008(2) AWC 1636 (SC)7. 2007(2) ALD 66 (SC)8. Rakesh Shukla, At Odds with the DomesticViolence Act, Info News and Features,August, 2007, http://infochangeindia.org/index2.php? option=com_content&do_pdf=1&id=35 (Last Visited on 25th Feb., 2009)9. Id.10. See, D. Ross & Aileen, The Hindu Familyin its Urban Setting ( Oxford Univ., 1961)p.8.11. See, Critique of the Batra Judgment andThe Aftermath, A Note by LCWRI,http://www.lawyerscollective.org/wri/projects-activities/domestic-violence-landmarks(Last Visited on Feb 25., 2009).12. Id.13. MANU/TN/0612/2008.14. MANU/DE/8160/200715. Staying Alive: First Monitoring &Evaluation Report on The Protection ofWomen from Domestic Violence Act 2005,Lawyers Collective Women's RightsInitiative, 2007.16. Ibid., Order dated 09.07.2007.17. State of Gujrat v. Mirzapur Moti KureshiKassab Jamat AIR 2006 SC 212.18. Connecticut Nat'l Bank v. Germain, 112 S.Ct. 1146, 1149 (1992).19. Raven Coal Corp. v. Absher, 153 Va. 332,149 S.E. 541 (1929).w w w . c o m b a t l a w . o r g 19

TraffiCkingInnocence trappedIn the dark world ofcommercialised vice, thechild trafficking network inIndia, whereby children aretraded for criminal acts,points to organised crimerings. The degree of thedemeaning acts thattraffickers make theseinnocent children do isshocking and difficult toprocess. There can be nomonetary value onhuman life, writesSamaneh MohammadiIn March 2008, a boy fromBangladesh was brought to Indiaunder the false assumption thathe would be a cook for a family. Inthe hope of being able to contributeto his family and himself, the fourteenyear-old boy was unknowinglybrought to Delhi by the traffickerwith the intention to push him intocommitting illegal activities, morespecifically theft and murder. Theboy was later apprehended by thepolice in Delhi for administering apoisonous substance in the food hehad prepared for the family.Although the boy acknowledged thekindness of his employer and admittedto the charges that were laidagainst him, he was vulnerable and avictim of his compelling circumstances.The trafficker had threatenedthe boy that he would never beable to go home and see his familyagain. The pressured boy felt hecould do nothing but commit thisheinous crime.For traffickers, human life is anobject that can facilitate their ownobjectives. The cruelty and lack ofcompassion for human life is evidentin the case illustrated above. Evenafter the boy handed over the stolen20C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TraffiCkinggoods such as gold and jewellery, thetrafficker was infuriated at the boyfor not stealing enough. The teenagerwas summoned and returned back toBangladesh. Thankfully, the traffickerlater had charges laid against him.The human trafficking network inIndia, whereby children are tradedfor criminal acts, points to organisedtrafficking rings. Children are notonly used as slaves, but are alsobeing used as modern-day criminalsto inflict violence on others, particularlytheir domestic employers, fortheft and robbery -- an issue that hasnot often drawn public attention asof yet.Another somewhat similar crimewas reported in Sarvodaya Enclavein 2008 when a woman in herSeventies and her family, along withtwo young women, were drugged,killed and later robbed by theirdomestic child helpers.This case and many more thathave been brought before theJuvenile Justice Boards (JJBs) consistof vulnerable children who aredeceived and recruited by people inauthority. With the false pretensethat they will work as domesticlabourers, children are embraced bytheir traffickers and then forced toharm their employers.The degree of the demeaning actsthat traffickers make these innocentchildren do is shocking and difficultto process. There can be no monetaryvalue on human life. So when oneasks what the reason is for all thishuman degradation, they are mostlikely left with a simple answer: it isfor the purpose of monetary profits.One may place the blame on thechild for not approaching the authoritiesor the family that he is beingcompelled to hurt. One may alsoassume that the child may do such anact for his own monetary benefit.However, when a child is exploitedin vulnerable circumstances and hasnot developed the necessary mentaland physical maturity, he is unable toprocess his way out of the exploitativesituation.Such trafficked children havebeen first produced before theJuvenile Justice Boards, where adjudicationand subsequent rehabilitationare handled. However, severalchild rights activists and lawyershave expressed their concerns thatthe appropriate authority to dealwith these casesshould be the Child WelfareCommittee and not the JuvenileJustice Board. Even if the JJBs continueto take care of such children, thecrucial question that arises iswhether these authorities should dosomething to bring adult traffickersto justice or not?The Amended Juvenile Justice(Care and Protection) Act empowersthe Juvenile Justice Boards to takecognizance of acts of cruelty againstchildren. Yet, neither the police northe Boards have bothered to look intothe involvement of organised groupsor non-organised individuals. It isessential for the authorities to preparesocial investigation reports(SIRs) and social background reports(SBRs) of children involved in suchcases to assess the quantum of childabuse. In cases wherein SIRs andSBRs confirm the role of adults,it is imperative for the JJBsto act against such adults so that nochild is exploited for his/her vulnerabilityand then be punished forit in future.In the absence of determinationon the part of concerned authoritiesto bring traffickers to justice, thesechildren are prone to further abuse.Children forced to commit criminalacts are vulnerable for a number ofreasons. The foremost being they arechildren and the second being thatthey have been trafficked so theycannot trust or depend on anyonewithout being further exploited. Thelaw should protect and take care ofthese multi-fold vulnerabilities andrespond accordingly.—The writer is a student at theUniversity of Ottawa and worksas an intern at HRLN, Delhi, fromAlternatives, a Canada-based NGOw w w . c o m b a t l a w . o r g 21

COMMunalisMGenocIde InThe Hindutva poison has been spreading in Orissa for many years. But the Statepatronage, overt and covert, has increased in recent years. The unabated attackson Christians in Kandhamal and other areas are a testimony to the fact that Orissa,after Gujarat, is fast becoming the next hate lab of xenophobes. Jan Birch followsthe bloody trail across KandhamalAccording to government officialsas of January 2009, normalityis gradually returningto Orissa to the extent that theauthorities are confident about closingrelief camps and insisting that theoccupants return to their homes.The violence that erupted inDecember 2007 and flared up againin August 2008 has continued sporadicallyto date. Up to 40,000 peopleare still displaced, murder and rapeinvestigations are unsolved, compensationpayments outstanding. SomeChristians have returned to theirhomes and more have joined theirrelatives in neighbouring towns andvillages while others are simply notaccounted for.In November 2008, 25,000 victimswere lodged in 11 relief camps in andaround the Kandhamal district. Fourmonths later, the government hasclosed seven camps and plans toclear the remaining four within thenext few months. These camps houseless than 4,000 people.This should be a cause for celebrationand an indication of normalcyin the area but according to localactivists, only 10,000 people actuallyreturned to their villages. And, fromthe accounts of the victims themselves,those who have returnednow lived a far from normal orpeaceful existence.22C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMKandHamalGenocide?The atrocities committed in Orissaare often reported under headlines ofcommunal violence. The term communalviolence refers to a conflictbetween two or more communities.In India, the Hindu community comprisesover 80 percent of the populationwith Muslims at around 13 percent,Sikhs two percent and two percentChristians. By virtue of this, anyclash involving Hindus and anyother group will be decidedly unbalanced.This in itself does not justifythe label 'genocide'. However, inOrissa the right wing Hindutvagroups have persistently targetedChristians with a stated aim of eliminatingthem. These are not spontaneousor retaliatory but co-ordinatedsystematic acts of persecution actedout with at least the tacit approval ofthe authorities. 1The most high profile of theseattacks was on Australian missionaryGraham Staines and his ten and sixyear-oldsons who, in 1999, wereburnt alive while sleeping in theircar. This incident garnered worldwideattention, but without wishingto diminish the horror of thisappalling incident, it was neither thefirst nor the worst of attacks onChristians. It would be wrong to putthis or any of the other attacks asresentment against proselytising foreignerstrying to impose westernviews and values on innocent tribalsand dalits. These people have beenrepeatedly persecuted for their religiousfaith.The catalogue of incidents inDecember 2007 and August 2008indicate that these were not isolatedor sporadic incidents but were part ofa well-orchestrated conspiracy. Theinaction of the state with regard tothe relief, rehabilitation and protectionof the victims and the callousnessof the police indicate that all thistook place with their tacit approval,or worse, their active co-operation.Hindutva vs HinduismThe perpetrators are members of theHindutva movement, the SanghParivar. Hindutva literally means"Hinduness" but in the context of theHindutva movement it is an ideologyof Hindu nationalism. The SanghParivar is the umbrella for a numberof rightwing nationalist groups. TheBJP is the constitutional party of themovement, which at present forms acoalition government with the BJD inOrissa. The VHP (World HinduCouncil) is the activist front with astated aim of re-converting or eradicatingnon-Hindus from India, andthe RSS (National VolunteersAssociation) and their youth wing,the Bajrang Dal are the foot soldiersall now proved to have used communalviolence and terrorism as meansof imposing Hindu supremacy.There is a clear distinctionbetween Hindutva and Hinduism.Hinduism is a diverse, inclusive andtolerant faith, which embraces'Ahimsa' – the principle of non-violence– which extends to the treatmentof animals and therefore a preferencefor vegetarianism. HindutvaWomen at a relief camp in Kandhamalhas a record of inciting violence byusing hate speech and calling bandhs(strikes), rallies and riots againstminority cultures includingMuslims, Sikhs, Christians andsecularists.Members of the Congress party,leading Hindu social activists andmembers of the judiciary have beenamongst scores of others who havecalled for the VHP and its offshootsto be banned.Why Kandhamal?In Kandhamal district, Bajrang Daland RSS activities had been clearlyevident by carrying out atrocitiesin the region. The influence ofHindutva has been present in Orissafor many years but recently the successof right wing coalition parties,the BJD-BJP, has given confidenceand encouragement to most aggressiveelements.Orissa is a beautiful part of India.It is also one of the poorest states. Ithas the highest infant mortality ratein the country. It is the state with thehighest proportion of Adivasis (tribals)and nearly 50 percent of the pop-w w w . c o m b a t l a w . o r g 23

COMMunalisMulation lives below the poverty line.In Kandhamal this proportion istwice the state figures. These communitiesare extremely vulnerable toexploitation of all kinds includingindebtedness, bonded labour, traffickingof children, women forcedinto sex work and labour.But the state is also rich in mineralsand other natural resources. Theincreasing industrialisation in theregion has brought benefits to theeconomy, but has also resulted in displacementand destruction of severaltraditional communities who havefor many generations survived onjungle produce and small scale farming.The demand for mining, factories,roads and modern housing hastaken a vicious toll on these communities.Dams have been built, fertilefarmland destroyed and ancientforests cut down. Consequently, thedelicate balance of the water tableand the climate has been decimatedcausing an increase in fatal heatwaves, cyclones and flooding inthe region.Kandhamal is made up of 2,415villages in one of the most backwardareas of India. Its hilly, forested terrainremains poorly connected toother districts, which makes it easyfor those who wish to cut villages offfrom outside intervention.Constructing roadblocks with treeswas a strategy frequently used in theKandhamal violence.The dominant population (81 percent)is the Hindu Khanda tribe. TheSchedule Caste (Dalit) Panas makeup 18.21 percent of the population.They are predominantly Christianbut some are also Hindu. Nearly 80percent of the entire population ofthe area is below the poverty line.These are one of the poorest andmost downtrodden groups in Indiansociety that use all means available tothem for self-betterment and survival.Since the designation of scheduledcastes and scheduled tribes followingIndian Independence over 60years ago there has been controversyover the status of some of the groups.Dalits have been the least respectedand most oppressed ones in theHindu caste system. In the past,Dalits rejected Hinduism and convertedto Christianity. Most of thePanas in the Kandhamal area areChristian converts and most of theChristians were formerly Panas. Thisconversion has taken place overmany generations and although thepopulation of Christians in the areais increasing, but the rate is very slowand it can be attributed to the birthrate than conversion.Under the ScheduledCaste/Scheduled Tribe reservationChronology of barbarism(December 21 - 27, 2007)21.12.07Rumours of plans to disrupt Christmascelebrations escalated tension amongstthe Hindus and Christians. The subdivisionalpolice officer visitedBrahminigaon and met with Christianelders. At that meeting he assured hisparticipation in the celebration.22.12.07Christian Jana Kalyan Samaj ofBalliguda, Kandhamal, met the collectorand SP and demanded action against thecall for bandh on 25-26 December inKandhamal. However, no action wastaken by the SP of Kandhamal. On thesame day, Jana Kalyana Samaj ofPhulbani, and G Udayagiri submitted aletter asking district authorities to stopthe bandh23.12.07Dr BR Ambedkar Banika Sangh ofBrahminigaon together with sixsarpanches of the area had appraised thetense situation to the sub collector andsent a fax message to SP Phulbani andthe district collector (DC). Banika Sanghwent to the police station and discussedthe situation in the area and soughtpolice protection. They also discussedthe plan to perform Yagyan (Puja) bylate Swami Lakshmananda Saraswatiand Sangh Parivar leaders.23.12.07At around 6.30 pm, one of the membersof the Banika Sangha called SPNarasingh Bhol and requested police24C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMsystem implemented after independencein order to uplift those groupsand by converting to Christianity,Dalits lost their reservation statusand therefore their rights to reservation.However, rights ascribed toScheduled Tribes are not lost on conversion,because this status does notdepend on their place in the Hinducaste system. On July 12, 2007 a petitionwas filed in the high courtdemanding ST status for the Panas.This lead to allegations that theChristian Panas were attempting to'grab land' from the less educatedtribal people.However this is not a Dalit/tribalconflict as some reports have suggested.Non-Christian Dalits havenot been targeted but Christian tribalshave. When interviewed manyChristian victims reported that theyhad good relations with theirnon-Christian neighbours untilvery recently."My family has been Christian formany generations and my husbandtoo. Before this violence startedHindu-Christian relations were verygood. We would help prepare foreach other's ceremonies and occasionsby collecting wood and cooking.We would attend each other'smarriage ceremonies. When they hadfestivals we would donate moneyand items. We hardly had any differencesbefore the violence," said oneof the victims.Both the National Commissionfor Minorities (NCM) and the BBCnews cite economic factors as theThe NationalCommission forMinorities (NCM)and BBC news citeeconomic factors asthe cause. The NCMnoted that in areaswhere Christians werebetter off than theirHindu counterpartsthey were attacked,but poorer Christianswere leftundisturbedcause. The NCM noted that in areaswhere Christians were better off thantheir Hindu counterparts they wereattacked, but poorer Christians wereleft undisturbed."In Bamunigaon, it turned outthat a prosperous Christian sahi(hamlet) was attacked while not soprosperous Battapally was spared.Although both are inhabited mostlyby Dalit Christians, the attack wasconcentrated in the sahi whose memberswere prosperous and had organisedthemselves under the banner ofthe Ambedkar Vanik Sangh. Thesepeople are shop owners or in service.The inhabitants of the Battapally sahiare much poorer and provide nocompetition to the inhabitants of theHindu sahi" 2However, 96 percent of the victimsare illiterate and there is no evidencethat Christians have any economicadvantage over their Hinduneighbours. An investigation by theIndian People's Tribunal in 2006found that the majority of Christiansin the Khandamal district "are landlessor marginalised landholders,with an average holding of half-anacreper family". 3The explanation offered by theBBC is that in the recent past Hindunationalists had economic control ofthe area lending money to poorTribals and Dalits at exorbitant interestrates of up to 120 percent per year.This meant that the indebted farmerswere forced to sell their produce at aprice controlled by the businessmen.When NGOs organised banks loansat rates of less than 10 percent theelement of control was lost. 4This complex mix of economicand social deprivation enabled religioussectarianism linked to politicalinterests to ferment and grow. Butwhatever be the differences betweenthe communities, rightwing groupshave exploited these issues, exhortingrivalry between the tribals andTanas. It seems that the BJD-BJP stategovernment, rather than addressingthe hardship and deprivation ofthese isolated rural communities,have found it to their politicaladvantage to exploit and fuel thedifferences.Christian missionaries have beenactive in rural parts of Orissa formany years providing social, healthforce in the village. The request wasignored and no action was taken. Thatsame day a pastor and 12 members ofthe Christian community of Believer'sChurch in Phulbani district were assaultedin a 'conversion' ceremony. PastorDigal was beaten, forcibly tonsured andthen paraded naked as he refused toreject Christianity. In spite of filing anFIR in this regard, no action was takenby the police.24.12.07At around 10 am men armed with guns,swords, iron rods and other lethalweapons attacked Christians atBrahminigaon. Two people died andseveral others were injured in firing by a3,000 strong mob. The late SwamiLakshmananda Saraswati and hisarmed bodyguards drove towardsBrahminigaon. On his way atDasingbadi, he and his bodyguardsfought with a driver and staff of a passengerbus. The Archbishop of Cuttackand Bhubaneswar called the directorgeneral of police and the chief secretaryin Bhubaneswar. He met the authoritiesto ask for deployment of forces. Duringmidnight Mass a bomb was hurledtowards Archbishop's house inBhubaneswar.25.12.07Further Fr Bernard Digal wrote a letterto the inspector-in-charge atKharvelnagar police station asking forproper security arrangements around theArchbishop's house and the Catholicchurch following the bomb attack.Around 9 am at Ulipadar, the mob firstattacked and destroyed the villagechurch and entered the village. Theylooted and destroyed all the houses inthe village. Several worshippers wereinjured while one of the victims had hisskull split. Two pregnant women whohad escaped into the forest gave birthunder these traumatic circumstances.There were reports of molestation.Around 10.45 am, the mob attacked anddestroyed the 'Our Lady of LourdesChurch', the priest's residence, communityhall and the Rushimal MissionChatrabas boys hostel in Brahminigaon.Unarmed, people including priest andnuns fled to the forest. The police stationw w w . c o m b a t l a w . o r g 25

COMMunalisMand educational welfare. InKandhamal the Catholic Churchalone has been responsible for establishingeight schools, five dispensaries,two hospitals, 13 hostels forchildren, four study homes andseven vocational training centres.Other Christian denominations arealso active in the area and providesimilar facilities. The church claimsthat these establishments are for bothChristians and non-Christians.It is remarkable that numerousChristian owned houses, hostels,vehicles and businesses were damagedand destroyed while there werefew reports of damage to Christianrun schools, training centres and dispensariesand none to hospitals.Pleas for helpNeither the attack in December northose in August came without warning.On December 21, local policewere approached and asked to protectChristians during Christmas celebrations.A bandh was called onDecember 25 and 26, but three daysbefore Christian leaders had maderepresentations to the collector andsuperintendent of police anddemanded protection for the safetyand security of Christians as theyobserved Christmas. However, similarto Gujarat police's chillingly resonantreaction in the riots of 2002, noaction was taken.Finding that they could act withimpunity, the same tactics wererepeated in August 2008 byHindutva groups who again went onthe rampage. A bandh was called inIn Kandhamal theCatholic Church alonehas been responsiblefor establishingeight schools, fivedispensaries, twohospitals, 13 hostelsfor children, four studyhomes and sevenvocational trainingcentres. The churchclaims that theseestablishments are forboth Christians andnon-Christiansprotest for the murder of SwamiLaxmanananda Saraswati by theVHP on August 25. The state governmentimposed section 144 ordermaking the bandh illegal but it wentahead regardless. The bandh providedan opportunity for mobs to gatherand orchestrate another orgy of murder,assault and destruction. Whatfollowed was murders of priests andcivilians, rapes of a catholic nun andseveral other women, set ablaze aHindu woman working in aChristian hostel and destruction ofhundreds of houses, churches andother institutions. And all this tookplace in just one day right under thepolice's nose.This was entirely predictable andyet the authorities displayed patheticinadequacy in providing measures toprotect the obvious targets. RapidReaction and central paramilitaryforces were deployed in the districtbut they were stationed to protectofficial buildings in towns ratherthan the rural communities. But evenin cities, including the state capitalBhubaneswar, Christians werenot safe.On December 24, the Archbishopof Cuttack and Bhubaneswar contactedthe director general of policeand the chief secretary inBhubaneswar by telephone. On gettingfurther reports of violence hemet them in person to plead deploymentof forces to curb violence, damageto properties and danger to lives.During midnight Mass (prayer), abomb was thrown at theArchbishop's House.The following day a priest delivereda letter to the Inspector-in-Charge at Kharvelnagar police stationasking for proper securityarrangements around theArchbishop's house and the CatholicChurch. No action was taken.On August 25, in anticipation ofan attack, one Fr. ManickthanBhawanipatna asked for protection.The superintendent of police (SP)expressed his inability to do anythingdue to the size of the mob.When he suggested that the SPshould announce a curfew in the areato stop the mob, the angry SP retortedsaying that Father need not givehim orders.September 30, 2008 saw resurgencein violence. A month prior toSeptember 30, written complaintswere made to the collector and theat Brahminigaon is opposite the church and was completelydamaged, desecrated and burnt. Police saw the violence fromthe police station and took no action. In Balliguda at 7.30 pm,a mob of 400 and more armed with guns, swords, axes, pharsaand other lethal weapons, broke open the main church gate.They abused and attacked the young along with the priest,nuns, hostel boys, seminarians who then ran into the jungle tosave their lives.The mob collected the furniture, the Bible and otherbelongings and set them on fire. The fire department is rightopposite to the church in Balliguda but took no steps to extinguishfire. Schools, hostels, nuns' residence in other compoundswere ransacked and set on fire. One of the nuns wasmanhandled by the mob and all this took place in the presenceof police officials.In Barakhama at 4 pm, a mob armed with swords, axes,pharsa et al destroyed the Pentecostal Church in the easternpart of the village. The villagers fled to the forest.A mob of 400-500 marched into Balliguda town, looted,attacked and ransacked the Parish building, residence of thepriest, convents and other institutions. By 10 pm, the largeparish church, presbytery, convent, computer room, dispensaryand two student hostel were completely destroyed.The samecrowd moved into the town and completely burned down theBaptist church. They also attacked another Pentecostal churchat Balliguda.The convent in Phulbani was attacked. The building wasbadly damaged and the school bus destroyed.At 12 noon a mob attacked the church of Pobingia Parishand destroyed it. Thereafter, they destroyed the priest's residence.All this happened in the presence of police. Most ofparishes, barring few, in Kandhamal district were preventedfrom celebrating Christmas mass due to the attacks. WorldVision India, an International NGO, which has its office atDaringbadi was completely destroyed by fire.A petrol bomb was found inside the premises of the Oriya26C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMpolice, but none bothered to respond.On September 29, one day before theattack, the Central Reserve PoliceForce (CRPF) was contacted and 12people were sent to the nearbyGadaguda panchayat headquartersabout two kilometres from the village.On September 30, attacks on villagesresumed.After a long delay, the CRPF cameto the site, but the Orissa officer commandingthe CRPF refused to give anorder to open fire. Rounds were firedonly in air. Meanwhile, the mobdestroyed 75 houses, killed onewoman and injured 13 in heavypolice presence.Negligence or complicity?During the violence, police personnelwere present but they never lathichargedor fired at the assailants.The only incident of firing was onAugust 27, 2008 at Bamanigaonwhen the police opened fire andkilled one of the victims of theassault.In each one of the relief camps,victims reported that they still feelvulnerable to further attacks. Gangsaccused of perpetrating the violencemoved freely in the relief camps tointimidate inmates. The guards presentdid nothing to prevent this.In contrast the state administrationprevented the Archbishop ofCuttack-Bhuabaneswar from enteringKandhamal district. TheCollector threatened that criminalprosecution would be initiated if heentered Kandhamal. During the 2007Christmas riots, charitable organisationsand NGOs sought permissionfrom the district magistrate to carryout relief operations, but the offerwas declined. The district magistrateand collector issued an order onJanuary 11, 2008 to all sub-collectorswith the direction that no charitableor religious or non-governmentorganisations be allowed to carry outany relief work in Kandhamal. Andaction would be taken against thoseviolating the order under the IndianPenal Code (IPC) and CriminalProcedure Code (CrPC).The perpetrators of the violenceappear to be very well versed instrategies to avoid prosecution ordetention. For example in many incidents,household assets werebrought outside the houses and seton fire. Under the IPC section 436,An inside view of a relief camp in Kandhamalpersons involved in burning housesare punishable with a minimum ofseven years imprisonment and thisfalls under the category of a non-bailableoffence. When assets andbelongings are brought outside thehouse and burnt, it's a bailableoffence and the punishment is limitedto six months to one year ofimprisonment.In many cases the state hasattempted to criminalise and victimisethe victims themselves, threateningto file false cases against themin order to deter them from filingcriminal complaints. In two cases victimsof violent assaults were themselvesarrested under the ForestryAct for timber found on their premises.This is a minor and petty offenceand it is incredible that this was usedBaptist Church (CNI) Berhampur.Curfew was imposed at Daringbadi,Dasingbadi, Bramunigaon, Balligudaand G Udaygiri. Hundreds of peopleincluding women and children spenttheir night in the jungle in the Balligudaarea. Catholic sisters of Daringbadi tookshelter with families at Greenbadi CNIChurch. At Brahmunigaon between10.00 am to 11.45 am, a mob entered thevillage church of Ulipodor compound.They broke grills and attacked thepriest's residence and other buildings.They then set them on fire, completelydestroying them. More than 30 Christianhouses were torched and several peoplewere brutally beaten. In Pobingiaat 9.00 am, a mob entered the church ofPobingia and instantly set it alight.Presbytery, Boys Hostel, Convent andGirls Hostel suffered a similar fate. InBrahmunigaon at 2.00 pm, the mobgathered again and set ablaze all theshops owned by the Christians.At night, churches were attacked atBodagan, Kamapada, Kulpakia,Sirtiguda, Phirignia. In Srasa Nanda, thechurch was attacked and burnt in thepresence of magistrate and 22 policepersonnel. Churches were also attackedin Ruthungia, Kalingia, Tikapali,Nuagaon, Dalagaon and Iripiguda.26.12.07At night in Padangi, a Boriguda villagechurch was burnt.Sankharakhole—a mob entered thechurch and destroyed it along with aconvent and priest's residence27.12.07Brahimnigoan: 12.15 pm: Oriya - Sahihouses were burnt. Two people killed.The facts and figures mentioned abovehave been gathered by the volunteersworking for the Ambedkar Lohia VicharMancha, Orissa, a state-level, organisationworking for the protection and promotionof the human rights of Dalits,Tribal's and the marginalised communitiesof the state. The victims collecteddata as well.w w w . c o m b a t l a w . o r g 27

COMMunalisMat a time when mass destructionand murder was supposedly beinginvestigated.Such an approach continues tillthis date. The assailants remain atlarge, moving around with impunityknowing that they have the supportof the police and the state while victimsare continuously persecuted bythe very institutions that exist to protectthem."Convert or go"Those who had taken refuge in reliefcamps now feel more vulnerablethan ever and are forced either toreturn home or to find an alternative.For most the choice is between abandoningtheir homeland and livelihood,pulling children out of school,splitting joint families and rebuildinga life elsewhere or living in theirburnt houses amongst neighboursthey no longer trust. Those living inthe camps have security, dignity andjustice as the major challenges thatface them.The security situation in the villagesis in dire straits. Till the end ofJanuary 2009, CRPF were deployedfrom the area but now they havebeen withdrawn, as the local collectorhimself admitted, the villageswere left with dangerously insufficientprotection. Although riotingtook place in 400 villages and 400more were affected, only 200 villageshad a security presence. The numbersof security personnel in Orissaare not adequate for the scale of thistask. There was nothing in place toprevent either the continuation ofatrocities or the resurgence of fullscalerioting across the whole district.Rapid Action Force (RAF) wassent to the state but these weredeployed in towns rather than in villages.Therefore attacks and intimidationcontinued and no action wastaken to defend those most at risk.After the deployment of the centralparamilitary forces some sense ofsecurity was restored and some familiesreturned to their burnt anddestroyed houses. However, victimswere persistently threatened withfresh attack forcing many to return tothe relief camps.Even if people were rehabilitatedthere was no security in place toensure that that they will not beattacked again. Several victims havementioned that they don't want toreturn to their homes as it was theirneighbours who took part in the car-Chronological list of eventsIt has not been possible to ascertainexact information about incidentswhich occurred during this extremelyviolent period. The information in thissection is collected from an eyewitnesstestimony.23.08.08● Two sisters of Precious Blood congregationon their way to Berhampur werestopped and pulled out from the vehicle.The vehicle was then set on fire and thedriver was cruelly beaten.● A vehicle carrying HM sisters nearAinthapally and a prayer chapel atTentuliapadar in Sundargarh were alsoburned and destroyed.● At 5.30 in the evening, Jan Vikas,(23.8.08 – 1.09.08)social wing of the Archdiocese ofCuttack, office was ransacked and set onfire. Three four wheelers, six motorcycles,important records and documentationand office equipment were seton fire.● Divya Jyoti Pastoral Centre was looted,gutted and burnt at about 6 pm. Thesame group entered the Baliguda presbytery,convent and hostel damagingproperty.● Roman Catholic Church attacked andvandalised at 6.30 pm● The Diocesan church was ransackedand three Pentecostals churches weredestroyed. Late evening about 12 DalitChristian shops were burnt to ashesin Raikia.24.08 08Churches in Dumerguda and Talsarawere burnt. The mob threatened theFathers after Sunday Mass. The mobrampaged and destroyed the housesaccommodating Christian families.● The state government imposed section144, ahead of a 12-hour bandh called bythe VHP, Bajarang Dal and other affiliatesof the Sangh Parivar on August 25,2008 to protest Laksmananda's murder.● Kanjamendi Centre run by Fr Challan,Director of Pastoral centre, and SrMeena, administrator, was burnt andransacked25.08.08● The mob first torched the police jeep in28C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMand then proceeded to the conventand church.● The Malankara hostel was attacked,and many children were badly hurt.● A vehicle carrying Missionaries ofCharity from Dharmagarh, wasintercepted and pelted with stones.Several sisters sustained minor injuriesfrom stones and broken glass. Thepolice arrived and sent them backin the same damaged vehicle toDharmagarh● At 7 am, Phulbani Church and presbyterywere vandalised and ransacked.Srasanda MC Brother's residence wasattacked and the residents were beaten.VHP activists continued to burn housesand household items of Christian familiesin the area. Eight houses were completelydestroyed in the incident.● At 10.30 am houses of Christian familiesin Christian sahi were destroyed andransacked. In similar incidents, housesin Nuasahi were set on fire destroying anentire street of Christian families. ThisMany of the victimsthat have returned totheir villages reportthat they do not feelsecure. They havebeen told that a safereturn is conditionaland they will have toconvert to Hinduism tobe safe. If they refusethey will be harassed,ostracised andprevented from usingvillage amenitiesnage and drove them away. Theydon't believe they can live safely inthe area.Many of the victims that havereturned to their villages report thatthey do not feel secure. They havebeen told that a safe return is conditionaland they will have to convertto Hinduism to be safe. If they refusethey will be harassed and ostracised,prevented from using village amenitiesand in some cases forbidden totravel outside the village.One victim stated that on returnto his village he was approached by aVHP leader and asked to convert toHinduism. Three families of the 21Christian families in his village hadalready done so. Those that refuseare prevented from using the villagewell so have to draw water at night.Threats have been made againstChristian children who attendChristian schools and Christian highschool students are prevented fromstudying with other children. Somechildren, he said, now go to a school40 km away. He says that even now,nightly meetings are held in the villagewhere they discuss killing anyonewho files an FIR. He himself hasbeen repeatedly threatened.A victim said, "After the attackswe live in fear. The Hindu communityholds meetings where they openlysay that Christianity is a foreign religionand until and unless theChristians of this area becomeHindus they will not be allowed totrade and buy essential goods fromthe local shops.""Until August 25, we used a panchayat'sconcrete road, which leadsto the river. Two days after the riots,the Hindus put up a fence blockingthe road. When the Commissioner ofHuman Rights visited the place, heinstructed to demolish the fenceimmediately, but this has still nothappened as yet."incident took place at 11.30 am● Two boys staying in church run hostelwere caught and their heads weretonsured.● At about 1 pm, Jamaj Parichha's housewas attacked and his vehicles were setablaze, doors were cut into pieces and hewas brutally beaten by the mob. He sustainedsevere head injuries and was hospitalised.His wife being a Hindupleaded the mob to spare him andeven showed that she practicesHinduism but they showed no mercyand continued beating him. Theyannounced "he is a Christian and we willkill him".● At 2 pm, the house of Puren Nayakwas attacked and burnt into ashes. Allhis assets were removed from the houseand were set on fire. As the violencecontinued in the village, the mob ransackedthe homes of Christians andburnt all their belongings.● The impact of the Bandh, althoughillegal, was severe with most offices andAnother victim narrated how herfamily had been divided due to conversion.Her in-laws had convertedto Hinduism in order to return totheir home and her father-in-law toldher husband to convert or settle insome other village. Her husbandrefused so they continue to livein rented accommodation inBerhampur with their children. Shesees no prospect of returning homeor the family being reunited.Even after conversion, safety isn'tassured but it is the only option. Oneconvert said, "We could not file casesagainst Hindus because they wouldnot let us leave the village. I willreturn to the village in 15 days fromnow. I have no other choice." Twobrothers who also converted toHinduism to return home said thatonce they had converted, leaders ofthe mob told them that they wouldbe killed if they left the village. Thetwo stayed in the village until mid-December 2008 when a neighbourwarned them that their lives were indanger because the village leaderswere not fully convinced of theirfaith towards Hinduism.Several others repeat similar stories.Some people living in campsreturned home when the campsclosed but have left again to findlodgings in larger villages and citieswhere they feel protected.shops shut. Transportation was totallydisrupted and property worth lakhs wasdestroyed at many places across the city.Attacks reported within the city, mostlyon churches and church related institutions,especially schools. Violencespread across the entire state. On August25 violent mobs made several attemptsto enter the compound of the CatholicChurch and Archbishop's house in thecity to attack. Policemen deployed at thescene disbursed the mob and stoppedthem from entering the campus. Angrymob threw stones at the guesthouse ofArchbishop's house, damaging somewindowpanes. Another group enteredthe presbytery in Duburi parish, managedby the SVDs and damaged property.Institutions like St Arnold's School(Kalinga Bihar), NISWASS, among otherssuffered partial damages while oneBaptist Church in Akamra Jila was alsodamaged in the city.● Patamaha Village was attacked and seton fire and reportedly 30 families fled tow w w . c o m b a t l a w . o r g 29

COMMunalisMPeace at the cost of justiceThere are several reports from victimsclaiming that they were threatenedto withdraw FIRs (first informationreports) made against rioters.Peace committees originally set up inthe relief camps have now beentransferred to the villages. Many victimsbelieve that the sole purpose ofthese committees is to protect thoseguilty of rioting. One man reportedthat he had been in a relief camp tillJanuary 15, 2009. He left on theinstruction of camp officials. Onceback in the village a peace committeewas formed which included theblock development officer forRayagada, the ICC for Tehsildar andthe director of a Christian charity,IGM. The head of each Christianfamily in the village was there alongwith the villagers and outsiders whohad taken part in the violence. Theofficials were involved in the deliberationswith the villagers and in theirpresence, men who were part of themob asked the Christians to withdrawthe FIRs at the earliest.There are several reports of obstaclesbeing put on the road to preventcomplaints from reaching the police.The ones who reached the policewere not entertained and in somecases the police refused to lodge anFIR or recorded them incorrectly soas to render them invalid."When we asked for the copy ofthe FIR, the investigating officer justgave an ordinary extract of thethe jungle and had no food to eat sincethen. On the same day, Gudipadar villagewas attacked and ransacked. Morethan 22 Christian families lost all theirvaluables. Houses were set ablaze; twoschools and hostels in Munigudawere burnt.● Office of the Compassion East India(NGO), Mission India Church atJayadev Vihar, church in Bidanasi,Cuttack were attacked and burnt.William Carey School in Jatni, NH-5was attacked and five school buses werevandalised on the same day.● Fr Challan, Director of PastoralCentre, and Sr Meena were draggedfrom the house of Jashawanta Pradhan'swhere they were hiding after their housewas destroyed a day before. Theywere beaten up badly and taken to thepolice fundi (smaller unit of police station)in the area. Sr Meena wasAdministering justiceto perpetrators iscrucial in order forvictims to believethat this will nothappen again andthat there aresystems and lawsin place to protectthem. Droppingcharges will not bringpeace, it will onlyprolong the feelingof anxiety andmistrustRayagada police station diary entry,No 516. Till November 16, when thehuman rights commissioner came tovisit the area there had been nopolice inquiry. After November 16,the commissioner instructed us to filecomplaints and it was then our individualcomplaints were lodged.Police arrested only three people outof the 18 against whom the people ofJeerango village complained. Thesethree have been charged with burninghouses and looting the belongingsof Christians not with violence,rape and murder."There are many more accounts offailed attempts to file FIRs and ofgangraped and paraded semi-naked inthe street.● Paul Pradhan, who runs an NGO in thedistrict, was attacked. His house andoffice were completely destroyed.● One Vikram Nayak was cut into piecesat Tiagian. Two others sustained injuries.It is reported that they died. In Tiangiavillage, houses of Christian familieswere set on fire. The house owners fledto the jungle.● Sankrakhol Parish church and presbyterywere set alight and ransacked, theparish priest Fr Alexandar Chandiescaped to the nearby forest. It is reportedthat most of the assets were burnt andthe church was completely destroyed.● Fr Bernard Digal who had gone to visitFr Alexandar Chandi was held up inSankrakhol parish when a mob attackedthe church. His vehicle was set on fire.● The Convent of St Joseph's atcomplaints not being acted on. Thereare accusations of perpetrators havingbooked false cases against thevictims in retaliation for complaintsmade against them and of officialsstanding in the way of justice.Administering justice to perpetratorsis crucial in order for victims tobelieve that this will not happenagain and that there are systems andlaws in place to protect them.Dropping charges will not bringpeace it will only prolong the feelingof anxiety and mistrust.Furthermore, widows and families ofmissing or maimed breadwinnerscannot be compensated if their casesare not addressed at the earliest.Some victims say that the governmentshould take the onus of providingthem with new houses. They arewilling to go back in their village butare afraid. One victim mentionedthat he is in touch with someone inthe village who told him that asrecently as two days back a mobdamaged a house in their village.They want compensation for theirhouses, businesses and belongingsand above all security of their lives.Rehabilitation and restitutionIn villages where peace is graduallybeing restored, many victims stillcannot go home because their housesare in ruins and livelihoodsdestroyed. To compound the misery,the system of assessing damage andSankrakhole was attacked and ransacked.Sisters fled to the forest.● Abenswar Digal's house set on fire.● At about 11 pm, 23 houses inGumagarh, under Bisipadsad police station,were attacked and ransacked.● Some 17 Christian houses were ransacked.Most of the assets were removedand set on fire. Victims identified wereBijay Parichha, RK Nayak, JosephNayak, Susant Dal Behera, SantoshNayak, Santun Nayak, Harihar Das,Mosesh Nayak, Prakash Nayak, RajuParichha among others. An Ambassadorcar of Sukant Nayak, Director Shahara(NGO), was set on fire too. Office ofKaruna (NGO) was ransacked. ThePentecostal church at Budamaha, wasvandalised and ransacked. Masadkiachurch was vandalised andransacked.Two Pentecostal churcheswere vandalised and ransacked.30C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMadministering compensation is complexand inaccessible, abysmallyslow and often woefully inadequate.The day after the death of SwamiLaxmanananda Saraswati the stategovernment was quick to announce acompensation package to the tune ofRs 2 lakh for each of the five dead.Even after eight months the victimsof the December violence are stillgrappling with their livelihood.Some had received Rs 10,000 underthe financial assistance to the victims;very few had received Rs 20,000 andnone beyond that amount. The statehas the duty to be expedient in therelease of the amount of Rs 50,000 fortotally damaged houses or Rs 20,000for partially damaged ones but hasconsistently failed in its duty. Thisfinancial assistance was announcedon February 14, 2008. A house withonly the skeletal structure standingor with one of four-side wall and apartially burnt roof is deemed to beonly partially damaged. In manycases the structure of these houseshas become weak and unsafe thereforethey cannot be re-built on theexisting structure. In most cases theywill have to be pulled down. In onecase the government official who wassurveying the damages told a victimthat although his house wasdestroyed the well outside was stillintact therefore he was entitled toonly Rs 20,000.A survey was conducted at variousrelief camps in the district ofPisermaha church was vandalised andransacked. Baptist church and RCChurch at Mondakia was vandalised andransacked. Mdahupanga Church wasvandalised and ransacked.● Father Obed Khura received threethreatening calls. He was refused policeprotection and was sent back with assurancethat the school he runs will not beattacked and was instructed to stay awayfrom the school.● The church and the convent wereattacked. Around 80 inmates under theleadership of Fr Pius Ekka and SrMarina Chacko escaped to the forest.This happened in spite of the fact that FrMarshal Mihir Upasi was constantly intouch with the state control office of theOrissa police and the SP of Rayagada.Kandhamal and other parts ofOrissa, to assess the damage andcompensation paid by the state.The survey could cover only 2,743households/families of Kandhamalalthough the numbers are expectedto be higher. In many villagesresearchers were threatened makingit impossible for them to ascertainthe damages and actual figures.More than 10,000 houses werelooted out of which 5,000 were damaged.Valuables and property weretaken or destroyed including livestock,livelihood implements (tools,sewing machines etc), valuables,vehicles, household items, furniture26.08.08● A Baptist church was looted and housesof Christian families were set on fire,three Catholic churches were attacked inthe district. Nearly 45 houses ofChristian families in Patapaga wereburnt down. The World Vision Office inBhawanipatna was attacked and an officialvehicle was set on fire. PastorSikandar Singh from Bhawanipatna wasalso beaten up and his house and vehiclewere set ablaze. A Brethren church inGosaninuagaon of Berhampur was alsoattacked.● At about 11.30 am the mob attackedBadimunda village. A Roman Catholicchurch and five houses were set fire to.● A number of houses and churches wereattacked in Sikoketta, Papasi,Gumamaha, Baliapoda, Badabanga,Gadadi, and Dadgamaha. The final casualtynumbers are yet to be confirmed. InDadgamaha Chak some shops were lootedand two motorcycles were set on fire.and documents (land patta, voteridentity card, bank passbooks, pensioncards, certificates, job cards, etc).The government have categoricallyrefused to compensate the victimsfor moveable property damaged orburned apparently due to difficultiesin making realistic assessments atthis stage. At least 1,604 householdshave not received any compensationand 1,100 households received compensationto the tune of only Rs10,000. This in most cases representshardly 20 percent of the value of theirlosses.Victims emphasise that it was notjust their homes that were destroyed;● Kamolini Nayak, seven months pregnant,was hacked to death in Mondakiain Kandhamal district, when she refusedto embrace Hinduism. She died leavinga two-year old child and husband(reported by Chandrakant Nayak,Director Love India, NGO).31.08.08● Houses and prayer halls in Batagudaand Paran Panga village were burnt andhousehold items looted. Some houseswere burned and destroyed in Dodongiavillage under Raikia block.01.09.08● In Kundra village of Jayapur District,ten prayer halls were destroyed, five villagesin Sankharkhole parish in Tikabailiblock were looted and attacked.● One church, one convent and two hostelswere destroyed in Mondasore.w w w . c o m b a t l a w . o r g 31

COMMunalisMcrops were damaged, any storedfood was lost and the families havenothing to live on. Even medicalexpenses incurred as a result ofassault or displacement cannot bereclaimed. Apart from houses, shopsand other businesses were alsodestroyed. The financial assistancepackage designated for them is onlyRs 40,000 per unit and in many caseshas not been granted on the groundas they didn't possess pattas (registration).Stock from shops were looted,tools and equipment destroyedand businesses ransacked but businessowners will receive no compensationfor looted goods. In somecases farmers have had their landunofficially confiscated. One manspoke of how his cashew field isbeing harvested by his neighboursleaving him with nothing to live onfor rest of the year. Due to loss oflivelihood many victims have permanentlyleft their villages to find workoutside the district. In one villagealone it is reported that around 60-70people have left for this very reason.In most cases, even months afterdamage assessments have takenplace victims have received nomoney. Unnecessary obstacles areput in the way of people receivingtheir dues. The compensation is paidby cheque, which requires the victimto open a bank account. The requirementsfor opening an account are aminimum deposit of Rs 500 and documentaryproof of identity andresidence.Eternal denialAs the inflation rate has dropped toits lowest in seven years the priceof basic food commodities continues torise. Rice, dal, sugar and baby milk areamongst the products that have undergonemassive price hikes in recentmonths and as usual it's the poorest thatare affected the most. The price of ricealone has gone up by 44 percent in pastone year with over 40 percent of thefood budget is spent on rice in the ruralhouseholds of Orissa. With an averagemonthly consumption of 12 kg per personeach month, spendings on rice haveincreased by Rs 280 a month for a familyof four.Public workers in the Orissa earn aminimum of Rs 51 a day (against a Rs70 notified rate) and agricultural workersas little as Rs 30. The vast majorityof day labourers that account for 44 percent of the working population in thearea are employed from 15-20 dayseach month. The only possible way forthese families to cope with high foodprices is to curtail consumption.This situation is compounded by thefailure of mid-day meal scheme in somedistricts. Thousands of children inDhenkanal have missed out on this entitlementtill the end of January this year.Authorities blame each other whilethousands of children sleep emptystomach.The Orissa government has consistentlyfailed to meet its commitments toeradicate poverty. The drinking watersupply is in dire straits as some 9,000people in the tribal dominated district ofBaripada are affected. The tube wellshave dried up and people are forced todrink contaminated water.All this is taking place in a statewith the best investment opportunitiesin the country. As the Patnaik governmentis constantly being wooed bymultinationals like Monsanto to developgenetically modified crops, the statecontinues to struggle at the bottom ofthe poverty index."The government has declaredthat it will give Rs 20,000 to each familybut to receive the money we haveto collect it from the block developmentofficer. We are too scared toreturn to collect it. We are sufferingmany problems: with food, shelter,and health. Our property in our villagewas looted, burnt anddestroyed. We lost property worth alot more and Rs. 20,000 is not enoughto compensate for what we havelost."Following a the visit to the affectedareas the national commission forminorities recommended that thegovernment should review the rehabilitationpackage keeping in mindthe actual damage and loss sufferedby the victims.The report states that in fixing anamount of compensation, the damagesshould be assessed separately aspecuniary damages and special damages.Pecuniary damages are those,which the victim has actuallyincurred and which are capable ofbeing calculated in terms of money,whereas non-pecuniary damages arethose that are possible to assess byarithmetical calculations.Pecuniary damages may includeexpenses incurred by the claimantin relation to: (i) medical attendance/expense;(ii) loss of earning;(iii) other material loss. So far as nonpecuniarydamages are concerned,they may include (i) damagesfor mental agony and physicalshock, pain and suffering, already32C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMAttacks since September 11, 200811.09.08: In Raikia block, gherao bylocal women for relief.11.09.08: 11 Christian houses inRebengia GP, five houses in Salagudaand four houses in Bidipanka, householditems were set on fire.11.09.08: At about 10.00 pm, oneChristian house of Kalingia village wastorched.12.09.08: Some villages underKurtamgard parish PS Tumudibaattacked.12.09.08: Two houses in Biriguda weretorched.13.09.08: Near Srasananda in villageTellapally, three persons are beaten upin the morning. Sukru Charan Mallickis beaten up. The mob puts poisonousliquid in his eyes with an intention ofblinding him. He is a professional driver.He was later taken to Berhampur andis under medication.13.09.08: Tension builds in Krutamgarharea and at evening a group of about100 people armed with guns and otherweapons attacked Sarapanch anddestroyed a Baptist church. Police triedto intervene. There was an exchange offire in which a policeman is seriouslyinjured and two persons are reporteddead.13.09.08: Five Christian houses ofJhiripani Gram Panchayat, underTumudibandh police station, wereattacked and set on fire.13.09.08: 12 Christian houses of Papasivillage, under Gumamaha GramPanchayat, in Raikia police station wereattacked, ransacked and set on fire ataround 9 pm.13.09.08: The house of Christianwidow Shanti, at Dibari village, underRaikia police station was attacked andset on fire at about 10 pm. It is reportedthat another house was also set on fire.13.09.08: Two Christian houses inKakamaha village, under police stationSG Udayagiri, were ransacked and seton fire.14.09.08: Four Adivasi leaders werearrested and taken to Balliguda (MandiMajhi, Bode Mallick, Goliath Mallick,Rameshwar).One of the three dead bodieswas taken to Dodokongia, Christianpopulated village.14.09.08: Two dead bodies were foundin a pond in Rotongia, under GUdayagiri police station14.09.08: At about 9 pm, 12 Christianhouses of Makabali village wereattacked and set on fire, Makabali is situatedfive kms from the Raikia policestation.14.09.08: One Christian house inDebari village was attacked.14.09.08: At about 10 pm, oneChristian house was attacked and set onfire, Makabali is seven kms from theRaikia police station.14.09.08: An old man died in the reliefcamp, on account of lack of medicationand unhealthy food.14.09.08: One Christian house wasattacked and set on fire just two kmsfrom the Raikia police station.14.09.08: One Christian house of Miniavillage was attacked.15.09.08: Five Christian houses ofSalpajoti were attacked and set on fire.These houses were six kms from Raikiapolice station.15.09.08: Five Christian houses ofDokedi were set on fire and householditems destroyed.15.09.08: A mob of 500-armed mentorched the Gochapada at 4 am. Theattack, in retaliation to the killing offour in CRPF action in Tumudibandhaon Saturday evening to prevent anattack on the Christians, claimed a constable.Other policemen at the stationescaped the fury by fleeing to the nearbyjungle. One constable was shot deadand several vehicles were set afire. Themob blocked roads using logs and bouldersto obstruct the movement ofparamilitary forces.16.09.08: 12 houses and five churcheswere attacked.17.09.08: Catholic church was vandalisedand ransacked at Didrabadi.17.09.08: Baptist church was vandalisedand ransacked and set on fire.17.09.08: Five Christian houses wereattacked in Didrabadi.17.09.08: Christian houses of Lokebadiattacked, the numbers are not known.19.09.08: Catholic Christian teacherscolony in Mundanaju and Mondasoreparish under Raikia police station wasattacked, burnt and looted.19.09.08: 12 Christian houses of theMokobali were attacked and damaged19.09.08: House of Aslam Pradhan ofBudamaha village was attacked.20.09.08: Isharo Digel, aged about 42years, of Malipada village, PO Gutingi,PS Sarangarh, was killed. Digel alongwith his wife Runuma Digel went to hisvillage Malipada to collect some householdarticles. The mob attacked andkilled him in front of his wife.20.09.08: A Christian girl was gangraped in Magadengia village underSarangarh police station. The girl wasstaying in a relief camp and had gone tosee her grandmother whom they left inthe village; extremists took her to thenearby jungle and raped the girl.20.09.08: Hunger strike in Tikabalirelief camp, demanding proper care andsecurity in the relief camp.20.09.08: At Bariguda village IswarDigal of Malikapodi village underGutingia panchayat killed.21.09.08: A 20-year-old girl ofBapalmendi, under Chakapad block hadgone to visit relatives in Gandagaonaround 9 pm, around 12 youth took herforcibly to the nearby forest and gangrapedher.21.09.08: In Balndapada village 15Dalit (Hindu) houses set on fire.21.09.08: Hundreds of womengheraoed police station in Raikiademanding the release of two accusedrioters arrested. There was lathichargeand firing in the air to control the mob.Several injured including a CRPF personnel.22.09.08: Two persons shot, one diedon the way to Berhampur MedicalCollege. Banadev Pradhan of Pajimahavillage, Raikia succumbed to injuries.More than 40 injured, several womenon the injury list.22.09.08: At morning, few housesdestroyed at Bakakamba, GrecingiaPanchayat.22.09.08: About 15 houses destroyed inGudruguda village of Raikia Panchayat.23.09.08: Churches and houses damagedin Sikoketa village, BadabangaPanchayat, Daringabadi.23.09.08: About 15 houses set fire inBeheragaon.24.09.08: Nearly 80 families escapedfrom Lankagada Panchayat toTumudibandh block.24.09.08: About five houses damagedat Sishopanga, Manikeswar Panchayat,Raikia block, two died.24.09.08: Clashes in Manikaeswar25.09.08: In Rajenpanga village,w w w . c o m b a t l a w . o r g 33

COMMunalisMBadabanga Panchayat 25 houses andtwo churches destroyed.25.09.08: In Luicing village 10 housesburnt.28.09.08: About 50 houses destroyedin Didrabadi village under RaikiaBlock28.09.08: A woman's body found onthe bed of Pilasalunki river atPhulbani, she was reported missing onAugust 25 from Sankorakhole and twoother bodies were found at differentplaces.30.09.08: Violence broke out around4.30 am in Rudangia, Godaguda andTelingia villages killing at least twopeople and more than 10 injured. Onecritically injured shifted fromBerhampur Medical college to Cuttackmedical college. More than 250Christian houses of above mentionedvillages set on fire, looted. Twochurches destroyed and vandalised.01.10.08: In Banjamaha village 35houses and a church destroyed about12 pm.01.10.08: Late at night a mob set fire tosome houses in Matakupa village.01.10.08: Lalaji Nayak of Gadagudadied in Rudangia violence atBerhampur Medical College.02.10.08: At midnight hundreds ofrioters attacked Masinagora,Kanaktura, Uma and Phatamunda villagesand burnt 250 houses.02.10.08: Two killed in the late nightattack on Mundigada panchayat,Dushasan Majhi of Deopitha villagesand Sanyashi Majhi of Kandam villageamong dead.02.10.08: In Raiguda village, LuicingPanchyat some houses were burnt atnight.02.10.08: Inspector of Balliguda policestation is suspended and four arrestedin connection with nun's rape case ofAugust 25.03.10.08: Twelve houses burned in theChhapara village.04.10.08: Dead body of KantheswarDigal of Sankorakhole found on ariverbank. He was reported missing onAugust 26.04.10.08: 12 houses in Chappara villagewere destroyed.05.10.08: A mob attacked anddestroyed 22 houses in three villages.07.10.08: One house in Padanigi villagewas burnt.11.10.08: 25 houses set fire by mob.suffered or likely to be suffered infuture; (ii) damages to compensatefor the loss of amenities of life whichmay include a variety of matters i.e.on account of injury the claimantmay not be able to walk, run or sit;(iii) damages for the loss of expectationof life i.e. on account of injurythe normal longevity of the personconcerned is shortened; (iv) inconvenience,hardship, discomfort, disappointment,frustration and mentalstress in life.The report also referred to theemotional trauma faced by thosewho were unable to recover the bodiesof their relatives because they hadbeen burnt or had been destroyed bywild animals. The grief and traumawas compounded by official insensitivityand the fact that without theremains of the body and a postmortem being performed on it, compensationpromised could not begiven to the next of kin. This presenteda particularly severe problemwhen the deceased was also the familybreadwinner. There has been noscheme formulated by the state forrehabilitation like family pension,employment schemes and livelihoodschemes.The role of the mediaPhotograph reproduced with kind permission of Simanchal PatnaikThere are many examples of how themedia in Orissa had served to fuelthe conflict in Kandhamal. The localmedia has been disappointing and, attimes, disgusting in the way it hadreported atrocities committedagainst Christians. The web newspages of 'Odisha Today' continues torefer to the rape of the Catholic nunas an incident arising out of the murderof Swami Laxmanananda therebyimplying that the aggressors werethe murderers of the Swami ratherthan the Hindu perpetrators. UntilDecember it consistently referred tothe 'alleged rape' even though medicalevidence two months earlier confirmedrape. This publication,amongst many others, also castsaspersions on the Catholic priestFather Chellan, an eyewitness to therape who was also badly beaten atthe time of the incident."Why the Father Chellan refusesto help Orissa Police, looking into thecontroversial nun rape case? Whydid Father take a u-turn? Was nun'srape issue adversely haunting theFather? These are few unansweredquestions that have puzzled manyafter the Father refused to help outinvestigating officials." (OdishaToday.com 10.15.08)When asked about mediacoverage of the riots the editor of theOriya language publication, 'TheSamadrusti,' claimed that journalistsoften align themselves with SanghParivar and that media channels suchas Orissa TV have close links withthe government (BJP-BJD).34C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMConfirmed casualties(August 25, 2008 - February 24, 2009)1. Ajuba Kumar Digal 22 M26.08.08 at 3pm Rugudisahi2. Nirupama F3. Prafulla Pradhan M26.08.08 at 2pm Christian sahi4. Rajesh Digal M5. Bansidhar Nayak M6. Lalaji Naik 75 M30.09.08 4 am to 5am Rudangia7. Mathew Naik M26.08.08 at 5pm Gudrikia8. Nathuram Nayak M9. Peskar Mallick M10. Purandara Mallick 65 M14.09.08 at Nilungia11. Ramani Nayak 40 F30.09.08 4 am to 5am Rudangia12. Ramsen Nayak M13. Sasidev Digal M14. Bidhubendra Biswal M15.09.08 at 10pm Gachapada15. Bidhyadhar Digal M16. Rajani Majhi F17. Anthou Digal M18. Bidhyadhar Digal M'19. Gayadhar Digal M26.08.08 at 6pm Salapasahi20. Sadananda Pradhan M21. Kumud Bardhan M22. Bakshis Singh 45 M25.09.08 at 1.30pm Sisapanga23. Banadeo Pradhan 65 M23.09.08 at 11am Raikia PS24. Bastina Mantry F26.08.0825. Bikram Kumar Naik M25.08.08 at 2pmBudedipada Madinaju26. Daniel Mallick M27. Dasarath Pradhan M25.08.08 at 3pmBudedipada Madinaju28. Dibya Sundar Digal M25.08.08 at 10pm Drepanga29. Dinabandhu Pradhan M29.08.08 at 10pm Lamungia30. Gunduri Nayak F31. Jacob Digal M32. Jaka Nayak M33. Janamati Nayak F25.08.0834. Kamalini Nayak F35. Kasipatra Digal M36. Krushna Chandra Pradhan M37. Michael Nayak M38. Nabaghana Nayak M26.08.0839. Parikhita Naik M| 27.08.08 at 6pm Barepanga40. Raghab Digal 55 M25.09.08 at 1.30pm Sisapanga41. Ramesh Chandra Digal 41 M25.08.08 at Evening at Budamaha42. Ramesh Digal M43. Samuel Nayak M25.08.0844. Sibana Pradhan M25.08.08 at Sisapanga45. Smt. Pabhisti Naik 52 F25.08.08 at night Sulesoru46. Sua Nayak M47. Sunaphula Nayak F31.08.0848. Trinath Digal M25.08.08 at 4pmBudedipada Madinaju49. Bisinga Raita M50. Birupakhya Majhi M51. Iswar Digal M52. Abhimanyu Naik 43 M23.08.08 at 11pm barapali53. Akbar Digal M26.08.08 at 12am to 1pm Tatamaha54. Gopan Kumar Nayak M25/26.08.08 NearGandagada church55. Kantheswara Digal 50 M24.09.08 at 12 noonHatapada Sankharakhol56. Madan Naik M25.08.08 at 11am Dakamaha Jungle57. Meganada Digal M25.09.08 at about 6am Sankharakhol58. Phidem Naik M25.08.08 at 11am Dakamaha jungle59. Priyatama Digal F25.09.08 at about 6am Sankharakhol60. Rasananda Pradhan M24.08.08 at 8.30pm Gadragaom61. Sachi Naik M25.08.08 at 11am Dakamaha jungle62. Sidheswar Digal M63. Sidheswara Pradhan 60 M25.08.08 at 11pm Sulesoru64. Balia Mallick M13.09.08 at 4pm Kurtamgarh65. Bisendra Mallick M13.09.08 at 4pm Kurtamgarh66. Dusasan Majhi M02.10.08 at 11pm Sindhipankhal67. Medha Majhi F13.09.08 at 4pm Kurtamgarh68. Sanyashi Majhi M02.10.08 at 11pm Sindhipankhal69. Sarat Deo M70. Gulika Mallick F71. Priyatama Digal F72. Srimati Nayak F73. Sureshon Nayak M74. Sashikant Nayak M75. Tapan Nayak M27.08.08 Podimundi76. Raghab Digal M21.09.0878. CRPF Jawan M27.08.08 Raikia79. Rajesh Digal M27.08.08 Raikia80. Kontaswar Digal M24.09.08 Chalapad81. Iswar Digal F26.09.08 G.Udi82. Kaliya Pradhan M26.09.08 G.U83. Bispati Digal M26.09.08 Tikabadi84. Manoranjan Digal M28.10.08 Tikabadi85. Lam Deb Digal M03.02.09 Tikabadi86. Santarai Digal M25.08.08 Tikabadi(The facts and figures mentioned abovehave been gathered by the volunteersorally from the areas affected and areapproximates.)w w w . c o m b a t l a w . o r g 35

COMMunalisM"In the case of the rape of aCatholic nun the way it was reportedimplied that she had made it up. Themedia indulged in character assassinationsuggesting some improprietywith men including with the priestwho was also badly beaten. Theyattributed these claims to "statementsof a senior government official"although this senior government officialwas never named."He says, "They report the fact thathouses have been burnt but it is theway that it is reported that is moreimportant. They use phrases such as"land-grabbing of Dalits", "Christiansconverting Dalits", as though theChristians brought these troubles onthemselves. Reports have glorifiedSwami Laxmanananda Saraswatiand failed to mention any of his negativeactivities."National news coverage of thecommunal violence in Orissa hasbeen balanced, but it is the local andOriya language press that influencedlocal opinion. Journalists and publicationsthat report the conflict fromthe perspective of the victims do so atpersonal and professional risks.Journalists and activists have beentargeted in recent times, the editorwas personally threatened after publishingan editorial questioning thealleged December 2007 attack onSwami Laxmanananda. It is almostimpossible to get such publicationson to newsstands in Orissa as thoseretail outlets will be vandalised andthe vendors victimised.The role of the media and thesway it holds over public opinion hasa direct impact on the justice system.When the nun rape case was to beheard, large groups of protestersgathered outside the court intimidatingcomplainants and witnesses. Onthe ground many ordinary Orissansbelieve that Christians have forcedconversions on Hindus by virtuallyholding their children hostage inhostels. There is a popular conceptionof the Church being used as atool by the West which aims todestroy Hindu culture, made richby foreign donation and with politicalinfluence in India disproportionateto its representation in thepopulation.One human rights activist in thearea stated that if these misconceptionsare to be addressed, the pressincluding Christian publicationsmust report the facts and move awayfrom the language of sectarianism.Rehabilitation cannot take placewhilst communities constantly areencouraged to fear and loath theneighbouring community.Fight or flightGiven these circumstances it isnot surprising that observers andactivists are predicting further problemsin the affected areas. One of thefears expressed is that the communitieswill start to take the law in totheir own hands and retaliate. A risein support for Naxalite activity iswidely predicted.According to Dhirendra Panda,founder of Citizen's Committee onCommunal Harmony and editor ofthe website 'Common Concern',believes that people will either takeup arms to protect themselves orthey will join forces with Naxalites.Church leaders have historicallybeen with the government and anti-Naxalite, but even amongstChristians support for Naxalism inthe area is increasing as the peopleare increasingly becoming distrustfulof government's willingness or abilityto protect them.In tribal areas the RSS is theenemy of the Maoists and historicallyAdivasis were neutral with bothChristians and Hindus trying to convertthem. In the recent conflict, tribalswho were secular or whoopposed violence were themselvestargeted. One example wasSidashwar Pradhan who was a tribaland an RSS member. He objected tothe attacks on his Christian neighboursand for that he was killed.Reports of a new guerrilla movement,the M2 becoming active in thearea, spell further trouble. Thisgroup allegedly has the support ofthe RSS and the Kui Samag, a tribalorganisation. There is a fear that aconflict similar to the Maoists and theSalwa Judum in Chhattisgarh couldbe repeated in Orissa leaving peopleliving in the villages as hostages tothe two opposing sides.On December 30, 2008 the website'Indo-Asian News Service'reported that Hindu members havesplit from the Communist Party ofIndia-Maoist (CPI-Maoist) as a consequenceof the killing of SwamiLaxmanananda. They have formed anew splinter group calling themselves"IDGA-Maoist". The breakawayIDGA has denounced thePeople's Liberation Guerrilla Army(PLGA), the military wing of the CPI-Maoist, and Sabyasachi Panda as itsleader. The Orissa government hasalready started to gear the state upfor attacks from Maoists sincereports last year surfaced that the36C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMThink of the womenThe predominantly tribal and dalitvillages in Orissa serve as a casestudy for many of the poorer states inIndia with the representation of womenand girls in politics, health, and education.Orissa is one of the worst places inIndia to be born female.However, Orissa was amongst thefirst states to implement a one-thirdreserved quota for women under thePanchyati Raj Act during the 2004 elections.Ironically, only five women candidateswere fielded out of a total of 46.That is less than 10 percent. Primaryreason for this poor implementation isthat the state government inserted clausesthat made it virtually impossible forrural women to contest.A mandatory requirement forwomen representatives was to haveknowledge of written and oral Oriya. InKandhamal, for example, the local languageis Kui and many women in thedistrict know no other language. Evenamongst Oriya speakers nearly 50 percentof women are illiterate, and in somedistricts female literacy rates are as lowas 25 percent. This makes a mockery ofdemocracy let alone reservation and isespecially cynical for a state where educationfor women is at abysmal levels.A punitive 'two child norm' furtherreduces representation amongst poorwomen. Parents with three or more childrenare debarred from contesting asthey are considered bad role models.While this policy does affect men, thelimitation on women is much greaterbecause in communities where givingbirth to a boy child is of such importance,most women have no say in thenumber of children born to them. Thishas led to very few takers of the 33 percentreservation in the Panchayat hencevacant scheduled caste/scheduledtribe (SC/ST) seats have been declaredas unreserved ones followed byre-election.This is no real surprise in a statewhere a woman's place is decidedly atthe bottom of the heap in every aspect oflife and death. A poor woman's value isassessed in terms of her capacity to producesons, but even the revered status ofmotherhood is no guarantee of a securelife for women in Orissa. The maternalmortality in the state, already one of thehighest in India, has steadily increasedin past three years.In Sonepur district between 2005-08, 279 maternal mortality cases werereported in 2006 and 283 in 2007.Significantly, of the total number ofdeaths, 47.8 percent were women below18 years of age, indicating the prevalenceof unlawful child marriages. Ofthe total loss of lives of women in thedistrict, maternal mortality accounts fornearly seven percent.Orissa also has a dubious distinctionof being just at the top in sexual violence.According to the latest NationalCrime Records Bureau (NCRB) report,Orissa ranks at 11 on the list of states forcrimes against women. It also accountsfor four percent of incidents recordednationally. Every 24 hours three cases ofrapes are reported.A quarter of all cases, nationally,under the Dowry Prohibition Act occurin Orissa. In 2007, 71 women succumbedto dowry abuse or harassment,20 after cancellation of marriage - probablyalso related to dowry issues.Suicides by women have risen by sixpercent and these all indicate women'sstatus in society. Some 14 women tooktheir own lives for failing to conceive,28 following divorce (the number ofdivorce related suicides amongst men iszero), 15 owing to illegal pregnancies.In case of illegal pregnancies, Orissa hasthe distinction of being ranked two inthe country.One of the most saddening statisticsis that 11 women committed suicide toescape from terminal diseases like cancer.Cancer treatment is costly and ismore likely to be afforded for men,which probably explains why there wereno such reported cases of suicideamongst men.In the run up to the 2009 elections ithas been announced that the ruling BJD-BJP alliance has finally fallen apart.People in Kandhamal are keen to seewhat difference this makes to the politicalstability in the state. The BJP is at thecentre of the issue of secularism and asthe other non-secularist parties are set toform a new alliance with the BJD, itwould keep the right wing party at bay.This could herald a more peaceful futurefor religious minorities in Orissa. Wehave yet to see what difference this willmake to the lives of women in the state.Reference● Suhas Palshikar, Sanjay Kumar -Participation - September 2004● Broad Issues Affecting Women'sLeadership in Orissa, India. The HungerProject 2008● Maternal mortality on the rise in SonepurExpress News Service First Published :March 7, 2009● Report 'Suicides in India' National CrimeRecords Bureau for 2006w w w . c o m b a t l a w . o r g 37

COMMunalisMmovement had relocated its operationalbases from Chhattisgarh toOrissa. Sixteen of Orissa's 30 districtsare considered Maoist- dominated.This new development will put furtherstrain on security forces but alsosignificantly increase the vulnerabilityof ordinary villagers living in conflictzones.It appears that the responsibilityof restoring peace to Kandhamal hasfallen to the victims themselves whomust again forfeit their dignity, rightto justice and freedom of religion inorder to live without the threat ofpersecution. The government cannotprovide protection, the police haverepeatedly failed to take action oncomplaints while religious and publicopinion is polarised.Meanwhile, up to 40,000 peopleare still denied the basic right to livein peace and dignity, observing thereligion of their choice, earning theirlivelihoods and educating their children.Peace is still a long way off forthe victims of Kandhamal.2008: year of persecutionDecember 2007According to government estimates,more than 900 homes were demolishedor burnt and over 100 churches,presbyteries, convents, healthcentres and other church propertieswere attacked and destroyed asheavily armed mobs of 2-3,000 raidedvillages across Kandhamal. Thisresulted in at least nine deaths andrendered thousands of Christianshomeless and forced to take refuge inthe forests. (Appendix 1)Following the December riotsthere were more than 150 cases filedin Kandhamal district courts andabout 274 representations madebefore the Justice Basudev PanigrahiCommission of Inquiry appointed bythe Orissa state government inresponse to the violence. Out of the150 cases filed more than 100 werecomplaint cases filed in the courts ofPhulbani, Balliguda and Daringbadias the local police stations refused tolodge FIRs when the victimsapproached them. Despite names ofaccused people being given to thecourts and the police, the state failedto question, arrest and take action orto provide protection to the complainantsand victims.There is good reason to believethat if the state had taken appropriatesteps to prosecute the accusedpersons in the above mentionedcases when they were filed it wouldhave helped in maintaining law andorder in Kandhamal and even preventedthe violence that was to followin the summer of 2008. (Fordetailed account of incidents seeAppendix 1)August - December 2008On August 23, 2008 approximately30 armed intruders entered theJalespta Ashram, Kandhamal andshot dead Swami LaxmananandaSaraswati and four of his aides.Maoists claimed to have carried outthe assassination to punish theHindutva leader for his activities inthe region but Christians wereblamed and targeted in reprisal. InFebruary 2009, the police filed achargesheet in connection with themurder. The police have namedseven people all said to be activesympathisers of the left-wingextremists.In Kandhamal district alone morethan 906 houses of Christian peoplewere destroyed and burnt, churcheswere burnt and demolished, womenand girls gang-raped, at least 74 civiliankilled, some estimates put the figureat more than 100, two police personnelwere killed and two policestations were gheraoed and attacked.The violence spread to many otherareas in Orissa and to neighbouringstates.Despite the sworn affidavit ofthe chief secretary of Orissa onSeptember 11, 2008, and assurancesmade that all possible steps werebeing taken, such as deployment ofCentral Reserve Police Force (CRPF),Rapid Action Force (RAF) and OrissaState Armed Police (OSAP) inKandhamal and other districts, formaintenance of law and order. Butthe violence in Kandhamal andneighbouring districts of Orissa continuedunabated for many weeks.(For detailed account of incidents seeAppendix 2)The rape of a catholic nunSister Meena Lalita Barwa who wasworking in the Divyajyoti PastoralCentre at K Nuagaon was gangrapedby the rioting mob on August 25,2008. After raping her, the mobparaded her semi-naked on the roadfor half-a-kilometre beating her withsticks and hands throughout. Onreaching the market place of the village,Sister Meena saw 12 OrissaState Armed Police (OSAP) personneland pleaded for protection. Butthey refused to protect her even asshe was dragged in between them.She was taken by the mob and paradedthrough the village. She was finallytaken to the police outpost at KNuagaon village, whilst one of herattackers remained at the police out-38C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMpost until late in the evening, chattingsociably to the police.The ordeal of Sister Meena wasnot unique, but it was one event inthe entire August turmoil that caughtthe attention of the world media.Sister Meena was not the onlywoman to have been raped. Thereare several other reports of sexualassault and molestation and it is likelythat many other such cases havegone unreported due to the shameattached.In conflicts all over the world it isreported and documented that sexualviolence is used against women asa means of terrorising communities.Once termed 'a fate worse thandeath' the future of a raped woman isone of isolation and stigma evenamongst her own community andsympathisers. The physical, psychologicaland emotional injury to thewomen is compounded by the socialconsequences. The status of a womanin traditional patriarchal societiesmeans that violating her also insultsand degrades the men with whomFaced with the possibility of a newround of killings of Christiansand the destruction of houses andchurches in Kandhamal district ofOrissa, Archbishop RaphaelCheenath filed Writ Petition (Civil)404 of 2008 in the Supreme Court afew days before VHP leader PraveenTogadia and others were to take outa Kalash Yatra, which was scheduledto go through the Christian areaswith a view to attacking the dalitpopulation and burning their houses.The Orissa government gave permissionfor this Yatra even though itknew what terrible consequenceswere to follow.On September 3, 2008, theSupreme Court issued notice anddirected the Chief Secretary ofOrissa “to file its response by way ofan affidavit by tomorrow morning(September 4, 2008) as to what stepsare being taken to protect the lifeand property of the affected peoplein the state and also regarding theproposed Yatra on ensuing Friday(September 5, 2008).”On September 4, 2008, theshe is associated with. The rape of anun, for whom an oath of virginitysignifies total dedication to god, hasa further dimension as a symbolic actof desecration against the entireCatholic church.No dignity in the relief campsIn a counter affidavit filed by theOrissa government on September 10,2008, it is stated: "As on 8.09.2008relief camps in eight affected blocksof Kandhamal district have beenopened to provide relief and succour.Free kitchens, polythene sheets, blankets,clothes, tarpaulins, mosquitonets, buckets, baby food etc are providedto the victims. Safe drinkingwater is provided in needy areas, lifesaving medicines are being providedto the affected families. Nine mobilehealth units and ambulance serviceshave been provided in the affectedareas. Additional security arrangementswere made in the relief campsto ensure that no miscreants can visitthe camp or create any problem." 5However, the conditions foundby a visiting NGO, a report from theNational Commission for Minoritiesand the testimonies of residents tell adifferent story.In the words of Pradeep Nayak, asocial worker, "I watched helplesslyas people were being killed in frontof me. I escaped to the jungle andeventually reached the camp atRaikia. Camps are set up across thedistricts providing temporary refugeto the victims. As of yesterdayapproximately 4,000 people were livingin the Raikia camp. People in thecamp lack adequate food, shelter andclothing. This poses a serious healthrisk".On the face of it the relief campsappeared clean but a closer lookrevealed a very different situation.The women and children were in aparticularly poor shape. There wereseveral pregnant women in thecamps who were in need of specialisedtreatment and nutrition.Some of them had been sent to thelocal hospital but there too they wereSC to the rescue of Dalit Christians of KandhamalSupreme Court passed an orderinjuncting the Yatra in the followingterms: “as regards the proposedYatra to be organised by the sectionof the people, it is submitted allpossible steps would be taken toprevent any Yatra being held andpolice and other paramilitaryforces to take possible steps to preventany untoward incident fromtaking place. Section 144 hasalready been imposed in the state inall the districts where tensionprevails.”The Court further ordered: “wehope the state police along withCRPF and other paramilitary forceswould ensure the law and order situationand people’s life and propertywill be protected to best of theirability. The state government wouldalso take urgent steps to seethat those who are in the reliefcamps are protected and no miscreantsshall be allowed to visit thecamps to create any problem.” Asurgent central forces were needed,the petitioner requested the Court todirect the Central government tosend forces immediately and thecourt recorded the assurancemade by the learned AdditionalSolicitor General, Sri GopalSubramanyam who acted immediatelywith utmost concern and submittedto the Court “that urgentsteps would be taken to deploy therequired force”.On October 22, 2008, theSupreme Court made a furtherorder: “the existing battalions/policeforce sent by the Central governmentwould continue till the end ofDecember 2008.”On January 5, 2009, faced withthe possible pullout of central forces,the Supreme Court made the followingorder: “we make it clear that thestate government may have discussionswith the Home Secretary of theHome Ministry and take an appropriatedecision having regard to thelaw and order situation prevailing inthe state for protection of minoritiesin the state.” As a result, the centralforces continue in Kandhamal to thisday and the fragile situation isunder control.w w w . c o m b a t l a w . o r g 39

COMMunalisMtreated shabbily. At the time of thevisit in K Nuagaon alone there were20 pregnant women. In pregnancywomen are usually entitled to foodsupplements, anti-natal checks andpost-natal care but to access this theymust have a card issued under theNational Rural Health Initiative(NRHI). These cards were not issuedto most of the women. Therefore:● No regular check-ups were given● There was no special considerationfor nutritional needs. Women wereprovided with only rice and dal andnot fruit, vegetables or milk.● Most had not been issued withNRHI cards or a delivery report card.● In emergency cases pregnantwomen were sent to nearby primaryhealth centre where they were givencheck-ups but not provided with freemedicines.● Anti-natal counselling is not providedto any of these mothers.No female doctor was assigned tovisit the camps. In the Raikia reliefcamps two adult deaths were reported.In other camps similarly deathsof adults and children were reported.The Raikia camps had open toilets,which appeared to be in a filthy conditionand there were about 12–20people in each tent.The level of sanitation wasappalling. In the four camps visitedmore than 3,500 people were usingfive to ten latrines. In each case theywere poorly maintained and hadbeen overflowing for at least amonth. Latrines were closed at nightand in at least one camp the latrineswere not open after 9.30 pm. The residentswere therefore left with achoice of either using fields outsidethe camp, where they were vulnerableto attack, or to fouling the campsiteitself. There were no bathingfacilities in any of the campuses.Residents bathed in streams or reservoirsnearly two km away. Women inparticular were forced to walk morein order to bathe in privacy.Camp residents were given justone set of clothes each i.e. one sari,petticoat and a blouse, one dhoti andshirt for men, a pair of pants and ashirt for boys and a frock for girls.Each family was provided with threeblankets, two buckets, two bars ofsoap and 100 grams of coconut oil.Six to eight families were accommodatedin one tent.The number of mats providedwas not sufficient to cover the floorspace in the tent with no power andone lamp with 20 milligrams ofkerosene for two days. Though onemosquito net was to be provided toeach family several families had onlyone between them.In G-Udiyagiri camp four childrendied due to diarrhoea. One succumbedto brain malaria. In KNuagoan two more children diedfrom diarrhoea. Two people died inRakia camp and two more inCatherine School camp. There wereoutbreaks of measles, chicken pox,malaria and flu in K Nuagoan andseveral cases of thyroid conditions.There was a case of severe anaemia ina pregnant woman and other cases ofliver cirrhosis and vomiting.Balligura Hospital, which servedthe camps, did not have essentialfacilities and there was no provisionfor free hospital treatment. Only inCatherine school was it reported thatthere were regular visits from a doctorand adequate medical supplies.In K Nuagoan it is claimed that therewas no doctor and none of the campsprovided a female doctor.One resident of K Nuagoan camphad sustained an injury to his lefthand as a result of a bomb blast in thecamp. He was accompanied to thehospital by the BDO but was chargedRs 1,200 for treatment, the BDO onlypaid Rs 300 and the remaining sumwas paid by borrowing from injurer'srelatives.A few children were given warmsweaters but for most this was notthe case. As winter approached, theconditions were becoming even moresevere. Without sufficient clothing orshelter, the situation for the campresidents became even more desperate.Basic meals of rice and dal wereprovided. There was no fruit or vegetablesin most cases and cerelac andoccasional biscuits were provided tochildren below three years, but nonewere provided with milk.All camp residents were entitledto receive basic relief cards, whichwould enable them to get food,household and medical rations. Insome cases it was reported that therelief cards had not been distributed.In one camp, twenty-five peoplejoined the camp late and as a resultthey were not provided with identitycards. It was left to other residents toshare with these 25 people withwhatever they had.Education provision for the childrenin the camps was totally inadequate.Many had missed school forone whole year and no attempt wasmade by the administration to reenrollthem. In two of the campschildren had been attending minimalclasses while the loss of time spent inschool, damaged class notes andmissed examinations cannot be easilyremedied. The majority of childrenhad not attended school in past fourmonths, some for a whole academicyear. It was reported that other children,who ostracised and intimidatedthem, prevented some of thecamps' children from attending villageschools. Others were too traumatisedby their experiences to concentrateon school. Additionally thecost of schoolbooks, fees and clothingmade re-entry to school impossiblefor some families.endnotes1. According to Article 6 of the ICC Statute,Genocide involves, "any of the followingacts committed with intent to destroy, inwhole or in part, a national, ethnical, racialor religious group, as such:(a) Killing members of the group;(b) Causing serious bodily or mental harm tomembers of the group;(c) Deliberately inflicting on the group conditionsof life calculated to bring about itsphysical destruction in whole or in part;(d) Imposing measures intended to preventbirths within the group;(e) Forcibly transferring children of thegroup to another group."2.National Commission on Minorities 20083. Communalism in Orissa - Indian PeoplesTribunal on Environment and HumanRights 20064. BBC News - Dan Isaacs 11.01.085. Report on the Visit of the ViceChairperson NCM to Orissa 11 to 13September 200840C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMLEGALINTERVENTIONSDecember 28, 2007Justice (Retd) Basudev PanigrahiCommission of InquiryTerms● That the government of Orissaappoints a commission to inquireinto and report in respect of the followingmatters regarding the incidentsof violence in different parts ofKandhamal district:● Analysis of the sequence of eventsand circumstances leading to theincidents● Whether the measures taken, thequantum of force used in anticipating,preventing and handling situationswere adequate, inadequate orin excess of requirement and responsibilityfor such acts of commissionor omission● The role, conduct and responsibilityof the organisations, group of individualsor persons if any, in influencing,precipitating or escalating theincident● Any other matter connected with orincidental thereto as the commissionmay consider appropriateJanuary 6-8, 2008A two-member delegation of theNational Commission for Minoritiesvisited the affected areas. NGOssought permission from the districtmagistrate to carry out reliefworks/operations, which wasdeclinedJanuary 11, 2008The DM/Collector issued OrderNo.115/Emg dated 11.1.2008 to allcollectors on the subject of reliefworks to the affected people ofKandhamal with the direction thatno charitable or religious bodies orNGOs be allowed to carry out anyrelief work and that legal action willbe initiated against those violatingthis directionOrissa High CourtJanuary 28, 2008Writ petition 1257 is filed titledArchbishop Raphael Cheenath ofCuttack – Bhubaneswar vs Union ofIndia & Ors challenging the orderdated 11.1.2008 of the districtmagistrate before the Hon’ble HighCourt of Orissa praying for amodification of the said orderof the DM among other prayerenabling to visit and extend basicassistanceOrderThe petition was disposed holdingthat there is no scope for judicialreview of the situation by the courtand thereby upholding the orderissued by the district magistrateFebruary 14, 2008Vide Order No 405/SRB Baral, additional commissionerrelief, intimated the constructionassistance package for the damagedhouses of victims under categoriesnamely BPL (Fully), APL (Fully) andboth BPL and APL (Partially). Thefinancial assistance for each familywith partially damaged house is Rs20,000 and Rs 50,000 for fully damagedhouses.March 2008Special leave petition (C) No. 7796 of08 is filed by Raphael Cheenath, SVDArchbishop of Cuttack vs Union ofIndia & Ors challenging the orderdated 28.1.2008 in writ petitionNo.1257 of 2008 of the Hon’ble HighCourt of Orissa upholding the orderissued by the district magistrateMarch 18, 2008High Court of Orissa, Cuttack writpetition [C] Number 3028 of 2008All India Christian Council, [OrissaChapter] vs. state of Orissa, principalsecretary to Govt of Orissa, homedepartment, Orissa secretariat,Bhubaneswar, collector/districtmagistrate, Kandhamal, at PO.Phulbani, district Kandhamal, Unionof India, being represented by thesecretary, ministry of home affairs,Government of India, New DelhiPublic interest litigation challengingthe arbitrary and unreasonablerestrictions and ban imposed againstthe charitable and religious institutionsfor carrying out relief operationamongst the victims of communalviolence in Kandhamal district orOrissaOrderThe order-dated 11.1.2008 remainedstayed. However, in the matter ofdistribution of relief materials, thecourt recommended that all partiesinvolved should maintain law andorder.April 7, 2008Special leave petition No. 7796/08Raphael Cheenath, SVD Archbishopof Cuttack vs. Union of India & OrsWP 1257/08w w w . c o m b a t l a w . o r g 41

COMMunalisMIssues notice to the respondentsand grants stay of the operation ofthe Order No.115/Emg. Dated11.1.2008 issued by the DM/Collector and also the order dated28.1.2008 passed by Hon’ble OrissaHigh CourtOrderThe order dated 11.01.2008 passed bythe district magistrate – respondentNo 4 herein – is hereby stayed.Consequently the impugned orderdated 28.01.2008 passed by the highcourt is also stayed, pending disposalof this SLPAugust 27, 2008In the High Court of Orissa, CuttackW.P.(C) No. 12318 of 2008Public interest litigation (PIL)seeking direction to the respondentsto deploy adequate number ofCRPF/other paramilitary forces inthe affected areas in the district ofKandhamalPetitionSufficient protection has not beenafforded to large number of personswho are the victims of riots etc. andcertain institutions run by minoritiescould not be protected. Therefore,the relief sought should be grantedfor the district of KandhamalOrdersThat the respondent authorities shalltake all possible measures to protectinnocent citizens from any kind ofatrocities and will protect their propertiesand institutions from any kindof destruction.The state is willing to protect themand willing to take measures to preventany atrocities on any resident ofthat area.That in case more paramilitary forcesare required, assessing the existingcircumstances the state will deploy itaccordinglyIn case any person claim any kind ofrelief for rehabilitation or seeks protectionfrom any kind of harassmentbefore the district collector,Kandhamal, he is to take all possiblemeasures immediately to redress thegrievances of such a person in accordancewith lawDecember 5, 2008CRL MC No.2777/08 Writ petitionTitle: Sr. Meena Lalita Barwa vs. stateof OrissaOrderNo merit in refusing to allow the testidentification parade of the accusedin the nun rape case being held inKandhamal. However, there are difficultiesin hearing the case in Delhi,therefore, TI to be held outside Delhibut in Orissa preferably CuttackSupreme CourtSeptember 2, 2008PIL Writ Petition (Civil) No 404 of2008Raphael Cheenath, SVD Archbishopof Cuttack vs. Union of India & OrsSeeking urgent deployment ofparamilitary forces, compensation,relief and rehabilitation, etc.September 3, 2008OrderThe first respondent directed to fileits response by way of an affidavit bythe following morning as to stepsbeing taken to protect the life andproperty of the affected people in thestate and also regarding the proposedYatra on the ensuing Friday.The secretary general is directed tosend a copy of this order throughtelegram/fax to the chief secretary,state of Orissa immediatelySeptember 4, 2008OrderUrgent steps to be taken to deploysufficient forces to maintain law andorder in the stateAll possible steps to be taken to preventproposed Yatra (procession ofSwami’s ashes) being held and anyfurther violent incidentThe state government to take urgentsteps to see that those in relief campsare protected and that miscreants areprevented from entering the campsOctober 22, 2008OrderRequest for the case of the rape of SrMeena Lalita Barwa to be transferredto the Central Bureau ofInvestigation (CBI) was rejected ongrounds that arrests have been made.Compensation for victims agreedat a rate of Rs 50,000 for a fully damagedhouse, Rs 25,000 for apartially damaged house, Rs 2 lakheach for public institutions andRs 2 lakh each for families ofthose killedThe state has also submitted thatfast-track courts are established toclear the cases arising out of theseincidents from the first week ofJanuary 2009January 5, 2009OrderThe Court by an order passed on22.10.2008 indicated that sufficientparamilitary forces should bedeployed in the state of Orissa tillDecember 2008. The state submitsthat these forces are still required tomaintain law and order and anyremoval of a group of battalionshould be done in a phased manner.As regards the damaged churchesthe state can have a generous attitudeon the matter and assess the damageof those churches or other religiousinstitutions and render reasonablehelp to rebuild the sameOrissa High CourtNovember 17, 2008Special leave petition (Civil) 3893 of2009Utkal Christian Council vs. state ofOrissa & anrChallenged the appointment ofJustice SC Mohapatra to the commissionof inquiry in to the killing ofSwami Laxmanananda as illegalJanuary 29, 2009Chargesheets filed by police inKandhamal against 10 accused ofraping a catholic nunJanuary 30, 2009Chargesheets filed by police inKandhamal against seven people inrelation to the murder of SwamiLaxmanananda42C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMExcerpts from the Gujarat HCjudgement on Kodnani caseIN THE HIGH COURT OFGUJARAT AT AHMEDABADSTATE OF GUJARAT - ApplicantVersusMAYABEN SURENDRABHAIKODNANIHONOURABLE MR. JUSTICE DHWAGHELADate: 27/03/2009CAV JUDGEMENT1. These petitions are preferred bythe State for cancellation of anticipatorybail granted by the Sessionscourt, Ahmedabad to two respondentsin two riot-related criminalcases in which total 106 persons werekilled, many injured and three personswere missing who are nowdeclared to be dead.5. Concluding and summarising hisarguments, learned counsel Mr.Panchal submitted that during thecourse of investigation, the SIT was,prima facie, fully satisfied about thepresence and role of the respondentsin and during the commission of seriousoffences, their attempts at tamperingwith the evidence and theirnon co-operation with the investigationto the extent that notices undersection 160 of Cr. P.C. could not beserved upon them. …In the factsemerging from the record, it wasclear that the respondents were leadersand had taken a leadership role ininciting the mob which attackedabsolutely innocent persons, accordingto the submission. It was alsosubmitted that the respondents wereby virtue of their position and influence,already kept away from theinvestigating agency of the State andhence the apprehension of theirwielding effective influence on thewitnesses was real and perfectlyplausible. It was also pointed out thatno sooner their alibis were fullyinvestigated and their presence wassatisfactorily established by independentrecord of location of theirmobile phones at the relevant time,they had become unavailable to theSIT and approached the Court foranticipatory bail, rather than evenresponding to the call of the SIT.8. Examining the controversial materialand circumstances appearingagainst the respondents against thebackdrop of above contentions, it isclear and undisputable that in thefirst case registered as C.R. No. 100 of2002 (Naroda Patia), 98 persons werekilled and in the second case, C.R.No. 98 of 2002, 11 persons were killedand many persons were injured inboth the cases. The FIRs appeared tohave been registered on the same daywhile the riots and arson and lootinghad still not ceased. It could also notbe disputed that members of theminority community were fleeingfrom the scenes of the offences andtaking shelter elsewhere or in therelief camps set up for the riot affectedpeople. The statements or complaintsmade by such victims of theriots in such circumstances have tobe read in the context of the prevailingsituation and the state of affairsin which names of prominent personslike the respondents were clearlyalleged to have been omitted fromtheir statements by the investigatingofficer and the complaints aboutsuch investigation had led to filing ofpetitions before the Supreme Courtand ultimately the constitution of SITafter six years. Therefore, absence ofimportant details about the offencesor names of the respondents in theearlier statements or complaintsmade before the investigating agenciesor the lapse of time of six yearscould not by itself make the subsequentstatements of the same witnessescontradictory or unreliable.However, it is not that no witness hasever implicated the respondentsbefore the investigation by SIT. Noless than six witnesses have mentionedthe names of the respondentsin the year 2002 itself. Therefore, theargument that the respondents arebeing implicated for the first time byor through the SIT cannot be acceptedat this stage. In both the cases,there are statements of witnessesindicating that a huge crowd armedwith weapons had gathered at thescene of the offences when therespondents had reached and theyhad incited and instigated the mobw w w . c o m b a t l a w . o r g 43

COMMunalisMDr Mukul Sinha and SH Iyer, who appeared for the applicantinto attacking the area populated byminority community. The respondentswere identified as operatingwith the mob after coming to the spotby particular vehicles and severalvictims had fallen to the bullets of thepolice, while one of the respondentswas present. It is also alleged that therespondents had offered weapons orcans of inflammable liquid and subsequentlyintimidated some of thewitnesses for removal of the name ofone of the respondents presumablyfrom the list of persons being implicatedduring investigation by the SIT.It has been clearly alleged that thenames of the respondents were notbeing recorded by the investigatingofficer while earlier statements wererecorded in the year 2002.9. ... admittedly, record of location ofthe mobile phones of the respondentsindicated that the mobilephone of Dr. Kodnani was switchedoff between 07.73 a.m. to 09.57 a.m.on 28.2.2002. Her presence was notedat the Legislative Assembly inGandhinagar at 08.40 a.m. and thereafterthe first call was received by herat 09.57 a.m. and it was recorded atthe tower several kilometers awayfrom Naroda area. However, evenafter making necessary discount fortravelling time from the LegislativeAssembly to Naroda area and fromNaroda area to the place where thefirst call at 09.57 a.m. was received,she could have been in Naroda areafor around 40 minutes in the morningof 28.02.2002. Similarly, by virtueof the call record, she could be presumedto have been in Naroda areain the afternoon. In the case of secondrespondent, the record of location ofhis mobile phone also indicated hispresence in Naroda area at least from10.11 to 11.18 and 12.25 to 12.37hours. And, no less than 14 witnesseshave alleged that he indulged ininciting the mob, which was armedand shouting provocative slogans tomount violent attack on the membersof minority community.10. ...There are no less than 40 statementsof witnesses which directlyname of the respondents in one orthe other or both the cases. In fact,some of the statements of the witnesses,such as Habib U. Mirza, indicatesome prior-planning and preparationfor carrying out the riots evenas police force was approached bythe victims for help and it was presentat the scenes of the offences.13. Considering all the contentionsand averments made on both sides as... the allegationsof inciting orencouraging the mobsinto wanton display ofhatred, destruction ofproperties and killingof innocent men,women and childrenproduce a chillingpicture of communalviolence on anunprecedentedscalealso the material appearing againstthe respondents, it is clear and not inserious dispute that the respondentswere, at the relevant time, prominentleaders of VHP which had called thebandh, or of the party in power andthey were present at the scenes ofoffences for some time. It is also inevidence that violent mobs had gatheredwith weapons and the atmospherewas surcharged with angerand hatred following burning of arailway coach along with passengersat Godhra on the previous day; and54 burnt bodies being brought toAhmedabad on 28.2.2002. The attitudeand activities of the respondentsin that milieu is not evenclaimed to be towards quelling orcontrolling the mobs nor is it believablethat they visited the scenes ofoffences for any personal or privatepurpose. In such circumstances,prima facie, the allegations of incitingor encouraging the mobs intowanton display of hatred, destructionof properties and killing of innocentmen, women and children producea chilling picture of communalviolence on an unprecedented scale,leaving on the psyche of ordinary citizensscars which might take decadesto fade. Therefore, the offences whichare alleged to have been committedby faceless mobs of thousands of personsled by few have to be treated asvery heinous and having far reachingimplications.14. ...As observed by the SupremeCourt in its order dated 26.3.2008(supra): " ...communal harmony isthe hallmark of democracy... If in thename of religion people are killed,that is absolutely a slur and blot onthe society governed by the rule oflaw... Religious fanatics really do notbelong to any religion. They are nobetter than terrorists who kill innocentpeople for no rhyme or reason..."15. Therefore, in the facts and for thereasons discussed hereinabove, thepetitions are allowed and impugnedjudgment and orders dated05.02.2009 in Criminal Misc.Applications No. 277, 278 and 279 of2009 are set aside.Sd/-(DH Waghela, J)44C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMdangerous sanctuaries"These are concentrationcamps, not refugee camps. Wecan neither leave them, norlive in them as human beings."—An inmate of a camp run by theOrissa government in Kandhamaldistrict for the victims of theanti-Christian violence inAugust-October 2008.It was almost a year ago. On March19, 2008, in the village-town ofBarakhama in Kandhamal districtthe death of an old Catholic womanin a local refugee camp for want ofadequate medicare, and prohibitoryorders banning outsiders from meetingthe Christian refugees because ofa buffalo sacrifice festival in thegrounds close by, marked a tense andtroubled Holy Week in Orissa.Despite the assembly elections inthe state with more than 3,000Central Reserve Police Force in placeand state apparatus with a suddenlyawakened conscience – after ChiefMinister Naveen Patnaik severed hisruling Biju Janata Dal's (BJD) politicalumbilicus with long term partnersBharatiya Janata Party (BJP) –the situation remains equally tense.More than 3,000 Christians are stillresiding in government-run refugeecamps, possibly as many as 30,000are internally displaced, perhapsover one-fifth of the originally 50,000displaced having left the state forjobs and security in New Delhi,Kerala, Mumbai, even Chennai andAndhra Pradesh.Inciting the genocideViolence broke out in Orissa onDecember 24, 2007 and the tensioncontinued till Kandhamal explodedonce again on August 24, 2008, a dayafter the body of the Vishwa HinduParishad (VHP) vice presidentLaxmanananda Saraswati wasparaded through 200 kilometres inthe large and forested district. But toget back to the Barakhama's refugeecamp a year ago, visiting Christianpriests, nuns, and I despite my credentialsas a member of the nationalintegration council of the Indian government,which has the prime ministeras its chair, who had come to meetthe bereaved family were unceremo-A refugee camp is aterrible place and indeedrobs its inmates of theirinnate dignity. It alsostresses family structures,meaning a loss of privacywith the implied direct andindirect gender violence.Exposing the holes in thestate machinery, John Dayalnarrates his experiencethrough the filthycommunity toilets andovercrowded tents in therefugee camps inKandhamal districtw w w . c o m b a t l a w . o r g 45

COMMunalisMniously ejected by the assistanttehsildar, a special magistrate, onorders of the sub-collector. He saidthere was tension in the village andhe had strict orders not to allow anyoneinside the camp. The posse of theCentral Reserve Police Force haderected a barricade on the road to thecamp. There was, however, no banon the movements of others – thehostile gangs in the village.The old woman, Borili Digal, hadsuddenly fallen ill with fever twodays ago, her son Pero Digal told meand the Supreme Court advocate,Sister Mary Scaria who came to thecamp. The family took the woman tothe local government hospital whereshe was prescribed some medicines."We could not purchase themedicines," Pero Digal said. Hismother died early next morning. Shewas buried in a hastily made coffinby the youth in the refugee camp,and then buried in the Christian hillsidecemetery about half a kilometrebehind the camp. The camp was, andtill recently was still located in a governmentschool. Borili Digal'shusband Doya Digal had died tenyears ago.The Barakhama camp then had345 Christian families whose houseswere burnt on the Christmas Day in2007 by a mob allegedly led by theVishwa Hindu Parishad activistsunder orders of LaxmananandaSaraswati, listed in police records forfomenting anti-Christian violenceeven before the Christmas last year,and who had famously asked his followers"No use burning tyres. Tellme how many Christian houses youhave burnt." Seven churches werealso destroyed in the violence inBarakhama, part of the total of morethan 100 Christian churches torchedby marauding mobs betweenDecember 24-27, 2008.Tents of sorrowI had been visiting this camp sinceJanuary 2, 2008 and had seen the livingconditions far from worse – threefamilies to a single tent, one sarigiven to a family even if it had threegrown up women in it, mother andtwo daughters.The full meaning of what it meantto live in a refugee camp would sinkin later as the women recounted theirtales and I and Father Nicky Barla,who is also an advocate, tasted thefood. It stank of grit and large-scalecorruption. The real plight of womenwas unfolded as I visited the campwith women activists. What the maleeye had missed, the women activistsdiscerned at a glance. Sanitation andpersonal hygiene. The governmenthad no provision for privacy in thedaily toilet routine, and had not eventhought of a woman's personal needsfor hygiene.It would take a former secretaryto the prime minister to put theplight in words, as I recount later inthis article. But both Sister MaryScaria and Teesta Setalvad, arenowned lawyer-activist, also discoveredabortions, incomplete ones,which could lead to blood poisoning.An absolute dearth of womendoctors and counselors from the governmenthad put the entire femalepopulation in the refugee camps, andoutside it, at risk of death if not fromviolence, then from disease. It hadalso left the women open to sexualabuse and perhaps what in their eyeswas even worse, a loss of dignity. Asthey had to leave the camp to go outin open to defecate and urinate, theywould be chased by aggressivemobs, saying they had no place onland owned by tribals! And when wetook a young girl with an incompleteabortion to the hospital in Balliguda,the government doctors demandedmoney for everything ranging fromanaesthesia to a test for malaria.Digging out more filthA refugee camp is a terrible place,and indeed robs its inmates of theirinnate dignity. It also stresses familystructures. It means a loss of privacywith the implied direct and indirectgender violence. And no one expectsa five star hotel cuisine in a refugeecamp or dream of deluxe apartments.Often community toilets arefilthy. The tarpaulin and plastic canvastents are found to be hot in summerand hyper cold in winter andwinter is severe in places like thehigh plateau of Kandhamal.I have some experience withrefugee camps, run by internationalorganisations including the UnitedNations, by national and state governments,even by the military, duringmy four decades as a diplomaticand political correspondent. Not justthe permanent camps in Palestine inthe 1980s, or those set up in 1971 forthe influx from East Pakistan, butmore recent ones for refugees fromSri Lanka in Tamil Nadu, KashmiriMuslims and Pandit refugees inDelhi and near Jammu, and ofcourse, the major camps set up in1984 for the Sikhs who survived thethree day pogrom following theassassination of then Prime MinisterIndira Gandhi, and the camps inGujarat set up by the governmentand by Muslim bodies for the survivorsof the 2002 genocidal violenceagainst Muslims following theGodhra carnage. I even saw, andrecorded the living conditions in thetemporary colonies in Delhi, whichcould hardly be called camps, set upafter people had been displaced fromtheir homes bulldosed by the governmentunder orders from late SanjayGandhi, the younger son of IndiraGandhi and the extra-Constitutionalcentre of authority under the state ofemergency.But these refugee camps differedfrom those in Kandhamal in severalaspects. There were issues of security,of the government acknowledging itsrole as a caretaker and seeking collaborationand, the state culpabilityfor the health, welfare and quality oflife of the people living in the camps.The authorities, of course, had alsotaken care, by and large, to incorporatealmost all refugees in its safetyand security blanket.46C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

COMMunalisMSecurity is the paramount issue.Most of the camps I have earlier mentionedhad the army and the centralgovernment police forces guardingthem at all times. But what wasimportant then was that the securitywas in force even though the violence,and to an extent the threat ofviolence, had long ceased. In Gujaratand Delhi, for instance, the violencelasted less than a week, but thecamps remained largely secure longafterwards. In fact, outside agenciesand NGOs were able to reach andwork in the camps from day two,so to speak.The situation in the Orissarefugee camps was very different,and indeed the situation inKandhamal was unique in the historyof anti-minority riots in the country.The spat in the meeting of theNational Integration Councilbetween Chief Minister NaveenPatnaik and the then union homeminister, the unlamented ShivrajPatil, made quite clear the absolutedisjunct and helplessness of bothgovernments in tackling the mobs ofthe Sangh Parivar. The Centre senttrainee forces, the state failed todeploy even those. For over a month,the writ of the Constitution andthe rule of law did not run in theentire district of Kandhamal.Certainly refugee camps set up inthose circumstances could expectlittle security.Over 29,000 people rushed to therefugee camps, the major ones set upin G Udaygiri, Raikia, Barakhama,Balliguda, and possibly another20,000 took refuge in the forests asthey were too far and the route to thecamps too dangerous. For weeks thecamps faced constant threats fromarmed gangs, and sometimes fromgangs of women members of theHindutva groups. There were reportedlybomb attacks and threats to poisonthe water wells, which were thesolitary supply for drinking water.Convoys of support material werestopped, and the government, in themost peculiar orders ever, preventedChristian and international charitiesfrom coming to the aid of the displacedpopulation.The conditions in the overcrowdedcamps worsened speedily. Lack ofhygiene made the health of littlebabies precarious. The governmenthas not kept a count of those infantswho may have died. There are graveissues of culpability of the governmentin not providing adequatemedical care.In G Udaygiri and Mandasarcamps, the number of people livingin each tent outnumbered the spaceand rendered their lives miserable inthe extreme and inhuman conditions.The former secretary to the primeminister, Mr Venugopal said in a letterto secretary in Orissa government'srevenue and disastermanagement department, GVVenugopala Sarma: "In one tentwhere I spent an hour at G Udaygirispeaking to the inmates, there were48 persons of whom several werewomen. Its dimensions were about25x15 feet. There was hardly spacefor anyone to move or stretch, whatto speak of privacy for women tochange. Those women live in the fullview of the male inmates, includingtheir own brothers on the one handand strangers on the other. Their sanitaryrequirements at a personallevel, including those of women whohave not attained menopause, havenot been factored in by those whodesigned or are running these camps.If the official argument is that thesewomen would not know how to usesanitary napkins or pads even if supplied,then they should be providedwith whatever they are accustomedto, in consultation with them. Itis deplorable that this has notbeen done."Outside these tents, there are lessthan ten toilets for the thousands livingin the camp with hardly half ofthem in usable condition. I triedwalking towards these toilets butcould not approach them for suchwas the intolerable mess in the areastrewn with human refuse all over.These conditions violate every conceivablehuman right and dignity ofthe people kept in these camps relatingto residence, health, and equalityand therefore to life itself, what totalk of the loss of opportunities toother rights like education of the children?The quality of food in thesecamps and poor supply of drinkingwater and for other needs compoundthe hazards and woes of the inmates.The inmates are borrowing money atusurious rates of interest to meettheir essential daily needs, as verifiedby me personally."State apathyThere is equal responsibility of thegovernment in not carrying outautopsies of those who died in thecamps. It is as if the government didnot want to link these deaths with thepreceding violence. This is now comingto fore with widows denied reliefsaying their husbands did not die inthe carnage, but later on. The governmentkeeps the death figures low,and many a suspect escaped chargesof murder or even attempted murderbecause the death was not registeredas arising out of the violence. "Theseare not refugee camps. These are concentrationcamps. We can neitherleave them, nor live in them ashuman beings," refugees told me.The government has made persistentefforts to reduce the number ofrefugee camps, close down as manyas possible and that too in haste.Though refugees were reluctant toreturn to their homes because the villagersand the Sangh Parivar wantedthem to convert to Hinduism beforethey would be allowed in, the governmentregardless of the threatpushed them out. The result has beena series of small shanty slums outsidemajor villages where the Christianshuddle together.An independent fact-findingteam, comprising prominent socialactivists, has urged the Orissa governmentto keep the relief campsopen till normalcy was restored inw w w . c o m b a t l a w . o r g 47

COMMunalisMthe affected villages. Observing thatthe victims should be able to returnto their homes with dignity, peaceand security, Mr Venugopal toldthe state government "there cannever be any dignity if people practisinga particular religion—hereChristianity—are told that they canreturn to their homes only as Hindus.Such threats are unconstitutionaland the state has a duty to interveneproactively to put a stop to thatand guarantee peaceful residence tothe citizens with a right to theirreligious conviction."The government, of course, doesnot provide any employment to thepeople in the camp, nor does it gaveany sustenance allowance other thanthe food. The result has been that thefirst tranche of the money given forrehabilitation has been consumed foradditional food, clothing andmedicines, things which should havebeen the state's responsibilities. Howwill they ever begin constructing thehouses are a matter left for thefuture? I may remind readers thathouses demolished in December2007 are yet to be fully constructed.Most remain without rooftops asthe government dole was justnot sufficient.What's to be doneExperts feel the camps must continueas long as complete conditions ofpeace, safety and security have notbeen restored in the affected villagesof the Kandhamal district to the satisfactionof the victims. "In addition,a basic requirement for the victims toreturn to their homes is the dignitythat is associated with security andpeace. Dignity comes from assuranceand self assurance that they may leadthe kind of cultural and spiritual lifethey wish to live as guaranteed in theConstitution so long as those practicesare peaceful and do not affectpublic order and the rights of others.These are well-established principlesin the constitutional law and life ofour country. However, in Kandhamalthese conditions do not obtain inlarge tracts as evident by the numbersstill present in the camps andthe prevailing sense of insecuritythere. All these involve the relevantfundamental rights guaranteed tocitizens under Part III of ourAn absolute dearthof women doctorsand counselors fromthe government hadput the entirefemale population inthe refugee camps,and outside it, at riskof death if not fromviolence, then fromdisease. It had alsoleft the women opento sexual abuse andperhaps what intheir eyes was evenworse, a loss ofdignityConstitution as in Articles 19, 21 and25, not to mention the articles thatguarantee the right to equality beforelaw and equal protection of the lawsand the right not to be discriminatedon any account," said a report.The threat of violence and the tensionhas kept the men away fromwork. Work in government projectsis still not open to them. They haveno source of livelihood. Even thoseliving in Christian camps inBhubaneswar and elsewhere are nobetter in this regard, and in that ofthe real victims—the children.The plight of the children wasbrought home to the high level delegationof diplomats of the EuropeanUnion who visited Orissa beforeChristmas 2008. They were bannedfrom going to Kandhamal but couldsee the camps being run outside thedistrict, and some outside the state.The Indian and European factfinding teams have noted that theunion and state governments havenot been able to ensure implementationof the Universal Declaration ofHuman Rights, 1948; theInternational Covenant on Civil andPolitical Rights, 1966; theInternational Covenant on Economic,Social and Cultural Rights, 1966; theDeclaration on the Elimination ofDiscrimination against Women, 1967;the Convention on the Elimination ofAll Forms of Discrimination againstWomen, 1967; the Declaration on theRight to Development, 1986 and theConvention on the Rights of theChild, 1989."We fully realise the administrativedifficulties any government facesin situations of this kind but we alsobelieve that every state governmentin India has the capacity to overcomethese difficulties if the required politicalwill is summoned. Failure to dothis will, in our considered opinion,attracts action by the NationalHuman rights Commission undersome of the provisions of section 12of the Protection of Human RightsAct, 1993," wrote Mr. Venugopal inhis report.The European team's specialinteraction with people in the campsbrought out the serious implicationsfor children and highlighted manychild rights issues. There were 12orphanages in Orissa but seven hadbeen closed down since. I had heardsome of the infants born during orafter the riots had been given namessuch as "Danga" meaning communalviolence reflecting the events surroundingtheir birth. Patently, manychildren have witnessed acts of violence,including attacks leading todeath, and had to flee to the forestoften for several days. Coping withthe trauma and fear, many childrenhave also had to suffer discomfortand lack of food even in the camps.In the relief camps the visitors couldsee that several children were sufferingfrom anaemia, stomach problemsand in some cases malaria.UNICEF confirmed that they areresponding to the relief effort by providingassistance with shelter, waterand sanitation, and education programmefor children in the camps.They are conscious of the displacedfamilies in private camps, includingin the remote and distant areas, andare finding ways to access them.NGOs have told EU their concern forthe future of these children and haveurged the Union to consider this inthe context of international humanrights conventions. The EU was toldfirst hand that in the relief camps thechildren were unable to go to schooland there was little evidence of anytuition in the camps visited. Manywill drop out of school forever, I amsure. An entire generation has beenirreparably affected. ■48C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

aipur saTyagraHaw w w . c o m b a t l a w . o r g 49

aipur saTyagraHaDr Binayak Sen caseGoing to prison for a prisonerActivists campaigningfor release of renownedhumanitarian activistDr Binayak Sen havecome up with a newstrategy to win publicsupport for theircause and force thechhattisgarh governmentto stop its persecution ofthis public health doctor.Satya Sivaramanreports fromRaipur, chhattisgarhDr Binayak Sen ortake us all to prison' was the'Releaseslogan that rent the air as thefirst batch of volunteers of the RaipurSatyagraha Campaign courted arrestin Raipur, the capital of Chhattisgarhon March 16.Coming from different parts ofthe country 44 satyagrahis, led byMagsaysay award-winner and wellknownsocial activist SandeepPandey, film-maker AnandPatwardhan, trade union leader DThankappan, environmental activistGautam Bandhopadhyay and otherswere taken into custody by theChhattisgarh police when theyattempted to march to the high securityprison where Dr Sen has beenincarcerated since May 14, 2007.Organisers of the satyagraha planto launch similar protests involvingupto 50 people courting arrest everyMonday, indefinitely till Dr Sen isreleased from prison. The campaignersare mobilising support both withinIndia and abroad from a widerange of groups and individualsfamiliar with Dr Sen's contribution topublic health work in Chhattisgarhand also privy to the deterioratinghuman rights situation in differentparts of India.Sen, a paediatrician renownedworldwide for his public health workamong the rural poor, is behind barsunder a draconian anti-terrorist legislation,the Chhattisgarh StatePublic Security Act, on trumped upcharges of 'treason, waging war50C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

aipur saTyagraHaA 'clean shaven' Binayak Sen at the Raipur trial courtThe trial ofDr Sen, whichbegan in aRaipur sessionscourt late April2008, has notthrown up evena shred ofevidence tojustify any of thecharges slappedagainst himagainst the state and abetting activitiesof the outlawed CommunistParty of India (Maoist)'.More specifically, state prosecutorsclaim Dr Sen, as part of anunproven conspiracy, passed on a setof letters from Narayan Sanyal, asenior Maoist leader in Raipur jail, toPiyush Guha, a local businessmanwith allegedly close links to the leftwingextremists. The jailed doctorwas alleged to have done this whilevisiting Sanyal in prison both in hiscapacity as a human rights activistand as a medic treating him for variousailments.The trial of Dr Sen, which beganin a Raipur sessions court late April2008, has not thrown up even a shredof evidence to justify any of thecharges slapped against him. By 2008end, out of the 83 witnesses listed fordeposition by the prosecution 16were dropped by the prosecutorsthemselves, six declared 'hostile'while 30 others have deposedwithout corroborating any of theaccusations against Dr Sen.Dr Sen has never denied meetingSanyal, which he did with prior permissionand in the presence of the jailauthorities. To prove there was a'conspiracy' the prosecutors, forexample, have to establish that apartfrom meeting Sanyal in prison, Senalso met Piyush Guha in personsome time or the other in order topass on the letters. So far not a singleprosecution witness has confirmedthis charge and hence no link couldbe established between Dr Sen andthe cases against the other twodefendants, Sanyal and Guha.With the floor falling out of theentire case against Dr Sen, a desperateprosecution, during the course ofthe trial, has even been caught redhanded by defence lawyers trying toplant forged evidence of his 'links'with the Maoists. A number of witnessestoo, under obvious tutelagefrom the police, have been found tryingto 'improve' their original writtenstatements presented in the court.More disturbingly, in theirattempt to keep Dr Sen in prison forw w w . c o m b a t l a w . o r g 51

aipur saTyagraHaJoin the Raipur Satyagraha!Release dr Binayak Sen!Contact: releasebinayak@gmail.comwww.binayaksen.net www.raipursatyagraha.wordpress.com52C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

aipur saTyagraHatime immemorial the court hearings are being draggedon with breaks of up to a month or more at times makingthe trial itself a punishment. Several neutralobservers following the case, including from theCommonwealth and the European Union, haveexpressed concern at the denial of Dr Sen's right to anopen and speedy trial.Given the paucity of evidence in the trial of Dr Senso far, in all fairness, the Raipur court should have dismissedthe case against him altogether by now.Certainly the weakness of the prosecution's standshould entitle at least granting of bail to Dr Sen, a personof international standing and reputation with arecord of impeccable behaviour throughout his distinguishedcareer. In May 2008, in an unprecedentedmove 22 Nobel laureates had even signed a publicstatement calling him a 'professional colleague' anddemanded his release.Normally bail is refused only in cases where thecourts believe the accused can tamper with evidence,prejudice witnesses or run away. However, in Dr Sen'scase none of these apply as evident from the simplefact that at the time of his arrest last year he chose tocome to the Chhattisgarh police voluntarily and madeno attempt to abscond despite apprehensions of hispossible detainment.Instead of taking all this into account, a high courtjudge in Bilaspur, on December 2, 2008, summarilyrejected a bail application filed by Dr Sen, confoundingall known principles of law, fair play and justice.As if that was not enough, a few days later the provin-w w w . c o m b a t l a w . o r g 53

aipur saTyagraHa54C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

aipur saTyagraHaThe real 'crime'for which DrSen is beingpunished for ishis courageouswork exposingthe humanrights violationscarried out bypolice forces inChhattisgarhcial police authorities taking theirpolitical vendetta further filed supplementarycharges against him,adding on another 47 witnesses tothe 83 already listed in the case.Last year, the Bilaspur court hadrejected a similar bail applicationafter which on December 10 theSupreme Court too had refused toadmit a special leave petition to considerbail. The apex court bench initiallyheard the petition and evenasked the Chhattisgarh governmentto file a reply but very mysteriouslydismissed the same petition atits next hearing without anyexplanation.The real 'crime' for which Dr Senis being punished for is his courageouswork exposing the humanrights violations carried out by policeforces in Chhattisgarh. As nationalvice president of the Peoples Unionof Civil Liberties, one of India's oldesthuman rights groups, Dr Sen producedseveral reports criticising theChhattisgarh government's 'SalwaJudum' campaign, which armsvigilante civilian groups to fightthe Maoists.The Salwa Judum campaign,according to many of its critics, is athinly veiled attempt to relocate villagers—inthe name of 'protecting'them from Maoists—in turn plottingthe handover of their land tocorporations eyeing mineral wealthin the state. By focusing nationalattention on the brutalities accompanyingthis campaign Dr Sen obviouslyseems to have stepped onsome powerful and sensitive toessomewhere.Instead of recognising their contributionsthe Indian government, bywrongly branding Dr Sen and manyothers like him as 'terrorists', is makinga complete mockery of not justdemocratic norms and fair governancebut its entire anti-terroriststrategy and operations.The subversion of the Indian judiciaryfor such political mileage constitutesa grave threat to the Indiansociety. The sheer injustice involvedin bending principles of law is boundto fuel deep anger against the Stateand breed cynicism about the credibilityand efficacy of Indian democracyitself. ■w w w . c o m b a t l a w . o r g 55

TaMil naduBrutal attack onlegal fraternityThe boycott of courts by the lawyers acrossTamil Nadu since January 29 this year was notan isolated act. It was essentially meant toexpress solidarity with the victims of the anti-Tamil genocide by the Sri Lankan governmentbut eventually turned into a movement toprotest against the state police machinery whichlathicharged the legal fraternity breaking allcodes of law, writes Dr V Krishna AnanthThe cessation of work in theMadras High Court and thesubordinate courts acrossTamil Nadu since early January 2009has ended on March 23. The boycottof courts by the lawyers beginningJanuary 29 this year was essentiallymeant to express solidarity with thevictims of the anti-Tamil genocide bythe Sri Lankan government anddemanding that the Indian governmentstop aiding the war against theLTTE (with military hardware and56C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil naduMohanakrishnan, one of the two secretaries,Madras High Court Advocates Association- afterbeing beaten by twenty policemenA litigant, Sivaakumar, also beateninside the premisesOffice assistant (man with cap) of 11thassistant city civil court , Chennai, beaten nearthe court of the principal sessions judge whenhe was proceeding back to the court afterdelivering court papersw w w . c o m b a t l a w . o r g 57

TaMil nadutraining the Lankan forces) andthereafter mount a diplomatic offensiveagainst the Lankan governmentto stop the ongoing assault againstthe Tamil Tigers.The fact is that the Sri Lankanarmy had intensified its militaryaction against the LTTE sinceSeptember 2008 and the use of airforce as well as the artillery in thisoffensive was not merely for killingand maiming the LTTE combatants,but also causing the death of a largenumber of Tamil speaking people inthe northern districts of Sri Lanka. Itis anybody's knowledge that theLankan army was shelling the regionwith its artillery day after day andthe air force was aiding the offensiveby resorting to carpet bombing of theterritory under LTTE control. Andone does not need brains of a spacescientist to realise that such militaryaction is bound to kill the civilians aswell in large numbers. It is a differentmatter that those at the helm in ourgovernment and the ministry ofexternal affairs (MEA) were preparedto accept, at face value, theassurances by Sri Lankan PresidentMahinda Rajapaksa that the armytook enough care to target only thearmed combatants of the LTTE andthat the civilians were safe!The agitation by the lawyers,since January 29, 2009, in fact, wasnot an isolated act. The lawyers hadonly joined the wave of protestacross Tamil Nadu. The ruling DMKtoo had made some noise in the earlystage and Chief Minister MKarunanidhi had even called an allpartymeeting sometimes in October2008 where a resolution was passedthat the MPs from Tamil Naduwould quit Parliament if the uniongovernment did not ensure the safetyof the Tamil-speaking people in SriLanka. In due course, however,Karunanidhi began blaming theLTTE for all the woes of the Tamils inthe island nation. The DMK chief,obviously, chose to reserve his postas chief minister than antagonise theCongress party in the cause of theTamil people in Sri Lanka. The DMKgovernment in Tamil Nadu isdependable on the Congress supportin the assembly for survival.Meanwhile, the fall of Kilinochchiand the visuals of celebration by theSri Lankan army — the feeling thatthe LTTE was now being reduced tocommanding only a few hundredsquare kilometers and the obviousinference that the Tamil speakingpeople in the region as well as inColombo were now vulnerable toincessant attacks (as it happened in1983) — naturally led to spontaneousagitation across Tamil Nadu. Andeven while the DMK, the AIADMKand the Congress did not associatewith these, there were such parties asthe MDMK, the PMK and the VCKkeeping the issue alive. Acts of selfimmolationby youth provided thecontext for another round of popularmobilisation. The state governmentsought to kill the movement byannouncing closure of collegesacross the state for an indefinite period.This was when the lawyersjoined the mainstream and set out ona course of court boycott fromJanuary 29.Settling scoresAn extraordinary meeting of theMadras High Court AdvocatesAssociation (MHAA) on February13, 2009, decided to return to thecourts from February 19. And thingsdid appear to be normal in the morningon February 19 except for thepresence of a large posse of policemen,most of them in riot gear,through the corridors of the court.Subramanian Swamy had cometo the court that day, with a group ofhis followers. He had no specificbusiness in the court on February 19.Swamy, however, is a regular sight inthe Madras High Court premises andhe was there on February 17 with anapplication to implead himself in awrit appeal that was posted foradmission that day. The appeal wasagainst a single judge order of theHigh Court (HC) that the Natarajatemple at Chidambaram, under controlof a body of priests hitherto betaken over by the Hindu religiousand charitable endowment of thestate government. Now, the mostimportant fact in this regard is thatthe writ appeal, by a forum of priestswho had lost the case earlier, wasposted for admission that day andanyone with even a fleeting familiaritywith the court procedure willknow that an implead petition hingeson the admission of the main peti-58C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil nadution. Swamy was, however, goingaround claiming that his name waslisted in the case list that day andhence he had some specific businessin the court on February 17, 2009. Bethat as it may.There was an unseemly incidentin the court hall then and Swamy hadan egg on his face. The incident assuch took place before the divisionBench (consisting of Justices PKMishra and K Chandru) and theBench has submitted a report to thechief justice of the Madras HighCourt as well as to the Chief Justiceof India. A decision on whether theyamounted to contempt will nowhave to be taken by a fivememberBench.When Swamy parked himself inthe court on February 19, 2009, it wasconveyed to him by the acting ChiefJustice SJ Mukhopadhyaya andJustice V Dhanapalan that the Benchwas taking up the matter on the basisof the report submitted to them byJustice PK Mishra and Justice KChandru. Swamy, with his limitedknowledge of legal jargon was goingabout describing the report as a divi-Madras High Court MaraudedThe ugly incidents that took placeon the afternoon of the February19, 2009 within the precincts of theChartered High Court (HC) ofMadras have left scores bleedingand thousands embittered. Thereseems to be an attempt to projectadvocates as the chief cause and perpetratorsof the violence that wasunleashed inside the premises. Inthis context, it is felt that a fewimportant issues have been overlookedin the dust and din that hasbeen raised:1. A large posse of regular policemen,swift action group (SAG) riotcontrol police had been gatheredaround the high court premisessince morning – did the police suspectanything, was anything beingplanned?2. The police are on record sayingthat they were prepared – see newsreport by A Selvaraj in the Times ofIndia, Chennai edition, Feb 21, 2009,page2.3. It is alleged that a group of advocatescreated a commotion/uproar/disturbance over the police’s laxityin filing an FIR againstSubramaniam Swamy and that thepolice ‘action’ which ensued was theresult of trying to control this groupof advocates.4. If the police had such a large forcepiled up, could not this group ofadvocates have been containedwithout much difficulty – or are thepolice so inefficient that it is incapableof even this clinical operation?5. Was it necessary to run amokinside the high court to control agroup of advocates, as alleged?6. How then did the police let themselvesinside the high court premiseson the afternoon of February 19,after the boycott had ended? Thisaction is indeed surprising viewedin the context of the extreme‘restraint’ the police had shown itselfto be capable of, a couple of monthsago at the Madras Law College.7. Worse, the police have chargedinside various high court sections(Registry) – For one, the police havetried force their way into, amongothers, the HC judges’ personalassistants (PA) section – this sectionapparently has had a new door putup at the entrance. Terrified courtstaff have locked the door frominside and have had their backs tothe door trying to resist the policemenbanging at the doorfrom gaining entry – eyewitnessesrecount how the door would openinto the section about a feet, andhow the staff from inside wouldpush it back in place, only for thedoor to be banged at again by thepolice. The door would again haveto be pushed back in place – whatdid the PA’s do to merit this?8. The high court library was notspared either – library staff wasattacked.9. Why was it that the police thoughit fit to barge into sections lathichargingand terrorising the poorcourt staff? Even assuming thepolice have a right to charge at allw w w . c o m b a t l a w . o r g 59

TaMil naduadvocates for the commotion createdby a few, surely the court staff is distinguishablefrom the advocates bytheir dress?10. Worried advocates have had topetition the registrar general to bringthe situation into control.11. Others, distressed advocates, hadalso gone to the acting chief justice’schambers requesting that the policeare directed to leave the courtpremises – the ACJ had been in conferencewith a few judges. Top brassof the police were contacted, nonecould be reached!12. The acting chief justice and a fewother judges had then set out to controlthe scene and to take stock of thesituation so as to ensure no furtherharm to men and property.The judges were thentaken to one of the sectionsviz. current sectionto avoid any untowardincident. However thisprecaution failed as oneof the hon’ble judges wasinjured.13. A charge is made thatthe B4 police ptationinside the court premiseswas set ablaze by theadvocates. Footageshown on TV shows thepolice station, withoutany damage to it, surroundedby a couple ofhundred policemenincluding the swift action group/riotcontrol police – how then did advocatesget access to the police station.Who burned the police ptationdown?14. Police have charged indiscriminatelyat all advocates – photosabound of police beating up innocentadvocates huddled into a corner,of thrashing people who werepleading with hands folded…15. There is ample footage of advocates’cars and motor bikes beingsmashed by the policemen. Why? Ifthere was such an emergent need forthe police to charge to contain the‘attacking advocates’ why was itdeemed fit to stop mid way, turntheir fury at the vehicles and proceed?16. And, what of policemen throwingstones on people at courtcorridors?17. The police started beating upwomen advocates and using abusivelanguage without any provocation.This treatment was also meted out toinnocent litigants who were unfortunateenough to be in the campus onthe ill-fated day. Surely a case of“protectors” turning “aggressors”.18. If a large group of advocatesgathered and retaliated by throwingstones, can they be accused of throwingstones without grave and suddenprovocation?19. If a group of advocates were thefirst to resort to throwing stones,why was tear gas shells/water cannonsnot used to contain them? Inany case, what was the need toattack, get inside the offices of theregistry and beat up court staff?20. The police have also gone insidethe chambers of the acting chief justiceand terrorised the acting chiefjustice’s staff.21. Justice AC Arumuga PerumalAdityan was wounded in the police‘action’ with a lathi and had to beprotected by a group of advocateswho got badly injured and had to berushed to the hospital along with thejudge.22. At least two exits from the courthave been locked preventing advocates,court staff and others fromgoing outside – is a reference toJalianwala Bagh inappropriate?23. Not satisfied with all the above,the police have chased advocateseven outside the court premises, inand around NSC Bose Road.A very sad day for the Indian judiciary;a judiciary required to be independentof executive interference.While there may be two opinions onwhether the preceding boycott wasjustified or not, the brutal attack onthe institution had nothing to dowith this. It is a fact that the MadrasHC was ransacked and vandalisedby the police who could not be controlledby even the Chennai citypolice commissioner.In the light of all the above, it issubmitted that advocates have a genuinecause for anguish over this terrorthat has been let loose by thepolice. The extent of damage causedto the person and property of theofficers of the court stand testimonyto the fact that the police ‘action’ wasmuch more than disproportionate tothe disturbances allegedto have been caused by agroup of advocates.We the senior membersof the Madras Barplace on record ourstrongest disapproval ofthe atrocities committedby the police, SAG andcommandos inside theMadras High Courtpremises on February19, 2009 brutally andindiscriminately attackinginnocent lawyers,court staff and generalpublic and damagingpublic property as wellas vehicles parkedinside the campus.We condemn the atrocious act ofthe police in even attacking the constitutionalauthorities – the judges ofthe Madras High Court, as well asthe subordinate judiciary, interferingwith the administration of judicialsystem.We demand the prompt andsevere action to be taken against thepolice officers, who issued directionsto the police to take aggressive actionagainst the lawyers and the policewho unleashed a reign of terrorwithin the high court campus.Be all these as they may, twourgent issues need to be addressed –first, finding out what was the agendabehind this indiscriminate actionand secondly, and more importantly,saving the all important institutionof the high court from the clutches ofthe police.60C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil nadusion bench order in the media. Heeven claimed that in a TV debate onFebruary 19 (CNN-IBN) but retractedsoon after he was asked to vouch thatthere was such an order. However, hehas peddled the same story again.This, by no means, is to hold a briefto the incidents involving Swamy inthe court hall but only in order to setthe records straight. Swamy, whosought to record his presence in thecourt at that stage, was informed ofthe law and the processes by the actingChief Justice. The legal position,in so far as contempt proceedings areconcerned, is that once the courtfinds grounds for taking suo motunotice of contempt, it is then a matterbetween the bench and the contemnor.In other words, Swamy has nolocus standi in this matter. And thelaw, in this regard, was takingits course.The other important point is thatthe lawyers had resumed work onFebruary 19 and things were runningnormal in the high court as well as inthe subordinate courts across TamilNadu. This, however, was only untilabout 3:15 pm that day. By that time,personnel from the Swift ActionGroup (SAG) commanded by officersof the Tamil Nadu police, began lathichargeon the lawyers, court staffand litigant public inside the MadrasHigh Court premises. The policeaction continued for at least fourhours. And almost a month afterthat, it emerges now that the policedid not have the necessary sanctionto do what it did! A full bench of theMadras High Court, on March 18,was convinced that two seniorofficers of the TamilNadu police — AK Vishwanathan(additional commissioner of police,law and order) and MRamasubramani, (joint commissioner,Chennai-North) acted withoutlegal sanction during the four hoursbetween 3:15 pm to 7:15 pm onFebruary 19 when the SAG personnelwent on the rampage inside the HCpremises.The full bench ordered suspensionof these officers and that perhapsbrought the advocates to temporarilysuspend their agitation andresume attending work from March23. Notwithstanding this, the DMKgovernment in the state is yet to executethe court order and Karunanidhihas even gone on record that the twoofficers were at liberty to go anappeal before the Supreme Court.This is where things stood at the timeof writing this report.State-sponsored violenceIt is now on recordthat the police did nothave the permissionor invitation from theappropriateauthorities to enterthe high courtpremises. Similarly,there is no record orevidence of a formalauthority from anexecutive magistratefor the lathicharge.This is in clearviolation of therelevant sectionsin the CrPCComing back to the February 19attack by the police on the judiciary(it is necessary to see things that way)the important point is that the policehad no role whatsoever to play in theincident when Swamy had an egg onhis face. The act was committedinside the court hall and hence a matterto be taken up by the judgesdirectly and not by the police.The police story is that there wasa scuffle between a few lawyers andthe SAG men on that fateful dayinside the police station when agroup of lawyers were being arrested.The charge against them is thatthey obstructed a police officer fromperforming his duty. AssistantCommissioner of Police, KhaderMohideen, had filed a complaint atthe police station in the high courtpremises that he was prevented fromdischarging his duties (protectingSwamy when he visited the court onFebruary 17) by a group of advocates.Section 41(e) of the CrPC doesprovide for an arrest without a warrantwhen a police officer is obstructedfrom performing his duty butthen, the very existence of that sectionis to effect an arrest at the time ofthe offence being committed and notafter a couple of days. In otherwords, there was hardly any basis forthe police to arrest a group of advocatesunder section 41(e) after almost48 hours.These lawyers had gone over tothe police station to register a complaintagainst Swamy under sectionsof the Scheduled Castes andScheduled Tribes (Prevention ofAtrocities) Act, 1989. Swamy, accordingto them, had used casteist expletivesagainst the advocates and thecomplaint was on that basis. The relevantlaw provides for the immediatearrest of the person againstwhom the complaint is made andputs the onus of proving innocent onthe accused. The lawyers cannot beblamed for having known the lawbetter. But this is when the policebegan the lathicharge.It began as a scuffle inside thepolice station at about 3:15 pm. Andwithin minutes, the swift actiongroup personnel (who were presentin the premises since morning) aswell as many senior police officers,wearing helmets and carryingshields and lathis went about blowingthem at anyone and everyone inthe premises and in the corridors ofthe city civil court, the small causescourt and the family court. They didnot discriminate between thelawyers, litigants, the court staff anddamaged windowpanes and doors ofthe building. Another importantw w w . c o m b a t l a w . o r g 61

TaMil naduquestion that arises in this context iswhether the director general ofpolice, Tamil Nadu had sanctionedposting the SAG personnel in thecourt premises that day. This is arequirement under provisions of thepolice manual.LawbreakersIt is now on record that the police didnot have the permission or invitationfrom the appropriate authorities toenter the high court premises.Similarly, there is no record or evidenceof a formal authority from anexecutive magistrate for the lathicharge.This is in clear violation ofthe relevant sections in the CrPC.Section 130 of the code mandates anorder from an executive magistratebefore the police uses force to dispersean assembly. And section 131 ofthe code, even while sanctioningpolice action without such an orderin the event of public security beingmanifestly endangered, mandatesthat the police officer shall communicatewith an executive magistrate atthe earliest practicable moment, evenin the course of such police action;and the code states that the policeofficer "shall thenceforward obey theinstruction of the magistrate, as towhether he shall or shall not continuesuch action."The point is that even if the policecontends that the lathicharge had tobe resorted to without sanction froman executive magistrate on groundsthat "public security" was "manifestlyendangered" by the lawyers, the factthat the use of force continuedunabated for four hours and that theconcerned police officer did not careto communicate with the executivemagistrate (despite all the communicationgadgets in their possession) issomething that establishes the sinisterdesigns. In other words, thepolice officers in-charge of the operationsthat day did not care to followthe code they are supposed to. Andall this happened inside the premisesof the court. The unabated use ofpolice force, was shown on the variousTV channels.As for the police station in thepremises being set on fire, thesequence of events and strength ofthe police force in the premises areimportant facts that have to be factoredin. The lathicharge by the SAGpersonnel started at about 3:15 pmand there was no let up by them atany point of time. They were movingabout the premises and all over thecompound since then and beating upanyone and everyone who was seenaround. Now, it is simply impossiblefor the lawyers, who were by thattime hiding themselves inside theMHAA library and also around thechambers of the judges to havereached the police station, which ison another side of the premises andset fire to it. In any case, the versionthat the police force (over 500 personnelby any conservative estimate)was unable to protect the police stationis too much to be believed.ConclusionThe point is that there is no way onecan hold a brief for the police andtheir action on February 19 as long asone believes in the principle of rule ofthe law. Such police actions are condonablein a dictatorship. India certainlyis not one. The suspension oftwo police officers, in this regard,could only mark a small beginningand a lot more needs to be done if theprinciple of rule of the law is tobe applied.—The writer is an advocatewith Madras High Court62C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil naduFascistattackon theBarIf the attack on the lawyers and the judges in theMadras High Court is understood in its social andhistorical background then it will not be difficult tocomprehend that this most horrendous assault wasnot a one-off incident but as part of a continuum ofpolice violence. Colin Gonsalves argues that onlythe strongest possible action by the judiciary willassuage the feeling of hurt and humiliation that thelawyer community feels todayThe vicious attack by the TamilNadu police on lawyers andjudges in the Madras HighCourt highlights the decline ofdemocracy and the awesome rise inthe power of the police. There havebeen many incidents of a similarnature where men in uniform havebrutally assaulted unarmedprotesters in different parts of thecountry and these strikes have beenextensively covered by the media. Itwas perhaps the greatest mistake forcivil society groups and the judiciaryto have let those incidents pass withoutany action taken against thepolice. But because no policemanwas punished for the documentedexcess, the police force is confidentthat it has a right to attack the civilianpopulation with impunity and thatno court in the country is going totake action against it.w w w . c o m b a t l a w . o r g 63

TaMil naduWe have seen brutal attacks ontrade unions engaged in legitimateand non-violent demonstrations;police opening fire repeatedly onprotesting adivasis refusing to leavetheir lands. We have seen protests ofdisability groups being lathicharged.Women activists have been pulled byhair and dragged across the streetswhile others faced lathis as they liecringing on the ground. How didthis come to pass? How have thepolice become so audacious?BackgroundTo understand the attack on the legalfraternity, one would need to studythe changing scenario in Tamil Naduin context of the emerging large cropof lawyers that has entered the professionas first generation advocates.The earlier generations were substantiallywell positioned andwealthly with family connections sothat the entrant at the Bar had a senseof continuity and financial stability.For many years however, a new populationof lawyers from the poorersections of society and from thedeprived classes have entered thevocation. Having no previous connectionwith the legal profession andcoming from the weaker sections,they experience a great deal of angstand alienation. Many of them startedtheir practice at the level of the policestations and the magistrates’ courts.There has been a growing frictionbetween the police and this lobby ofadvocates for quite sometime nowand the situation has become quitealarming that lawyers often complainof being roughed up by thepolice. These incidents, largely goingunreported, may partly be due to thefact that many of the lawyers are dalitsand they are speaking up for theirclients energetically.Sri LankaIt is also important to understand theconnection between the ongoing conflictin Sri Lanka and the sentimentsof the people of Tamil Nadu, and thesubsequent effect this has had on thelawyers’ movement. Certain sectionshave spread the disinformation thatthe lawyers’ movement is dominatedby pro LTTE elements and a colour isgiven to the movement as if it islinked to the Tamil Tigers in SriLanka. Nothing could be furtherfrom the truth.The attacks on the civilians, particularlyTamil speaking population,by the Sri Lankan army has given riseto anger and resentment in the Tamilpopulation in India. Refugees, politiciansand trade unionists from theIsland country have visited India andhave staged films and providedinformation about the atrocitiesbeing committed on the civilian populationback home, particularlywomen and children. One wouldhave expected the Indian governmentto act. One would have thoughtthat the Tamil Nadu governmentwould protest. But the political64C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil naduimperatives of the alliance betweenthe UPA and the DMK have led to arather unusual situation. The centralgovernment supports the Sri Lankanoperations and the DMK has fallensilent. Despite political space openingup for political agitations on theissue of Sri Lanka, the state remainedgenerally placid. One of the sectionsvigorously protesting this attitudewas the lawyer community. A boycottof some courts was enforced forsometime after which the lawyersreturned to work. But the protestscontinued. These demonstrationsprobably rankled both the centraland the state governments, and providedthe police with an opportunityto settle old scores with the lawyers.Joining the massive rally oflawyers in Chennai called by the variousBar associations, I asked myfriends as to whether there was anytruth in the stand of the police thatthe LTTE supporters were mastermindingthe agitation. All of them(senior advocates and social activists)held the view that LTTE sympathisersamong the advocates would be asmall section incapable of exercisingcontrol. They did, however, have acommon view that Tamil sentimentover the Sri Lanka massacres hadupset the entire legal fraternity andthat this was the reason behind theboycott of the courts. There is also,among many advocates, a sophisticatedunderstanding of the LTTE assimultaneously being the spirit andheart of Tamil resistance in Sri Lankawhile at the same time engaging inunacceptable excess and humanrights violations. Thus to reduce theagitation to a manipulation by asmall but influential section of LTTEsupporters would be a grave misjudgement.Unconditional support by thecentral and state governments to theSri Lankan government and armymay turn out to be a major error ofjudgment. Reasonable voices commentingon the Lanka issue pointtowards the emergence of army ruleon a prolonged basis in the islandand the large-scale violation ofhuman rights that is expected toexacerbate over time. The implicationsare serious not only for theTamil population, but for the entirecivilian population, and the farreaching consequences of the Indiangovernment’s support for the Lankanarmy operations may only unraveland be known in the months andyears to come.Justified strikeThis brings us to the issue of therights of the lawyers (and I dare sayof judges too) to boycott courts andgo on strike. I do wish to make apoint that the traditional formulationto the effect that lawyers and judgeshave no right to go on strike is overbroadand in violation of the fundamentalright of freedom of speechand expression and of the right toform associations. There is however,a substantial kernel of truth in thew w w . c o m b a t l a w . o r g 65

TaMil naduproposition that lawyers generallyought not to strike work since such astrike disrupts the functioning of thecourt and causes much inconvenienceto clients. This ought to be thegeneral rule. It cannot, however, be auniversal rule and there can be situationsso grave that exceptions can becarved out. This exception would bein circumstances where constitutionaland democratic functioning hasbecome difficult to render it justifiablefor lawyers and judges to protestand even boycott work. I do not wishto comment on the boycott of thecourts on account of the situation inSri Lanka because, in any case, thatboycott has been called off. But I amcertain that the strike by lawyersafter the assault on them and judgesby the police was perfectly justifiedin the extreme circumstances thatprevailed. By way of an example itcould be possible to argue that thesupercession of Justice HR Khannaon him writing a dissent in the ADMJabalpur case (the emergency case)was a fit situation for a strike both bylawyers and judges.In this regard it is useful to look atthe situation in Pakistan and the reinstatementof the Chief Justice afterthe lawyers agitation. If the Indianproposition of law were to be applicablein Islamabad, the lawyerswould be restricted to the writing ofprotest letters, wearing black armbandsand perhaps filing petitionsbefore the very judges who hadsworn allegiance to the thenPresident Musharraf! It is preciselybecause the lawyers took to thestreets, boycotted the courts andengaged in “unruly” behaviour riskingtheir lives in the protest to ensurethe balance of political power shiftedin their favour.Therefore the proposition thatlawyers should stay away from politicsand agitations even when humanrights are violated, is too narrow tobe accepted. One has only to read ofthe agitations and role of lawyers inthe national movement and theirresistance during the emergency, tounderstand that a viewpoint whichsays that lawyers should not agitateor only protest “peacefully” is apolitical stand which supports thestate and the status quo.The State Level Joint ActionThe state level joint action committeeof bar associations, onbehalf of the lawyers of Tamil Nadu,does not accept the interim report ofthe Justice BN SrikrishnaCommission. The report is riddledwith factual contradictions andinconsistencies. The incidents in thestate over the Sri Lankan Tamilsissue and the caste dimensions of theChidambaram Temple take over,seem to have clouded the commission'sapproach leading to his condoningthe gross constitutionaltransgression committed by the statepolice into the independence of thejudiciary. No reason is offered by thecommission for not recommendingany action against the police, whoeven according to the commissionwent berserk using excessive force,raining lathi blows, targeting headsof judges, staff, lawyers and litigantsand wantonly breaking court property.Even the police assault on ahon'ble judge of the high court isdismissed as having been invited byan "unduly brave" judge!The commission's remark thatthe entry of the armed police intothe court's premises without the permissionof the chief justice wasmerely 'irregular', instead of severelycastigating such intrusion, makesone recall sadly the now infamous'habeas corpus' judgement when theSupreme Court felt overwhelmed bythe declaration of emergency to suspendthe 'right to life' itself. No'provocation' can provide justificationfor the police to enter and runriot into courts and the report ifaccepted portends dangerous consequencessimilar to that witnessed inour neighbouring nation whencourts were dictated to by a militaryruler. The experiences in such countriesshow that even the gravest ofsituations cannot warrant an assaulton courts and judges, independenceof the judiciary is a basic feature ofour Constitution and the legal communitywill not allow this to be compromisedat any cost.By the same logic, the observationsof the commission that theMadras High Court has adopted a"soft policy" towards the advocatesis most unwarranted, when the highcourt has taken all steps in accordancewith law in taking action onspecific complaints received againstany advocate. The commission consistingof a retired judge of theSupreme Court exceeded its limits incriticising the functioning of the constitutionalauthority, which is inpoor taste.The commission's justification ofthe presence of armed policemen inthe court campus and the use offorce based on the order of thehigh court dated 2/02/2007 inW.P.No.3197 of 2002, makes a mockeryof the court's order which actuallydirected police to ensure protectionof the heritage building and itsprecincts by permanent securitypresence and not its desecration.The ghastliness of the police actionis heightened by the fact that nopublic announcement was madethat there was an unlawful assemblyof lawyers and that they should disperse.The carnage in the high courtwas similar to "Jalianwalabagh" andthe commission does not evenadvert to the absence of the mandatory"warning" by the police.The report relies entirely on thepolice version and video recordingson the specious reasoning that it hadrecording of the time while the evidenceprovided by the lawyers hadno time line. No reference is made tostatements given by judges, staff, litigantsand lawyers, which admittedlythe commission had gathered. Weunderstand that the video providedby the police was doctored.While TV channels all over thestate showed Justice ArumugaPerumal Adityan pleading with thepolice not to assault the lawyers, thecommission refers only to the policeversion.The commission says that the"official" video did not show the66C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil naduProvocationFrom the common story emergingfrom the lawyers’ camp whom Irespect and trust it appears that apolitician with some premeditationand with a considerable group ofsupporters, sought to intervene in aproceeding with which he was notconcerned at all. This was a proceedingwhere a challenge to a state governmentdecision to allow non-Brahmin priests to perform ceremoniesin a temple had been rejectedby the single judge of the high courtand the matter was pending inappeal. It seems that when the advocatesappearing in the case opposedthe intervention application aprovocative remark was made by thepolitician accusing the former ofbeing LTTE funded and his companionmade derogatory remarks thatthe lawyers are beneficiaries of thereservation policy. The rest is history.The story has an air of conspiracy toit, almost as if persons had preplannedthe provocation and theanticipative reaction with a view toget an opening to attack the lawyers.It is certainly an angle that deservesto be investigated by an independentand credible body.Court dramaThe attack that followed has all themakings of a planned and premeditatedassault. The police gathered inlarge numbers at the high court. Itappears that they had gatheredstones and other missiles and werewell armed. They entered the courtpremises, destroyed court property;beat lawyers including women attorneysmercilessly and also assaultedthe high court judges and court staffwith impunity. Thereafter they wentout on to the streets, went into theoffices of the advocates and beatthem black and blue there. Theysmashed cars and other vehicles. Itwas rampage of the kind only seenduring British rule.The lawyers have an interestingtake on the partial burning of thepolice station. They say that therewere hundreds of policemen in andaround the police station and thatthere was no chance at all that advocateswould venture to set the com-Committee of Bar Associationspresence of the commissioner ofpolice till about 05.14 pm on19/02/2009 and that there was lathichargeonly at 5.46 pm. The policehas suppressed from the commissionFIR No.15/2009 registered on19.02.2009 at the B-4 police station,high court premises at about 7.20pm on information provided by CJayakodi, inspector of police (crime)Esplanade police station, which saysthat the police started the lathicharge at 3.30 pm on orders from thedeputy commissioner of police,Flower Bazaar.According to the FIR, the commissionerof police KRadhakrishnan was in the highcourt at 4.30 p.m. There is evidenceto show the commissioner of policewas present at the time JusticeArumugha Perumal Adityan wasassaulted, which according to thepolice themselves is around 4.30p.m. The commission thus committeda grave error in exonerating thecommissioner of police on the mistakenview that he was present onlyafter 5.15pm.The observation of the commissionthat the 'mob of lawyers' set fireto the police station is clearly questionable,since the crowd at that timeis clearly seen consisting of policemenin black and white uniform andcoloured clothes and most lawyershad already taken shelter insidecourt-halls, having suffered severelathi blows. The commission makesno reference to the fact that therewas no announcement by the policethat there was an "unlawful assembly"of lawyers and that they shoulddisperse.The report reads as if the lathichargecommenced only after thefire accident at the police station, butthe whole world saw 'live' on TVchannels that the lathicharge commencedat 3.30 pm and that the fireaccident happened only after nearlytwo hours of lathi-charge.The language used by BNSrikrishna to describe lawyers –"miscreants" "hooligans" "minatorymob" "fat lawyer" does no justice tothe gravity of the incidents and theseriousness of the enquiry. Thelawyers confronted by a large posseof stone throwing armed policecould hardly be expected not toretaliate in self defence.If the commission had evennoticed the video recording playedto him by the lawyers, the "fatlawyer", could be seen peacefullypleading with the police not tothrow stones, pleading with his colleaguesnot to retaliate, waving hiswhite shirt as a peace flag and ultimatelyapproaching the police andarguing with them as only a trueGandhian could, he would not haveremarked about his size alone butwould have been impressed by theweight of his courage.Given the short time at his disposal,the commission could nothave come to any conclusive determinationof the veracity of the evidenceprovided by the police whichwere not even provided to thelawyers. When the commission didnot intend to continue its enquiry, itshould have refrained from makingdefamatory statements againstlawyers gathered solely from thepolice video.Unfortunately, the state governmenthas evaded answering thequestion posed by the SupremeCourt of India and the high court"who authorised the entry of armedpolicemen and who authorised thelathi charge".The reluctance of the state governmentin answering this questionbefore the high court or the SupremeCourt and before the commissionis a clear pointer to the complicityof the state and the fact that theassault on the judicial institutionwas a preplanned and predeterminedone.The Tamil Nadu lawyers willcontinue to struggle to restore ruleof law and to oppose the police raj inthe state.w w w . c o m b a t l a w . o r g 67

TaMil naduplex on fire. They also allege that thepolice brought certain personsdressed in white shirts and blackpants to set fire to the front part ofthe police station. Having studiedclosely many cases of assaults bypolicemen of civilians I believe theadvocates point of view. It was justthe other day in Kathikhund Block inJharkhand where police opened fireon a peaceful Jail Bharo Aandolan ofadivasis, that I was told by the adivasisthat the policemen brought an oldbus to the village and set it on fire tojustify the use of fire arms againstpeaceful protesters. This appears tobe a common and very effectivepolice tactic.A professional police force istaught two principles in riot control.The first is the use of minimum force,and the second is the sustaining ofpolice injuries with non-retaliation.In controlling a force that is unarmedthe entire focus of the police is to seethat the group disperses. Hot pursuitis never done. The police dig in, theyprotect themselves and using shieldsprevent the expansion of the zone ofconflict. If any of their men areinjured by stones or bottles or evenMolotov cocktails, the injured areremoved from the scene but no retaliationtakes place. The Indian police,on the other hand, have a hair triggerrevenge response. They easily losetheir temper, pick up stones and hurlthem at protesters and are ready toattack unarmed rioters and shootthem dead. The video recordings ofthe incident will show that it wasonly too easy to control the advocatesand to allow their tempers to cooldown and to have them dispersed.The approach should have been toappeal to well-known members ofthe Bar to intervene and bring aboutpeace. Undoubtedly that wouldrequire patience. This was not anunusual situation at all and not onewhich the police should be unable tocontrol.Perhaps the police had no intentionof controlling the resentmentafter the provocation by the politicianwho turned up on the scene.Perhaps they expected it. Perhapsthey planned for it. In any case, itwould appear that the police neededand perhaps created a situationwhere they could get into the courtsand humiliate the lawyers by beatingthem mercilessly.Urgent reformIt is necessary at this point to make alittle digression and say a few wordsabout the nature of the police forceand the need for reform. This forcehas become, over the years, thelargest body of organised crime inthe country. It engages in murder,extortion, land mafia, gunrunningand drug trafficking, the traffickingof women, corruption on a largescale and violence against the poor asa matter of course. Fine and uprightmembers of the police force, thoughnumerous, find themselves unable todo their duty fearlessly and withoutpolitical interference. Up to 1990’s thejudiciary used to exhibit some concernand exercise control over thepolice and there are a number ofpath-breaking decisions of this periodwhere the police have been inves-68C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil naduExtracts from the Interim Report ofOnce thepolicemenweregiven theorder tolathichargethe unrulymob oflawyers toquell them,it wouldappear that the police interpreted itas a license to unleash mayhem atwill. They chased the lawyers on theground floor, along the corridors onthe first floor and beat them up mercilessly.The policemen behaved inthe same fashion as the unruly mobof lawyers. The exchange of stonesbetween the lawyers and the policemencontinued unabated. Thepolicemen who undoubtedly hadlawful authority to subdue the riotingmob, are seen using force disproportionateto the occasion andeven after some of the rioters hadactually been overpoweredand apprehended.They continued to lashout lathi blows on thelawyers apprehended bythem. They threw stonesat the lawyers, at thewindowpanes of theCourt premises, and alsoindulged in wantondestruction of and damageto the vehiclesparked in the HighCourt premises. Theychased the lawyers intothe Court premisesalong the corridors andalso on the first floor ofthe premises hittingblindly at them with lathis. Despiteinstructions that during a lathichargethe blow should be aimed atparts of the body other than thehead, the police freely rained stickson the heads of the lawyers, causingskull injuries to a number oflawyers. There was plenty of bloodshedin the quadrangle, along thecorridors and also inside the officeJustice BN Srikrishnapremises where the police appearedto have entered apparently to lookfor the rioters. The police bargedinto the courtrooms of the judges ofthe Small Causes Court and familycourt within the High Court complexand indulged in deliberatedestruction of the tables, chairs,fans, computers and other articleswithin the Court premises. When Iwent round the premises of the HighCourt complex for inspection, Inoticed extensive damage to theCourt's properties as glass paneswere smashed, the doors of thexerox machine room were smashed,one xerox machine was damaged,one computer was damaged, andfan blades at one place were twistedout of shape. The court staff wasunanimous that all this damage wasinflicted by the policemen. Thepolice did not spare the children'screche also from the hail of stones.Luckily, however, no child wasinjured though it did traumatisesome of the children in the crecheand the caretakers attending tothem.Not satisfied with beating up thelawyers within the court premises,the rampaging police staff systematicallyran through the chambers oflawyers within the High Courtpremises causing wanton damage tothe premises, pulling out suspectedlawyers and beating them. They alsowent to the lawyers' chambers situatedon the Lingi Chetty Street,Thambu Chetty Street, ArmenianStreet, Sungurama Chetty Street,Kondichetty Street and Baker Streetin the vicinity of the High Court,systematically barged into such ofthe lawyers chambers which wereopen and caused damage and beatup some of the lawyers within. Evenlady lawyers were not spared.There is no doubt that the violencewas started by the unruly mobof lawyers, some of whom wereeven dressed in robes and bands,but once the police got into action,there was no stopping them. It wasas if the police force, as a body, wentberserk. The lathicharge continuedirrespective of whether a lawyer wasa miscreant or "otherwise. Theoverzealousness of the police resultedin their beating up a despatchpeon, some other court staff, a canteenboy and even assaulting anHon'ble Judge of theHigh Court namely,Justice ArumugaPerumal Adithyan. Thevideos show that JusticeAdithyan, who wassomewhat unduly bravein going to the forefrontof the rioting mob oflawyers clashing withthe police, tried toappeal to both sides tomaintain calm andbehave with the dignitybefitting the CharteredHigh Court. Neitherside seems to have paidheed to him. In themelee, while lathis werebeing swung at the lawyers, oneblow from behind landed on thehead of the Hon'ble Judge. Thevideo shows something interesting.While being carried to the ambulance,the Hon'ble Judge is heard,appealing not to the police, but tothe lawyers, and saying: "don'tthrow stones at the police, they areour protectors".w w w . c o m b a t l a w . o r g 69

TaMil nadutigated and punished for torture,executions and disappearances. Acomparative study of the subsequentperiod would probably show that thejudiciary seems to be less interestedin controlling the police, as a result ofwhich, the message went out that theforce could act at will. They acquiredawesome extra legal powers. Themedia played a considerable role increating heroes out of killers in uniformand this led to a view in somequarters, perhaps also in certain sectionsof the legal profession, that thelaw ought not to interfere with thepolice when they break the lawostensibly in the public interest.Though we inherited the paramilitarymodel of the police force fromthe UK and our forces were similar tothe police in Ireland, both thesecountries carried out substantialreform. However, India failed toreform its police force, which retainsits non-professional killer mentalityto this day. All that we have in termsof police reform is a scanty petitionfiled by a former policeman in theSupreme Court seeking reforms froma policeman’s point of view, that is,seeking to rid the force of politicalcontrol thereby concentrating greaterpowers in the police itself. What isneeded is a studious attempt to lookat reforms in the UK, Canada, SouthAfrica and elsewhere and to bringabout drastic change in India to weedout violence, corruption, casteism,communalism and sexism, introduceprofessionalism and a scientificapproach, and to eliminate politicalinterference in police work. There is,however, no sign of that on the horizon.A study of the use of strong-armtactics by the Tamil Nadu police willprobably show that, as compared toother states, this southern state is inthe forefront of the use of brutalforce. If the attack on the lawyers andthe judges is understood in this socialand historical background then itwill not be difficult to comprehendthat this most horrendous assaultwas not a one-off incident but as partof a continuum of police violence. Nobody of persons stood in the way ofundisputed police raj as the lawyersstood. No institution stands in theway of unfettered police rule as thejudiciary does. The Bench and theBar are the only institutions that controlthe exercise of police power.There is a section of the middleclass influenced by what they see ontelevision and believe that the policeought to be given a free hand andthat the law with all its technicalitiesand delays ought not to come in theway of the police when they take thelaw into their hands and bypass thelegal system. This vocal section play,in the media, a role disproportionateto their numbers and creates anThe legal professionremains the mostimportant bastion ofdemocracy. If itgoes, democracygoes. It is thereforein the vital interestsof civil society thatthis legal system, which is one of themost extensive and one of the bestsystems in the developing world, be notallowed to disintegrate and, on thecontrary, be reformed and revitalisedimpression that their views representmajority thinking. Nothing could bemore wrong. The working classessuffer the violence of the police on aday-to-day basis and have no illusionwhatsoever as to the fascistic natureof the police force. This large part ofthe society looks to the judiciary andlawyers to protect them from thebrutality of the police force. In thissense the public at large and the legalprofession have an important role toplay in controlling the police andstrengthening civil society’s controlover the force. If the Bench and theBar were to perform its role of monitoringand controlling police actions,a natural bond would developbetween civil society and the judiciary.Over the years however, this bondwhich was originally very strong asthe courts enforced criminal law provisionsfearlessly, has grown weakerwith a decline in criminal lawjurisprudence and the underminingof the pristine culture of criminallaw work.Raising the BarIt is in this context the allegationoften made that the standards of theBar are declining, has to be viewed. Itis possible that people have enteredthe profession who do not have theprivileges of the earlier generations.This is natural because they have nothad access to elitist education andresources that most of the formergeneration took for granted. Many ofthe earlier generations of lawyerswere ardent supporters of the richand politically influential and had littletime for the working people or forhuman rights. While seemingly erudite,their value system and theirunderstanding of law was slantedtowards maintaining the status quo.Many from this section, for example,ardently oppose the reservation policytoday.On the other hand are the newentrants at the Bar coming not fromthe elite national law schools butfrom local institutions. They see andresent the injustices that prevail bothin society and the legal system. Thepresent approach is to let things continueas they are. But there is a realdanger here. If the Bench and the Bardo not intervene to raise the levelthrough continuing education and70C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil nadutraining as well as by creating financialopportunities for poor lawyers tosurvive, the situation will deteriorate.Moreover the deterioration inthe Bar is also mirrored by an equaldeterioration at the Bench, and aneven more rapidly declining moraland ethical situation in politics andpublic life. Those well-heeledlawyers who criticise advocates foragitations could do well to look at theculture of corruption, manipulationand exclusion of the poor that surroundsthe legal profession. All in all,we are in one grand mess, partly ofour own making, where we all lookout for ourselves with hardly a carefor the institution. This is not surprisingsince the period of nation buildingwas replaced, during the periodof globalisation, by the pursuit ofindividual wealth and power. Wecannot but look at the whole picture.And we must simultaneously try andsort out the problems that plague thelegal system to the extent to whichwe can even though it is not in ourhands to change the political systemas a whole. We must do what wecan, and we must start now.In the context of the simmeringdiscontent among the rank and file ofthe lawyers in Tamil Nadu, it isimportant to bring about a transformationof sorts by providing space tothis generation’s aspirations by makingthe legal system more democratic,accessible and transparent. Thereare no easy solutions. A possible stepcould be using the full potential ofthe legal aid system to integratelawyers practicing in the magistrate’scourts with the provision of legal aid.This would, in the first instance, providean important source of supportfor first generation lawyers. It wouldgive them a status as they would bepart of the dispensation of justice.More importantly, the legal aid systemcould be the vehicle throughwhich continuing education and theupgradation of skills could takeplace. The intention ought to be tolook at first generation lawyerspotentially as a body of persons who,if given the chance, could use theirskills, learning and their experiencesof every day life, for the public good.Legal aidFor this the legal aid services authorityat the centre and in the states willneed to be radically reformed. Forlong it has operated in a formal anddetached way. It is an institution witha huge potential and a clear constitutionalmandate but run without passionand creativity. In a country likeIndia with the problems that we face,a business as usual will not do. Itought to be headed, not by a justiceof the Supreme Court who is in anycase overloaded already but by a person,not necessarily a judge and whohas a history of commitment to thecause of legal aid. The institutionmust be adequately funded and insulatedfrom state interference. It mustbuild relationships with social movementsand root itself in the people ofIndia. Many of these social movementsalready provide free legal aidto adivasis, dalits, disabled persons,HIV-positive persons, prisoners,slum dwellers, workers, farmers andthe victims of environmental degradation.It is the duty of the legal aidsystem to financially support andintegrate with the social movements.But that would require the Legal AidBoards to jettison the ivory towerapproach and turn towards the people.Perhaps, an impossible task!Interim reportHaving known Justice Srikrishnafrom my Bombay days when weused to practice together in thelabour and industrial courts and Ithen began to appear before him inw w w . c o m b a t l a w . o r g 71

TaMil naduA study of the useof strong-arm tacticsby the Tamil Nadupolice will probablyshow that, ascompared to otherstates, this southernstate is in theforefront of the useof brutal force. Noinstitution standsin the way ofunfettered policerule as the judiciarydoes. The Benchand the Bar are theonly institutions thatcontrol the exerciseof police powerthe Bombay High Court, I was trulydisappointed when I read the interimreport. Perhaps I expected too much.After all, Justice BN Srikrishna is thewriter of the Commission of EnquiryReport on the 1992 Bombay massacreof Muslims where he indicted theBJP-Shiv Sena government and BalThackeray and the police officersengaged in the killings. It remains tothis day one of the outstandingreports ever done regarding communalmassacres.Here however, he is hurried andhe appears to have uncritically internalisedthe police disinformation thatthe agitation is purely an act of hooliganismby advocates instigated byLTTE sympathisers. This appears tobe a major mistake.The report is really very simple. Itignores the precise nature of theprovocation. It uncritically adoptsthe police version that hooliganismby advocates was the cause of thepolice mayhem. Though it describesthe assault in strong language itleaves it hanging in the air and doesnot draw out the awesome consequencesfor the judiciary if suchattacks are left without the strongestpossible punishment of the policemeninvolved.The Bench and the BarJudges and lawyers are natural alliesin upholding the rule of law. Both,however, have suffered reverses andlowering of standards over time.Perhaps both have become, to someextent, unaccountable. Neverthelessthe legal profession remains the mostimportant bastion of democracy. If itgoes, democracy goes. It is thereforein the vital interests of civil societythat this legal system, which is one ofthe most extensive and one of thebest systems in the developingworld, be not allowed to disintegrateand, on the contrary, be reformedand revitalised. If this is to be doneboth the Bench and the Bar, no matterwhat has happened in the past,must work together as allies.Unfortunately, it appears that thestrain of the relationship is telling. Itmay be true that the boycotts havecaused frustration among the judges.Nevertheless this is a time forpatience and understanding.One must not mix-up issues.Whatever may be the other issues,the attack by the police was unwarrantedand brutal. There cannot betwo views on that. The attack on thejudges was perhaps the first in independentIndia. The policemen mustbe identified and sacked. Only thestrongest possible action by the judiciarywill assuage the feeling of hurtand humiliation that the lawyers as acommunity feel today. If the actionsof the judiciary are not firm and comprehensivethe lawyers communitywill feel let down and betrayed.Healing will not happen. This is asituation where the judiciarymust come out strongly and openlyon the side of the lawyers againstthe police.Speaking generally and withoutreference to the present instance, thisis also a situation from which a newbeginning must be made wherejudges will refuse to accept or entertainany ex-parte intelligence communicationsfrom the police andrather obtain their informationthrough interaction with the Bar andprominent members of civil societyorganisations. Intelligence reportsselectively slanted may play a disproportionatelylarge and negativerole in arriving at the truth in anyheavily contested matter havingsocial consequences. ■72C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil naduMadrasHigh Courtorders inFebruary 19, 2009SUO MOTU (Taken Up)WP (PIL) NO. 3335 of 2009Order of the Court was made by theHon’ble Acting Chief Justice VPhanapalan, I and K Chandru, JThe lawyers had resumed court workafter the strike earlier called for bythem. When the court was in session,at about 3.30 to 3.45 pm, we could getsome sound and we were informedthat large number of special police(riot police) personnel with lathis orguns have entered the court and peltingstones on the lawyers and resortingto lathicharge. In many of thecars, the windows have beensmashed and door and windowpanesof the office and chamber ofthe subordinate judges, etc., havebeen smashed. One of us (ActingChief Justice), talked to the policecommissioner, Chennai and chiefsecretary to the Government of TamilNadu, Chennai, on telephone andbrought the matter to their noticewith a request to remove the policeforce immediately from the highcourt campus as they had entered thepremises without the permission ofthe court or the Acting Chief Justice.It was also informed that many of theHon'ble Judges, who had got downfrom the court and while moving inthe corridor had seen that the situationwas not normal. It is alsoinformed that an Hon'ble Judge ofthis court sustained injury. It was alsoinformed that some of the lawyerswere pelting stones from one sideand the police were pelting stonesfrom the other side and after a fewminutes it was found that the policewere chasing the people inside thecourt and also lathicharged thelawyers, staff and others. The situationwent such that in spite of repeatedrequest, the police force did not goout of the campus and the commissionertelephonically said that he isin the police station and trying to getthe police out of the campus. At onetime the commissioner of policeinformed that the police force hadgone out, but it was informed 'thatwhen the lawyers were going outsidethe high court premises, the policemercilessly lathicharged. It is furtherinformed that many of the court staff,litigants, and women lawyers wereinjured in the attack and were bleedingprofusely.At about 5.30 to 5.45 pm., first wecame to know that the police havevacated the campus. Thereafter wewere informed that the police stationwithin the campus has been set onfire. On a query, the commissioner ofpolice telephonically said that thelawyers have set fire to the police station,but many of the women lawyersand other persons informed that theconnectionwith thebrutalpoliceactionagainstlegalfraternityw w w . c o m b a t l a w . o r g 73

TaMil nadupolice themselves set fire and nowblaming the lawyers.Having seen the situation grave,we remained in contact with the officers,viz, the chief secretary to theTamil Nadu government and thecommissioner of police, Chennai,and in the meantime it was informedthat a number of police personnel, ofspecial force, armed with lathis, gunsand with helmets and protectiveshield, entered the court buildingand started lathicharging indiscriminately.There were no people to tacklethem. The situation was so uglythat we had no other option, but tohold this court at this juncture (6.40pm). This order is being dictated inthe presence of the chief secretary togovernment, the home secretary togovernment, the director general ofpolice, the commissioner of policeand some other officers, who haveentered the Chief Justice's chamberwhere we are holding court and largenumbers of lawyers are also presentand this order is being dictated in thepresence of the government pleader,who has also seen the situationtoday.We have been informed that morethan 200 cars have been damagedapart from two-wheelers, etc., and itis further informed that the damagehas been caused by the police, asaccording to the lawyers they cannotdamage their own vehicles. It is alsoinformed that some of the high courtdrivers and staff have also beeninjured because of the lathicharge.2. The chief secretary to governmentand the home secretary toGovernment, who are present wereasked as to what action the governmentintends to take immediatelyand on behalf of the State, the chiefsecretary, the home secretary, thedirector general of police and thecommissioner of police made the followingstatement and gave the followingundertaking:i) The commissioner of police,Chennai, stated that some of theinjured lawyers have been taken fortreatment, but no arrest has beenmade.ii) The home secretary states thatno lawyer will be taken in custody inconnection with today's incidence.After proper police investigation andafter informing the matter to theHon'ble Chief Justice (Acting ChiefJustice for the present), if necessary,in future, they may proceed in accordancewith law.Further undertaking is given thatif any person, including the lawyers,staff of the high court or Subordinatecourt or any officer of the court or thelitigant, whoever were present insidethe court or outside NSC Bose Road,Thambu Chetty Street, ArmenianStreet and nearby roads, if taken incustody, they will be released immediatelytoday.It is further undertaken that thosewho have been arrested today or hadto surrender before the police in connectionwith the earlier FIR today,they will be released on personalbond to ensure that normalcy returnsin the high court.Affidavit ofD Nagasaila…I further submit that almoston a daily basis the police departmenthas been conspiring to generatefalse stories about thelawyers in the media. There wasan alarming news report onFebruary 25-26, 2009 that theTamil Nadu Police ProtectionForum has passed a resolutionthat it will send a suicide bomberinto the high court premises tokill several lawyers at one stroke.The report said that a pamphlet tothat effect was being circulatedwidely in the office of the commissionerof police. There hasbeen no denial so far.iii) So far as the question ofenquiry and FIR lodges and investigationof today's incidents are concerned,on behalf of the state, thechief secretary to governmentassured that the matter will bereferred to the central governmentfor enquiry and investigation by theCentral Bureau of Investigation.iv) The chief secretary and homesecretary have also undertaken totreat all the persons injured in connectionwith today's incident andthey will be treated free of cost at theexpense of the State.3. In the circumstances, while wedirect the office to implead the stateof Tamil Nadu through the chief secretaryto government, Chennai, thehome secretary to government, stateof Tamil Nadu, director general ofpolice, Chennai, commissioner ofpolice, Chennai, Union of Indiathrough the secretary, department ofpersonnel and training, New Delhi,the director, Central Bureau ofInvestigation and the high court ofMadras through the registrar general,Chennai, as party-respondents tothe present case, also direct to registerthe case as a writ petition (WP -PIL) and the order as may be passedwill be treated to be passed by thiscourt in public interest and in theinterest of the institution (high courtand subordinate courts).The respondents are directed toadhere to the undertaking givenbefore this court, failing which it willbe treated to be a violation of thecourt's order.The state government will referthe matter along with a copy of thisorder to the secretary to government,department (if personnel and training,Government of India, NewDelhi, who, in its turn, will take upthe matter with the director, centralbureau of investigation for action interms with the undertaking anddirection aforesaid.The government pleader acceptsnotice on behalf of the chief secretaryto government, the home secretary,the director general of police andcommissioner of police, Chennai.The assistant solicitor general acceptsnotice on behalf of the Union of Indiaand central bureau of investigation.Mr R Muthukumaraswamy, seniorcounsel, is appointed as lawyer totake up the matter on behalf of theregistrar general, Madras HighCourt.The following three teams is constitutedto take videography todaywith regard to the damages causedoutside the court buildings, but withinthe high court campus and to submita report in this regard before thiscourt.i) The first team will be headed bythe registrar general, High CourtMadras with Registrar (Vigilance),High Court, Madras, Mrs.Shanthakumari, president, womenlawyers association and MrVelmurugan, secretary, Madras HighCourt Advocates Association as itsmembers.74C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil naduii) The second team will be headedby the registrar (administration),High Court, Madras with registrar(Management), High Court, Madras,Mr. Raja Kalifulla, governmentpleader and Ms R Vaigai, advocate,as its members.iii) The third, team will be headedby registrar (judicial), High Court,Madras with Mr Dhandapani, specialgovernment pleader, Mr SampathKumar, advocate and Mr MahavirSivaji, advocate, as its members.The parties may obtain a copy ofthis order from the registrar general,High Court, Madras, tomorrow(February 20, 2009). The chief secretaryto government, the home secretary,the director general of policeand the commissioner of police willinform of this order to all concerned,without waiting for the copy,through electronic media and printmedia (television and newspaper).As the high court is seized of theissue, we expect that the associationsand members of the association andall the members of the state bar councilwill co-operate in the matter torestore normalcy within the courtcampus.List the case on March 2, 2009,before the same Bench. The state governmentwill submit status reportand the registrar general, HighCourt, Madras will also submit areport before this court.February 21, 2009(S.J.M. ACJ)(V.D.P.J.) (k.c.j.)GLNSUO MOTU (Taken Up)WP (PIL) NO. 3335 of 2009Order of the court was made by theHon’ble the Acting Chief Justice VPhanapalan, I and K Chandru, JAfter the incidence as taken place inthe high court campus on February19, 2009, various facts have come tothe notice of the administrative sideof the court. It is found that the courtbuildings have been damaged,including the office and court halls ofthe high court, court halls of smallcauses court, addl. city civil courtbuilding, family courts, mediationand conciliation centre, lawyerschambers and as huge damage hasbeen caused, it not only requiresmoney for repairing, but in the presentposition, some of the courts maynot be in a position to function withoutextensive repairs being made. Itis reported that the damage has beencaused by the police and personshave seen the police entering into thecourt charging on those who wereinside the court halls.2. There are some misleadingreports in the newspapers, whichhave been brought to the notice ofthe learned government pleader. Tilldate, it has not been reported as tohow the police entered the courtcampus even for arresting anaccused without the permission ofthe court. From the information wecould get, till date it has not beenidentified as to who are the policeofficers or the police personnelresponsible for the police excesswithin the court campus nor anysteps seems to have been taken tillnow, though it is informed that thegovernment is looking into the matter.3. As total position was taken intoconsideration to find out whether thecourt could be reopened fromMonday, that is, February 23, 2009,and it was found that because ofdamage to various court halls andbuildings, of which reference givenabove, the court cannot function, wetook up the matter urgently in a specialsitting in the official residence ofone of us (Acting Chief Justice) andto decide as to what steps can betaken. During the proceeding, Ms RVaigai has appeared along with herjuniors. She wanted to present a petitionfor initiation of contempt proceeding,but we have asked her to filethe petition in the registry of thecourt. She addressed on facts whichwe have noticed.4. After taking into considerationthe damages as found in the courtpremises and court halls and theinjury caused to various persons onFebruary 19, 2009, as noticed on theearlier date, we are of the view thatthe action may call for initiation ofsuo motu criminal contempt proceeding,but it can be decided afterreceipt of report calling for names ofpersons, who were instrumental inthe matter.The commissioner of police,Chennai and the joint commissionerof police (North Chennai), who isstated to be present on the said date(now under order of transfer as DIG(Railways) as informed by the governmentpleader), they will file areport and state as to under whoseauthority of the high court theyentered the court premises to arrestcertain accused from the high courtcampus and at whose instance theorder was issued for lathicharge bythe police and swift action force.They will give specific names withdesignation of the officers and constablesat whose instance such actionwas taken. On receipt of such reportthe court will decide whether suomotu criminal contempt shall be initiatedagainst the concerned persons.w w w . c o m b a t l a w . o r g 75

TaMil naduThe state government will alsofile its reply as to why it be notdirected to pay compensation forpersonal injury and damages toproperty and all expenses for immediatelyrepairing of the court premises,court halls, furniture and lawyerschambers, including the chamber ofthe government counsel.5. To ensure that the evidencewith regard to damages to courtbuildings, court halls, lawyer’s chambers,etc, is not destroyed because ofthe starting of the court, we direct theregistry of the high court to takevideography of the damaged premises.If so necessary, three videographyteams may be constituted, headed bythe registrar (vigilance), registrar(administration) and registrar (management).At the time of videographyof the law chambers, it will bedesirable that the president and secretaryof the respective advocateassociations and one of the law officerof the State is present.6. List the case on March 2, 2009,as ordered earlier.March 2, 2009(S.J.M. ACJ)(V.D.P.J.) (k.c.j.)GLNSUO MOTU (Taken Up) W.P. (PIL)No. 3335 of 2009Order of the Court was made by S JMukhopadyaya, J…In spite of such order passed bythis court and undertaking givenbefore the Supreme Court, no affidavitwas filed by the state governmenttill date. Learned advocategeneral appearing on behalf of theState initially asked for time to submitthe report and at 2.30 pm he submittedan affidavit and a report filedby the commissioner of police,Chennai. In the said report, whiledetails of the order passed by one orother court and the report of thecommittee has been referred, at Para16, the following statement hasbeen made:“16. I am informed that around 4pm the stone pelting continued and afew two wheelers and cars weredamaged and many police personnelsustained injuries on their head andother vital parts. Head constable 276Krishamumar sustained a grievousstone-hit injury on his testicles,become unconscious and fell downon the ground.The situation was turning graveand the life and security of the generalpublic and the police personnelwas in imminent threat. To protectthe life and property of the policepersonnel, the public and others, theadditional commissioner of police(law and order) who was the seniormost officer present on the spot consultedother senior officers on thespot, viz, the joint commissioner ofpolice (north), the joint commissionerof police (central), the deputy commissionerof police, Flower Bazaar,the deputy commissioner of police,Pulianthope and the deputy commissionerof police, Kilpauk and tookthe collective decision to declarethe assembly as unlawful and todisperse it. Accordingly, he directedthe deputy commissioner of police,Flower Bazaar who in turntook measures to disperse theunlawful assembly using minimumforce.”…We may mention that theSupreme Court, while passing orderon February 26, 2009 observed: “It isan unfortunate incidence. If armedpolicemen wanted to control any situationlike riot, they should haveobtained the permission of theActing Chief Justice and kept himinformed of the situation beforeentering into the premises of the highcourt.” In spite of such observation,nothing brought on record that anypermission was sought for from thethen Acting Chief Justice or from thiscourt by the police officials to enterinto the premises to allow the entryof police into the premises of the highcourt and to lathicharge.8. As we find that a prima faciecase made out to initiate disciplinaryproceeding against the concernedofficers, to ensure the state governmentto pass appropriate orders, weare of the view that i) Mr A KViswanathan, IPS, addl. commissionerof police (law & order) and ii) MrM Ramasubramani, IPS, formerlyjoint commissioner of police (north)(jurisdiction JCP), should be placedunder suspension, as they were thepersons who were in the helm of theaffairs and under whose directsupervision the operation was carriedon.It is needless to say that thelawyers have no right to strike, thatis, to abstain from appearing in thecourt in cases in which they holdvakkalat for the parties. It is belowthe dignity, honour and status of themembers of the noble profession oflaw to organise and participate instrike, though it is open to thelawyers to adopt some other mode toprotest without interrupting or disruptingthe court proceeding oradversely affecting the interest of thelitigants. We, therefore, ask the associationsand the Tamil Nadu BarCouncil to recall their strike forthwithand resume work. ■76C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil naduassault on an institution● What is the political background of thissituation?According to me this is purely apolitical issue, the background isobviously the original strike, whichwas called, had to do something withpolitics. This everybody knows thatit is something regarding LTTEactions and the killings of innocentpeople. I am informed that MrSubramaniam Swamy made verynasty remarks against some people. Iam informed he also made a statementthat some of these lawyers areon the payroll of LTTE. He is wont tomaking these kinds of remarks. Idon't disbelieve this. He could havevery well said that. Why it was provoked,I don't know because ultimatelyit has to be the party in powerand the police could not have actedlike this without getting a clearancefrom the top. It is not possible that800 or 700 or 500 policemen armed asif defending a riot entered the highcourt premises and carried suchmayhem. Judges were present intheir chambers. I can say that whileall this was going on I had got a callfrom one of my friends who were inthe judges' chamber. So there wereseveral lawyers inside and there wasno assistance from the police to controlthe situation. On the contrary, itis recorded that some judges whowanted to go out and see what washappening were beaten up. Todaypapers might say something else.And that is why now it makes itmore political. That is why there issomething more that meets the eyebecause it was not purely an actionby the police trying to control the situationcreated by the lawyers.● Is there also a social dimensioninvolved?Yes. There apparently is. But unfortunatelyin that part of the country[caste] is a very sensitive issue. Thereis a lot of a thing... caste bias. I amalso telling you something which Ihave heard and which I have beeninformed rather. It is not just hearsaythat he made certain caste-basedremarks. If you make remarksagainst people on the basis of casteand creed it is a criminal offence. MrSwamy having done exactly that,[the lawyers] were insisting thatpolice register [their] FIR against himalso. So I say today caste, politics andreligion are so intermingled and thatis why the whole thing is a verypolitical issue. This puts the strike bythe lawyers very much in the backgroundand today the issue is policeexcess. Can this kind of police rajcontinue? I mean if that can happento lawyers, it can happen to anybody.It happens to labourers, ithappens to workers.● And you are saying it was not just thepolice it might be that people at higherlevels are involved too?Police could not have acted withoutthe green signal from the higherlevels. I mean nobody can believe itand nobody will believe that thiskind of action took place withoutany approval from the highest level.● Do you have any information aboutwho was involved in such an action?I don't have any information. But tilltoday this question has not beenanswered. Since February 19, thequestion has been asked by the highcourt, by the Supreme Court as towho directed this action. No authorityhas come forward and given ananswer. So obviously they are tryingto cover up. The law and order andthe police comes under the homeministry of a particular state. So ithas to be somebody at the level ofhome secretary.● Are there any external forces involvedwhich might be manipulating the situation?Well, the implication that there mustbe other forces involved more thanjust the local police or local politicianis very evident from the fact thatsuch a serious thing happens, whichis widely reported in the media andeverywhere and nothing is doneabout it. Today one month haspassed. The situation has gone frombad to worse and there are reportsThe police hostilityagainst the lawyers andjudges in the MadrasHigh Court was not onlyan assault on thecommunity. The attackwas on an institution,the legal institution, andthe findings of theSrikrishna Commissionhinges upon the lesserimportant issue ofcompensation thanidentifying theperpetrators of theviolence, senioradvocate Kamini Jaiswaltells Kartik Sharmain an intervieww w w . c o m b a t l a w . o r g 77

TaMil naduthat there are lawyers who have losttheir eyesight and hands. These arethe people who have been pickedup from the libraries, from theiroffices outside the court premisesand still not one head has rolled.● There are also indications that thepolice seem to have anticipated a lot ofmayhem that was going to happen inadvance. You think that was so?No. Because the police itself went tocreate mayhem. Like I said the simplething was only to arrest theselawyers who they say were involvedin some kind of [incident]. The bestthing would have been to go in themorning or evening to their housesor offices and pick them up quietly.You require two police officers toserve them an arrest warrant andwhatever and pick up. This wasdeliberate. This action was to provokethis kind of reaction. After all,800 riot police enter the high courtfor what? There was no indicationfrom anywhere that the lawyers werebeating up people at that point oftime. They were on strike. So this wasa provocative action by the policeand it could not dare to have takensuch an action without any instructions.● What kind of results were theyexpecting?I don't know. I don't expect that allthe lawyers will just go and fold theirhands. There is bound to be a reactionfrom anybody. Even if you andme are attacked by lathis, we arebound to react. So I don't know howthey expected anything other thanwhat has happened and not onlyhave they attacked the lawyers, theyhave broken their vehicles, destroyedfurniture and property of the highcourt. So they have attacked theentire judicial system and I am surprisedthat the judiciary is not reactingin the way it should. The attackwas not on the lawyers. The attackwas on an institution, the legalinstitution, the judicial institution.● So do you think that this incident willset a damaging precedent for (independence)of the judiciary?I think it is a very damaging precedentfor our democratic set up. It is avery damaging precedent and theyare further precipitating the issuerather than solving it. It should havebeen solved within two to three daysand not allowed to precipitate for amonth. There seems to be nothingand even till today they have donenothing about it.● So coming to the SrikrishnaCommission's interim report, what isyour take on it?I am a little shocked with theReport's conclusions. The reportreads practically what happened buttowards the end it does not seem tocome forward with any recommendation.It has not gone into the referencethat was made to it and suddenlycomes to the issue of compensation.There seems to be somethingvery strange about it if I may put itvery mildly that the last few paragraphsin the report suddenlychange the track and come to thecompensation issue. The compensationwas not the issue before the commission.The report was only supposedto identify who gave theorders for attack on lawyers.● What did you think of the inquiry processof the commission?It is very unfortunate because therewas lot of evidence with the lawyersand if you look at only the videofootage of the police, which is obviously,going to be one sided, youshould give a fair hearing to all parties.Principles of natural justicerequire that [one considers all evidence].After all, the commission wasa fact finding commission. If youwant to look into the fact you have tolook at both sides. I am not sayingyou have to look at only the lawyersbut you have to look at both sides tocome to an opinion, which will becorrect. Otherwise if you ask thepolice they will tell you what happened,then what is the pointin appointing a fact finding commission.● Do you think the judges of the ChennaiHigh Court could have moved little bitquicker to ease the situation?I am told that at that point of time thejudges did try and that is how theywere beaten up. But I don't reallyknow and the judges kept calling theDGP and the DGP was not respondingand things like that.● Do you think the order issued by theChennai High Court was needed?No. Generally the high court did notneed to issue the order. I have notseen the Chennai High Court order.It was in the event that if there is violenceor something you can havepolice. We have police in theSupreme Court. It is for protectingthe institution from outside elements.You don't need protectionfrom your own officers. Who are the78C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

TaMil nadulawyers? Lawyers are officers of thecourt. You don't call police to protectthe court from the officers of thecourt itself. You don't require policefor that. Police and security is forprotection from the outside elements,terrorist attack, from criminals, etc.and not from the lawyers.● Justice Srikrishna has resigned fromthe commission after issuing the interimreport. What do you have to say on that?We must find out why. I have knownJustice Srikrishna for a long time. Hegave the report regarding Mumbairiots. I am absolutely shocked thatJustice Srikrishna could say that hewill not continue. There has to besomething, which has forced him todo so. I have no idea about that. Youcan only have conjectures or whatever.There may have been two things,which may have happened. One, hehad pressure from the police and twohe may have had the pressure fromthe lawyers and, therefore heresigned. So it could be either of thetwo.● So what do you think is the appropriateremedy?I am too small a thing. In any casetoday the tempers are so high for theremedy. If it had been dealt with atthe right time in the proper way, maybe if they could have identified theperson issuing the order then andthat officer concerned was suspended,that would have been enough.Today I think the remedy wouldhave to be very drastic. Too muchwater has gone under the bridge.● Can you elaborate on that?As a friend said there are many moreofficers who are responsible. Identifythe officers who have directed thelathicharge, identify the officer whohad directed that the police go thereand identify those authorities fromthe video who had actually wieldedthe lathis. All those people will haveto be suspended. And how do you, Ireally find it impossible to comprehend,how do you explain to a younglawyer who has lost his eyesight. Ibelieve there is one lawyer who haslost both his arms. Look at what hashappened to the families of theselawyers. This is such an unnecessarysituation. Lawyers being attackedlike this for what? I really don't knowhow there can be a meeting point.● Do you think the government or thecourt need to take some measures to makesure this kind of thing is not repeated infuture?This type of situation should neverhave been permitted to happen.What has happened is shameful. Ofcourse we need to take measures sothat something like this never takesplace.● What do you think those measuresshould be?I don't know how a police station isthere inside the high court. You mustremove the police station. You mustsee that there must be guidelines asto in what situation the police canenter the high court. Except for theBSF, CISF and other security measures,the police should not be permitted.There are already guidelineswhen you arrest a person what youare required to do. You are notrequired to enter the court to just gethold of 15 lawyers. Guidelinesalready exist but people who haveviolated these norms must bebrought to book immediately.● What is the next step for the SrikrishnaCommission?It is not as if they have appointedsomebody else [to replace JusticeSrikrishna], they have sent it back tothe high court and unfortunatelythey are not doing anything. I’msorry to say... Judges have donenothing to resolve the situation. Youalso have to find a political solutionto this. With the elections coming,people may not have the time. Sosomething has to be done to find aproper political solution.● What steps you think the authoritiesshould take?A committee of very senior peoplewho have to talk to the lawyers andwho have to assuage their feelingsand also immediate action on certainaspects, for example, police officers,people concerned. You have to identifythe person who issued theorder, suspend, dismiss and dowhatever but you have to do somethingvery positive and have a propercommission to go into all this. Itis too big an incident to gloss over. Idon't think the high court will do itbecause it also seems to be involvedin this.● What do you think is actually going tohappen?I don't know what is going to happenbecause nobody seems to be sayinganything. It is quite surprising that30 days have passed but nothingseems to be happening. Things onlyseem to be getting more aggravated.It is unfortunate. I don't see a solutionto this in the near future. It isreally becoming very aggravatedand as you let time pass, people'sfeelings will get even more crystallised,their hurt will get morecrystallised. ■w w w . c o m b a t l a w . o r g 79

sri lankainternational humanitarian law,which grants immunity to civilians.Second, the SLAF is keen to finishthe war and declare victory before SriLanka's New Year in April. This islikely to lead to a sharp increase incasualties among the 250,000 civilianstrapped in the war zone in thenortheast. As if to cover this up inadvance, the SLAF is deliberatelyplaying down the number of civiliansoriginally living in the zone to70,000. The Mahinda Rajapaksa governmentin Colombo claims that halfof them have already fled, althoughthe actual number may be only afew hundred.In the coming days, Colombomay declare that all the civilians haveescaped and the SLAF should legitimatelylaunch a no-holds-barredfinal offensive, including firebombcivilianKillings must endAt stake is the verysurvival of the Tamils as apolitical community. Indiamust launch a diplomaticcampaign to insist thatthe Colombo governmentverifiably stop attackingcivilians, declare aceasefire underinternational monitors,create safe corridors, andpermit relief delivery,writes Praful BidwaiAs the Sri Lankan ArmedForces (SLAF) maintain theirunrelenting – and largely justifiable– offensive against theLiberation Tigers of Tamil Eelam(LTTE), three trends have becomeapparent. First, the battle is taking anunacceptable toll of Tamil civilianlives. According to the internationalcivil liberties group, Human RightsWatch, 2,000 Tamils have been killedand 5,000 wounded since the fall ofKilinocchhi, the LTTE's administrativecentre, in January.The civilian death toll is now runningat 25 to 35 a day. Both sides aretargeting civilians – the SLAFthrough indiscriminate bombing andshelling, and the LTTE by firing onthem to prevent them from fleeing tosafety. This constitutes a completeviolation of the laws of war and of80C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

sri lankaing and slash-and-burn methods, tofinish the LTTE. This is liable to leadto mass slaughter or a holocaust.Third, international pressure ismounting on the Rajapaksa governmentto declare a ceasefire and allowaid workers to return. The EuropeanUnion has called for "humanitarianaid to be safely delivered and allowingcivilians to leave the conflictarea" even as it has asked the LTTE tolay down arms and renounce violence.It has also asked the governmentto "engage in an inclusive politicalprocess which addresses thelegitimate concerns of all communities."The international committeeof the Red Cross, AmnestyInternational and various otherorganisations have made similarappeals.India too demands an end tocivilian killings, and a political settlementof the Tamil question, althoughnot a ceasefire. New Delhi doesn'tseem to be pulling its full politicalweight vis-à-vis Colombo. It continuesto provide military assistance tothe SLAF, including radar surveillance,logistical support, armamentsand helicopters.As if to ensure India's continuingsupport to the military operationsand stave off its pressure for a politicalsettlement, Sri Lankan Army chieflieutenant general Sarath Fonsekahas in an interview highlighted the"threat" that the air wing of the LTTEposes to India. Referring to theFebruary 20 attack by two LTTE aircrafton Colombo, the eighth suchattack since April 2007, he haswarned that the Tigers' planes couldpenetrate 150-170 km inside Indianterritory, and probably deeper if theyare on a suicide mission.The Lankan humanitarian crisis isdeepening by the day. According toHuman Rights Watch (HRW): "TheSri Lankan government has indicatedthat the ethnic Tamil populationtrapped in the war zone can be presumedto be siding with the LTTEand treated as combatants, effectivelysanctioning unlawful attacks."This is a licence to commit heinouscrimes. The SLAF have "repeatedlyand indiscriminately shelled areascrowded with displaced persons",including government-declared "safezones" and "the remaining hospitalsin the region."The SLAF is herding civilians intointernment camps, masquerading as"welfare villages". "The displacedpersons, including entire families,detained in these military-controlled,barbed-wire camps are denied theirliberty and freedom of movement,"says HRW. "The plight of the region'scivilians has been made worse by thegovernment's decision in September2008 to order most humanitarianagencies out…"The government has thrown ablanket of censorship over the warzone. It has failed to bring in enoughfood, medical supplies, and otherrelief and has only allowed a minimalrole for the United Nations.Continued fighting, lack of oversight,and manipulation of the deliveryof aid "have all contributed to thecontinuing humanitarian crisis".While it wages an open war in thenorth, the Sri Lankan governmenthas launched a 'dirty war' in theSinhalese-dominated south. Criticsof the government are harassed,taken into illegal confinement,and "disappeared", or like TheSunday Leader editor LasanthaWickrematunga, shot and hacked todeath by gunmen.On its part, the LTTE has provedruthless towards the Tamils, inwhose name it claims to speak. It's interminal retreat and confined to a 100square-kilometre area. With each battlefielddefeat, it treats civilians withever-greater brutality and uses themas human shields. According to a districtofficial quoted by Reuters:"When people occupy particularplaces, the LTTE sends shells fromthat area, and then the army also targetsthe same area." It also subjectscivilians, including children, tow w w . c o m b a t l a w . o r g 81

sri lankaforced recruitment and deadlylabour on the battlefield and has littlecompunction in shooting those tryingto flee.The LTTE cynically capitalised onthe plight of Sri Lanka's Tamils afterthe infamous Colombo pogrom ofJuly 1983, in which 2,000 Tamils werekilled by state-sponsored mobs.Faced with the onslaught ofSinhalese chauvinism, which wronglyregards the Tamils as "outsiders"(though they have inhabited theisland for 2,000 years), and wants aunitarian State, many Tamils beganto believe that a military solutionalone could work. The world's bloodiestcivil war has since raged in SriLanka, with terrible consequences.The LTTE is one of the best-armedmilitant groups in the world, and hasamassed aircraft, submarines, a flotillaof boats, armour-plated vehicles,mortar launchers and sophisticatedtransmission equipment. It has builtchemical-bomb factories, underwaterfuel tanks, multi-storeyed bunkerswith one metre-thick walls and bullet-proofdoors, and seven airstripsand two hangars. It's probably theworld's first sub-state group to developunderwater weapons.Until recently, the LTTE was aformidable military force, but had apoor political strategy. In 2005, itplayed a key role in bringingPresident Mahinda Rajapaksa topower by forcing the Tamils to boycottthe election, thus strengtheningthe forces of Sinhala chauvinism.Thus began its undoing, and itsIndia too demandsan end to civiliankillings, and a politicalsettlement of theTamil question,although not aceasefire. New Delhidoesn't seem to bepulling its full politicalweight vis-à-visColombo. It continuesto provide militaryassistance to theSLAF, including radarsurveillance, logisticalsupport, armamentsand helicoptersincreasing international isolation.Country after country imposed a banon it because of its terrorist methodsand what was seen as its sabotage ofthe Norwegian-brokered peace processin early 2006.In some ways, the LTTE's spectacularmilitary successes became itsworst weaknesses. When its talkswith the government broke down, itwas forced to defend a huge territoryby fighting in defensive conventionalwar in which the SLAF held theupper hand thanks to greaterresources, international support andrelative legitimacy. A major setbackto the LTTE was the interception bythe US of anti-aircraft missiles that itwas trying to smuggle into Sri Lanka.Another was the defection of itsEastern commander, Col Karuna,which greatly weakened it.Meanwhile, the Rajapaksa governmentunder the leadership ofhardline defence secretaryGotabhaya Rajapaksa, the President'sbrother, greatly stepped up the militaryoffensive and managed to drivethe LTTE out of a militarily criticalarea in the north. By mid-2008, theTigers were on the run. And byDecember, they were militarilycornered.India bears a special responsibilityin respect of Sri Lanka. It looms asa giant neighbour with a large Tamilpopulation, and has a history ofintervention in Sri Lanka. India committeda grave blunder in the early1980s by training, arming and fundingthe LTTE, which soon turnedagainst India for forcing it tonegotiate a devolution packagewith Colombo.India committed a second blunderin 1987 by sending the IndianPeace-Keeping Force to Sri Lanka.This was a disastrous misadventure,which failed to accomplish the objectiveof disarming the Tigers. TheLTTE joined hands with thePremadasa government in ensuringthat the IPKF left in 1990.After Rajiv Gandhi's assassination,India followed a hands-off policy,but in recent years, it covertly providedmilitary assistance toColombo. Without India's radar andlogistical support, the SLAF couldn'thave neutralised the sea tigers normade big territorial advances.At stake today is the very survivalof the Tamils as a political community.India must launch a diplomaticcampaign to insist that the Colombogovernment verifiably stop attackingcivilians, declare a ceasefire underinternational monitors, create safecorridors, and permit relief delivery.Above all, it must implement thepromised devolution and merger ofthe north and the east within a federalstructure with a bicameralParliament. Nothing less will do. ■82C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

sri lankaThe Tragedy ofPolitics in Sri lankaWidespread humanrights abuses, a cultureof impunity characterisedby disappearances,abductions, extrajudicialkillings and torture arerampant in Sri Lanka.And all supported byinternational communityin the name of the “waragainst terrorism”. TheState repression ismanifest on many frontsimpacting allcommunities in Sri Lanka.Ahilan Kadirgamar andCenan Pirani discuss thelooming humanitariancrisis and the possibleremediesIn the last few months, the SriLankan security forces have managedto ruthlessly push the LTTEinto a 40 square km strip of land inthe north of the island, and alongwith the LTTE leadership and itscadres, a sizable civilian population,anywhere from seventy thousand toone hundred and fifty thousand,have also been cordoned off in thisarea. As the security forces continuetheir offensives purporting to rid SriLanka of the LTTE, they also claimthe lives of these civilians daily.For those civilians that attempt toleave the territory they are faced withthe possibility of death and, not inthe least, violence from both sides.The LTTE have shot at and sometimeskilled those that have attemptedto leave the area and reports suggestpunishment is becomingincreasingly brutal. They are alsoforcefully recruiting civilians fromthe trapped populations to fightagainst the government forces.Those that do manage to escape thearea and are not killed by securityforces gunfire are then interrogatedby security forces out of the suspicionof LTTE affiliation.International human rights groupsare calling for ICRC access to observethis screening process, suspectingtorture and killings. Those that makeit past this process are then internedin detention camps that are underresourcedand which they are notpermitted to leave.A surge in attention and pressureby international actors is necessary inthis situation to ensure safety for thecivilian populations. Currently, theUNHCR and ICRC are attempting toaddress civilian concerns in thecamps and gain further access tosecurity forces interrogations ofTamils entering the camps. The UNHigh Commissioner for HumanRights has warned that both warringparties could have committed warcrimes. The UN secretary generalhas made repeated statements aboutthe deteriorating humanitarian situationand sent his under-secretary forhumanitarian affairs to visit thenorth. The Indian foreign ministerhas also made repeated statementsand made a visit to Sri Lanka. Therehave been statements and engagementby the British foreign secretaryand the US secretary of state. The bigpowers have not only raised concernsabout the humanitarian situationbut also called for a politicalsolution to the conflict.The international media hasattempted to cover the current situationand the civilian suffering despiterestricted access to the affected areasin the north. The media has also beenresolute in uncovering the statesponsored attacks against mediapeople inside Sri Lanka who are criticalof the government’s war or eventhose who sympathise with the civilianplight.Thus the humanitarian situationis also linked to the widespreadabuses of human rights and a cultureof impunity characterised by disappearances,abductions, extrajudicialkillings and torture. This is done allin the name of the new “war againstterrorism”. In this way, the aggressiveState repression under theRajapaksa regime is rampant onw w w . c o m b a t l a w . o r g 83

sri lankamany fronts impacting all the communitiesin Sri Lanka.At the current moment, internationalengagement towards a politicalsolution and measures to addressthe humanitarian situation, continuesto be difficult given the discoursein the south of Sri Lanka, which oftenoverplays the fear of internationalintervention. Sinhala nationalistshave strengthened their position inthe country by riding both the wareuphoria and by making strongclaims for state sovereignty. Forexample, recent unofficial reportsthat the US might evacuate civilianstrapped in the Vanni is one suchinstance of heightened debate withinSri Lanka. Indeed, any unilateralintervention by the US would bedetrimental to both Sri Lanka and theregion, and hence the need for multilateralengagement.However, the Sinhala nationalistsare using the slightest rumours ofintervention and even internationalengagement to strengthen their xenophobicstand, which is also increasinglyused to attack dissent in thecountry. While the Rajapaksa regimehas promoted Sinhala Buddhistnationalism over the past few years,the mounting economic problemsand the need for donor assistance arelikely to pose problems for this insularand chauvinist outlook.Rhetoric and nationalist mobilisationaside, the current human rightsand humanitarian situation continuesto be dire. Here, the UN hasmore credibility within Sri Lankaand is more accountable on suchissues compared to the big powers,who are themselves not free ofhuman rights abuses. While there isno substitute to building a vibranthuman rights movement within thecountry, the urgency of the situationcalls for the UN to continue to challengeSri Lanka at UN forums andpush for a greater role of UN agenciesand the ICRC on the ground.It is on engagement towards apolitical solution that the big powerslike India, the US, the EU and Japanwill have to be watched. Indeed, thetwo significant steps in keeping thedevolution debate alive in recentyears; both the December 2006majority report of the experts committeeto all party representativecommittee (APRC) and the January2007 report of the chairman of theAPRC, came out in part from a pushby India. However, the political processlost track when the Presidentinterfered with the APRC andpushed for the January 2008 shaminterim proposals that were to implementselective provisions that werealready in the 13th Amendment. In aworrying move, India welcomedthese sham proposals as a good firststep giving undue legitimacy to themaneuvering of the President.When it comes to the politicalactors in Tamil Nadu, over the lastyear, they have for the most partplayed only a negative role in tryingto prop up the LTTE, which has consistentlyopposed any attempt at apolitical solution. The Sinhala community,while a majority in SriLanka, continues to fear and has aminority complex in relation to thelarger Tamil population in TamilNadu. Much like the LTTE’s extremeTamil nationalism reinforced SinhalaBuddhist nationalism and vice versa,Tamil chauvinist mobilisation inTamil Nadu could continue to reinforceSinhala chauvinism in SriLanka. More productive actions onthe part of actors in Tamil Nadu overthe last few months would have beenmaking a clear distinction betweenthe LTTE and the Tamil people,pushing for a greater UN role toaddress the humanitarian situation,and calling on Delhi to push for proposalsbeyond the 13th Amendmentand a non-unitary constitution. It isto be seen if in the post-LTTE eraTamil Nadu and Delhi would shifttheir engagement beyond their narrowTamil nationalist and securitywith development agendas respectively.Despite the importance of internationalengagement, within SriLanka itself any political solution isunlikely to work unless there is politicalwill on the part of the Presidentand the government to implement it.In that context, reviving the devolutiondebate also functions to checkthe resurgence of Sinhala Buddhistnationalism in the country andbegins to shift the political groundtowards addressing minorities concerns.Equally important is to challengethe attacks on democracy bythe Rajapaksa regime. If there is onegreat lesson to be learned from SriLanka’s history, it is that the attackson the minorities will lead to thedeterioration of democratic politicalculture in the country. And the corollaryalso is true that without considerabledemocratisation and demilitarisationin the entire country,a political solution is not likelyto succeed.—Ahilan Kadirgamar andCenan Pirani are activists withthe Sri Lanka Democracy Forum84C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

sri lankaa tale of forceddepartures and hopeThe Sri Lankan conflict betweenthe government forces and theLTTE had devastating humanitarianimpact on those trapped insidethe war zone as well as those whohave fled the island's shores seekingpeace and shelter in far away lands.However, a deteriorating security situationand strict government regulationson the media few preciousopportunities to understand thehuman dimension of the conflict, toengage directly with those who havelost their lives and loved ones andthose who had to abandon a comfortableand often prosperous life. Thisarticle is an attempt to provide aclear picture of the conditions thatmotivated thousands of Sri LankanTamils to leave behind all that theyknow and hold dear to, and to undertakea long and perilous sea voyagethrough the gauntlets of the SriLankan and Indian navies to reach anuncertain future on Indian shores.To get this perspective we spoketo refugees both new and old and tothe people who have dedicated theirlives to improve living conditionsand advocating cause of these SriLankan refugees. We visited severalof the affected areas and made observations.We found that this remarkablecommunity is determined toreturn home despite all the dangersand hardships that they haveendured for decades.Driving forceIt usually takes a lot to dislodge aperson from his home. For Murali(name changed) who had recentlyarrived from Mannar district in SriLanka, all it took was a phone call. Afew weeks ago, this young manIn the relief camps of SriLankan Tamils in India,there are extraordinarystories of people whoundertook a journey full ofhardships and danger,leaving behind their family,friends and property, all thewhile nursing the hope foran independent Elam.Kartik Sharma presents agrim picture of Sri Lankansin India who managed tosurvive and flee the warravaged regionw w w . c o m b a t l a w . o r g 85

sri lankareceived a threatening call warninghim to pay a huge sum of money asransom or to leave the country. Heand his family decided to take thecall seriously for two reasons, firstbecause the unknown caller spoke inSinhalese in an area where Tamil isthe main language and second thatseveral of his acquaintances, allTamils, received similar ultimatums.Those that did not pay or leave, wereabducted in unmarked white vansonly to be seen again as decapitatedcorpses, if at all. Several sources, bothTamil and Sinhalese, though not theSri Lankan government, have confirmedthe existence of these whitevans as anonymous vehicles of terrorthat abduct dissidents and Tamilyouths with impunity. Therefore, it'sno surprise that Murali and his familybelieved that the threat was credible.Amidst the surrounding paniccaused by the government's offensiveagainst the LTTE as well aswidespread reports of atrocities andhuman rights violations againstTamils. Murali and his family nolonger believed that Sri Lanka was asafe place for them and left in ahurry. We heard similar stories fromother refugees; they either fled thefighting in their towns and villagesor were forced out by the fear of collectiveretaliation by the Sri Lankanarmy against Tamil civilians for actscommitted by the LTTE.As it has become quite difficultfor young Tamil men to get passports,travelling by air was no optionand the sea was their way out. Muraliand his family asked the Tamil communityin Sri Lanka who gave themcontact information of a fishermanwho, they were told, could helpsmuggle them to India for a price.The cost turned out steeper thanwhat they had anticipated leavingthem with a choice: Murali's entirefamily could chance the sea voyagein a small fishing boat with over adozen other people, limited suppliesand a significant chance of drowningor they could choose the safer optionof hiring out a well provisioned boatjust for their family. For safety's sakethey decided to choose the latteroption but were unable to afford Rs50,000 per person. In the end, Muralileft Sri Lanka with his aunt and unclebut was forced to leave his parentsand sister behind. He is unable tomaintain regular contact with hisfamily and had been out of touchwith them for over two weeks. In thisclimate of conflict and uncertainty heis very worried about their wellbeingand constantly afraid that theymight be injured or dead.Now he is unsure of what thefuture holds for him. Whether he willbe able to find a mason's job in Indiaor continue his studies. However, heis convinced that he would not bealive if he had stayed back in SriLanka. It is that reason alone that hasdriven thousands of people to abandontheir homes and lives to make aperilous trip to India. This us whatkeeps them here despite the hardshipsand disadvantages that theyface as refugees.Tough choicesWhile Murali's story has repeateditself a thousand times across theGulf of Mannar and the Palk Strait,many can't afford the dubious luxuryof choice afforded to him and hisfamily. Most people do not haveenough resources or connections tosecure a private boat for themselvesand must resign themselves to a perilousjourney in small fishing boatswith limited supplies and twin dangersposed by the Sri Lankan navyand the Indian Ocean.The poorly equipped and overcrowdednature of the refugees'boats makes them especially vulnerableto the dangers and depredationsof the sea. We were introduced to ayoung man who lives in a refugeecamp in Tamil Nadu and related theharrowing narrative of his journey toIndia. Feeling pressed for his life bythe Sri Lankan army, he had fled thecountry a day after his wedding withhis entire family. About halfway,their boat was overturned by the turbulentsea, flinging his entire familyinto the ocean. Many of his familymembers, including his wife, wereunable to swim, and he scrambled tosave his wife and keep her afloat.When he reached her, he saw that shehad swallowed a lot of seawaterwhile the rest of the family memberswere beseeching him to come backand help his uncle. His wife was notresponding to his several attempts ofreviving her and his relatives kepttelling him to let go of her or theywould all die. He remembers thestruggle of keeping both his wife anduncle afloat and the agony of lettingher go when his body gave up. Hesays that not a day goes by when hedoesn't miss her. "I am haunted by86C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

sri lankaIt is an unfortunatecorollary of the SriLankan army's assaulton the LTTE that it hascreated a lot of supportand goodwill amongstthe refugees and theTamil community atlarge. Most of thepeople we spoke todream of anindependent TamilState in the north andeast of Sri Lankagoverned by the LTTEthe memory of the impossible choiceI had to make," he says.This traffic of people seekingrefuge in India may be exploited bythe LTTE and perhaps driven by anti-Tamil animosity, the Sri Lankan navyhas also been taking an extremelyhard-line with fishing vessels in theGulf of Mannar and the Palk Strait.This is not just limited to refugeesfleeing Sri Lanka. It is worth examiningtheir plight if only to understandthe dangers associated with the harrowingmaritime journey from SriLanka to India.The fishermen of Rameswaramwhose ancestors have worked in thearea for over a thousand years, complainsthat Sri Lankan navies continuallyharass and destroy their vessels;many fishermen have lost theirlives and limbs to the bullets of theSri Lankan navy and many morehave reported being subjected to tortureand degrading punishmentssuch as beatings, sexual abuse andforced to swim for several hours atgunpoint. The Sri Lankan navy alsotakes boats and fishermen into custodyand it might months, if notyears, for them to be released. The SriLankan navy claims that it only targetsand detains vessels in its territorialwaters, but the fishermen whowere also attacked in Indian watersdispute this account. Even if the SriLankan version was to be accepted,Indian fishermen have the explicitrights to exploit the rich fishinggrounds near the Lankan island ofKachchativu and to worship on theshrine located there under Article 5of the 1974 treaty between India andSri Lanka that formally establishedthe maritime boundaries between thetwo countries. The Lankan navy isviolating this clause with impunitybecause the Indian government hasnot taken up the cause of its own citizens.The fishermen have beendemoralised by the callous indifferenceby their own government and itis slowly destroying their way of life.Many of the people we spoke to hadlost relatives and friends to SriLankan bullets while others had beendeprived of their boats and fishingequipment, taking their sole meansof sustenance. Many of them havestarted to discourage their childrenfrom joining their business and anancient and socially valuable way oflife now faces extinction because ofSri Lankan navy operations. Theplight of the fishermen is an importantissue but it also serves as a grimreminder of how tough it is for therefugees to make it across the narrowwaterway that separates them fromIndia and safety.In addition to these hurdles,refugees also fall prey to the frequentlyunscrupulous people whoferry them to India. Having receivedtheir money in advance, these boatmenoften abandon refugees onsmall, uninhabited islands that comprisethe Adam's Bridge betweenIndia and Sri Lanka. Duping therefugees into thinking that they havereached Rameswaram, the smugglersabandon them with theprospect of a 5-10 hour long swim tothe mainland. Those who cannotswim resign themselves to waitingon islands with little food or water tobe rescued by the fishermen or theIndian navy, which can often takemany days.Therefore, those who are able toreach the settlement of Dhanushkodicount themselves lucky.Dhanushkodi used to be a populatedtown on the edge of the island until itwas destroyed by a cyclone in 1964and was soon swallowed by sanddunes. Only seasonal fishermen andothers who make their living off thesea now inhabit it. They are often thefirst people the refugees encounterwithin India. Dhanushkodi populationprovides newly arrived refugeeswith food and also alerts the police orother organisations of their presence.They are picked up in littlerickety buses that ply the sandyroute between Rameswaram andDhanushkodi and brought to a nearbypolice station, where their lives asrefugees in India truly begin.Hope for returnAfter they land in India the refugeesgo through an extensive officialscreening process. They are firsttaken to a police station where theyare given food and water, registeredand their information is noted. Whilethe refugees are treated humanelythey have to do without luxuriessuch as toilets or washrooms. Afterregistration, the refugees are transferredto the camp of Mandapam thatis located at a short distance fromRameswaram. Mandapam is a highsecurity camp and monitored by variousIndian and Tamil Nadu intelligenceagencies. The refugees are thenassigned housing based on the size ofthe family and given living and foodallowances. However, before theycan use any of these facilities, theyare first separated on the basis ofgender and taken to a separate holdingarea. In these 'quarantine' areas,w w w . c o m b a t l a w . o r g 87

sri lankarefugees are questioned intensivelyto determine whether they have anyties with the LTTE or are involved inany other radical or criminal activities.While the refugees are not physicallypunished in an overt manner,they are subjected to considerablemental stress and pressure which inturn can be a mental agony. While noone is sure about the criteria used bythe intelligence services in the processof their inquiry, we did learnthat special attention is paid by theintelligence agencies to young menand heads of families. As for the rest,once their inquisitors are satisfiedthat they are genuine civilians andnot Tamil tigers in disguise, therefugees are released into the generalpopulation.Life in Mandapam is by no meansluxurious but many of the basicamenities are provided for; access tobasic medical facilities at a governmenthospital in the camp, modestmonthly allowance and a schoolestablished in the camp. Relief workersand NGOs who have access tothese government run camps also aidthe refugees. These organisationshave focused on issues such as providingadequate sanitation facilities,livelihood trainings and working onsocial awareness inside the refugeepopulation and have done some veryvaluable work. However, any effortsto educate the camp based refugeeson human or political rights havebeen nipped in the bud by campauthorities.One refugee, who has been inIndia for over a decade, described thegovernance of the camps as a mostlybenign autocracy. He said that thecamp authorities like to maintaingood relations with the residents andare often lax in applying the stricttime and movement restrictions onpeople they like and favour. Theyhave an extensive and covert networkof informants among therefugee population and are quitewell informed about the state ofaffairs amongst the general population.They are quick to crack downon any overtly political activity orany attempt by outside actors tolearn more about the camp. For thisreason, the refugees are quite waryabout trusting or even interactingwith outsiders. We were told thatthose who are seen as helping orspeaking with visitors to the campare often subjected to persecution,detention and loss of privileges suchas the ability to leave the campfor work.The problem is that of arbitrariness,no one is aware of what exactlywill offend the camp authorities andthat there is no external check or balanceon their abuse of power.Therefore, the prospect of rousingthe wrath of their supervisors andcustodians makes the refugees feelthat there is a 'Sword of Damocles'hanging over them at all times anddeters them in many ways, from livinga relatively normal life relative totheir circumstances.While there are provisions fortheir basic needs by the governmentor by the various relief agencies thatwork with Sri Lankan refugees, theyare aware of the fact that they are therecipients of other people's charity.As Mr Chandrahasan, the founder ofOrganisation for Eelam RefugeesRehabilitation (OfERR), an organisationstarted by refugees for refugees,told us, "The refugees are most interestedin using their time in India tobuild human capital, so that whenthey go back home they have theskills to start integrated, productiveand self-sufficient communities."It is true that despite the gloominessof the situation in Sri Lanka,most of the refugees we spoke tohave an overwhelming and givencurrent circumstances, an unrealistichope that they will be able to returnto an autonomous if not completelyindependent homeland in Sri Lankain the near future. It is an unfortunatecorollary of the Sri Lankanarmy's assault on the LTTE that it hascreated a lot of support and goodwillamongst the refugees and the Tamilcommunity at large. Most of the peoplewe spoke to dream of an independentTamil state in the north andeast of Sri Lanka governed by theLTTE. They are not cowed by theirpresent conditions nor has theonslaught by the Sri Lankanarmy extinguished their belief in acause that is shared by the entirecommunity.There are extraordinary storiesand people to be found among therefugee population, people who hadundertaken a journey full of hardshipsand danger and have leftbehind their family, friends andproperty in Sri Lanka all the whilenursing their hope for an independentElam. While not everyoneshares their views, it is hard not togain a measure of respect for thesepeople after spending some timewith them. Their situation and plightserves as an open and hitherto unansweredcall for the world to helpresolve the intractable ethnic conflictin Sri Lanka. ■88C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

sri lankaThe Final SolutionMediation orfacilitationof any politicalprocess requireshearing all the partiesto the dispute andIndia must overcomeits reluctance tonegotiate with theLTTE, writesRamu Manivannanfrom ChennaiIndia’s policy towards Sri Lankahas historically been characterisedby a high degree of ambiguityand dualism.This dualism is deeply reflectedin India’s traditional approach to theethnic crisis in Sri Lanka arising fromits commitment to preserve the unityand integrity of Sri Lanka as well asthe well being of the Tamils. Theproblem with this has always beenone of striking the proper balance,with the well being of the latter necessaryfor the survival of the former.Added to the Indian government’svacillation is the fact that inrecent decades its influence over allpolitical actors involved in this islandcountry’s three decade long conflicthas waned considerably.Long ago, in the sixties itself,India lost its discreet influence vis-àvisthe Sri Lankan government afterit condoned the policy of disfranchisementof the Indian Tamilsadopted by the successive governmentsin Colombo after independence.This was an injudicious actagainst the poor plantation workersresulting in the creation of statelesscitizens virtually stranded betweenthe two countries.In the eighties Indian influence inthe Sri Lankan ethnic situationdecreased further after the directinvolvement of Indian Peace KeepingForces (IPKF) and its unceremoniousexit. Its repeated appeals for moredevolution and constitutionalredresses for the Tamil populationremain unattended by the Sri Lankangovernment.India is also unable to recover thetrust of the Tamils in the north andeast because of the bitter memory ofIPKF prevailing even among thew w w . c o m b a t l a w . o r g 89

sri lankaordinary Tamils and the Indian government’songoing tacit military supportto the Sri Lankan armed forcesin terms of supply of small arms,radar facilities and the militarytraining provided by the Indiangovernment.Amidst the Sinhala public too therole of India in the brutal suppressionof the Janatha VimukthiPeramuna (JVP) led radical rebellionin 1971 and its support to sustenanceof elitist democracy in Sri Lanka arereasons, among others, for continueddistrust.On top of all this, the tragic assassinationof the former prime ministerof India, Rajiv Gandhi by the LTTEhas made the Indian establishmentdeeply unsure of how much it reallywants to get involved in the SriLankan crisis. The result is a policy ofvacillation between trying to covertlyhelp the Sri Lankan governmentdefeat the LTTE while publiclypretending to be neutral or evenindifferent.Until recently, for example, the SriLankan President MahindaRajapaksa and the leader ofOpposition Ranil Wikramesinghewere engaged in a string of politicalinitiatives and track two diplomaticcontacts with influential leaders ofthe UPA government to clinch a militarydeal with India including thejoint patrolling of the seas. ThoughIndia shares crucial military andnaval intelligence with the SriLankans and even provides militaryThe tragicassassinationof the formerPrime Minister,Rajiv Gandhiby the LTTE hasmade the Indianestablishmentdeeply unsure ofhow much it reallywants to getinvolved in the SriLankan crisissupport in the current operationsagainst the LTTE, the Indian governmentis not prepared to commititself through a formal agreement.This is out of fear of political repercussionsin Tamil Nadu whereemotions over the suffering of SriLankan Tamil civilians are runningvery high.Publicly the Indian governmentcontinues to insist on the need forpolitical solution to the Sri Lankanethnic conflict through appropriatedevolution of powers and constitutionalreforms. The Indian governmenthas repeatedly even expressedits preparedness to assist the SriLankan government in developing adevolution package by making availableits expertise.However, the continued referenceto the 13th Amendment in Indianpronouncements on the subject asthe basis for political settlement cannotbe anything more than an academicexercise for both the SriLankan and the Indian governments.This is simply because of the tatteredground realities in the north and eastand the rabid opposition to the 13th90C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

sri lankaAmendment, which gives greaterautonomy and other concessions tothe Tamils, from the radical Sinhalaelements within the polity includingthe Buddhist Bhikkus.In fact, the present military victoryenjoyed by the Sri Lankan governmentwill be lost if a political packageaddressing the long-standingdemands of the Tamil population forparity with the Sinhalese is not readyquite soon. The Sri Lankan government’sinsistence on taking up thepolitical course only after completevictory against the LTTE is far fromrealistic. It may be able to convincethe world governments about its waragainst terrorism but the politicalrealities have the natural ability tooutlive the military options.President Mahinda Rajapaksaalso talks of final victory with thedefeat of LTTE. The nature of the SriLankan polity and its inability tobuild national consensus towardspolitical reforms will however continueto be the source of legitimacyfor the LTTE. The LTTE will neithersurrender nor abandon its strugglefor separate Eelam unless appropriatepolitical and constitutional measuresare undertaken.In the LTTE’s analysis Eelam ismore real today than thirty yearsago. The Sri Lankan government’sthrust towards a ‘final solution’ andthe humanitarian crisis generated bythe nature of warfare tactics adoptedby both the Sri Lankan governmentand the LTTE has drawn globalattention to the military desperationand lack of political imagination inthe politics of Sri Lanka.The LTTE may even pursue itsknown tactical options of returningto the jungles and guerrilla warfarewith the complete awareness that theSri Lankan government can at bestestablish an ‘Iraqi Model’ of administrationin the north and the east,which is anyway rapidly slippinginto something resembling the NorthWest frontier province in Pakistan.The LTTE also understands theelectoral pressures surrounding thepresent government’s military campaigndue to the anticipated parliamentaryelections in 2009. PresidentRajapaksa is in a hurry to demonstratethe military victory over theLTTE and translate this into electoralgains in parliament. The Sri Lankangovernment is not speaking the truthabout the enormous loss of the livesof Sinhalese soldiers who mostlycome from the poor and impoverishedeconomic background of therural south and central provinces ofSri Lanka.This could well prove to be amajor military and political trap forthe Rajapaksa government as the SriLankan troops and the governmentwill have to fight their way out of theencirclement by invisible forcesaround them. The troops will facethe LTTE inspired encirclements inthe north and the government will besurrounded by radical Sinhala elementsin south and central provincesdemanding a ‘final solution’.This is a familiar situation for theSri Lankan political elites and theelections will once again be foughton the same ground without any endto the present crisis in Sri Lanka. TheRajapaksa government would havethen travelled a full circle before thenext parliamentary and presidentialelections in the country. In otherwords, given the true nature of politicsin Sri Lanka, peace in the northand east is dependent on the emotionsof the south, not just on the militarydefeat of the LTTE.India’s present search for solutionto the ethnic crisis in Sri Lankarevolves around these uncertaintiesstated above. India says that it issearching for a scale of equitableaccess to both the parties to the ethnicconflict. However, mediation orfacilitation of political processrequires hearing all the parties tothe dispute.It is high time that India overcomesits reluctance to negotiatewith the LTTE and sees the ‘groundrealities’. Given the nature of SriLankan polity and its ruling elites, itis not wise to believe that thedestruction of the LTTE alonewill help restore peace in theisland nation.—The authoris an associate Professor in theDepartment of Politics & PublicAdministration, University of Madras.He is also associated with theMahatma Gandhi Centre for Peace& Reconciliation, University of Madrasw w w . c o m b a t l a w . o r g 91

pakisTanPeople's power has won inPakistan after the success ofLong March. This is a tribute tothe moral strength of the civilsociety for restoration ofsuperior judges in Pakistan.However, a question mark nowhangs over Zardari's ability togovern the country, writesPraful BidwaiGlimmer of hopeThe world public must applaudthe people of Pakistan for fightingauthoritarianism and takinga major step towards realdemocratisation through an independentjudiciary. It is a tribute to themoral strength of the civil societymobilisation for the restoration ofChief Justice Iftikhar Chaudhry thatit brought President Asif Ali Zardarito his knees peacefully. The agitationhas broken the fear barrier inPakistan. This is a historic gain.In the event, all the repressivemeans taken to thwart the lawyers'Long March proved useless, includingpreventive arrests, gagging of themedia, blocking off roads, and barricadesin Islamabad with transportcontainers. The final planned crackdownbeginning with the housearrest of former Prime MinisterNawaz Sharif, which he defied, nevermaterialised. The police didn't obeyorders to prevent people from joiningthe Long March, and the governmentwas left with no choice but toannounce that it would restoreChaudhry and other deposed superiorcourt judges and appeal the recentorder disqualifying Sharif, and hisbrother and former Punjab ChiefMinister Shahbaz Sharif, from holdingelected office.People's power has won out inPakistan-for the third time since end2007, after forcing former PresidentPervez Musharraf to call a generalelection last February, and compellinghim to step down lastAugust. The perseverance of the civilsociety movement in carrying outthis long fight deserves respect. Italso gives the lie to the propositionthat the Pakistani people's democraticaspirations have been blunted byIslam and/or by long years of militaryrule.Admittedly, several processesmediated the government's decisionto climb down. Of crucial importancewere Chief of Army Staff GeneralPervez Ashfaq Kiyani's marathonmeetings with President Zardari,Prime Minister Yousuf Raza Gilaniand Sharif. No less significant wasthe role of the US Secretary of StateHillary Clinton, US special envoyfor Afghanistan-Pakistan RichardHolbrooke, and UK ForeignSecretary David Miliband.All of them told the principaladversaries that they must avoid aconfrontation. Clinton reportedlythreatened to cut off aid to Pakistan ifZardari refused reconciliation. Hefirst agreed to a face-saving packageunder which the Supreme Courtwould review the Sharif brothers'disqualification, but resisted therestoration of the deposed judgesuntilit became plain that with thousandspouring in to join in the LongMarch, his authority would totallycollapse unless he agrees to a compromisebased on the Charter ofDemocracy signed in May 2006between assassinated former PrimeMinister Benazir Bhutto and Sharif.This mediation only shows thatPakistan's power centres are neitherfully civilian nor internal, and thatPakistan's crisis cannot yet beresolved on the basis of its own politicalresources. These resources arepoorly developed, as are Pakistan'sdemocratic institutions, themselvesrepeatedly ravaged by military ruleand a fractious and opportunisticcivilian leadership.Hopefully, the March 16 breatherwill help revive Pakistan's democraticinstitutions – if all the concernedplayers act responsibly and in a spiritof cooperation. This is a tall order.The parties that have gained the mostfrom the recent events are thosethat supported the Long March:Pakistan Muslim League (Nawaz),Jamaat-i-Islami and Imran Khan'sTehreek-i-Insaf.These are right-of-centre organisations,with sympathies for religiousextremism and with deepreservations about combating theTaliban and their allies in Pakistan.Whether and how they can beaccommodated into Pakistan's powerstructures, and how various forcesand individuals play out their roleswill determine whether Pakistanmakes a secure transition to democracywith a certain degree of legitimacy,or descends into chaos.Justice Chaudhry has emerged asa super-hero and shining symbol ofjudicial independence and integritybecause he took a bold stand againstthe Provisional Constituted Order(PCO) passed by Musharraf inNovember 2007 to suspend theConstitution, declare emergency, and92C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

pakisTandismiss recalcitrant judges earlierrestored by the Supreme Court.This is no small irony. Chaudhrywas himself sworn in as a SupremeCourt judge in 2000 under anotherPCO! He sat on four benches that validatedMusharraf's military takeover,his obnoxious legal frameworkorder, and the 17th Amendment,which gave him additional powerswhile continuing as army chief. Tohis credit, Chaudhry changed dramatically.After 2006, he became adefender of judicial independence tothe point of promoting activism.Musharraf was especially alarmed athis suo moto investigation into thesale of a state-owned steel mill andinto some 500 cases of "missingpersons".Choudhry must now behave in ascrupulously correct manner. Hemust not be seen to favour judicialactivism or sit on benches which hearchallenges to the PCO, and evenmore important, to the October 2007National Reconciliation Ordinance(NRO) passed by the Musharrafregime. The NRO was an egregiouslycollusive arrangement under whichcharges of corruption and lootingnational wealth against Zardari andBhutto were extinguished and theywere allowed to return to Pakistanfrom exile.Chaudhry is known to beopposed to these legislations. But ifhe personally decides their validity, itwill be seen as abuse of judicialauthority to reach a pre-determinedverdict and hence as an unhealthymix of policies and law.However, the Supreme Courtheaded by Chaudhry must not fightshy of inquiring into the "missingpersons" cases. Their number is nowestimated at close to 1,000. Many ofthem were suspected jehadi militantsor Baloch separatists. The army andpolice without proper investigationor charges rounded them up. Somewere illegally "rendered" to the USfor detention in Guantanamo Bay,Bagram (Afghanistan) and other centres.Some were tortured. It's vital toknow what happened to them sothat their rights and freedoms aresafeguarded.An impartial and credible inquiryinto these abductions will undoubtedlyrattle the US, which has much tohide. But there's simply no alternativeto this if Pakistan is to movetowards genuine judicial independence,and respect for human dignityand fundamental rights. It goeswithout saying that Chaudhry willhave to walk the tight rope whiledefending the integrity of the judiciaryas an institution, and resist thetemptation to cater to his euphoricsupporters.Nawaz Sharif's political stock hasrisen to a point where people mightforget his tainted past. From all availableindications, the Americanswould like him to be given a place inthe federal power structure so thathe's "inside the tent" rather than outside,where he can make trouble. Ifthis is done in a messy and collusiveway, the government will lose what'sleft of its legitimacy. A dignified consensualarrangement with a democraticmandate must be found.This won't be easy. It requires theUS to be more alert and responsive toPakistani sensibilities in respect oftargeting its border areas with droneand missile attacks. Sharif is calledupon to play a statesman-like rolewith patience and willingness tohonour the Charter of Democracy,which says that neither the PPP northe PML will resort to military orexternal mediation to resolve differences,and that they will set up anational judicial commission to makesuperior court appointments.This charter has been violatedrepeatedly in practice. Zardari merelyimitated Musharraf in packing thecourts with arbitrarily chosen but pliantjudges. Yet, the solution is not todiscard the charter, but to implementit honestly. This demands an expansivevision and a willingness tocooperate and build a democraticconsensus.Zardari has emerged mauledfrom the Long March stand-off. Heoverreached himself and thought hecould get away by violating his owncommitments. This has further erodedhis authority. Worse, he has triedto undermine his own party,Pakistan's biggest political organisation,with a well-ramified structureand cadre. He had no organisationalpoliticalrelationship with the PPP tillhis wife was killed. As co-chairperson,he has marginalised or banishedevery major party leader, includingformer presidential aspirantMakhdoom Amin Fahim, lawyers'movement leader Aitzaz Ahsan,Leader of the house Raza Rabbani,and Benazir Bhutto confidants likeNahid Khan, Safdar Abbassi andSherry Rehman.A question-mark now hangs overZardari's ability to govern Pakistan.But that hasn't deterred him fromplaying devious games with helpfrom the PML (Q). The PPP shouldreplace him soon. If the NRO isstruck down, that will make untenablehis continuation as a politicianeven without constitutional office.Pakistan's new political equationsspell contestations and instability.The central question is if thedemocratisation process consolidatesitself – even with ups and downs – toa point where Pakistan is better ableto tackle its multiple and structuralcrises, combat jehadi extremism, andbuild stronger civilian institutionsbefore greater turmoil overwhelmsthe country.The whole world has a vital stakein Pakistan's sustained evolutiontowards democracy. If Pakistan succeeds,the world will gain immensely;so will the cause of moderation inIslamic societies. If Pakistandescends into chaos, it will becomethe world's primary fountainhead ofnightmarish extremism, terror andTaliban-style brutishness. ■w w w . c o m b a t l a w . o r g 93

efugee CrisisFIndInGneVeRlandCondemned to live in twilight zones, Burmese in Indiahave no refugee status. Without any avenues to findany work, they are deprived of minimum dignity andsuffer untold humiliation, economic hardships andexploitation. Women, predictably, bear the brunt,writes Aswant KatwalThe mute rebellion in his eyesreflects everything he has livedthrough in life. Win Tin (27) sitscalmly in his rented one-room housein West Delhi, which he shares withhis wife, two children, and fourbrothers, as he narrates his story ofhorror and grief. At the age of 13, thearmy forcibly took him away to workas a porter. He neither remembersthe name of the place or the durationhe was there for. All that he remembersis the pain and the tortureinflicted upon him.Win Tin says, "I was a slave andforced to do whatever they asked meto, until I miraculously managed toescape." He was taken for dead aftera near fatal accident at the labourcamp and was left to die on a roadside.But fate had other plans for himas a group of fleeing Chin refugeesbrought him to Mizoram in 1999,where he slowly recuperated. Laterhe came to Delhi in 2003 andhas since been staying in the citywith a hope that someday his lifewill improve.This is not a stray incident. Anestimated 50,000 Burmese are seekingrefuge in India. The north-easternstates of Mizoram and Manipur havewitnessed a steady flow of Burmeseasylum seekers ever since the militaryjunta established its rule overthe country in 1962. Though therehave been nodal points in the arrivalrate coinciding with political events,the pattern of refugee exodus fromBurma into India can be divided intotwo broad categories: Those fleeingto India in the immediate aftermathof 1988 and those who have crossedinto India steadily since the early1990's to the present. The first categoryincludes university students andyouth who participated in the 1988uprising and subsequently fled toIndia to escape the brutal militarycrackdown. The second categoryincludes ordinary civilians and villagerswho fled from human rightsviolations in arbitrary arrests, torture,forced labour and religiouspersecutions.Although Burma is a resourcerichcountry with a strong agriculturalbase, it is believed to be one of thepoorest countries in the world. TheUN Development Programme estimatesthat Burma's GDP per capita isthe 13th lowest in the world.According to UNICEF, under-fivechild mortality averages 104 per1,000 children, the second-highestrate outside Africa, afterAfghanistan. Burma also has thehighest HIV positive growth inSoutheast Asia, and malaria is a leadingcause of mortality and morbidity.There are eight ethnic groups inBurma and many smaller onestotalling to as many as 135. In India,Chins constitute around 80 per centof the total asylum seekers as theChin state in Burma shares its borderswith Mizoram. Other ethnicgroups with significant numbers arethe Burmans, Arakans and Kachins.Being close to India it was natural forthem to flee to this side when theirsurvival was at stake.VulnerabilityThe UN 1951 Convention relating tothe Status of Refugees defines arefugee as "a person who, owing to awell founded fear of being persecutedfor reasons of race, religion,nationality, membership of a particularsocial group or political opinion,is outside the country of his nationalityand is unable or, owing to suchfear, unwilling to avail himself of theprotection of that country".There are around 2,000 UNHCRrecognised mandate Burmeserefugees in New Delhi. Most havecome to Delhi to get recognised asrefugees and also to escape frombeing forcefully sent to Burma fromMizoram. The refugees who havecome to Delhi say that they havebeen caught betweeen the devil andthe deep sea. Zo Tum Hmung is aChin community leader. He says, "I94C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

efugee CrisisIn India, Chins constitute around 80 per cent ofthe total asylum seekers as the Chin state inBurma shares its borders with Mizoram. Otherethnic groups with significant numbers are theBurmans, Arakans and Kachinscame to Delhi to seek protection afterwe were forced to go back to Burmaby the Young Mizo Association butlife out here is very hard… the localssuspect us and the police harass us."In October 2007, when he intervenedto stop some locals from beating up aBurmese boy, he too was severelybeaten. When he went to the policestation to lodge a complaint he wasthreatened and asked to leave Delhi.It was only when he approached theStudent Leadership and InvolvementCentre (SLIC) office for assistancethat his FIR was lodged but nothingever happened in the case. He furthersays, "I feel like an alien here… I amunwanted." This feeling is pervasivethroughout the community.India is not a state party to the1951 Convention relating to theStatus of Refugees or the 1967Protocol but a member of theUNHCR Executive Committee.Nevertheless, India has been observinga "refugee regime" without givinga formal shape to the practicesadopted by it in a separate statute.The problems are dealt on an ad hocbasis. In the absence of any nationalrefugee law, refugees are treated asaliens. The Foreigners Act 1946, thePassport (Entry into India) Act, 1920and the Passport Act, 1967 governtheir entry, stay, and departure fromthe country.Refugees are also provided someconstitutional protection under theConstitution of India. CertainFundamental Rights – Right to equality(Article 14); Right to life and personalliberty (Article 21); and theFreedom to practice and propagateone's own religion (Article 25) – areguaranteed to citizens and non-citizensalike but how much of these arebeing accorded to them is anyone'sguess. India's treatment of refugeescan at best be called opportunisticand selective. India only recognisesTibetans and Sri Lankans as refugeeswhile the rest are made to fend forthemselves, as has been the case foran estimated 50,000 Burmeserefugees residing in India.The United Nations HighCommissioner for Refugees(UNHCR) functions under an informalagreement with the Indian governmentand has offices in NewDelhi and Chennai only. It is mandatedto carry out Refugee StatusDetermination, one of its core protectionfunctions, of Burmese refugeesin Delhi. The protection functions ofthe UNHCR have been delegated tothe Implementing Partners (IPs) whoare based in the national capital. TheBurmese refugees who are recognizedby UNHCR are issued aRefugee certificate valid for 18months. This entitles them to applyfor a Residence Permit issued fromthe Foreigners Regional RegistrationOffice (FRRO). This document is normallyissued to every foreigner enteringthe country and in the case ofBurmese refugees it needs to berenewed every six months.Chu Win (26) came to Delhi in thewinter of 2001. He says that heaspired to be a doctor and was studyingin class 10 when the military raidedtheir village and took him captive.Now he works in a factory at theJeevan Park area of West Delhi andearns Rs 2,000 a month. He has beengranted a stay visa from the Indianauthorities, which needs to berenewed every six months, but in theabsence of a work permit he is left atthe merciless hands of the policemen.He further says that he is not paid atpar with the other's working at thefactory, as his employer knows thathe is a refugee and is not permittedto work.UNHCR in New Delhi has recognised1,982 Burmese refugees tillNovember 2008. This means thatonly a small fraction of them in Indiaenjoy legal protection. Even thosewho have been recognised asrefugees find themselves in a precarioussituation in New Delhi. UNHCRprovides a monthly financial assis-w w w . c o m b a t l a w . o r g 95

efugees CrisisBurmese refugees are seen as a strain on thealready scant resources available to the localsand mistaken as economic migrants fromIndia's Northeast. Their distinct language,culture, and physical appearance also makethem vulnerabletance of Rs 2,245 to recognisedrefugees apart from some educationaland medical allowance. However,UNHCR has cut financial assistanceto many refugees saying that the provisionof assistance to Burmeserefugees has deterred them fromseeking means of self-reliance, andthat the termination of assistance toold refugees will accommodate newarrivals.The Indian authorities haveissued them with residence permits,but denial of work permits makesany attempt at self-reliance almostimpossible and illegal. In fact, mostBurmese refugees are unskilled andcannot speak the local language, andtherefore cannot find even ordinaryjobs where there are already millionsof unemployed people. Out of thelucky few who manage to getemployed, cases of ill treatment andharassment at work continue to pourin at an alarming rate.Apart from these, the inhospitableliving conditions and thexenophobic attitude of the locals hasfurther aggravated their plight.Protection and Sexual and GenderBased Violence (SGBV) caseshave become the norm of the day.In 2008, 104 protection casesand 41 SGBV cases were reportedagainst 2007 figures of 83 and 30respectively. This trend is on the riseand in the absence of any regulatorymeasures things may soon goout of hand.Pi Thun, a 23-year-old Burmesewoman, who works as an interpreterwith the UNHCR's ImplementingPartner in West Delhi, says, "I feelinsecure and unwanted… We arealways made to compromise regardlessof justice." Her father was theformer chief justice of Chin state butafter the 1988 uprising he was arrestedtwice and tortured, forcing him toleave the country and come to Delhialong with his wife and eight childrenin 1999. Pi states that two of herelder brothers were killed and one isstill missing.In year 2000, Pi and her sister-inlawwere badly beaten up by thelocals for trying to draw some waterfrom the community tap. She washospitalised for a month and stilltries hard to forget that day. She saysthat the hardest part of her day iscommuting to work. The lewdremarks and outright sexual gesturespassed by the locals makes her fearfor her safety everyday. She ispatiently waiting for the day whenshe will be resettled to anothercountry where she can further pursueher education. Until then it is along and painful wait for her andher family.The Burmese refugees are seenas a strain on the already scantresources available to the locals andmistaken as economic migrants fromIndia's Northeast. Their distinct language,culture, and physical appearancealso make them vulnerable. TheBurmese men may have musteredthe will to deal with all the prejudicesbut the women regularly face thebrunt of it. The women have beenstereotyped as sex-workers and carryingout everyday activities has initself become a war. The Burmeserefugees claim that resettlement to athird country is their only viablesolution but the problem gets compoundedby the fact that most ofthem are unskilled with very littleeducation and do not possess therequisite means to survive in a firstworld country.There is an urgent need to lookinto their issues from an insider'sperspective and establish a humanitarianand practical model to amelioratetheir condition. The needs of thefamilies and individuals have to beproperly assessed and understoodand they have to be provided 'meaningful'legal protection. It is necessaryto understand them as personsand as fellow human beings, worthyof respect and in dire need of protection.It is also not just a matter of providingthe material and financialresources required but also preventingthe erosion of their human dignityand restoring the respect theytruly deserve. Palliatives may preventthe onset of disease but will notprevent it in the long run. ■(Some names have been changedto conceal the identity of the person.)96C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

MigraTiOnlucid dreamsThe stories of boats sinking and people drowning arerapidly increasing not just in Egypt but also in manyimpoverished and war-torn African countries. Undeterredby the imagery of corpses and dangerous waters, the urgeto escape villages for better pastures in Europe seems tobe getting stronger among youth, write Lina Atallah andNida Mariamof our time on theboat was spent inside"Mostthe fridges that are usedfor keeping the fish," explains theyoung Egyptian Mahmoud about hisexperience of being smuggled acrossthe Mediterranean Sea, "Each containeris wide enough for 15 or 20 butusually we are more than 30."Irregular economic migration toEurope is a seemingly increasingphenomenon. Many villages acrossEgypt have experienced an alarmingexodus of their young men, forwhom supporting their familiesand realising their dreams havebecome impossible propositions intheir country.Mahmoud paid boat smugglersfour times to take him to Greece. Andon all occasions his venture failed."The first time, we set off fromAlexandria and after three days inthe sea, we were left on an islandwhich they said was either Greece orItaly, only to realise that the islandwas one off of Alexandria...The secondtime we were caught on theEgyptian coastline before we got onthe boats.... The third time we werecaught near Crete."During that journey, Mahmoudand his fellow migrants had to swimmore than 500 meters to the shore, adistance many of them could notmake. Fourteen of them drownedthat day while he and a few othersmanaged to make it to the shore onlyto get picked up by the coast guardsand be deported back to Egypt. Afew months later, on his fourthventure the boat was interceptedin Greece.Although young men likeMahmoud embark on such riskyjourneys to escape poverty, however,their decision is not merely based onan economic cost-benefit calculation.One trip costs an average of 20,000Egyptian pounds (almost US $4,000),and doesn't come with 'money-back'guarantees. Migrating successfullyand sending back foreign funds mayalso be an act of establishing selfworth,amidst infinite sentiments ofworthlessness at home. With thesound waves of global dreams reverberatingin their villages, migrationis seen as the only resort in communitieswhere 'choice' is largely absent."Do you want to migrate? Do youwant to have new experiences? Comecloser, come closer to the heart ofEgypt! Here, wherever you go, yourlife is beautiful. Egypt is full of treasures,and its land is of gold. It givesyou what you ask for," is one of themessages that was aired on theradio as part of the InformationDissemination on Migration (IDOM)project, undertaken in 2006 by theEgyptian Ministry of Manpower andEmigration, in collaboration with theInternational Organisation forMigration (IOM), and funded by theItalian government. "Clandestineemigration is illegal. It is against thelaw. Anyway, you will shake of fear,and you will have insomnia. Forgetmaking it to the other side. If youmake a mistake, you will suffer thepains of hell! You would be committinga mistake; you will not disembarkon any shore! Anyway, if youemigrate illegally, you will be in theterror network and the only way outwill be returning with your handscuffed", is how another one sounds.In an attempt to combat irregularmigration, IDOM radio announcementsconsistently invested in threattherapy,injected with doses ofnationalism. By raising awarenessabout the risks of deportation anddrowning, these messages tried toremind potential migrants thatredemption lay in remaining rootedin their homeland. But given theirparticular life-circumstances, menlike Mahmoud are neither inhibitedby the fear of death nor susceptible tothe parody of patriotism.The news in 2008 seems to suggestthat the IDOM radio campaignwas quite out of tune, and must havefallen on deaf ears. In earlySeptember of 2008, 70 Egyptianmigrants were rescued from theshores of Crete, one day after theirboat took off from Alexandria. A fewweeks ago, another boat carrying 83Egyptians departed from the northernEgyptian coastal city of Damiettaand went missing off the coast ofGreece. The stories of boats sinkingand people drowning have increasedsince the days of Mahmoud's firstdeparture in 2004, not just in Egyptbut also in many impoverished andwar-torn African countries. Theseyoung men are not deterred by theimagery of dead corpses and sinkingboats. In fact, back in the village,the urge to escape seems to begetting stronger.Mahmoud, like many othermigrants, spent many days in detention,both in Egypt and in Greece.Today, he knows that if he tries to go,he might be imprisoned again andfaces a longer detention (betweenseven and nine months) beforedeportation due to a new EU law.However, his eyes are still fixed onthe European shore...—This story is produced as partof a research project undertaken bythe Centre of Migration andRefugee Studies at the AmericanUniversity in Cairow w w . c o m b a t l a w . o r g 97

enVirOnMenTHow not to protectthe Western GhatsThe threat to the Liontailedmacaque in the SilentValley had moved IndiraGandhi. But the currentregime is mute to multiplethreats to the flora andfauna in the unique andsensitive ecologicalcorridor of Western Ghats,writes Sudhirendar SharmaLittle has been realised, in theoryas well as in practice, that ifpreserved to its pristine glorythe mountainous corridor along thewest coast could be country's best betto cushion climate change. CalledWestern Ghats, this narrow 1,700 kmstrip that stretches from the mouth ofTapti in Dhule district ofMaharashtra to Kanyakumari inTamil Nadu is nature's evolutionarylaboratory still at work. During pastyear alone, some 11 new types offrogs have been discovered in thetropical forests across this landscape.The region is replete withbewitching locations that are hometo 4,050 type of plants, 121 species offrogs, 508 bird species, six types ofturtles and terrapins, 87 species ofsnakes, 63 types of lizards and a widevariety of large mammals. These ecologicalriches pull the strong oceaniccurrents to offload their first showerson the southern tip of the peninsula –acting like a virtual gateway to themost spectacular natural phenomenon– the monsoons. No wonder,this region is to South Asia whatAmazon is to South America, providingreliable carbon sinks.In reality, however, the region ismicrocosm of all that can go wrongin the race for industrialisation andgrowth. It has been beset with ecologicaland environmental problemslike increasing pressure of populationon land; submergence of forestareas under river valley projects;felling of forests for raising exoticplantations; unrestricted leasing formining operations; and consequentdecline in biodiversity. The law of theland has been bulldozed withimpunity across the entire stretch ofthe Western Ghats.The region has a history of fraudulentenvironment clearances. One ofthe widely reported cases was that ofthe Ernst and Young's EnvironmentalImpact Assessment (EIA) for theDandeli mini-hydel project in Uttara,Karnataka in 2000 – a plagiarisedversion of an earlier EIA for anotherproject. Even a cover-up by noneother than the The Energy ResearchInstitute (TERI) could not help.Shockingly, however, had the EIAfraud not been exposed, much of theDandeli wildlife sanctuary wouldhave been submerged. Such poor ispublic memory that the erring TERIis now held in high esteem!As development juggernautmoves full throttle in the WesternGhats, there has been a surge in violationsof environmental regulationsof all kind. Sample this: the JSWEnergy Ltd first signed a memorandumof understanding withMaharashtra government for a thermalpower project in Ratnagiri districtand applied for environmentalclearance later. Need it be said that inconnivance with the powers-that-be,site selection for projects has becomea cakewalk for the project proponents.Socialist state is clearly in theservice of the corporate world!Indira Gandhi would have been98C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

enVirOnMenTshocked! The rare precedent she hadset by scrapping the controversialSilent Valley hydroelectric project inthe 1980's has long been archived.The ministry of environment &forests she set up, following theStockholm Human EnvironmentSummit in 1972, has literally beenreduced to being a ministry for environmentclearances. It is oftenremarked: from thermal to nuclearand from mining to tourism, theWestern Ghats have become a parkinglot for development projects ofall hues.Since revised EIA notificationcame into force on September 14,2006, all but four construction projectsremain to be cleared tillFebruary 2009. The approved projectsinclude: 952 industrial, 134 thermalpower, one nuclear power, 1,073construction and 587 non-coal miningprojects. Of these, a sizeablenumber have found sanctuary in theWestern Ghats. It seems the ministryfollowed the recommendations of theGovindrajan Committee that hadfound controversy in site selectionand public opposition as the stumblingblocks for industrial growth.Public opposition, on the otherhand, is being silenced through theconvenience of `public hearing',mandatory for such projects. Publichearings mostly continue to be formalitiesat best. Consequently, publicconcern remains unattended till ittakes violent form as was inNandigram and Singur. The miningcases in Goa are a case in point wheredespite complete opposition by thegram sabha, 400 mining leases coveringan area of over 30,000 hectareshave been granted. As a result, theaffected people are taking tothe streets.Neglect of gram sabha's positionis a clear reflection of `democracydeficit', a violation of constitutionalmandate accorded to the panchayats.Critics argue that democracy hasseemingly been restricted to electoralobligation by the citizens and doesnot necessarily translate into peoples'role in decision-making and governance.With the institutional mechanismof the state playing hands inFractured Vision, Sectoral ActionWestern Ghats region generallyreceives 2,000 mm to 7,000 mmof rainfall. Most of the rivers in peninsularIndia have their origin in theGhats of which Godavari, Krishna,Kaveri, Kali and Periyar are of interstateimportance. These waterresources have been harnessedfor irrigation andpower. About 30 per centof the area of the WesternGhats is under forests.Launched in 1974-75,the Western GhatsDevelopment Programme(WGDP) aimed for ecodevelopment,eco-restorationand eco-preservationof the region. While duringthe 5th Five Year Plan the emphasiswas on well being of the population,it drifted to an integratedapproach through watershed developmentin the 8th and 9th Plans. If thereports from the Planning Commissionare any indication, the Western GhatsDevelopment Programme hinges onprogrammatic areas like maintenanceof ecological balance essential for thelife support system; preservation ofgenetic diversity; and restoration ofecological damage caused by humaninteraction. Shockingly, however, onlyRs 200 crores is allocated annually formeeting the ambitious list of programmeson 159,000 sqkm of area in the WesternGhats. However, in realitythe overall ecological situationin the Western Ghatsis anything but pathetic.Destructive infrastructureprojects have ravaged thefragile eco-systems in theregion. Given the fact thatthe programmatic focus issectoral and state-specific,the net impact has failed to outpacethe manmade destruction in theWestern Ghats. Given the fact that theclimate change clouds are hoveringover the region, it is time the WesternGhats get viewed as an ecological continuumand liberated from thewelfare-fixation of the PlanningCommission. Is there anyone listening?glove with the private sector, theonus rests on the civil society to playa stellar role in creating a greaterappreciation of the simmering discontentamongst the masses.The Western Ghats have alreadyheard its first gunshots, signaling adangerous era ahead. Developmentdrivenhabitat alteration in the regionhas not only eroded prevailingfaith(s) but has made people vulnerable.Accumulated insecurity onaccount of vulnerability has resultedin escalation of violence. This is oneof the reasons why the Naxaliteinsurgency, which the prime ministerhas acknowledged to be the singlemost serious threat to the country,has found such fertile ground inIndia's forested lands. The worryingfact is that the Western Ghats havenot remained isolated from suchinfluences.In light of such dramatic transformation,the Save Western Ghatsmovement of 1988 seems history.Twenty-one years later, on February8, 2009, over 200 passionate, concernedand searching souls gottogether to confront the fresh cacheof challenges in the landscape. It hasbeen resolved to view this uniquecorridor as an ecological continuumand demand the creation of aWestern Ghats DevelopmentAuthority that cuts across state-specificpriorities and links conservationefforts in the region from the widerperspective of ecological security.However, in the present schemeof things, growth engine is clearingforest areas like never before. Forestsare literally being `silenced' of theirpristine riches and endemic wildlife.The threat to the Lion-tailedmacaque in the Silent Valley hadmoved Indira Gandhi, resulting inher creating history of the sorts, butmultiple threats to mute wildlife andpoor humans in the Western Ghats isnot even being heard by SoniaGandhi. Without ecological contributionby flora and fauna, the fight toreverse climate change will remainincomplete. Else, the ghost of climatechange will subsume the sparkle ofeconomic growth.—The writer is a development criticand has worked in the Western Ghatssince 2002. Sharma is author ofSahyadri: Reminiscences andReflections (2009)w w w . c o m b a t l a w . o r g 99

aBOrTiOnIs abortion Right?The debate of whether women should have the right toabortion rages on with a recent Bombay High Courtruling. Lawyer Anubha Rastogi argues that the decisionshould solely be that of the woman"It is not a mere desire to terminatethe pregnancy that will entitleeither pregnant woman to gofor termination of pregnancyor for the doctors to assist thepregnant woman to terminate thepregnancy…"This has been the observation ofa division bench of the BombayHigh Court in a case beingheard by them concerning a pregnantwoman of 25 weeks carrying afoetus in which an anomaly was discoveredin the 24th week and notbefore. The foetus was diagnosedwith congenital heart block.To put it in simple terms thedevelopment of the heart was in sucha way that the upper and lowerchambers of the heart were completelyout of sync and were beatingat different rates, which would resultin either overfilling of the lowerchamber with impure blood or itbeing empty. Along with this the pulmonaryartery was in a malposition,which basically means that instead ofsending impure blood to the heart, itwas sending the impure blood tothe body.Before getting into the details ofthe judgement and the reasoningundertaken by the judges, let us firstunderstand the law relating to abortionas it stands today. In India, legalityof an abortion is determined bytwo legislations: the MedicalTermination of Pregnancy Act, 1971and the Indian Penal Code, 1860. TheMedical Termination of PregnancyAct, 1971 (hereinafter known as the'MTP Act') was basically enacted asillegal and unsafe abortions wereresulting in an escalated maternalmortality rate in the country. Beforethe enactment of this legislation,abortion in any form was illegal andan offence under the penal code.Both the pregnant woman andthe abortionist were liable to beprosecuted.The new law was enacted for liberalisingthe provisions relating toabortion for three main reasons asstated in the statement of objects andreasons of the Act: as a health measure:when there is danger to the lifeor risk to physical or mental health ofthe woman, on humanitariangrounds: such as when pregnancyarises from a sex crime like rape orintercourse with a lunatic woman,etc and eugenic grounds, wherethere is substantial risk that the child,if born, would suffer from deformitiesand diseases.This law lays down the reasonsfor a pregnancy to be terminated, thepre-conditions for the same, the personwho is qualified to do so and theplace where a pregnancy can be terminatedand the exceptions to thesame. Briefly, the following pointscan help us understand better theprovisions related to MTP:a) Length of pregnancy: upto 12weeks on the opinion formed by oneregistered medical practitioner (firsttrimester) or upto 20 weeks on theopinion formed by two registeredmedical practitioners (secondtrimester)b) Reasons for termination: on medicalopinion formed in good faith thatthe continuance of the pregnancywould involve a risk● to the life of the pregnant woman or● grave injury to her physical or mentalhealth or● there is a substantial risk that if thechild were born, it would suffer fromsuch physical or mental abnormalitiesas to be seriously handicappedIt is further explained that whenthe pregnancy is the result of a rape,the anguish caused by the pregnancywould be considered as grave injuryto her mental health and similarly apregnancy as a result of contraceptivefailure would also come underthis provision.This provision goes on to say thatno pregnancy can be terminatedwithout the consent of the woman. Ina case where the woman is eitherbelow 18 years of age or is mentallyunsound, then the consent of herguardian has to be taken. Section 5lays down an exception to this clausethat the termination of pregnancycan take place at any stage by a registeredmedical practitioner when anopinion is formed in good faith thatthe termination of the pregnancy isnecessary to immediately save thelife of the pregnant woman. The provisionsof the Indian Penal Code,1860, lays down the general law withregard to abortion and the MTP Actis an exception to that general law.Since the law clearly states thatunless it is necessary to save the lifeof the pregnant woman a pregnancycan be terminated only up to 20weeks. In the Bombay case eventhough the foetal anomaly wasdetected only in the 24th week mostdoctors refused to perform an abortion,as it would be a clear violationof the MTP Act. The gynecologist thiswoman and her husband were consultingwas also keen on challengingthe provisions of the MTP Act or atbest plead a case of exception withthe Mumbai High Court for the basicreason that a number of cases of sim-100C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

aBOrTiOnToday, with theamount of medicaland technologicaladvancement it ispossible and preferredto regularly observe thegrowth and well beingof the foetus. But thefact remains that eventhough there are anumber of aspects offoetal growth that canbe detected only at the24th or 26th week, itremains pointless, asthe woman cannot optfor a safe legalabortion, it being inviolation of the lawilar nature were being observed.Since a legal MTP cannot be conductedafter 20 weeks of pregnancy, thesewomen were then surely turningtowards illegal and unsafe options ofobtaining abortions.The case was then heard on theplea of emergency, and was arguedover a week. An expert committee ofgovernment doctors formed by thecourt observed both aspects of anexisting anomaly that was likely toresult in early death of the child, ifborn, and in that case the childwould have to be dependent on medicalsupport all its life. Unfortunately,the report concluded by sayingthat there is no specific indicationthat the child was not likely tosurvive if born.Given the contradictory nature ofthe report, the court asked the committeeto re-submit the report aftercorrections. Parallel to this exercisewas the fact that with the petitionand on occasions in the court, thepetitioner submitted relevant literatureto reiterate the fact that the MTPAct does not cater to the moderntechnologies that are in existence andtherefore does not address an issuelike the present one where theanomaly is detectable only after the24th week of pregnancy and notbefore. Further, it is a well-establishedmedical stance that due to thetechnological and scientific advancement,safe abortions can be conductedway beyond the limit of 20 weeks.The rationale, as was explained inthe court, for setting the 20 weeklimit in 1971 when the MTP Act wasenacted, was the fact that at that timethe methods of abortion availablewould pose a danger to the life of thepregnant woman if used beyond thesecond trimester, but now the situationhas drastically changed. Today,with the amount of medical and technologicaladvancement it is possibleand preferred to regularly observethe growth and well being of the foetus.But the fact remains that eventhough there are a number of aspectsof foetal growth that can be detectedonly at the 24th or 26th week, itremains pointless, as the woman cannotopt for a safe legal abortion, itbeing in violation of the law.Even though the Mumbai HighCourt denied the pregnant womanliberty to abort the foetus with a fatalanomaly, uproar kick-started publicly.There were a number ofactivists and intellectuals who wereof the view that the MTP Act shouldnow be amended to accommodatecases like these, while there were otherswho were offering to take care ofthe child after it was born and bearthe medical expenses.This case highlighted the starkreality that women have no say inwhether she wants a child or not.However, in this case, the pregnantcouple took the decision, but the lawrefused to acknowledge it. The pregnantwoman was so exhaustedby the proceedings that she refusedto attempt an appeal in theSupreme Court.Their gynecologist, Dr NikhilDattar, who was also the petitionerbefore the Mumbai High Court,decided to prefer an appeal in theSupreme Court, but the pregnantwoman had a miscarriage. Theappeal has been recently filed in theSupreme Court and was heard by theChief Justice of India and his brotherjudge. The main intention of the petitionnow is to insist upon the court toraise the bar from 20 to 26 weeks inabsence of an amendment to theMTP Act. Notice has been issued tothe state and the petitioner has beenasked to produce progressive legislationsfrom other countries.The decision to bear a child orwhen to bear it or whether to continuewith pregnancy should primarilybe that of the woman or of the couplefor the reason that it is the woman'slife that gets altered with this decision,be that for the nine months ofpregnancy or the lifetime that shespends in nurturing her offspring.—The writer is a lawyerpracticing in courts of Delhiand views expressed are her ownw w w . c o m b a t l a w . o r g 101

eduCaTiOnTake the Right callIn view of the tremendous deterioration in conditions of primary schools inIndia particularly the government-aided institutions, a Judicial Colloquiumon Right to Education was organised to take stock of the grave situation andexamine how our legal system can possibly respond to ameliorate thecrumbling educational infrastructure, putting the onus on the governmentto come up with a more consistent, universal and long-term policy to makeeducation at elementary level a success story. A report by Kiran JyotiDespite numerous constitutionaland judicial developmentsin Right to Education over thepast decade or so even before theintroduction of the Right of Childrento Free and Compulsory EducationBill, 2008, there has been a tremendousdeterioration in the conditionsof the primary schools in India particularlythe schools meant for thepoor, the government-aided schoolsand thus of education for the childrenof the working class of thiscountry. From right across the countryone often hears very distressingtales of the state of affairs in the governmentschools and the treatmentbeing meted out to the poor children.In order to delve on the gravity ofthe issue and how our legal systemcould possibly respond to amelioratethe plight of education in governmentschools and their students, theHuman Rights Law Network(HRLN), in collaboration withNational Commission for Protectionof Child Rights (NCPCR) co-organiseda National Judicial Colloquiumon the Right to Education, in NewDelhi in February. Justices fromSupreme Court and various highcourts all over the country participatedin the colloquium. Experts andgrassroots activists from the civilsociety organisations made presentationson various dimensions, particularlythe Right to Education Bill, 2008and the ground reality.Mr. Colin Gonsalves, senior advocate,Supreme Court and founderdirector, HRLN, spoke about the saddeningside of the status of educationin the country. Gonsalves said thatthe decline in public education overthe years was not just because ofadministrative lax or because peopledid not pay attention to things veryparticularly and so on. It almostseemed as if it was by design.Justice Dalveer Bhandari, Hon’bleJustice of the Supreme Court, in hisinaugural address, said that in orderto make feasible the realisation of allother rights, Right to Education is a102C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

eduCaTiOnprerequisite and there is need for aconsistent, universal and long-termpolicy.The 86th ConstitutionAmendment Act, 2002 requires theState to provide free and compulsoryelementary education to all children.The Right of Children to Free andCompulsory Education Bill, 2008seeks to give effect to thisAmendment. All children betweenthe ages of six and 14 years shall havethe right to free and compulsory elementaryeducation in a neighbourhoodschool.Dr. Shantha Sinha, chairperson,NCPCR expressed her opinion on thesufferings of poor children and theirparents while struggling for educationin government-run schools,which are aping the culture of publicschools lately. She narrated examplesof some government schools makingchildren wear fancy uniforms andties irrespective of their financial limitsand then penalising them for notbeing able to afford those uniforms.Sinha also discussed the issue ofbirth certificate being made a decidingfactor for admitting or not admittinga child in a municipal school.Many a times it is not possible for theweaker sections to produce such adocument the reason being their childrenborn at homes in villages or lackof knowledge among the poor massesabout obtaining any such mandatorydocument. In such a situation, achild is deprived of his right to education.While making clear the stand ofthe commission on the right to education,she said that all children up to18 years have to be in full time formalschools.There were sessions on varioustopics including the historicaloverview of the right to education;Constitution and the right to education;salient features of the Right toEducation Bill and the critical analysisof the Bill; linkages between theschool education and higher education;need for systemic changes incommon school system and the analysisof the finances of school education;government initiatives on education;education policy and the privateschools; and the equality andeducation including the educationalrights of the children with disabilities.Grassroots activists made presentationson the condition of educationin various states and the governmentschemes like the Sarva ShikshaAbhiyan (SSA).While presenting a historicaloverview of the right to educationand the analysis of the Bill, Prof. AnilSadgopal said that for the universalisationof elementary education, variousdeadlines have been set but nonecould be achieved by the governmentso far. He cited example of the SarvaShiksha Abhiyan, which according tohim is too skewed a programme toachieve the goal but has rather led tothe systemic destruction of the educationalsystem. He also said that theeducation cess levied by the governmenthas been misused.Prof JBG Tilak, speaking on theobstacles in financing school education,said that it is the most contentiousissue that has led to delaysin passing of the Right to EducationBill. Tilak gave a presentation toshow the state governments’ expenditureon education has decreased inabsolute and real terms, local bodieshave not contributed to financing theprocess and as a result, householdexpenditure on education has beenincreasing, basically because of compulsion.He strongly advocated thatthere is no substitute to good publicformal education and that costs ofunder-investment in education couldbe colossal. Thus investment in educationis a critical endowment whichhas to be made by the governmentwithout any further excuses.Children present at the colloquiumalso shared their experiences oftheir struggle for education andrequested the legal fraternity toensure that it is easily accessible andchild friendly. ■w w w . c o m b a t l a w . o r g 103

OpiniOnAn openletter to alljudges oftheSupremeCourtandhighcourtson disclosure ofassets by JudgesDear Judges,In 1997, while adopting the"Restatement of Judicial Values" (alsocalled the code of Conduct), thejudges of the Supreme Court (SC)decided that each judge woulddeclare her/his assets in confidenceto the Chief Justice of India. This wasreiterated in 1999 in a conference ofthe Chief Justices of India. These resolutionswere adopted in light of agrowing public perception that therewas lack of accountability of thehigher judiciary. This was also in linewith the requirement of declarationof assets by all civil servants tothe government.Subsequently, in 2002, and 2003,the SC in its judgements in the ADRand the PUCL cases has held that it ispart of the fundamental right of citizens,under Article 19 (1) (a) to knowthe assets and liabilities of candidatescontesting election to Parliament orthe state legislatures. In the words ofthe court: "Mr Ashwini Kumar,learned senior counsel appearing onbehalf of the intervenor submitted thatthe aforesaid observations are withregard to citizens right to know about theaffairs of the government, but this wouldnot mean that citizens have a right toknow the personal affairs of MPs orMLAs. In our view this submission istotally misconceived. There is no questionof knowing personal affairs of MPsor MLAs. The limited information iswhether the person who is contestingelections is involved in any criminal caseand if involved what is the result?Further, there are widespread allegationsof corruption against the person holdingpost and power. In such a situation,question is not of knowing personalaffairs but to have openness in democracyfor attempting to cure a cancerousgrowth of corruption by a few rays oflight. Hence, citizens who elect MPs orMLAs are entitled to know that their representativehas not misconducted himselfin collecting wealth after being elected.This information could easily be gatheredonly if prior to election the assets of suchperson are disclosed."The rationale given by the SC forthe need for disclosure of assets ofcandidates contesting electionswould equally apply to all public ser-104C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

OpiniOnvants occupying crucial positions ofauthority. In any case, with the Rightto Information Act, 2005, now inplace, it is clear that the disclosure ofassets by public servants to the governmentor to any other authoritywould be accessible to the citizensunder the RTI Act. Section 8(1) (j)exempts "information which relatesto personal information, the disclosureof which has no relationship toany public activity or interest, orwhich would cause unwarrantedinvasion of the privacy of the individualunless the Central PublicInformation Officer or the StatePublic Information Officer or theAppellate Authority, as the case maybe, is satisfied that the larger publicinterest justifies the disclosure ofsuch information." However thisexemption clause would clearly notapply to the disclosure of assets ofpublic servants, which has alreadybeen held by the SC in the ADR andPUCL cases to be in public interest.You are aware of the controversycurrently raging in the media regardingthe disclosure of assets of judges.The Chief Justice of India has recentlygone on record to say that while allthe judges of the SC have made a disclosureof their assets to him in confidence,he cannot disclose them publicly.Thereafter the ChiefInformation Commission has directedthat at least the information aboutwhether judges are making their declarationof assets to the Chief Justiceof India or not, must be disclosed.Unfortunately, instead of complyingwith the orders of the highest statutorybody on Right to Information,the SC has chosen to challenge this inthe High Court (HC), leading to anunseemly spectacle. Virtually allindependent and respectable commentatorsand legal luminaries likeFali Nariman, Ram Jethmalani,Shanti Bhushan, Soli Sorabjee andothers have commented aversely onthe attitude of the highest judiciaryrefusing to be transparent about theirassets, while ordering others todo so.Several very eminent formerjudges and Chief Justices of the SCincluding Justice Krishna Iyer andJustice JS Verma, have publiclyexpressed the view that it would bedesirable for judges of the SC and theHC's to publicly declare their assets.By doing so, they would be setting anexample of transparency in the countrythat would then be emulated byother public servants in the country.Such voluntary disclosure of assetsby judges (without resorting to theRTI Act) would be applauded as anact of statespersonship by the peopleof this country at a time when peoplehave become cynical about theintegrity of public servants. It wouldgreatly advance the cause of transparencyand probity in public lifethat is the basis of the SC's judgementsin the ADR and PUCL casesand this would also advance theobjectives of the RTI Act.We therefore call upon you to setan example for public servants byvoluntarily making public your assetdeclaration.Sincerely,Admiral RH Tahiliani, (FormerChief of Naval Staff & Director,Transparency International, India),Aruna Roy (Founder, MKSS and RTI& NREGA Activist), Ramaswany RIyer (Former Secretary, WaterResources, GoI), Vikram Lal(Chairman, Common Cause), MadhuBhaduri (Former Ambassador, GoI),Amit Bhaduri (Professor Emeritus,JNU), Anil Sadgopal (EducationActivist and Former Professor ofEducation, Delhi University), JeanDreze (Former Member, NationalAdvisory Council), Vandana Shiva(Education and Agriculture Activist),Trilochan Sastry (Professor & Dean,Academic, IIM, Bangalore), YogendraYadav (Professor, CSDS), PrashantBhushan (Convener, Campaign forJudicial Accountability and Reform),Arvind Kejriwal (Magsaysay Awardeeand RTI Activist), N Bhasker Rao(Chairman, Centre for MediaStudies), Harsh Mandar, Director,Centre for Equity Studies, RaviChopra (People's Science Institute),Kamini Jaiswal, (Advocate, SupremeCourt), Shabnam Hashmi (ANHAD),Mira Shiva (Health Activist), KavitaSrivastava (Secretary, PUCLRajasthan), Gautam Navlakha(Human Rights Activist), Nikhil Dey(National Campaign for PeoplesRight to Information), Arun Kumar(Professor, JNU), Dunu Roy (Director,Hazard Centre).Dated: 13/2/09Several very eminentformer judges and ChiefJustices of the SCincluding Justice KrishnaIyer and Justice JSVerma, have publiclyexpressed the view thatit would be desirable forjudges of the SC and theHC's to publicly declaretheir assetsw w w . c o m b a t l a w . o r g 105

WOrds & iMagesThis book is awelcome addition tothe literature on asubject, Women inPeace Politics, whichneeds moreexploration. It isdensely written and itsheavily footnoted textdraws on a vast anddiverse array ofacademic research. Asone might expect, theessays cover a range ofsubjects and vary intheir depth andcomplexity.Ruhi Kandharireviews the bookBook : Women in PeacePoliticsEditors: Paula BanerjeePublisher:SAGE,New Delhi, 2009Price: Rs 450; Pp 323BooK ReVIeWReorienting thesecurity paradigmThird in the series of SouthAsian Peace Studies, 'Womenin Peace Politics' elaborates onthe 'non-traditional' security concernsthat are being continuouslythrown up by social and politicalrealities of conflict-torn areas inSouth Asia. The book points to theneed for a new vocabulary, whichprobes into the local dimensions ofpeace as separate from the globalunderstanding of security; prioritisingjustice, human rights and dignityover state-sponsored terror. Afterthree volumes in the South AsianPeace Studies series that dealt withthe concept, scope and theme ofpeace studies as separate from securitystudies and peace accords inSouth Asia, this book brings out theexperiences of women in conflict situations.The global understanding ofsecurity is largely understood as theabsence of violence. By raising adebate on the quality of peace, seenthrough the lens of gender, the compilationof essays fulfils the imperativeto widen the catchment-area ofsecurity to include peace.Women's experiences of war andconflict have, by and large, beenetched in the popular consciousnessby mainstream media as the distressof mothers and widows. However,'women in peace politics' highlightsthe role of women, as cadres in revolutionarymovements and as womenwho face displacement, migration,harassment and sexual exploitationby foregrounding gender in the securitydiscourse. Control ArmsFoundation of India Vice President,Anuradha Chenoy, points out, "Thegendered aspect of military violence,by emphasising that sexual violencecontinues to be the specific experienceof women during war."The outlines of the discourse onthe quality of peace from a genderperspective are being laid out in the21st century global order just as theperils of the globalised marketsbegin to gain prominence and lawsthat curb civil liberties by empoweringmilitary get publicly debated.Insurgency and lopsided developmentare becoming the breedinggrounds for the birth of movementsand these political tensions oftensubsume within themselves a hierarchyof conflicts. As renowned environmentaland social activist,Vandana Shiva, points out that militaryand markets are major threats tohuman security. However, thereappears to be considerable ambiguityon what constitutes the sphere ofpeace studies and how gender isunderstood in the, by and large, masculineturf of war.The UN Decade for Women from1975 to 1985 brought forth the idea ofbuilding positive peace, by addressinggender-based inequalities withinthe nation, thus adding to women'svulnerability, as opposed to the ideaof negative peace that merely meansthe end of war. The essays in this volumebring into sharp focus the subtleand nuanced experiences induced byeveryday negotiations by women inSouth Asia, issues that normallyescape public debate.Sumona Das Gupta observes inhis book, 'Security, Gender andConflict Prevention: Perceptionsfrom South Asia, "By prioritising survival,livelihood and dignity as thebuilding blocks of security, humansecurity has helped to rethink securityin ways that place people andtheir participation at the centre. Inthe absence of such an enabling concept,political and economic elitesoften invoking national security tendto do it alone in a process that oftenmarginalizes and impoverishes thepeople." She identifies three clustersof security issues through the lens of106C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

WOrds & iMagesthe non-traditional and critical securityapproaches: militarism and militarisationof state and society; developmentand globalisation; and postconflictreconstruction and peacebuilding processes.The central argument of the bookis that the South Asian region hasemerged as one of the most conflictprone zones in the world and so it isapparent that the agenda for peacehas, as yet, not received the attentionthat it should. Feminist researchers,activists, journalists and civil societygroups draw on insights from fieldworkto illuminate important questionsof wide relevance in the essays.Paula Banerjee, a specialist in issuesof conflict and peace in South Asia,has edited the volume and written itsintroduction.This volume is divided into threesections with their own sectionalintroductions: Ideas and Ideologies;Movements and Voices. Of the manyfaces of women in conflict in SouthAsia, the book looks at three majorones - fate of women migrating insearch of jobs and security, women inrevolutionary political space andwomen protesting for peace as mothers.Ranabir Samaddar's essay titled'Shefali on a woman's trans-bordermigration from Bangladesh to WestBengal in India' calls attention to thefact that thousands of women andchildren from Bangladesh and Nepalare sold and forced into prostitution,organ trade and slave labour in Indiaand Pakistan. He has based his findingson human rights activists, civilsociety groups, newspaper reportsand police records, he argues thatevery day, more than 50 women andchildren are reportedly traffickedwith false promises of jobs, marriageand other forms of security. Womenand children are not only traffickedwithin South Asia, they are traffickedto other Asian countries and toEurope and America as well.The story of Shefali showcases theoppression she faces at the household,societal and state levels. She iscalled an illegal immigrant anddeported back to Bangladesh. Herstory needs to be deliberated on forthe implications it holds of being a'woman' in such a scenario and gettingrehabilitated appropriately.The concerns of women in SouthAsia range from that of the innumerableShefali to women of violencerepresented by the armed soldiers ofthe LTTE (Liberation Tigers of TamilEalam) in Sri Lanka or the Maoistsfighting in the Telangana movementin Andhra Pradesh. Movements fromsuch conflict torn areas have in turninfluenced wider social movements,which have impacted larger movementsfor justice.Women's participation in armedconflict, their feelings and the pushand pull factors influencing the decisionto join the struggle forTelangana are some of the issuesexplored in this book. Besideswomen's views on the movements,their leaders, policies, and the programmesof their parties are alsobrought into focus. On the one hand,the movements filled women withunprecedented confidence. Theycould travel alone at night and carryguns, which gave them a sense ofequality with men. The change inpublic life made it necessary for themto recast their private lives, whichwere otherwise an impossible agendafor organisations spearheadingsuch movements.While analysing the lives ofwomen cadres in the LTTE andTelangana movements, the essays,rich in detail, raise several questions.How involved are these women indecision-making and to what extantare they initiators of political andsocial projects? How are women'ssexualities used to control their physicalmovement? What are the mannersin which marriage, relationshipsand child-birth are regulated?Similarly, Saro Thiruppathy andNirekha De Silva in Women in SriLankan Peace Politics point out thateven though advocacy on peace politicscontinues through a variety ofwomen's organisations and at theindividual level as well, the role ofwomen in direct peace negotiationsis not yet a reality. While the SriLankan government has taken a positiveinitiative by becoming the firstcountry in South Asia to have a gendersubcommittee as part of theformal peace-building process,women's voices are still not takenseriously where they count themost—at the negotiating table.On the one hand there are thewomen of violence and on the otherWomen'sexperiences ofwar and conflicthave, by andlarge, beenetched in thepopularconsciousness bymainstreammedia as thedistress ofmothers andwidows.However,'Women inPeace Politics'highlights therole of women,as cadres inrevolutionarymovements andas women whofacedisplacement,migration,harassment andsexualexploitation byforegroundinggender in thesecurity discoursew w w . c o m b a t l a w . o r g 107

WOrds & iMagesthe women for peace. In north-eastIndia and Sri Lanka, women havesuccessfully organised mothers'movements and made successfulclaims to sit in ceasefire negotiations,which are often male domains. Atvarious points, the essays delve intothe question of how the anxieties andpains of individual mothers abouttheir daughters and sons - tortured,incarcerated, killed or missing inaction - get slowly translated into collectiveand more organised forms ofresistance. It is often argued thatmotherhood has become the governingmetaphor of women's politics inNorth-East India today.A case in point is that of 32-yearoldManorama Devi, who was pulledfrom her home by soldiers and founddead a few hours later. Her bulletriddenbody was left beside a paddyfield in Manipur in 2004. The armydefended itself by saying that shewas a militant and was shot whiletrying to escape. After the incident,Imphal erupted in protest. Oldwomen took off their clothes in frontof army barracks and paraded a signsaying "Indian Army, Rape Us".Paula Banerjee's, The spacebetween, focuses on the north-easternregion of India, which has witnessedsustained insurgency, sociopoliticalturmoil due to draconianlaws like Armed Forces SpecialPowers Act (AFSPA) which legitimisemilitary violence and ethnicconflicts. The region also has manystrong civil society movements, particularlywomen's movements.Similar social movements inNagaland and Manipur have beenrepresented by two strong women'sorganisations that are active in socialand political affairs. Naga Mothers'Association (NMA) and Meira Paibis(a Manipuri women's organisationalso known as torchbearers) believein a broader definition of peace. Thatis the reason, according to Banerjee,their movements are more successfulthan those who find peace in endingarmed conflict in the region. Thesegroups believe that peace can beachieved through dialogue and politicalnegotiations. They equate peacewith justice and development. PaulaBanerjee argues: "Women not onlyinfluence the politics of peace buttheir own lives are affected by participatingin the politics of peace inThis volume isdivided into threesections with theirown sectionalintroductions: Ideasand Ideologies;Movements andVoices. Of the manyfaces of women inconflict in southAsia, the book looksat three majorones – fate of womenmigrating in searchof jobs andsecurity, women inrevolutionary politicalspace and womenprotesting for peaceas mothersmyriad ways. They are able to legitimisetheir leadership roles and questionunequal distribution ofresources."The last section of the book,Voices, documents some of theinspiring tales of women who struggleagainst oppression. The introductionto this section by AnuradhaBhasin Jamwal emphasises the factthat these women have also foughtagainst all that is unfair to humans.The section structured around sixnarratives of women negotiating violentpolitics in their everyday livesshifts the focus away from the discourseof the victimised and exploreswomen's agency for peace and conflict.It includes individual pamphletsby the Naga MothersAssociation, Womens Action Forumof Pakistan and an extract fromViramma: Life of an Untouchable.Missing issuesWhile 'Women in Peace Politics'points out the impediments to securityarising from globalisation, theassault on minorities and 'the waragainst terror', which has added yetanother dimension to the existingpolarisation in South Asia, it does notdelve deeply into any of them.The book fails to cover the entiregamut of issues. While arguments onconflicts in Andhra Pradesh andnorth-eastern India, Bangladesh andSri Lanka run across the three sectionsof the book and come throughrepeatedly, the volume omits issuesranging from communal violence inIndia, violence due to the imbalancesof the neo-liberal growth patternsand to the US war on terror inAfghanistan. Delhi in 1984, Gujaratin 2002 and Orissa in 2008 showedthe failure of the democratic state asit acted on communal lines. Onewould have liked to see more debateson globalisation in the light ofprotests by the Narmada BachaoAndolan and the Nandigram rapes.Fauzia Gardezi's essay touches onthe tension between religion andgender but the book misses the largerdebate on the US war of terror inAfghanistan. A global women'smovement has made itself heardover the violence of Bush's so-called"war on terror" following the 9/11attacks. Reports of Taliban insurgency,factional fighting, instability inKandahar and Kabul, widespreadlooting and banditry, rapes andabuse continue unabated. Anotherproblem with the book, a trait itshares with many academic books, isits size and verbosity. What has beenexpressed in 300 pages could easilyhave been compressed in about 200,without sacrificing any substance.Despite these shortcomings, thebook is a welcome addition to the literatureon a subject that needs moreexploration. It is densely written andits heavily footnoted text draws on avast and diverse array of academicresearch. As one might expect, theessays cover a range of subjects andvary in their depth and complexity.Women in many parts of theworld find themselves in trying situationsof violence. They continue tobattle for a more human world,struggling against war, religious andethnic hatred and for protecting theenvironment against the ravages ofglobal capital, raising questionsabout nationalism and humanenessin an increasingly violent world.Volumes such as this, by expandingthe definition of security and focusingon such issues, help in reorientingattitudes towards the orthodoxsecurity paradigm. ■108C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

WOrds & iMagesThe colour ofgratitude is greenWith this book the authors hope that there will be more judgements thatsupport and conserve the environment, writes Krishnendu MukherjeeThe State Forest Report 2005released in February 2008 bythe ministry of environmentand Forests (MOEF) records thatIndia's forest cover stands at 20.6 percentof the geographical area, whichis 0.11 per cent less than the forestcover in 2002 , and considerably lessthan the 33.33 percent required to beachieved by 2012 under the NationalForest Policy 2002. According to thereport, the main losses in forest coverhave been due to the December 2004tsunami, but also due to large damprojects in Madhya Pradesh andChhattisgarh. However, the assertionthat India's forest cover can consequentlybe described as "stable" hasbeen criticised by those campaigningon behalf of forests and wildlife.There has been a qualitative shift inthe type of forest cover whereindense forests habitat of protectedwildlife of ecological value has beenreplaced by plantation and otherafforestation measures. This cannotbe compared to a natural forest inrelation to its ecological value .Against this background theSupreme Court (SC) took up theissues of forest conservation and theprotection of forests in India,through two cases, TN GodavarmanThirumulpad vs Union of India (WP202 of 1995) (known as the forest conservationcase) and to a lesser extentCentre for Environmental LawWWF-India vs Union of India (WP337 of 1995). Since July 1996, theSupreme Court has passed over 157orders in the Godavarman case and20 orders in the Centre forEnvironmental Law case, dealingwith many forest and wildlife issues.Consequently, these have becomeamong the longest running environmentalcases, which have nowengendered much national and internationalinterest. However, one ofthe problems in such a long-runningcase is that knowledge of the existenceand subject-matter of theorders and the ultimate judgementsof the court are only known andfamiliar to few.Book : Supreme Court onForest ConservationWriter: Ritwick Dutta,Bhupender YadavPublisher:Universal LawPublishing Co.,New DelhiBooK ReVIeWSupreme Court on ForestConservation provides a welcomechronicle of the Court's orders--thefirst of its kind. It provides a list ofthe orders (which is a difficult task initself), the date of the order and thesubject matter. The order is thenreproduced in the book itself. Thebook also contains a synoptic analysisof the orders and divides theminto subject-matters such as the interpretationof the Forest ConservationAct 1980, saw mills, encroachments,non-timber forest produce and mining.The orders show that the: "Courthad undertake the extremely complicatedtask of balancing competingaims and interest while dealing withsuch issues as saw mill, mining,dams and infrastructure projectswhile at the same time trying to differentiatebetween the genuine andbona-fide needs of local inhabitants,with the necessity of biodiversity andconservation". For instance, the courtdefined "forest" and "forest land"with the aim of identifying "forests".It led the court to direct that: "Allongoing activity within any forest inany state throughout the country,without the prior approval of theCentral government, must ceaseforthwith". The book states that theimplications of the cases can be summarisedas follows:a) Restraining state governmentsfrom using forest land for non-forestpurpose without the prior approvalof the Central government under section2(ii) of the Forest ConservationAct 1980.b) Staying all non-forest activitiesbeing carried out without priorapproval of the Central government.c) Restraining the dereservationof any National Park, Sanctuary andForest, without approval of theSupreme Court.By producing this book theauthors hope that there will be morejudgements that support and conservethe environment. As they say:"The coming few years will clearlya see greater chasm between thosewho regard the FC Act and otherconservation laws as a legislationthat ensures ecological and environmentalsecurity for human and nonhumanspecies and those who see itas a hindrance to development and acause of tribal unrest. The role of thejudiciary is bound to be extremelycrucial, complex and delicate". ■w w w . c o m b a t l a w . o r g 109

speCial repOrTG-20: money crimes,climate chaos?While the G-20 fiddlesand the world continuesslipping into economiccrisis, the unprecedentedprotests against the G-20summit serves a warningthat the ordinary peopleacross the globe have nofaith in capitalistpoliticians and bankers, letalone solving the problemthey have created.Harsh Dobhal reportsfrom LondonGlobal economic meltdown,millions of people havinggone unemployed, millions ofhomes under threat, soaring prices offood and other items, cash crunch,deprivation, scarcity, an environmentalcatastrophe threatening the planet– an all out war on people and completefailure of the neo-liberal capitalistmachine. This is the backdropin which the G-20 leaders are boostingwhat they call growth byattempting to stabilise financial markets,enable businesses to sailthrough the recession and put theeconomy “back on track for the sustainablegrowth.”Despite differences over policy,the G-20 leaders have a single commonobsession – to get capitalism upand running at every cost.But people this time around arerefusing to pay for a crisis which isnot their making. And they want toput an end to this obsession withprotection of the rich and witchhuntingthe poor. In any case, evenbefore the economic meltdown, capitalismhas been a predatory systembased on profit making at the cost ofrising inequality, poverty and war.Tens of thousands of people have putup a stiff resistance to the G-20 agenda.The common consensus is thatthe world was suffering inequality,poverty and threat of climate changeeven before the banks collapsed preciselybecause of this financial modelthrust upon people.In England, France, Germany,Ireland and indeed across entirewest, apart from the developingworld, the popular anger is rising. Ifthe protests in London are any indicationto go by, the popular discontentacross countries, from Africa toEurope, from Asia to Latin America,is growing as a direct result of shootingunemployment, freezes, pay cuts,bailouts for banks.From Palestine to Africa to Iraqand Afghanistan, from global warming,climate change and the campaignagainst war and mindlessbloodletting, post-Obama, Londonprotest against G-20 summit is perhapsthe first and most gigantic congregationof people in the heart ofEurope who have taken up the waron the streets as a mammoth wave.“When the economy grows,banks, corporations and speculators,driven only by greed, gamble otherpeople's money in their global casino.When they lose ‘confidence' intheir profit-making schemes andpanic, the bubble bursts and we paythe price," is the underlying messageof ‘The People’s Charter’.For over a week, in the run-up tothe summit, there has been unprecedentedmass expression of anger110C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9

OBiTuaryagainst the G-20 agenda, demandingthat the 20 ‘most powerful leaders’ ofthe world should put the “peoplefirst’ and address the issues of ‘jobs,justice and climate change’.In March, amid rising unemployment,over three million peopledemonstrated in more than 200 citiesand towns in France to protest thepolicies of President NicolasSarkozy’s ‘rescue package’ throwinglarge sums of money at banks andhandling of the economic crisis.Hundreds of thousands of workersin Germany and Ireland are resortingto strikes. Indeed, with the globalrecession continuing, social unresthas already gripped large partof Europe.People are angry in London overgovernment’s decision to spend overmillions of pounds hosting the summitat a time when Britain is in deepeconomic crisis, with unemploymentrising to highest level indecades. Though newspaper headlinesmay talk of zero inflation butpeople will tell you that the pricesfor essential goods are rising and thepoor are paying a bigger proportionof their income for them.Prior to hosting the summit,British Prime Minister GordonBrown embarked on a whirlwindtour of the globe to drum up supportfor his ‘global new deal’. Germanand French leaders had alreadyexpressed their reservations aboutthe plan while Brazilian PresidentLuiz Inacio Lula de Silva gaveBrown a rude shock blaming peoplewho are “white and blue eyed” forthe current mess.British politician and Member ofthe European Parliament, DanielJohn Hannan’s scathing attack onBrown has made him sort of aYouTube superstar with about7,30,000 people viewing his clipwithin few days. Brown’s popularityis taking a nosedive in England.Global unrest is unfolding fast,faster than anybody had imagined.The images from London are powerfuland should serve as warning signals.The powerful G-20 leadersshould not forget that as a consequenceof faltering economy, massunemployment and long recession,the popular anger and discontent inIceland and Latvia forced the governmentsto step down. ■RememberingSmitu Kothari...''My guiding commitment is tocontribute in a modest way to theconsolidation of democracy, socialjustice and ecological sanity in Indiaand the subcontinent.''—Smitu Kothari in an interview toPeople-Centered DevelopmentForum, May 20, 1997Awidely respected scholar, visitingacademic at the Cornelland Princeton universities,author of several publications onsocio-political and economicdiscourses and above all anindomitable activist, Smitu Kothari,passed away on March 23 in Delhiowing to a cardiac attack. Smitu was59 and had undergone a heartsurgery a day before at All IndiaInstitute of Medical Sciences in Delhi.The untimely demise of the intellectual-activisthas stunned the entirecivil society in the country. Smituwas always a source of inspirationand support to not just people'smovements and struggles in India,but also to voices of dissent andalternatives across the globe.Smitu was attending a DelhiSolidarity Group meeting withHimalaya Niti Abhiyan to discusssupport for the people's struggles inHimachal Pradesh against displacement,mining and environmentaldestruction on the afternoon ofMarch 20, when he had a cardiacattack.Smitu was one of the founders ofthe Delhi-based Lokayan (Dialogueof the People), and InterculturalResources promoting exchangebetween non-party political formationsand concerned scholars andother citizens from India and the restof the world. Trained in physics,communications and sociology,Smitu, a famous environmentalistwas involved in ecological, culturaland human rights issues striving tocollectively forge a national andglobal alternative that is socially justand ecologically sane.In his capacity as the president ofthe International Group forGrassroots Initiatives and a contributingeditor of The Ecologist andof Development, Smitu had publishedextensively on critiques ofcontemporary economic and culturaldevelopment, the relationship ofnature, culture and democracy,developmental displacement,people's governance and socialmovements.He was a visiting professor atCornell and Princeton Universities.Smitu played a vital role in organisingthe Independent People'sTribunal on the World Bank in Indiathat took place at the JawaharlalNehru University in Delhi duringSeptember 21-24, 2007. The first of itskind, the IPT on World Bankwas organised by the Human RightsLaw Network and several otherorganisations.Among the books Smitu Kotharihas edited are: Voices of Struggle.Social Movements in Asia (2006);Voices of Sanity, In Search ofDemocratic Space (2002); AWatershed in Global Governance; AnIndependent Assessment of theWorld Commission on Dams; TheValue of Nature: Ecological Politicsin India (2003); Out of the NuclearShadow (with Zia Mian, 2001);Rethinking Human Rights:Challenges for Theory and Action(1991); and, The Non-Party PoliticalProcess: Uncertain Alternatives (withH. Sethi, 1988); He was working on anew book, Ecological Justice: Nature,Culture and Democracy.(With input from Vijayan MJ)w w w . c o m b a t l a w . o r g 111

neW puBliCaTiOnsNew HRLN publicationsSecret Killings ofAssamAuthors: MrinalTalukdar, UtpalBorpujari, KaushikDekaState Terrorism:Torture, Extra-judicialKillings and ForcedDisappearancesin IndiaIPT report researched &edited by: Grace PellyLeading Cases onRight to InformationBy: Divya Jyoti Jaipuriar,Jayshree SatputeA Life Free from ViolenceThe Protection fromDomestic Violence Act—a CommentaryAuthor: SheelaRamanathanDomestic Violenceand the LawText compiled & editedby: Sandhya RajuPublic Educationin Mumbai:Rhetoric orRights?IPT report written by:Aruna KashyapPrisoners' Rights(Volume I)Compiled & edited by:Colin Gonsalves,Vijay Hiremath,Rebecca GonsalvezChild SexualAbuse andthe Law(Reprint)By: MaharukhAdenwallaRecent publicationsof the UniversalLaw Publishing Co.Law As CultureSecond edition(Indian reprint 2009)Author: Kathy LasterPrice: Rs 450 onlyLegal Technique(First Indian reprint)Author: Christopher EnrightPrice: Rs 550 onlyLaw and Social Norms(First Indian reprint 2009)Author: Eric A PosnerPrice: Rs 325 onlyCourt in the Act:Humorous Moments fromthe Australian Courts(First Indian reprint 2009)Author: Beverley TaitPrice: Rs 140 only112C O M B a T l a W j a n u a r y - a p r i l 2 0 0 9