Odisha Government diluting apex court order: petitioner #Niyamgiri #Vedanta


BHUBANESWAR, June 11, 2013

Staff Reporter, The Hindu

 St

ate government continues to face widespread criticism over selection 12 villages for conducting of gram sabhas that would decide fate of bauxite mining in Niyamgiri hill.

Prafulla Samantra, an original petitioner of the case on which Supreme Court directed to hold gram sabhas for settlement rights under Forest Rights Act, on Monday wrote to Chief Secretary Bijay Kumar Patnaik alleging dilution of Apex Court order.

“The Apex Court verdict has been clearly ignored by the ST and SC Department of the State government as there has been an arbitrary decision while selecting 12 villages for conducting Gram Sabhas for which no convincing reason has been mentioned,” Mr. Samantra said.

He also charged that the State was trying to spread reign of terror in Niyamgiri Hill range before conduct of gram sabhas.

“Since a fake combing operation is going on in the area by security forces with the help and support of Vedanta, an atmosphere of fear and intimidation is prevailing over there which may badly affect the conduct of Gram Sabhas.

A couple of days back security forces allegedly fired at a group of young tribal children who were playing in the hills and one was reportedly killed. If such a situation continues no Gram Sabhas could be conducted in a fair way,” Mr. Samantra further alleged.

He urged the Chief Secretary to take urgent steps so that Gram Sabhas would be conducted in all affected places, and just not the ones prescribed by the administration.

The petitioner also requested the government to involve him in all the processes leading to conduct of gram sabhas as per Apex Court order.

Recently, Union Ministry of Tribal Affairs had told the State government that selection of 12 villagers for conducting gram sabhas was not in accordance of Supreme Court order.

MoTA Secretary Vibha Puri Das in a letter said the ministry was in receipt of copies of several claims under Forest Rights Act for various rights including religious and cultural rights claimed over Niyamgiri forests and sacred areas from villages over and above the 12 villages selected by the State Government.

 

#India – Violence against the state is tragic but it contains the seeds of rejection


Repression is no solution

Gopal Subramanium

Violence against the state is tragic but it contains the seeds of rejection. Only an inclusive approach that respects human rights can eliminate extremism

Perhaps no other chain of events in the recent past has had a more direct and substantial impact on the life of human beings across the world than acts of terror. Terrorism has not only affected our lives directly, but has also allowed the state to intrude in our lives like never before.

 

Fundamental obligation

 

Since the security of the individual is a basic human right (and a fundamental condition of the social contract underpinning society), the protection of individuals is a fundamental obligation of the state. In recent years, however, the measures adopted by states to counter terrorism have themselves sometimes been found wanting in terms of compliance with human rights norms. The means and methods adopted by the state have posed serious challenges to human rights and the rule of law, and often this is on account of the zeal of the law-enforcement agencies to give a commensurate response to the terrorist.

 

The state cannot legitimately respond by resorting to mechanisms that overstep the limits of the law. Thus, a reason why it is important for the state to ensure that none of its measures transgresses the limits of the law is any transgression may have the effect of eroding both its legitimacy and the rule of law, thereby fomenting further unrest and erosion of faith in the Constitution.

 

In the name of combating extremism, repressive measures are also used to stifle the voice of human rights activists, advocates, minorities, indigenous groups, journalists and civil society. There is another dimension: by being able to build up a perception of threat, the state may be able to get away with channelling the funds normally allocated to social programmes towards strengthening the police force and the army. The talked-up threat perception of terrorism (and a few ‘encounters’) may well be used to justify the acquisition of more weapons. As Professor Simon Bronitt of Australian National University has summed up “…there is almost a new genus of law: post 9/11 law. Although 9/11 has become a significant force in justifying these laws, the truth is that there is an element of opportunism [by some law-enforcement and state agencies] behind these claims of necessity for new powers and offences.”

 

While militarisation and the strengthening of police forces are important in their own right, it is equally necessary to understand the genuineness of the ‘security reasons’ presented by the state as a ground for abridgment of human rights, many of which are fundamental. Frisking, for example, which used to be considered a grave intrusion upon one’s privacy at one point of time, is today normalised and we are all fine with being frisked everywhere.

 

Existential realities

 

Little or no attention is paid to the true causes of resort to violent methods. It is as if the deafening sound of explosions and landmines is used to attract the attention of the state to existential realities. There are grim realities of existence as tribals in this country, and the unfortunate aspect is that their unheard voices fail to make a din in the power corridors. From their perspective, extremism, violence and terrorism become a means to attract the attention of the state.

 

Governments have been non-responsive to peaceful protests and have, in fact, come down heavily on peaceful protesters as they did at India Gate when they relentlessly beat up women protesting in the aftermath of last December’s gang rape in Delhi. The state turns a blind eye to the violence committed by state actors, and private actors in connivance with state actors, which results in irreversible psychological damage.

 

It is evident that the state has misplaced priorities. Since there is little that the state seems to have done, one can safely say that it does not seem to be aware of the abysmal conditions in which the tribals of Chhattisgarh live.

 

The state does not seem to be aware that tribals in Madhya Pradesh eat the poisonous kesari dal which is reported to have a paralytic impact. The state also does not seem to be aware that tribal women and other villagers in Maharashtra have to walk miles before they can get drinking water. This feeling of being ‘parentless’ makes people vulnerable to anti-state ideologies. Having said this, I am not legitimising violence against innocents by invocation of oppression; I am only suggesting that oppression is one of the reasons of unrest which manifests in the resort to violence against the state and insignias of the state.

 

In the Mahanadi Coal Fields Case (2010), the Supreme Court took strong exception to the manner in which the Central government and the Mahanadi Coal Fields Limited had acquired the lands of tribals in the Sundargarh district of Odisha and not compensated them even 23 years later. In fact, 20 years after dispossessing them, the government noted that the land was actually not required!

 

The Supreme Court observed: “the whole issue of development appears to be so simple, logical and commonsensical. And yet, to millions of Indians, development is a dreadful and hateful word that is aimed at denying them even the source of their sustenance. It is cynically said that on the path of ‘maldevelopment’ almost every step that we take seems to give rise to insurgency and political extremism [which along with terrorism are supposed to be the three gravest threats to India's integrity and sovereignty] … The resistance with which the state’s well meaning efforts at development and economic growth are met makes one think about the reasons for such opposition to the state’s endeavours for development. Why is the state’s perception and vision of development at such great odds with the people it purports to develop? And why are their rights so dispensable?”

 

Listen to people

 

The Supreme Court’s identification of the issue is not off the mark, and I believe it is quite perceptive of the reality. Studies establish that absolute deprivation by the state has a psychological impact on its people. Therefore, any attempt to combat violence by the state must have within its fold the measures to eliminate the conditions conducive to the spread of extremism, which must include (a) strengthening the rule of law; (b) fostering respect for human rights and provision for reparation for violations; (c) reversing ethnic, national and religious discrimination, political exclusion, and socio-economic marginalisation; (d) listening to the people and (e) becoming more responsive to society.

 

The recent events of violence are tragic without a doubt but they contain the seeds of rejection of political structures. Political structures need to build confidence by dialogue, working on the ground for the uplift of the poor, and must work with an attitude of inclusiveness.

 

While mourning the loss of human life, we must devise innovative systems of engagement, based not on power or hierarchical administration but equality. One wishes ardently that new mechanisms of review — with deep and meaningful engagement with the local communities suggested in the Verma Committee on crimes against women — be quickly operationalised and deployed.

 

(The author is a senior advocate, a former Solicitor General of India, and a former Chairman, Bar Council of India)

 

#India – Does law do justice to the poor & hapless?


draconianlaw

June 9, 2013, The Hindu

MATTHEW ADUKANIL

The powerful are presumed innocent until proved guilty but the indigent citizen under arrest is considered guilty until he is proved innocent

Learned judges toast the majesty of the law. Politicians swear by its sanctity asserting that it will take its due course. But seasoned criminals are thoroughly familiar with its loopholes. They know how to flout the law and yet how to survive by it. But those who have felt the slings and arrows of misapplied law unhesitatingly subscribe to the Dickensian dictum ‘The Law is an ass’. Probably, the highest tribute ever paid to the ass! Law commands respect only from the law-abiding.

One is reminded of two amusing constables in a Shakespearean play. Enforcing the king’s midnight curfew on tramps, they ordered two ruffians, ‘ In the name of His Majesty go home’. Upon their insolent reply that they did not recognise His Majesty, the policemen duly apologised and went their way. Successful execution of the time-tested strategy of questioning law enforcers’ jurisdiction, and going scot-free riding piggyback on technicalities.

Love is not Time’s fool, as Shakespeare said but Law is. The dictum ‘Art is long but life is short’ has its parallel also in law and it would be equally correct to say ‘Law is long but life is short.’ A shrewd and high profile offender of the law can have a long-drawn battle with it and keep it at bay practically all his life. Law is definitely on the side of the powerful criminal since he is presumed innocent until proved guilty but the indigent citizen under arrest is considered guilty until he is proved innocent.

A criminal can keep out of reach of the long arm of the law until he is finally convicted and a series of legal procedures is exhausted. A lawsuit starts in the lowest sessions court, winds its way through the maze of higher level courts and finally reaches the Supreme Court creeping at snail’s pace through numerous speed humps of adjournments, court vacations, appeals, revision hearings, single-judge hearings, Full Bench hearings, presidential pardons, etc.

Meanwhile, criminals who are MPs can contest elections, serve multiple five-year terms and amass colossal fortunes through corrupt practices. The money thus illegally made will more than cover the lawyer’s fees, bribes to those who can help, huge election expenses and still leave behind a tidy fortune. Meanwhile, as the plea for justice is on its pilgrim’s progress to the courts, crucial files disappear from offices, inconvenient witnesses meet with mysterious ends and unsympathetic law enforcers or judges just vanish.

But what happens to the poor villager or tribal who is picked up on trumped up charges at the instance of the well-heeled? It takes months and sometimes years for him to be taken to the magistrate to be enlightened on his crimes, verification of identity, etc.

When some political or business bigwigs are arrested for serious crimes and put behind bars, at once a host of ailments like high BP and kidney and heart problems visit them calling for immediate hospitalisation and quality treatment. The wonder is that with all these ailments they were able to go about their daily business. These health problems seem to be ‘bar-coded’ since they crop up only behind bars. It is a brave new world, indeed!

Crimes taking place in full public glare, caught on cameras and repeatedly beamed by the media for days and weeks need elaborate and long court procedures to establish their veracity and the identity of the perpetrators. We may recall the prolonged trials of Kasab or recently the members of the gang rape of Nirbhaya in a Delhi bus. Or take the case of the seven-year jail term serving Bitty Mohanty who jumped parole, studied for MBA degree and got employed in a bank in a new avatar. A criminal who does not know to exploit to the full the niceties of court procedures had better hang up his boots.

A huge number of police personnel are engaged in VIP security, for Ministers and MPs and, in some cases, even extended family members of MPs. Allegedly about one-third of the MPs in Parliament have criminal backgrounds and several have murder, rape and other serious cases pending against them. Upon seeing this posse of security personnel around them amid crowds, one may be excused if he/she gets a nagging doubt: who is the potential target and who is the perceived threat?

What about protection for women riding alone in buses to their homes at night after work, and farmers exposed daily to the attacks of marauding elephants in forest areas?

(The writer is an assistant college professor. Email: adukanildb@gmail.com)

 

Odisha Govt tries every trick in the book with SC Niyamgiri verdict #mustshare


This is the latest information on the state’s manipulation of the Supreme Court’s verdict giving the decision on Vedanta‘s mine to the Dongria and Kutia Kond inhabitants of Niyamgiri.

After six weeks delay the process has finally been initiated by the Odisha state govt and we, and all the activists and supporters here are doing our best to keep ahead of their trickeries and document everything as it happens.

When the Supreme Court announced its verdict to hand the decision on Vedanta’s Niyamgiri mine back to the Dongria Kond and other affected people via a complex process of legal claim filing, gram sabhas and a final MoEF nod, both Vedanta and their opposition celebrated. The court judges knew what they had done. Rather than giving a yes or no verdict they had taken the path of least resistance and delivered such a loosely worded judgement that it was wide open to interpretation and abuse – pitting the Odisha government and Vedanta, and the affected people and their supporters against each other once again.

 

Now, as the Odisha state finally launches the gram sabha (village council) process after six weeks of deliberation, the weak nature of the Supreme Court’s vaguely worded judgement has become even more evident. This article documents some of the ways in which the judgement, which has been hailed as a precedent bottom-up democratic process, is being manipulated in an attempt to prevent the strong anti-Vedanta opinion on Niyamgiri from being properly heard.

 

 

What part of the mountain is sacred?

 

Reflecting the drawn out Supreme Court hearings on Niyamgiri this year, the court’s final verdict has tactfully focused not on the enormous environmental impact of the proposed mine, nor the company’s despicable track record of illegalities, nor the rights of the Dongria to clean air, water and to collect forest produce, but only on one point: whether the proposed mine would violate the Dongria’s right to worship the God of their sacred mountain – Niyam Raja. The 2006 Forest Rights Act enshrines forest dwellers’ right to cultural and religious practices in law, but what does that mean in reality? The Niyamgiri case has become a test for the interpretation of this law, and the precedent set here will have an impact on industrial developments in tribal areas all over India. So much hangs in the balance. For this reason the Supreme Court hearings dedicated their focus to the question of where the God of Niyamgiri actually resides and whether this God would be affected by the proposed mining. Though it was suggested that it was largely on the peak of the range – Hundujali, 10km away from the proposed mega-mine, the court came to the conclusion that only the Dongria themselves could confirm this. The gram sabha process – initiated by notification to file claims on Saturday 1st June – is essentially to decide this one point. If the tribals agree that their God resides in a particular area, that spot can be preserved, or compensation given, while the mine can still go ahead.

 

At the 5000 strong Padayatra held by the Dongria and Kutia Kond from May 17th – 22nd Dongria leaders like Lodo Sikaka made their views on the Supreme Court’s discussions and final judgement known. Lodo stated:

 

They are saying they would mine 10km away from the peak. We will not allow mining even 100km away from it! For the forestland, for fruits, trees, air and water – for everything adivasis worship the soil. It is our given right.

 

They are saying adivasis have rights up to two feet down the soil, not up to 10 – 20 feet. Government is saying adivasis worship for the forest and not for the soil. What do we worship for? Forest or soil? We of course worship for the soil. Our gods and goddesses are everywhere: here, there, in the trees – everywhere!

 

Such statements have been made by the Dongria repeatedly over the years, but were never fully heard in the court-room, despite attempts to allow the Dongria to testify, and to hand over proof such as Mihir Jena et al’s book Dongaria Kondhs2. The court, sadly, was unable to differentiate between the modern concept of religion being practised in temples or directed at an idol, and the earth-based spirituality of indigenous cultures in which even a whole mountain or forest can be considered sacred.

 

The notification posted in Oriya newspapers on Saturday confuses this point even more. The notification issued for Kalahandi District reads:

 

Letter no 572/2013 of collectors office of Kalahandi.

Under the Supreme Court Judgement writ petition no 180, year 2011, date 18/04/2013; regarding the Palli Sabha – hereby inhabitant villagers of the following panchayats are being notified and invited that, as per the orders of the Supreme Court, tribals and other forest dwellers, regarding their new individuals rights, community rights and cultural and religious rights under Forest Rights Act (FRA) rulings 2006 – after getting this notice they should apply within 6 weeks, and within 3 months Palli Sabha will be called and legal rights of the villagers will be decided. If they have any other demands, they will also be discussed in Palli Sabhas and after justified discussions, observing Forest Rights Act 2006 and its associated rulings their rights will be decided.

Village names

Panchayat

District

Tadijhola

Trilochanpur

Kalahandi

Palberi

Trilochanpur

Kalahandi

Phuldemer

Trilochanpur

Kalahandi

Ijurupa

Trilochanpur

Kalahandi

Kanakadu

Trilochanpur

Kalahandi

2 a) The Palli Sabha will decide about the rights of tribals and other traditional forests dwellers (TFD) like Dongria Kond, Kutia Kond’s religious rights such as the worshipping of Niyamgiri which is situated at Niyamgiri Hundijari and at the top of the mountain known as Niyam Raja.

b) The Palli Sabha will decide the Niyamgiri mining areas’ – Niyam Dongo which is situated at 10km away from the summit, and whether it would impact the Niyam Raja deity can also be investigated.

Signed: Collector Kalahandi.

 

Notification of Palli Sabhas in Kalahandi district

Firstly, it is important to note that the notification does not clearly state that this Palli Sabha (the Odia equivalent of Gram Sabha) and claim filing process will determine whether Vedanta are given permission to mine the mountain but only refers to ‘writ petition 180′ which very few adivasis will understand. Secondly, the whole text is incredibly confusing, and most importantly the last two paragraphs state outrightly that Niyam Raja resides only at Hundijali.

 

Adivasis won’t understand Oriya

 

Following public criticism of it’s past attempts to manipulate public hearing processes, the Odisha government is currently at pains to present itself as making the Palli Sabhas as inclusive as possible. Newspapers are stating how they are pasting notifications of the Palli Sabhas in the affected villages, as well as announcing them with a megaphone around the mountain, while filming it all themselves as evidence of their efforts. So far we know that ads have been placed in Lanjigarh and some of the easier to reach villages, whether they will reach the upper slopes we will see.

 

But there is one fatal flaw to their attempts at inclusivity; all the notifications and megaphone announcements are in Oriya, while Konds only speak Kui, their tribal language. Kui is only an oral language and cannot be written so how will the local government communicate the legal proceedings crucial to the Kond’s survival through posters and newspaper notifications? This is why the role of activists, who are communicating the proceedings to the mountain villages, is so important and must be permitted. Without them there would be no chance of democracy in this important case.

 

 

Odisha government delays til the monsoon

 

The Supreme Court’s judgement gave a strict (if rather ambitious) timescale for the gram sabha process and following MoEF decision to be taken. It states:

 

59. The Gram Sabha is also free to consider all the community, individual as well as cultural and religious claims, over and above the claims which have already been received from Rayagada and Kalahandi Districts. Any such fresh claims be filed before the Gram Sabha within six weeks from the date of this Judgement. State Government as well as the Ministry of Tribal Affairs, Government of India, would assist the Gram Sabha for settling of individual as well as community claims.

 

60. We are, therefore, inclined to give a direction to the State of Orissa to place these issues before the Gram Sabha with notice to the Ministry of Tribal Affairs, Government of India, and the Gram Sabha would take a decision on them within three months and communicate the same to the MoEF, through the State Government. On the conclusion of the proceeding before the Gram Sabha determining the claims submitted before it, the MoEF shall take a final decision on the grant of Stage II clearance for the Bauxite Mining Project in the light of the decisions of the Gram Sabha within two months thereafter.

 

It is now six weeks since the judgement, and notification to file individual and community claims has only just been given. This six week delay is pivotal as it pushes the Palli Sabha hearings back into late July – the peak of the monsoon, when travelling to meetings becomes difficult and attendance is likely to be much lower. Local social activist Lingaraj Pradhan stated this fact in his speech at Muniguda on 22nd May.

 

 

Hundreds of villages excluded

Map of Niyamgiri showing villages all over the mountain (red dots)

 

The most glaring manipulation in the Odisha government’s interpretation of the judgement is its selection of just twelve villages in which to hold the Palli Sabhas. These are all on the lower slopes of the mountain, far from the alleged home of Niyam Raja, and the proposed mine, and hardest to reach for those living at the top of the mountain where the impact of the mine, and hence also the resistance, is strongest. There are, in fact, 79 Dongria and Kutia Kond villages within 10km of the mining area, and more than 100 adivasi villages directly affected by the mine – most of which were visited by the Padayatra several weeks ago.

 

Records show that there are actually only 186 voters registered in the twelve villages combined according to the old voter lists (five in Kalahandi district and seven in Rayagada), while more than 8000 Dongria Konds live on and worship the mountain, plus many more Kutia Konds living around Niyamgiri. Ijrupa – one of the villages listed, only has one voter according to the old voter lists which are likely to be used. Several of these villages are primarily occupied by Yadav immigrants and not the adivasis whom the judgement is aimed at. This is a blatant attempt to restrict participation in the Palli Sabha process, and make it easier to manipulate and manage by the Odisha State which has worked alongside Vedanta from the start.

 

Anticipating this skullduggery, the Minister of Tribal Affairs wrote to the Governor of Odisha, SC Jamir, on May 15th May stating categorically that the Gram Sabha should be open to all affected villages. He also stated that the MoU with Vedanta for Niyamgiri was ‘illegal’ and unconstitutional since they are a private company and cannot be trusted to safeguard the tribal’s welfare.

 

On 7th June a delegation of Dongria Kond men and women will meet with the Odisha Governor SC Jamir, demanding that all affected villages are consulted in the upcoming gram sabhas and ensuring that voter lists are up to date and all affected people wishing to attend will be allowed to enter.

 

It could also be argued that the Odisha State government should never have been trusted to facilitate another Gram Sabha since their 2009 Gram Sabha on whether Niyamgiri should be mined was exposed as a total sham by video evidence. At the meeting many locals were kept outside and not allowed in, and though almost all present voiced loud opposition to the mine in speeches, thumbprints taken as registration were used to claim that they had agreed to the project. (please see video in footnote)

 

 

MoEF are not the people

At the end of the long process of filing hundreds of community claims, and ensuring that fair Palli Sabhas are held, the final nod on the mine goes back once again to the Ministry of Environment and Forests. This fact alone makes the Supreme Court’s judgement far from the radical democratic precedent it has been hailed as, and gives more scope for Vedanta to influence the Ministry over the many coming months before the decision may be eventually given.

However, the MoEF should remember their clear statement in the 11th January Supreme Court hearing when asked by the bench “Are you completely opposed to mining or under certain conditions you will allow mining?” Solicitor General Mohan Parasaran – acting for the MoEF told the court: “We are completely against the mining operations.”

 

Confusion is in Vedanta’s interests

The confusion over the meaning of the Supreme Court’s verdict and the proceedings now taking place is evident in the vastly varying newspaper reports coming in daily. The Orissa Post for example stated on Saturday 1st June that:

The department had issued a direction to the District Collectors of Rayagada and Kalahandi to invite fresh claims within six weeks from the people of 12 villages where the Gram Sabhas would be held. After collecting the claims from the people, the Government will hold Palli Sabhas within three months and then it will hold Gram Sabhas in these villages. However, the date of holding Gram Sabhas is not yet decided.

 

Palli sabhas are in fact the same as gram sabhas, and these have to be held within three months from Saturday’s announcement. The weak and confusing wording of the verdict has already delayed the process by six weeks while the Odisha Government claimed it was clarifying it’s interpretation, and there is much potential for further delays as either side may file ‘contempt of court’ or other resolution which would send the issue back into the court room.

Meanwhile, with share prices already low, factories and mines shut at Lanjigarh, Tuticorin and Goa, and Niyamgiri looking less and less likely, Vedanta are following their usual method of high debt, high risk buyouts to keep the share prices afloat. They are currently pushing the Central Government to sell them the remaining shares in BALCO and Hindustan Zinc ltd, and delaying tactics on the Niyamgiri case will give them more time to potentially save their skin in case Niyamgiri doesn’t come through.

Dragging out the process is exhausting and resource draining for the Dongria and Kutia Konds and local activists and is often used as a tactic to wear down resistance until people eventually capitulate from sheer exhaustion. However, in Niyamgiri’s case this looks very unlikely. The high turnout and defiant energy of the recent Padayatra shows the great strength of Niyamgiri’s people, who have recently been supporting other movements such as the struggle against the Lower Suktel Dam. Lingaraj Azad’s speech at the Padayatra’s final rally in Muniguda also clearly stated that the fight goes beyond Niyamgiri and beyond Vedanta. They are aware that as long as there is bauxite in their mountain they will always have to remain vigilant and ready to respond to threats.

source- http://www.foilvedanta.org/articles/odisha-government-tries-every-trick-in-the-book-with-supreme-court-niyamgiri-verdict/

 

#India – Env Ministry recognises religious rights, pushes ecological concerns behind


Author(s):
Kumar Sambhav S…
Anupam Chakravartty
Issue Date:
2013-6-15

Environment ministry recognises religious rights, pushes ecological concerns behind

http://www.downtoearth.org.in/dte/userfiles/images/20130515_10(2).jpg” width=”457″ height=”304″ border=”0″ />

IN FEBRUARY, the Union Ministry of Environment and Forests (MoEF) took many by surprise when it opposed a mining project in Odisha’s Niyamgiri hills in the Supreme Court solely on the ground of violation of tribals’ religious rights. Extracting bauxite from the region would violate the fundamental right of a particularly vulnerable tribe, Dongria Kondh, who consider the Niyamgiri as the abode of their deity Niyam Raja, MoEF said. Till then MoEF had maintained violation of environmental laws as the reason for cancelling clearance of the project by Vedanta in 2010.

Three months later, MoEF served another shocker. On May 6, it told the apex court the ancient Dhari Devi temple in Uttarakhand, which was at risk of being submerged by a hydroelectric power project along the Alaknanda river, should not be relocated because it would affect people’s right to worship. In an affidavit to the court, MoEF drew parallel to the Niyamgiri case and said the present position and the right to worship at the Dhari Devi temple cannot be compromised. It also named leaders of political parties, including opposition BJP’s L K Advani, Uma Bharati, Arun Jaitley and then BJP president Nitin Gadkari, who have been opposing the temple’s relocation citing religious sentiments.

In the Vedanta case, the court left it to the gram sabhas (village councils) of the villages likely to be affected in Rayagada and Kalahandi districts to decide whether mining will affect religious rights of the tribals. It asked MoEF to take a final call based on the decision of the gram sabhas. In the Dhari Devi temple case the court expressed displeasure over difference in opinion of MoEF and its own committee that had said the temple could be raised to a higher level to avoid submergence. The court has reserved its decision on the case.

Though MoEF now has little say in the two projects, the eagerness with which it has argued for religious rights has stunned many. “Religious issues have been the bone of contention in many projects, but for the first time MoEF has argued its cases on religious grounds,” says a former member of the Forest Advisory Committee who does not wish to be named.

Religious rights v ecological issues

Many have hailed the Vedanta court judgement because it reaffirms the gram sabha’s authority in deciding matters related to tribal rights. The court said the gram sabha has a role to play in safeguarding religious rights of forest dwellers under the Panchayat (Extension to Scheduled Areas) Act and the Forest Rights Act (FRA).

image[1]FRA recognises traditional rights of forest dwellers over forest resources, including their way to worship. Analysts believe the judgement will come in handy for communities fighting for their sacred groves from development projects (see map [1]).

The way MoEF argued the case, however, has not gone down well with tribal rights activists. They say the ministry has reduced the larger issue of compliance with FRA to violation of religious rights. Ecological issues were also not properly argued for, add analysts.

In February MoEF was in a tricky situation. It had to defend its decision of rejecting the Vedanta project for violating FRA in the court. At the same time, there was pressure from industry and the Prime Minister’s Office to dilute powers of the gram sabha to veto a project using FRA. A 2009 MoEF order had made it mandatory for projects that require forestland diversion to obtain consent of the affected gram sabhas—something Vedanta failed to do. It was then that MoEF argued for religious rights.

The ministry told the court that people’s consent is required only in cases where a “large number of people are displaced” and “which affect their quality of life”. But in case of Vedanta, said MoEF, the project should not be allowed solely because it will affect the fundamental right of the 8,000-odd Dongria Kondhs to worship. “In a way, MoEF restricted the scope of FRA to religious rights.

What about areas where a project will affect other rights of forest dwellers?” asks environment lawyer Ritwick Dutta, adding, “besides, MoEF did not define the large number of people and quality of life.” R Sreedhar, a litigant in the case, complains MoEF did not argue strongly on the violations of the Environment Protection Act and the Forest Conservation Act. “The ministry’s own committees had pointed that several conditions of in-principle forest and environment clearances were not met by the developer,” he says. Even in its judgement the court said it did not intend to pronounce on any issue except those on violation of FRA. It explicitly said that right to worship will have to be protected—and made no mention of how mining will affect other rights.

Perhaps excited by the success of its argument in the Vedanta case, MoEF issued a stop work notice to Alaknanda Hydro Power Co Ltd, which was trying to relocate the Dhari Devi temple despite the court reserving its judgement on the matter. Six days later on May 16, the ministry had to revoke the notice after the court’s intervention.

Analysts say the arguments of MoEF may lead to a situation where religious rights take precedence over ecological concerns in governance. “MoEF might be looking for an easy way out; religious arguments do evoke strong sentiments both in court and in public domain,” says Ashish Kothari of NGO Kalpvriksh, adding, “the government might be trying to gain political mileage with elections round the corner.”

amita
MoEF has deliberately entered into a minefield. It seems the ministry did not have any option but to become a part of the exclusive and communal politics
— AMITA BAVISKAR, FORMER MEMBER OF FOREST ADVISORY COMMITTEE

Cultural claims can be dangerous, warns Amita Baviskar, sociologist at the Institute of Economic Growth in Delhi and former member of the Forest Advisory Committee. “It seems MoEF did not have any option but to become a part of the exclusive and communal politics.

Documentation of the environmental impact assessment was tailored to suit Vedanta’s case, while the impacts on local hydrology were ignored,” she says. At MoEF, there is no system to study the forest quality or understand geomorphology, claims Baviskar.

“In the Vedanta case, MoEF should have done a comprehensive mapping of the ecological landscape. The ministry should commission more studies on the ecological impacts of mining.”

Everybody’s deity

The trend of religious rights pushing ecological concerns behind is reflecting on the ground as well. Barely a month after MoEF came out in support of sacred rights, a faith-based turf war erupted in the forests of central India.

RELIGION IN LAW BOOK

1949

Constitution: Article 25, 26 guarantee people the right to practise and propagate matters of faith

1994

Environmental Impact Assessment Notification: Impact on religious places and structures is one of the parameters on which a project will be assessed before it is granted environmental clearance under the Environment Protection Act

1996

Panchayat Extention to Scheduled Areas (PESA) Act: The law to extend the Panchayati Raj system to Scheduled Areas recognises communities’ customary laws, religious practices and management practices of community resources

2006

Forest Rights Act (FRA): Religious rights are not explicitly mentioned. They are recognised as part of the traditional rights customarily enjoyed by forest dwellers and Scheduled Tribes, along with an individual’s right to cultivate forestland or community’s right to manage and protect community forests

On March 22, Amelia village in Madhya Pradesh’s Singrauli district performed a pooja to Dih Baba, deity and protector of Mahan forests. The residents worship Dih Baba every year before collecting forest produce. This March there was another reason for the pooja: people were claiming their land and religious rights over forests which were at risk because of a mining project, jointly proposed by Essar and Hindalco, in the Mahan Forest Range. Amelia has 200 families which rely on the forest for livelihood. The project falls in a dense forest which former environment minister Jairam Ramesh had declared a no-go area for mining because of its biodiversity. Yet, the project was given in-principle forest clearance last year.

To campaign against the project, the people at risk of being displaced formed the Mahan Sangharsh Samiti (MSS). They filed claims for community forest rights under FRA but they were rejected by the gram sabha. MSS alleges the sarpanch (village head) and patwari who control the gram sabha are in collusion with the developers and secretly passed the gram sabha resolution to allow the project. When nothing worked, people resorted to religious rights. “The only way now left for us to assert our rights is through Dih Baba,” says MSS member Bechau Lal. Religious sentiments can be a powerful tool to protect environment but they might not always guarantee security from development projects, cautions Shankar Gopalakrishnan of NGO Campaign for Survival and Dignity. “The religious argument is a double-edged sword. If the gram sabha is the deciding forum it is likely that people’s concerns will be addressed, but if the state gets to decide there is going to be scope for manipulation,” he explains.

The Vedanta judgement addresses Gopalakrishnan’s fear. The court maintained the gram sabha has the power to decide matters in Scheduled Areas and in areas where FRA is applicable. Outside such areas, religious or political groups can manipulate ecological concerns for vested interests. One such case is that of the Sethusamudram Shipping Channel Project in Tamil Nadu. The project, which aims to ease goods movement around the Indian peninsula, proposes to link the Palk Bay and the Gulf of Mannar through the sea Setu Samudram and a chain of limestone shoals known as Ram Setu, a religious site. In March, AIADMK-led Tamil Nadu government, which is against the project, filed an affidavit in the apex court pushing the case for making Ram Setu a national monument. Aligning with the Centre’s position, AIADMK’s arch rival, DMK, said there was no archaeological basis of the formation of Ram Setu. The case is pending in the court.

http://www.downtoearth.org.in/dte/userfiles/images/20130515_14(1).jpg” width=”457″ height=”284″ border=”0″ />A NASA image of Ram Setu or Adam’s Bridge, a chain of limestone shoals (source: NASA)

Some 1,500,000 fisherfolk around the project site, who are at risk of being displaced, say the religious card is being used for political opportunism, while ecological concerns are being ignored. “If the Centre goes ahead with the project, the fisherfolk will be displaced, and if Ram Setu is declared a national monument, fisherfolk will not be allowed to fish in the area. Who will address their concerns?” asks T Peter, secretary, National Fishworkers’ Forum.

RITWICK DUTTa
Every religious structure cannot be a case to oppose clearances. If a religious structure is connected to natural resources, the faith attached to it stands a chance of being argued for
— RITWICK DUTTA, ENVIRONMENT LAWYER

An apex court-appointed committee had concluded that even if an alternative route is constructed to avoid using Ram Setu it would damage the Gulf of Munnar Biosphere Reserve, home to endangered marine flora and fauna.

While religious rights are being politicised, the channel through which they should be addressed is being ignnored. “Impact on religious aspects of the lives of affected people is part of the cultural impact assessment.

This is an important part of environment impact assessment under the Environment Protection Act. Unfortunately, this is hardly done,” says lawyer Dutta.

Environmental economist Aseem Shrivastava puts the debate in the context of a larger issue of development versus environment.

“Given the current model of globalised development, every project needs to be assessed on stronger parameters for socio-economic and ecological implications. The religious sentiments being evoked in this debate are in a narrow sense,” he says. Dongria Kondhs’ relationship with the Niyamgiri has a strong ecological and livelihood link.

The hill is made of bauxite which holds water. “One should ask MoEF and BJP to explain the ecological and economic worth of sinking the Dhari Devi temple. One wonders why BJP failed to oppose the Narmada project in Madhya Pradesh and Gujarat which drowned many temples.”


 

Andhra Pradesh –Tribals displaced by Indirasagar should be rehabilitated by June 15


RAMPACHODAVARAM, June 1, 2013

Staff Reporter

Importance should be given to traditions, language, security and the employment of tribals who were displaced due to Indirasagar project, said T.K. Sridevi, Commissioner, Rehabilitation and Resettlement. She directed the implementation officials to provide effective rehabilitation package with a humane touch. She addressed a review meeting on the progress of rehabilitation programmes like land for land, rehabilitation and other packages to the displaced tribals under Indira Sagar project in Rampachodavaram on Friday.

Speaking on the occasion, Ms. Sridevi said that special packages were being implemented for the comprehensive development of tribals, and 44 habitations have been submerged under Indirasagar in the district. She maintained that the Supreme Court has appointed a project monitoring committee to inspect the project execution, and suggested officials to shift the displaced to colonies after giving prior notice and take the assistance of Sub-Collector and ITDA Project Officer to vacate the displaced if they were not willing to do so. She made it clear that all the displaced should be shifted to the colonies by June 15 and submit the report.

The R and R Commissioner explained that the displaced should be vacated on priority basis and the rehabilitation package should be implemented according to guidelines. In the implementation of package, she made it clear that possession should be taken after issuing notices. She said that settlement should be made after estimating the value of the lands of non-tribals. It should be a one-time settlement with the approval of the district Collector. She made it clear that the temples should be reinstated in the same colony if the temples had to be removed. She suggested that the agricultural land should be provided within a radius of three kilometres radius from the colony in land to land package. She mentioned that the packages should be implemented through banking transactions and added that onus was on the officials to monitor whether the beneficiary utilising the funds was doing so in a proper manner.

Ms. Sridevi said that the fertile land, suitable for agriculture, will be given to the displaced people to compensate for their land submerged due to the project, according to government policy. She said that a house site along with financial assistance and rehabilitation will be provided to every displaced beneficiary.

She directed the officials of roads and buildings to estimate the value of submerged buildings and pay compensation according to the value. Rampa Chodavaram Sub-Collector Gandham Chandrudu, Special Collector B. Sudarshan and SE Irrigation B. Vijayabhaskara Rao were present on the occasion.


  • 44 habitations have been submerged under Indira Sagar in East Godavari district: official
  • ‘Settlement should be made after estimating the value of the lands of non-tribals’

     

 

Odisha- Gram sabha ball set to roll for Vedanta bid to mine at Niyamgiri Hills


Kondh Lady

Gram sabha ball set to roll

Satyanarayan Pattnaik & Sandeep Mishra, TNN | Jun 1, 2013, 01.20 AM IST

BHUBANESWAR/ KORAPUT: Adhering to the Supreme Court‘s order to conduct gram sabhas to decide the fate of Vedanta bid to mine bauxite at Niyamgiri hills, the state government would on Saturday serve notices to hold such meetings in 12 villages of Rayagada and Kalahandi districts, official sources said.The decision to issue notification seeking receipt of objections from tribals residing at the 12 villages followed the Orissa high court appointing the district judges of Rayagada and Kalahandi to act as observers to oversee proceedings of the gram sabhas in their respective villages, which are located on the Niyamgiri hill slope.

“The high court has communicated to us its decision to nominate the district judges of Rayagada and Kalahandi to oversee the proceedings in their respective districts,” secretary, ST and SC welfare, Sontosh Sarangi told TOI on Friday.

The Supreme Court, in its April 18 ruling, said a judicial officer of the rank of a district judge should serve as an observer during the gram sabhas. The apex court had directed that gram sabhas be held within three months to examine the community, individual as well as cultural and religious claims of the Dongria Kondh.

The state government has selected five villages (Tadijhola, Palberi, Phuldumer, Ijurpa and Kunakado) in Kalahandi and seven villages (Jarapa, Khambesi, Kesarpadi, Batudi, Serakapadi, Lakhapadar and Lamba) in Rayagada to conduct palli sabhas. Rejecting certain activists’ allegations that the government chose the villages at random, a senior officer said these villages lie on the hill slope and the government had informed the SC about it on December 6, 2012, through an affidavit. “Nobody had raised any objection about them then and it was in the context of that affidavit that the final judgment came,” the officer said.

“This is the first phase of conducting palli sabha (gram sabha). On Saturday, notices in both Odia and Kui languages will be served to the tribals residing at the seven villages in our district. They will be given six weeks to submit their objections, if any, before the palli sabha is held,” said collector (Rayagada) Sashi Bhusan Padhi.

“The required forms to be distributed among tribals have been printed in Odia and Kui and the officers will read out the notice before each household. The officials will also use loud speakers to announce the purpose of the palli sabha at the respective villages. Hoardings of the notice will also be put on at the villages. The entire process will be video recorded. Besides, the notice will also be published in local dailies for wider publicity,” Padhi added.

Official sources said a similar process would be followed in Kalahandi. The tribals after filling up the forms will submit them at the respective forest right committee, which will be present at the palli sabha. After six weeks, starting June 1, in consultation with the concerned district judge, dates for the palli sabha will be announced, officials added.

Vedanta’s one MTPA alumina refinery at Lanjigarh in Kalahandi has been closed since December 5 following acute shortage of bauxite.

 

Activist alleges Odisha govt trying to manipulate SC order on bauxite mining


 

Hindustan Times  Bhubaneswar, May 29, 2013

 
First Published: 18:42 IST(29/5/2013) | Last Updated: 18:45 IST(29/5/2013)
 
 

Lok Shakti Abhiyan president Prafulla Samantara on Wednesday alleged the Odisha government was attempting to subvert the recent order of the Supreme Court relating to holding gram sabhas for a decision on proposed bauxite mining in Niyamgiri hill for Vedanta Group’s plant and sought Odisha governor SC Jamir’s intervention in the matter.

The social activist, an intervener in the Orisha Mining Corporation versus Union ministry of environment and forest case in the apex court, warned: “As the third party in the case we will be forced to move the Supreme Court for initiating contempt proceedings unless the state government stops manipulating and subverting the order of the court.”

On April 18, the Supreme Court in its order asked the state government for holding gram sabha saying that the decision of gram sabhas of Kalahandi and Rayagada districts was crucial on the issue of whether mining should be allowed in the Niyamgiri hill – home to nearly 10,000 endangered Dangria Kondh tribals, portrayed in western media as Na’vi from Hollywood blockbuster Avatar.

On Monday the Scheduled Tribe and Scheduled Caste department of Odisha government issued notice to the district collectors of Kalahandi and Rayagada to hold gram sabhas in 12 villages of both the districts and complete the process within three months as stipulated by the Supreme Court.   

Samantara however said the selection of just 12 villages was in contravention to the judgment of the Supreme Court, while there are more than 42 villages within 10 km range of the proposed bauxite mining project area. He said a letter from the Union ministry of environment and forest on May 2 clearly mentioned that the list of villages as prepared by the state government should be shared with the central ministry and made public through new advertisements for transparency so that corrections can be made in the list if any village was left out. 

“But the list prepared by the state government has not yet been made public and shared with all stake holders as required by the ministry’s direction,” Samantara said.

Odisha government’s MoU with Vedanta group in 2004 includes supply of 78 million tonnes of bauxite from Niyamgiri by the state owned OMC to Vedanta’s alumina refinery adjacent to the hill. OMC has not been able to mine the hill due to stiff protest from the tribals who revere the hill as their god ‘Niyamraja’ and problems in getting clearance from the Union ministry for environment and forest.

Denied clearance by the ministry in 2011, the OMC had moved the Supreme Court, while Vedanta had shut down its refinery on December 6 last year due to lack of bauxite.

 

 

Mohd Afzal Guru A life rendered ‘extinct’


 

Show Caption
1 / 2
  • Outside Tihar Jail No. 3 in New Delhi soon after Afzal Guru was hanged on February 9.
  • Afzal Guru being taken to court on December 17, 2002, a day before he was awarded the death sentence.

The right to counsel begins from the moment of arrest. From the time Afzal Guru was arrested in 2001 to the filing of a charge sheet in court, he had no lawyer—a fact that goes against the Supreme Court’s own observation on the need for defence counsel. By A.G. NOORANI in Frontline

DRAVINDER SINGH, Deputy Superintendent of Police, exposed himself in an interview in 2006. It merits quotation in extenso. Afzal Guru yielded nothing on interrogation by Vinay Gupta of the dreaded Special Operations Group (SOG). “But I requested Vinay not to release him and send him to my camp Humhama (Budgam district). That is how I know Afzal. I did interrogate and torture him at my camp for several days. And we never recorded his arrest in the books anywhereHis [Afzal’s] description of torture at my camp is true. That was the procedure those days and we did pour petrol in his arse and gave him electric shocks. But I could not break him. He did not reveal anything to me despite our hardest possible interrogation. We tortured him enough for Gazi Baba but he did not break. He looked like a ‘bhondu’ those days, what you call a ‘_______’ [an Urdu swear word for naive or easily duped persons] type. And I had a reputation for torture, interrogation and breaking suspects. If anybody came out of my interrogation clean, nobody would ever touch him again. He would be considered clean for good by the whole department.

“Q. In the light of allegations by Afzal, do you think that you may have been used?

“It is a difficult time for me. I would expect my superiors to clear my name. But it is so that nobody from my department has come forward so far….

“Q. Then why is your name figuring in Afzal’s letter and his wife’s accounts?

“I am being victimised for having worked in SOG, for being very nationalistic. What am I getting in return? Bad name as a conspirator.… It’s really unfortunate.… Also, to be candid with you, nobody would ever forget having been interrogated by me.”

This “torture specialist’s” admission must be read with his revealing use of a swear word for a naive, gullible man. Afzal Guru was not called a crook, which he would have been if he was really guilty, and he would not break under torture. He had to be killed. This interview will be published in the next edition of Penguin’s 13 December.

As for the other two police officers: “In 2008, on March 20, ACP [Assistant Commissioner of Police] Rajbeer Singh was shot dead by his friend and partner, Vijay Bhardwaj, a property dealer of Gurgaon, over a dispute on ‘investments’ he made with the realtor. In his statement, the accused, Bhardwaj, confessed, among other things, that he was unable to repay Rajbeer the money invested in shoddy land deals and the gun used in the killing, with apparent marking ‘E-8256’, was given to him by Rajbeer Singh to help recover money from his business clients. During the media trial of the Parliament case held at Lodhi Road, he snubbed Afzal Guru for speaking something contrary to what he had been directed to. This was noted by Shams Tahir Khan, reporter of Aaj Tak who later testified to it before the court. The most unfortunate thing is that the trial court believed Rajbeer’s version when many details of his dubious and illegal dealings were already in public domain” (Abdur Majid Zargar, Kashmir Times, March 5, 2013).

Citing first information reports, Sama Bhat reported “Shanti Singh is in jail” on charges of custodial killing (Kashmir Life, a Srinagar weekly, February 24, 2013). It is such men who created the “circumstantial evidence”. Afzal Guru was sent around and the people he met testified against him—they were themselves in police custody.

Only a skilled and courageous lawyer could have exposed the forces that organised such a prosecution. The right to counsel begins from the moment of arrest. From the time of his arrest by the police on December 14, 2001, until their filing of a charge sheet in court, Afzal Guru had no lawyer. On January 19, 2002, when he was produced before the designated judge S.N. Dhingra under the Prevention of Terrorism Act (POTA) who was to try him, he was asked whether he would be engaging a lawyer. He gave the only answer a financially ruined man could—No. It was the court’s duty to name one for him.

Dhingra, who was also an Additional Sessions Judge, Delhi, appointed, on May 17, a lawyer, Seema Gulati, as amicus for him. This was a wrong step.Amicus curiae are appointed to assist the court, especially when rival sides will not bring out the whole truth. On May 17, 2002, Seema Gulati “appeared on behalf of Afzal. She conceded that a prima facie charge was made out against him even though she could have challenged the charges. The court records of 5 June 2002 show when charges were framed she made vital concessions and admitted certain documents so that those documents were taken into evidence without formal proof. These concessions resulted in dropping of several important prosecution witnesses which meant Afzal could not undo the damage of these concessions made on his behalf but without his instructions and without thought to the consequences to him. And then Seema Gulati gave an application stating that she does not want to defend Afzal. That was on 2 July 2002—barely a week before the trial was to begin. She took up [S.A.R.] Geelani’s defence for a professional fee” (Nandita Haksar, pages 184-85).

One Attar Alam was appointed but he “was not willing to act as amicus”. The Supreme Court conceded that Afzal Guru “was without counsel till 17 May 2002”, but it said nothing important had happened until then. But this was during the crucial stage of investigation, torture and confessions. On July 1, 2002, Seema Gulati sought her discharge from the case “citing the curious reason” that she had been engaged by another accused, Geelani, to appear on his behalf, for a fee, of course. One Neeraj Bansal, her junior, was thrust on Afzal Guru.

Afzal Guru objected on July 8 and sought the services of a Senior Advocate. But counsel he named were unwilling. “Neeraj Bhansal was therefore continued in view of the fact that he had experience in dealing with TADA [Terrorist and Disruptive Activities (Prevention) Act, POTA’s predecessor].” Thus did the Supreme Court brush aside its own observations on the need for defence counsel and acquiesced in a brazen wrong. It is for the accused to select his counsel, not for the court to impose one on him because it considers him an expert. Afzal Guru objected to Bansal the very day he was appointed, July 12, 2002. He continued all the same thanks to Judge Dhingra though Bansal himself wanted to quit. He never met Afzal Guru, never asked to meet him. Of the 80 prosecution witnesses, only 22 were cross-examined, mostly inadequately. Judge Dhingra evidently was not concerned about hearing the defence. That the Supreme Court ignored a monstrous wrong in the one case of Afzal Guru speaks for the justice he received. It can be confidently asserted that no other court in any other democracy in the world would have acquiesced in such a wrong. This is exactly what the Magistrate trying Bhagat Singh and Batukeshwar Dutt did, that is, imposed on them a lawyer they did not want.

Anthony Lewis, who died on March 25, wrote in his classic Gideon’s Trumpet that Gideon had pencilled his petition “in the form of a pauper; as a poor man”. The U.S. Supreme Court ruled unanimously, speaking through Justice Hugo Black, that “in our adversary system of criminal justice, any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him”, counsel he approves (Gideon vs Wainwright 372 U.S. 335 (1963)). The Indian Supreme Court has followed this ruling, but in the one case of Mohammad Afzal Guru, it denied that right. It is an absolute right that no court can deny on the specious ground that no harm was done after all. The test laid down in the leading case Powell vs Alabama (287 U.S. 45) was “effective aid in the preparation and trial of the case”. It concerned a black charged with rape (1932).

Police officer’s grave lapse 

Two oddities reflect the farce. On December 19, 2001, Assistant Commissioner of Police Rajbeer Singh took over the investigation. On the same date, the draconian POTA was applied to the case. The next day, Afzal Guru was interrogated. Three accused—Afzal Guru, his cousin Shaukat, and Geelani—were said to have desired to confess. He informed Deputy Commissioner of Police Ashok Chand of this and was asked to produce them on the following day, December 21. Geelani refused to confess. Afzal Guru was produced; a “confession” was recorded after formal cautions. The confessions were sent to the Additional Chief Metropolitan Magistrate on December 22. But alone among the four accused, Afzal Guru was paraded before TV channels in the very office of the Special Cell at Lodhi Road, New Delhi. Rajbeer Singh was present and intervened at one stage. Shams Tahir Khan, principal correspondent of Aaj Tak, one of the TV channels summoned to interview Afzal Guru, bravely deposed as defence witness on October 10, 2002.

Afzal Guru had said that Geelani was not involved. The witness said: “It is correct that accused was told by ACP Rajbeer Singh not to say anything about S.A.R. Geelani. By that time my interview had already been concluded and NDTV persons were interviewing. Rajbeer had requested not to telecast the line stated by accused about Geelani. So when this interview was telecast on 20th December 5 p.m. that line was removed but when this was rebroadcast in our programme 100 days after attack this line has not been removed and is in the interview.

“Question by Afzal: I put it to you that Rajbeer had not simply told me but shouted at me not to say anything about Geelani? Ans.: It is correct.” The Supreme Court merely expressed surprise at Rajbeer Singh’s profession of “ignorance about the media interview”. But in the very next sentence the court explained it away: “We think that the wrong step taken by the police should not enure to the benefit or detriment of either the prosecution or the accused.” Why not? This is of a piece with the Supreme Court’s approach to the case. Rajbeer Singh’s gross lapse exposed him completely.

There was another factor—the Ministry of External Affairs gave evidence behind the accused’s back that the trial court readily accepted. Nandita Haksar records: “The proceedings of 14 January 2002 show that the Ministry of External Affairs (MEA) filed an application asking permission to file ‘secret and other documents for keeping in sealed envelope’. The learned judge ordered: ‘Ahmad is directed to place the documents in sealed envelope and keep the same in safe custody under his lock.’” Was this the secret source of the learned judge’s information that he could confidently accuse Pakistan of involvement in the attack without any evidence on record? (page 71).

Each of the three courts made its own distinctive contribution to emotive rhetoric that should be out of place in judicial reason. The trial judge Dhingra said of the defence’s criticism of a prosecution witness who was “Only 5th/ 6th Standard pass for translating Kashmiri conversation to Hindi. Language is not monopoly of educated and elite class. A child starts learning mother tongue while sucking milk of her mother. A person educated up to 5th or 6th standard may be knowing his mother tongue much better than a graduate or postgraduate, who after acquiring knowledge of English starts forgetting his mother tongue and can speak only in Hinghlish, Chinglish or Kashinglish. Tulsidas, Kabir, and several other contemporary personalities had no little formal education but had command over language and produced great ‘works’. Being a fruit seller is no sin. Today we do not understand the dignity of labour and look upon persons earning livelihood by labour as low class. If India is 10th among the most corrupt countries, it is not because of these poor people but because of some other class of people. The witness could not understand English words in the conversation because of lack of knowledge of English language but he understood Kashmiri and Hindi well and translated the conversation to Hindi properly.”

The 392-page judgment of the Delhi High Court, delivered by Justices Usha Mehra and Pradeep Nawajog on October 29, 2003, has the same patriotic fervour. “After the unfortunate incident, this country had to station its troops at the border and large scale mobilisation of the armed forces took place. The clouds of war with our neighbour loomed large for a long period of time. The nation suffered not only an economic strain but even the trauma of an imminent war.”

In the Supreme Court, Justice P. Venkatarama Reddi said on behalf of himself and Justice P.P. Naolekar. “The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the government as well as disrupting the normal life of the people of India is something which cannot be described in words. The incident, which resulted in heavy casualties, had shaken the entire nation,and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators can only be compensated by giving maximum punishment to the person who is proved to be the conspirator in this treacherous act. The Appellant (Afzal Guru) who is a surrendered militant and who was bent upon repeating the acts of treason against the nation is a menace to the society and his life should become extinct. Accordingly, we uphold the death sentence” ((2005) 11 SCC 760). Even the prosecution did not allege that Afzal Guru was “bent upon repeating” what was alleged against him. There was not a tittle of evidence to that effect. Why did the Supreme Court jump to this conclusion?

Emperors and dictators of the lower breed have proclaimed that a particular person’s life be rendered “extinct”. In all history no judge has ever used such language. In civilised countries judges pronounce the death sentence with great reluctance, regret and, in extreme cases, controlled indignation. Never exultantly, in a spirit of vindication or in brazen populism. This passage has been widely criticised, but the question it squarely raises is overlooked. How fair and detached in their evaluation of the complex facts and the law can be judges who are capable of using such language as this? The least which the Supreme Court ought to have done was to order a retrial.

Contrast all this with these words by another judge of the Supreme Court, Justice Radhakrishnan: “A criminal court while deciding criminal cases shall not be guided or influenced by the views or opinions expressed by judges on academic platforms. The views or opinions expressed by judges, jurists, academicians, law teachers may be food for thought. Even the discussions or deliberations made at the State Judicial Academies or the National Judicial Academy at Bhopal, only update or open new vistas or knowledge for judicial officers. Criminal courts have to decide the cases before them examining the relevant facts and evidence placed before them, applying binding precedents” (OMA vs State of T.N., (2013) 3 SCC 440 para 22). Popular feelings stand on a lower footing than academic writings. How did their Lordships discern the people’s “collective conscience”? It is a purely subjective appraisal influenced by their own feelings.

The immortal classic on the point is Lord Mansfield’s pronouncement in the celebrated case of John Wilkes in 1770. “I wish popularity; but it is popularity which follows, not that which is run after; it is that popularity which sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion, to gain the huzzas which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of deluded people can swallow” (4 Burrow 2527 at page 2562; 98 Eng. Rep. 327 at page 347; 19 St. Tr. 1075 at Col. 1112-3).

He said also: “The Constitution does not allow reasons of state to influence our judgments… we are bound to say ‘fiat justitia, ruat caelum’ [let justice be done though the heavens fall].” When did an Indian judge in the Mansfield mould last sit on the Bench?

Supreme Court – Two-finger test violates rape survivor’s right to privacy #Vaw #Goodnews


Press Trust of India | Posted on May 19, 2013

New Delhi: The Supreme Court has held that the two-finger test on a rape survivor violates her right to privacy, and asked the government to provide better medical procedures to confirm sexual assault. A bench of Justices BS Chauhan and FMI Kalifulla said even if the report of the two-finger test is affirmative, it cannot give rise to presumption of consent on part of a rape victim.

“Undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent,” the bench said.

The two-finger test entails medical inspection of the female hymen. Referring to various international covenants, the judges said rape survivors are entitled to legal recourse that does not violate their physical or mental integrity and dignity.

Two-finger test violates rape survivor\'s right to privacy: SCThe apex court said that rape survivors are entitled to legal recourse that does not re-traumatise them.

“Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with gender-based violence,” the apex court said. “The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with her privacy,” the bench said.

Keeping in mind the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the Supreme Court said, rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity. “They are also entitled to medical procedures conducted in a manner that respects their right to consent,” it said.