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?

CPI(M) demands abolition of #deathpenalty


Monday, May 13, 2013, 20:13 IST | Place: New Delhi | Agency: PTI

Decribing executions as “inhuman”, CPI(M) on Monday said it stands for abolition of death penalty in the country as it is “arbitrarily implemented” and advocated imprisonment till death in rarest of the rare cases.

Prakash Karat

Decribing executions as “inhuman”, CPI(M) on Monday said it stands for abolition of death penalty in the country as it is “arbitrarily implemented” and advocated imprisonment till death in rarest of the rare cases.

A decision on the party’s position was taken at a two-day Central Committee meeting of CPI(M) that ended here yesterday.

Addressing a press conference here, CPI(M) General Secretary Prakash Karat said the Central Committee discussed a note presented by the Polit Bureau on the abolition of the death penalty and decided that it will advocate the abolition of capital punishment.

“In India, death penalty, as it is in practice is arbitrarily implemented. It is inhuman…Instead of capital punishment, the party wants in rarest of the rare cases and most heinous crimes, life imprisonment should be extended for the entire life of the person convicted with no scope for remission,” Karat said.

He said the Politburo had been discussing the issue since last year.

Referring to the controversy surrounding the execution of Parliament attack case convict Afzal Guru, Karat said he was denied what was provided in the law about right to appeal after the mercy petition was rejected.

“Afzal was denied this opportunity and his family was not informed also,” he said.

The CPI(M) leader said 97 countries have abolished death penalty and it was time for India to change its statute.

Last month, CPI(M) Polit Bureau member Sitaram Yechury had said that the party were willing to discuss and consider death penalty for rapists.

 

Asian Centre for Human Rights cites Mahendra case, seeks mercy for Bhullar #deathpenalty


bhullar

TNN | Apr 19, 2013,

GUWAHATI: The Asian Centre for Human Rights (ACHR) on Thursday submitted a fresh mercy plea to President PranabMukherjee seeking commutation of the death sentence of condemned prisoner Devender Singh Bhullar to life imprisonment. The rights body argued that since another prisoner on death row, MahendranathDas of Assam, had his mercy plea considered by two Presidents, Bhullar should also be given the same benefit.”There is already a precedent for the President of India to reconsider a mercy plea twice. The mercy plea of death row convict Mahendra Nath Das of Assam was considered twice as shown from the minutes of the Rashtrapati Bhawan supplied under the RTI Act,” ACHR director Suhas Chakma said.

Das committed the first murder in 1990 and while he was out on bail in 1996, he committed the second murder. In 1997, a trial court sentenced him to death for the two counts of murder. Das’s appeal was rejected by the high court in 1998 and by the Supreme Court in 1999. He is still waiting for the execution of his death sentence as his petition questioning the delay in his hanging for 16 years is pending in Supreme Court.

The RTI document states that former President Abdul Kalam on September 30, 2005, had accepted Das’s mercy plea and had advised the home ministry to consider extending clemency to him. Kalam had sent a communication to the home minister noting that the conduct of Das did not show trace of pre-meditated murder and that the crime might have been committed due to lack of mental equanimity and advised the home minister to consider extending the benefit of clemency to Das and added that during his incarceration in prison, he may receive periodic counselling to reform his personal and mental psyche.

However, the same recommendation was recalled by Kalam on October 5, 2005 and when he demitted office on July 24, 2007, Kalam noted that the case may be put up to his successorPratibha Patil, who subsequently rejected the mercy petition.

Das had earlier submitted his mercy petition to former President K R Narayanan in 1999 and the then home minister L K Advani had recommended rejection of the petition. Narayanan did not take any decision on the petition during his tenure and the same was put up to his successor, Kalam.

“If Das’s mercy plea could be reviewed twice, there is no reason as to why Bhullar’s mercy plea cannot be considered afresh.” Chakma said.

Giving 10 grounds for the consideration, the AHRC called upon the Centre India to commute Bhullar’s death sentence to life imprisonment, declare a moratorium on death penalty and set up an expert committee to consider ways and means for final abolition of death penalty.

 

Justice A P Shah – “One hardly finds a rich or affluent person going to the gallows” #deathpenalty


Justice Shah talks to AmnestyDeath Penalty in India: “One hardly finds a rich or affluent person going to the gallows”

In November 2012, Ajmal Kasab, the lone surviving gunman from the 2008 Mumbai attacks, was hanged in the country’s first execution in more than eight years. Three months later, Afzal Guru was executed after his clemency petition was rejected by the President; Guru had been convicted in 2005 of being involved in the 2001 attack on Parliament.

More recently, the government has expanded the scope of the death penalty by amending laws to provide for this punishment in certain cases of rape. The Supreme Court last week also rejected an appeal against the decision by the President to reject Devender Pal Singh’s mercy petition. In a trial that has raised serious fair trial concerns, Devender Pal Singh was found guilty of planning an explosion that killed nine people in 1993. His sentence was confirmed by the Supreme Court in 2002 and he has been on death row since.

The recent decision of the Supreme Court is likely to affect at least 17 more prisoners who are asking for commutation of their death sentences on the grounds of delay in the disposal of their mercy petitions by the President. Justice A. P. Shah, a former Chief Justice of the Delhi High Court, is one of the most outspoken opponents of capital punishment in the country. He shared his views on the death penalty in this interview with Amnesty International.

What is the state of the death penalty in India?

India has carried out only very few executions since the 1990s. However, the brutal gang rape of a 23-year old woman in Delhi last year intensified public calls for the imposition of the death penalty.

Why should India abolish the death penalty?

Whether an accused is sentenced to death or not is an arbitrary matter and depends on a number of factors, ranging from the competence of the legal representation to the interest of the central government in a particular case and the personal predilections of the judges. It is beyond any shred of doubt that in India, it is the judges’ subjective discretion that eventually decides the fate of an accused. Also, confessions and witness testimonies play a more vital role in India than in many other countries, given that forensic and other scientific evidence are not so frequently adopted here. Most death sentences are awarded on circumstantial evidence alone. Even the use of professionally trained witnesses by the police is common.

Why do you say the death penalty is discriminatory?

In India, it is largely cases involving the poor and the down-trodden – who are the victims of class-bias – which result in an imposition of a death penalty. Here one hardly finds a rich or affluent person going to the gallows. Therefore, it is apparent that the death penalty, as it is used now, is discriminatory. It strikes mostly against the disadvantaged sections of society, showing its arbitrary and capricious nature – thus rendering it unconstitutional. You have expressed concerns about the execution of Afzal Guru, who was convicted of being involved in 2001 attack on Parliament in Delhi Several disturbing trends emerge from his execution, which must be highlighted. For example, the rejection of his clemency petition by the President on 3 February 2013 was kept a secret and was not communicated to his family. Afzal Guru was executed within a week without his family being informed and his body was buried secretly. There are also serious doubts about the quality of evidence and whether he was adequately represented legally during his trial.

What’s the future of the death penalty in India?

The global trend is increasingly and overwhelmingly in favour of abolition. We would be deluding ourselves if we were to believe that the execution of a few persons sentenced to death will provide a solution to the unacceptably high rates of crime. In reality, capital punishment does not have any deterrent effect.

Justice A. P. Shah is one of 14 retired judges who last year called on the Indian President to commute 13 death sentences that, they maintain, were imposed in a manner inconsistent with the law. —

 

CRPP Statement of on Death Sentence to Bhullar


Committe for Release of Political Prisoners

That the conviction of Davinder Pal Singh Bhullar was solely based on a confession statement attributed to him which he had denied in the court makes the decision even more regressive thus exposing even the fallacious claims of the SC that capital punishment should only be given in the ‘rarest of rare’ cases. Significantly, when Mr. Bhullar was being extradited from Germany it was assured by the Government of India that he won’t be condemned to death.
It was in 2001 that Bhullar was sentenced to death by the trial court. He has been in prison since 1995 after his extradition. Thus, Bhullar has already spent more than eighteen years in prison, which is longer than a life term. Thus, by refusing to consider the inordinate delay as a reason for the commutation of death sentence, the Supreme Court is violating the Fundamental Right guaranteed by Article 20(2), that no person shall be punished twice for the same offence.
The ten-year long delay in disposing the mercy petition by the President of India was the ground on which Bhullar had sought commutation of his death penalty as it was a blatant violation of Article 21 of the Constitution of India while at the same inflicting further pain and cruelty on him through the prolonged incarceration after the Supreme Court upheld his death sentence.
As in effect, Bhullar has already served a life term and is now on death row. What is even more alarming is that there are seventeen convicts on death row and the rejection of Bhullar’s plea is going to have an adverse effect on all these seventeen cases. The Indian ruling classes and their politics of jingoism and hate is definitely on the slippery slope heading for an orgy of judicial executions, which was triggered by the secret executions of Ajmal Kasab and Afzal Guru.
Similar to the case of Afzal Guru, the conviction of Bhullar is also on shallow grounds. Bhullar was convicted under the draconian TADA. On appeal, a three-member bench of the Supreme Court upheld the decision of the TADA Court under a split verdict of 2 to 1. The presiding judge Justice MB Shah had acquitted Bhullar of all charges under TADA. His confession, which was found to be concocted, was also rejected as it was at odds with the testimony of the prosecution witnesses. Thus, the split verdict should have been a good reason for the President to accept the mercy petition and for the Supreme Court to commute death to life. However, it was rejected in 2011 on a completely arbitrary basis eight years after it was filed. The prolonged incarceration had its toll on the health of Davinder Pal Singh Bhullar as he was undergoing treatment for mental illness. Needless to say that to hang someone who is mentally ill speaks more about the overall depredation of the ruling classes of India to the vast sections of the toiling masses.
It is with intrigue one would look into the contradicting positions taken by the Supreme Court vis-à-vis its stand on death sentence. Just a week after the Supreme Court had stayed temporarily the death sentence of 8 people another bench of the same court has rejected the plea of Davinder Pal Singh Bhullar to commute his death sentence to life. A few months before the SC had in retrospect observed that Capital Punishment can only be given in the rarest of rare cases after making it doubly sure that the evidence provided in reaching the conclusion that the said case is the rarest of the rare should be impeccable while ensuring that the law has been upheld in reaching the above said conclusion. This introspection had also brought forth the glaring facts that in ninety nine percent of the cases of award of death sentence there was a terrible miscarriage of justice. While staying the death sentence of 8 people temporarily on the first week of April 2013 the SC had observed the need to follow procedures while executing the death sentence thus partially admitting the glaring anomalies in the ‘secret’ hanging to death of Mohd. Afzal Guru.
It is well established that death penalty – being neither a deterrent nor reformatory in nature- serves no cause other than that of retributive justice. Most civilized countries (more than 140) have banned death penalty. Even though the Supreme Court of India has enunciated the jurisprudence of the “rarest of the rare”, the hard reality is that the Indian Courts have awarded death penalty at the rate of 133 per year over the last ten years. So the rarest of the rare cases are decided by the Indian courts once in every three days!
In the seventy page judgement rejecting the plea to commute the death penalty given to Davinder Pal Singh Bhullar, the Supreme Court bench quotes generously from the 35th Report of the Law Commission as it states “…Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.” [p-3] This above mentioned quote selected by the bench from the Law Commission Report explains the Court’s burden of civilizing the inhabitants in the vastness of the subcontinent through the instrument of death penalty! And this colonial mindset also explains considerably why the rhetoric of rarest of the rare has metamorphosed to be the common thing in the practice of jurisprudence in India.
As long as the lived reality of inequality endures in the Indian subcontinent through the systematic dog-eat-dog policies of various governments, such a reality may be weighed against the consequences its legal system evokes in the name of its people’s. If the Indian state continues to embrace [capital punishment] in the name of retributive or utilitarian values, then inequality remains not just a “tolerable” value for the government and the policy makers who vouches unabashedly by a system based on greed and unrequited accumulation especially in the era of Liberalisation, Privatisation and Globalisation. Inequality remains a value that is acted upon and thus preserved inextricably through the state’s persistent willingness to use the punishment of death.
We condemn strongly the act of the Indian state to enforce violence on people through the instrument of death penalty! Without a strong upsurge of the people against such draconian and barbaric instruments of violence of the State we will be condemned to be at the receiving end of a penal state that is increasingly becoming fascist. We demand that the DEATH SENTENCENCE ON DAVINDER PAL SINGH BHULLAR BE IMMEDIATELY REVOKED!
In Solidarity,
SAR Geelani
President

Amit Bhattacharyya
Secretary General

P. Koya
Vice President

MN Ravunni
Vice President

Rona Wilson
Secretary, Public Relations

 

PUCL- JP Memorial Lecture – New Social Movements, New Perspectives


New Social Movements, New Perspectives

Nivedita Menon

Her side of the storyNivedita MenonPhoto: SAMPATH KUMAR G.P.

photo courtesy- : SAMPATH KUMAR G.P.

JP Memorial Lecture March 23, 2013

 

We stand at an electrifying and exciting moment of history, when new forces are coming into view through a range of movements, shaking the foundations of political power. They do not seek to ‘capture’ political power but rather, to make it accountable and answerable to ‘the people’. The massive upsurges against corruption and against the Delhi gang-rape, whose reverberations were heard in Indonesia, Sri Lanka and Nepal, tie up with a global moment which has been marked by similar unrest in different parts of the world – the Arab Spring, the Occupy Wall Street movement, the youth movement in Bangladesh against the Islamic right-wing and for a return to the secular ideals of the 1971 liberation struggle.

But there are dots that connect these current rounds of movements to a longer history of non-party activism in India, which I want to trace in my presentation, before returning to the present and the difficult questions we face about democracy today.

In the long history of people’s movements in India, we have seen them take different forms. I’m referring of course, to non-party movements, among the first of which is the JP movement itself, whose ultimate demise, as is widely accepted now, can be traced to its takeover by political parties.

Today I will try to map the forms that people’s movements have taken since the 1980s, and it should be clear that the focus will be on what we perceive as ‘new’ movements. Thus, I will not refer to the long struggles against the Indian state in Kashmir and the North East because a discussion of those requires another lecture altogether that will question the very legitimacy of the claim of India to be a Nation.

A new kind of social and political action emerged in the 1980s, that we might call citizens’ initiatives. These non-funded and non-party forums came into being out of a sense of the inefficacy of mainstream political parties and their lack of concern regarding vital issues of democracy, freedom and civil rights. ‘Citizens’ initiatives’ have been more involved in a watchdog kind of activity and are not generally characterized by mass support. While some are small, self-sufficient groups of long standing, others are broad coalitions formed around specific issues, that bring together parties and trade unions of the far left, Gandhian, Dalit and feminist groups, some of which may be funded NGOs, as well as non-affiliated individuals. The distinguishing feature of such coalitions is that all the constituents are subject to the ‘common minimum programme’ set collectively by the forum, and separate party/organizational agenda are not meant to influence the activity of the forum. The tension that this sets up between differing imperatives is usually also the reason for the short-lived nature of such forums, which tend to dissipate after a period of intense and often very effective interventions.

Among the first citizens’ initiatives that came into existence were around civil liberties and democratic rights. Acquiring particular salience in the immediate aftermath of the Emergency, a number of such organizations came into being throughout the country. For instance, the Peoples’ Union for Civil Liberties and Democratic Rights (PUCLDR) set up during the Emergency later split into the People’s Union for Democratic Rights (PUDR), with a more leftist perspective on ‘rights’ including economic rights, while the People’s Union for Civil Liberties (PUCL) decided to focus on ‘civil liberties’ more narrowly. There was a string of such formations in the country. In many states like Andhra Pradesh (the Andhra Pradesh Civil Liberties Committee – APCLC) and West Bengal (Association for the Protection of Democratic Right – APDR), the main initiative for the formation of such civil liberties and democratic rights organizations came from activists linked to the far Left groups. We distinguish such forums from what are called ‘human rights organizations’, many of which are funded organizations that work in tandem with internationally evolving agendas. The latter we would place under the rubric of  ‘NGOs’.

Such groups have continued to play an active role in the years since, painstakingly documenting and exposing cases of civil liberties and democratic rights violations. In recent years they have also been actively campaigning against capital punishment. While the initial impulse for their formation was the violation by the state of citizens’ rights to freedom of expression, they have over the last two and a half decades expanded their activities to address violations of freedoms by non-state actors in the context of caste, gender and sectarian/ communal violence. Some of them have also taken up questions of the worst cases of exploitation of labour, which effectively nullify rights and liberties sanctioned by the Constitution to all citizens.

A recent significant battle fought by one such citizens’ group – Committee for Fair Trial for SAR Geelani – demonstrates how effective such interventions can be. Syed Abdul Rehman Geelani, a lecturer of Arabic in a Delhi college, was one of the ‘prime accused’ in the attack on Parliament on December 13, 2001. Following as it did on ‘9/11’, the incident got inserted into the stridently nationalist discourse that drew nourishment from both the Hindu-right dominated NDA government and the rhetoric of George Bush’s ‘war on terrorism’. A group of teachers and students of Delhi University kept up a consistent struggle to ensure a fair trial for SAR Geelani in the bleak days of 2002, when one of the worst state-sponsored carnages of post-Independence Indian history was in progress in Gujarat, and Geelani was not only sentenced to death by a POTA (Prevention of Terrorist Activities Act) court but also subjected to a blatant media trial pronouncing him guilty even before the court verdict. Eventually a national level Committee was formed, drawing in respected academics like Rajni Kothari and writer Arundhati Roy, while lawyers like Nandita Haksar and others undertook to fight the case on Geelani’s behalf. Their patient and unrelenting work was successful in exposing what turned out to be a blatant frame-up. Geelani was acquitted and released. The Geelani case revealed the extent to which democracy can be subverted by the discourse on ‘national security’. However, it also demonstrated that spaces for democratic intervention are not entirely closed off.

Of course, this was only a partial victory and the December 13th attack on parliament has a darker story behind it which we cannot go into now, the latest episode of which was the unjust execution of Afzal Guru for a crime the Supreme Court conceded he did not commit.

Another set of citizens’ initiatives that came since 1984 and the massacre of Sikhs were several anti-communal groups in different parts of the country. One of the earliest of these was a forum called the Nagarik Ekta Manch, formed in 1984 itself. This was an initiative where people from different backgrounds and vocations came together to work in the relief camps – collecting and distributing relief materials, helping people file claims and so on. At about the same time, another group, the Sampradayikta Virodhi Andolan (SVA) was formed in Delhi, focusing primarily on public campaigns, attempting simultaneously to find a different language in which to conduct such campaigns. A wide debate was sparked in secular circles by one of the slogans evolved by the SVA to counter the Hindu right-wing campaign on Ramjanmabhoomi, discussed in Chapter 2. This slogan, in a radical departure from secular strategy, appealed to the religious Hindu – kan-kan mein vyaape hain Ram/Mat bhadkao danga leke unka naam (Ram is in every atom/let not His name be used to incite violence).

These could be said to have been precursors to a series of new initiatives in different towns and cities of India that came into being in the 1990s, especially in the wake of the demolition of the Babri Masjid and the communal violence that followed. Perhaps the most significant part of the citizens’ actions of the 1990s was that they took up the struggle that was all but abandoned by political parties – whether ruling or opposition, Right or Left. Through this period groups have worked throughout India, engaging in a range of activities – street demonstrations and sit-ins to engage the public in debate and discussion, designing and implementing educational programmes, monitoring the media, pursuing cases in court, providing legal and other assistance to the victims of communal violence and making every effort to see that the guilty officials and political leaders would not escape punishment. Again, in the aftermath of the Gujarat carnage of 2002, during the long months of continued violence, innumerable individuals and newly formed groups from all over India went to Gujarat, helping in running relief camps, coordinating collections and distribution of relief materials, running schools for children of the victims – and of course, providing the legal support to fight the cases. These efforts might well comprise one of the most glorious chapters of citizens’ interventions in post-independence India.

Urbanism could be said to be one of the fledgling movements in contemporary India. Prior to the 1990s issues of the urban poor, (pavement dwellers, hawkers and vendors, rickshaw pullers) were raised by Left political parties, individuals and groups in Mumbai and Kolkata, largely as questions of poverty and the ‘state’s responsibility’ to the poor. The old Nehruvian state was also much more responsive to this call of responsibility. It was in the 1990s, with India’s rapid global integration, that urban space really began to emerge as an arena of struggle. Alongside the contests over space arose newer concerns regarding urban congestion, pollution and consequent concerns about health. The state’s response – prodded by a section of environmentalists and the judiciary – was to revive the old modernist fantasy of the ordered and zoned city. It was around these issues that struggles started seriously erupting in the late 1990s.

In Delhi, Mumbai, Kolkata and Bangalore, citizens’ initiatives brought together questions of environment and workers’ rights and linked them up with the larger question of urban planning. Some groups conducted mass campaigns through their constituent political groupings, but the most significant impact they had was in making urban planning a matter of public debate, drawing architects and planners with alternative visions into the debate. The question of a public transport system, road planning and such other questions came into the ambit of the debate for the first time. In some cities alternative data was generated on the availability and consumption of water, electricity and other amenities in settlements of the labouring poor as well as the affluent.

Today as Arvind Kejriwal begins his civil disobedience campaign on the inflated costs of water and electricity, we can see the historical links to earlier forms of activism.

Since the late 1980s, non-party movements and citizens’ initiatives have grown and functioned in a complicated relationship with NGOs. The apprehension of being driven by funder agendas, becoming depoliticized and being co-opted by funding has kept most movements and citizens’ initiatives consciously ‘non-funded’. At the same time many NGOs often provide movements with vital support in terms of infrastructure, campaigns and educational materials. Thus, while the peoples’ movements fight their battles in faraway rural or forest areas, with little access to the media, it is these NGOs that set up and house the various metropolitan ‘support groups’ whose task it is to approach friendly and influential people in the media, bureaucracy and academia to advocate the cause of the movement concerned. Such NGOs have often also provided critical research inputs on technical details, environmental impact and other information required to conduct a credible campaign. A striking example of such a symbiosis is the Narmada Bachao Andolan.

These citizens’ initiatives were rarely mass movements, but in the first decades on the 21st century we have begun to see mass movements of this new, coalitional kind, arising around the issue of land acquisition. Such movements have brought into crisis the hitherto unquestioned assumption that industrialization and economic development of a particular kind are natural stages in human history. This assumption is shared across the political spectrum from Right to Left and so these movements come into sharp contradiction with an Old Left framework that has still not understood the deep ecological crisis our planet  faces and the need to rethink entirely the idea of endless growth which is in fact impossible.

Increasingly, movements against land acquisition are coming together with the movement against nuclear energy, from Jaitapur to Kudankulam. In these mass movements we see the new form of coming together of political energies. That is, around a single issue, a range of forces come together, from religious forces like the Jamat in Singur and Nandigram and the Church in Kudankulam, to the familiar spectrum of individuals and groups – Gandhians, Dalit groups, NGOs, left groups and sometimes left parties and so on. The anti-nuclear energy movements of course, go back to the era of citizens’ initiatives when groups like Anumukti, Network to Oust Nuclear Energy (NONE) and Committee for a Sane Nuclear Policy (COSNUP) were set up. Such citizens’ initiatives were undertaken to highlight issues such as the dangers of radiation to communities located in uranium mining sites, the undemocratic and opaque nature of functioning of India’s nuclear establishment, and as always, the injustice of displacing populations from their homes and occupations in order to set up nuclear energy plants. More importantly, these groups developed a critique of nuclear energy as such, asserting, along with a growing chorus of voices globally, that it was ‘neither clean nor safe nor cheap.’ While this work did not have a mass movement dimension until now, we see the coming together of these older initiatives with the mass movements in Kudankulam and Jaitapur.

Again, the Old Left is completely out of tune with these new developments, as in its imaginative horizon, nuclear energy is central to a strong nation state. For example, the proposal to build a giant nuclear power station in Haripur in West Bengal is a central government project, but is fully supported by the Left Front. The ecological and social consequences of building a nuclear plant in the densely populated Gangetic delta region are fearsome to contemplate, and the CPI (M)’s enthusiastic support for it is deeply troubling.

Coming now to the women’s movement, it has functioned more or less in the form of citizens’ initiatives of the kind I have described, with occasional mass mobilization by political parties. In the 1980s, the “autonomous women’s movement” emerged from the patriarchy and control of left-wing political parties. The first national-level autonomous women’s conferences were thus attended by non-funded, non-party, self-defined feminist groups. Over the 1990s, very few of these survived as non-funded organizations, and the seventh conference in 2006, held in Kolkata, referred to above, was almost entirely attended by funded NGOs. It is also important to note that many “non” governmental organizations receive funding from the government for specific projects. Thus, the only groups that were finally excluded were non-funded left wing and radical women’s organizations, which seemed to many feminists to be a strange paradox. Increasingly however, in the last few years, coalitions around issues such as sexual violence and the rights of LGBT people, include political parties of the Left. Feminists also perceive the close link between movements around livelihood and ecological sustainability, and the women’s movement – Nalini Nayak, who works with fisher- people’s movements on these issues, terms ecological movements the “resource base of our feminism”.

And so we arrive at the end of the first decade of the 21st century, a decade in which we see two kinds of new political action. One – unprecedented urban mass movements in the city of Delhi and in other cities and towns, around two issues – corruption and sexual violence.

Two – social media driven mobilizations by young upper class women around the issue of women’s rights to public space.

Both these kinds of mobilizations, quite opposite in character to each other, have proved difficult for older Left and women’s movement perspectives to come to terms with, for they follow none of the older patterns of mobilizing, there is no comprehensive programme of action, only one narrow slogan, and the mass character necessarily means there can be no broader agreement around large political issues.

Let me start with the second phenomenon I mentioned.

Two campaigns have caught media attention. One, the Pink Chaddi campaign. In 2009, men of a hitherto little known Hindu right-wing organization called Sri Ram Sene, physically attacked young women in pubs in the city of Mangalore. These attacks, supposedly an attempt to protect Indian culture from defilement by western values, were met with protests and solidarity campaigns all over the country, but the most imaginative one came to be called the Pink Chaddi campaign. A cheeky Facebook group was launched by Delhi journalist Nisha Susan, with the name of ‘Consortium of Pubgoing, Loose and Forward Women’, which called upon women to send pink chaddis (underwear) to the leader of the Ram Sene, Pramod Muthalik, as a gift on Valentine’s Day, in a non-violent gesture of ridicule and protest.  Over 2000 chaddis were in fact delivered to the Ram Sene office, and the organization was a butt of ridicule all over the world. It is striking that the campaign used the word ‘chaddi’ rather than ‘panty’, simultaneously desexualizing the piece of clothing, ungendering it (chaddi refers to underwear in general, not just to women’s panties), and playing on the pejorative slang for Hindu right-wingers, after the uniform of their parent organization, the RSS, whose members wear khaki shorts. At one level an undoubtedly successful campaign, it faced criticism from conservative opinion for obvious reasons, and also from the left of the political spectrum.

The latter chastised the campaign for elitism (‘after all, only westernized women in cities go to pubs’) and for diverting attention to such a trivial issue when for most women in India, their very survival is at stake. Is going to pubs what feminism is about, was the question such critics raised. Of course not. And nor did the ‘Consortium’ claim it was anything as large as ‘feminism’ itself. It was a specific campaign in response to a specific attack, and as Nisha Susan put it, ‘for many of those who signed up, neither Valentine’s Day nor pub-going meant anything. What we agreed on is the need to end violence in the name of somebody’s idea of Indian culture’ (2009). The campaign brazenly owned up to the identities the Hindu right-wing attributed to women in pubs – ‘loose and forward’ – and made them badges of pride. And it clearly touched a chord across the country, for most people understood it as defiance towards the Hindu right’s moral policing in general, not merely about women’s right to drink in pubs.

The other instance was the organizing of Slut Walks in Delhi and Bhopal. Slut Walks, both in European and American cities as well as in some Indian ones, must be understood as a critique of the victim blaming culture that surrounds rape. The original Slut Walk was a reaction to a Canadian police officer’s remark that if women dress ‘like sluts’, they must expect to be raped. However, the overwhelmingly positive responses world-wide to Slut Walks, reveal that blaming the victim is not an attitude restricted to the West.

In India, within the feminist camp, there were misgivings expressed that the English word ‘slut’ has no resonance at all here. In response, the organizers of the march added a Hindi phrase explaining the name, so that it became Slut Walk arthaat Besharmi Morcha, drawing on the Hindi word besharam meaning ‘without shame’ or shameless, often used for women who refuse to live by patriarchal rules. What was interesting about Slut Walks in India (held in Bhopal and Delhi in July 2011), was that they were not organized by the established women’s movement organizations and well-known feminist faces, but by much younger women new to political organizing, who were expressing, however, an old and powerful feminist demand – the right to safety in public spaces.

If this was elite mobilization, what is the problem for the Left with mass mobilizations? It appears that the non-party Left has a deep rooted fear of the masses, which it can only see as communal and casteist, and politically regressive. Throughout the Anna Hazare phase of the India Against Corruption movement, we saw from this section, which forms our community, strident demands for absolute  purity of the radical position (for example, what do these people have to say about Kashmir?). We saw a sort of aggressive self-marginalization and self-exile to a high ground where all credentials were closely scrutinized, and we saw the absolute incomprehension of and contempt of people who are our friends, for  ’the people’ when actually confronted by them.

Interestingly, political parties of the Left, especially CP(ML), were supportive of the movement and active in various ways, this sharp criticism came from individuals of the non-Party left.

What I saw was a carnivalesque celebration of the pure ideals of democracy – of the idea that ‘we the people’ are sovereign, that politicians are the servants of the people, that laws must originate in the needs and demands of the people.

What my community saw though, was a mindless mob of communal and casteist – and even “fascist” middle classes.

For twelve days, a city in which protest had been consigned to a museumized space, Jantar Mantar, was reclaimed for protest by a crashing tide of humanity so huge, so peaceful and non-violent, that it simply took back the city. No violence. No untoward incidents and no hysteria (except on television channels). How is this fascism? Are all large gatherings of the masses fascist?

Since many of the critics swear by some form of ‘Marxism-Leninism’, let me quote from Lenin who said in 1916 of the 1905 revolution:

“Whoever expects a ‘pure’ social revolution will never live to see it. Such a person pays lip-service to revolution without understanding what revolution is…The Russian Revolution of 1905 was a bourgeois-democratic revolution. It consisted of a series of battles in which all the discontented classes, groups and elements of the population participated. Among these there were masses imbued with the crudest prejudices…; there were small groups which accepted Japanese money, there were speculators and adventurers, etc. But objectively, the mass movement was breaking the [back] of tsarism and paving the way for democracy.”

Another kind of critic speaks not in the name of revolution, but of democracy; a democracy disciplined through representative institutions with The People entering the stage every five years. The People are a continuous source of anxiety, casteist and communal as all of them are. Little wonder then that this set of Leftist and Left-liberals remained silent when the government denied permission for the protest and arrested Hazare on August 16; some even denying that there had been a violation of civil liberties.

Law-making needs to be demystified – “it’s a very complex process”, the experts on TV kept saying. But what the movement did was it made it legitimate to say that we have a right to the information that will enable us to arrive at a conclusion. I heard a young law student stumblingly explain before a TV camera in English, which was clearly not his first language: ”They say the Parliament is sovereign. No. They should read the Constitution. The people are sovereign.”

And I loved the way people said to the camera – Main Kapil Sibal se kehna chahta hoon, main Manmohanji ko batana chahti hoon – directly, they addressed the “leaders”, the politicians, as if they have a right to. This is neither anti political nor anti political classes – it is the exact opposite. It is the insistence precisely that “we the people” are political, we demand accountability from those whom we send to Parliament.

It is by now established that there was substantial Muslim and Dalit participation despite their leaders’ disapproval. The other misrepresentation being continually purveyed is that the supporters of this movement are the middle classes. If the lakhs of people who participated in the protests over twelve days in Delhi alone, are all ‘middle class’, then India must be Shining after all! Anybody who moved around where protests were happening could have seen that the large majority of participants were lower middle class to working class people. In Delhi local protests happened everywhere, far away from TV cameras – in middle class housing societies, working class ‘unauthorized’ colonies, around local mosques in poor localities, small temples.

We also know from newspaper reports that there was growing participation of workers throughout – railway workers affiliated to AITUC; 1800 temporary-for-years Delhi Transport Corporation workers who were sacked for going to Ramlila Maidan; dabbawalas in Mumbai who have not struck work for 140 years;   sections of auto drivers; Maruti workers from Manesar in Haryana.

The other argument against an anti-corruption law is that ‘corruption provides a little shade to the poor’.  As a skeptics about the law and the state, I have often written about the freedoms made possible by going under the radar of the state. But how to understand the poor and working class who throng the movement?  Perhaps ‘corruption’ is precisely not to be in the shade, to be forced into engaging with the force of Law, but outside the protection of the law. Perhaps the ‘corrupt’ people protesting corruption would like to live a life in which they wouldn’t have to be corrupt just to survive every day? We need to recognize that the term ‘corruption’ as it plays out in the movement, condenses within it a range of discontents – an accumulating anger over repeated betrayals of democratic expectations over years, but especially over the last decade. The immediate trigger of the movement was the series of instances of looting of the public exchequer that came to light recently – the Commonwealth Games, the 2G Spectrum scam, the Niira Radia tapes that exposed how ministers were being fixed to benefit particular business houses, and so on. But corruption is also an everyday matter for the poor – the thelawala paying hafta to the beat constable;  the labourer whose muster rolls are faked, the agricultural worker whose NREGA payment is swallowed up; every poor undertrial in jail on trumped up charges (was it surprising then, that the undertrials in Tihar fasted in solidarity with Anna?); the farmer whose land is seized to be passed on to corporates, an issue mentioned by Anna Hazare in his speech at Ramlila Maidan (kisanon ki zameen zabardasti chheeni ja rahi hai); the aspirant to own an auto rickshaw costing 1 lakh, who ends up paying more than a car costs, and drowns in debt.

A young working class boy we know, falsely implicated in a theft case by the police for over four years, rang up at the height of the agitation to tell us jubilantly that the beat constable had told him that the cases were being closed – “Anna hazare ke chakkar mein pulis saare case khatam kar rahi hai” (All this Anna Hazare stuff is going on, so the police are closing all the cases.) We don’t know what made him think this had anything to do with Anna Hazare. But this is the Anna moment. This is what the Subaltern Studies historians drew our attention to, the multiple meanings Gandhi had for different sections of people, the ‘rumours of Gandhi’ that galvanized a variety of protests that directly addressed local issues.

But also, maybe the police were scared for an instant?

To all those who woke up to the India Against Corruption movement in April 2011 – a gentle reminder that this is the crystallization of a long process that began in the villages, initiated by the campaign around the Right to Information. The RTI Act (2005), instrumental in exposing corruption in a range of spaces from NREGA to municipal schools, was the culmination of one phase of the movement; the establishment of an Ombudsman or Lokpal was always planned as the next stage. Corruption is tied fundamentally to the RTI Act that exposes it, so effectively that several RTI activists have been murdered.

Now of course, Arvind Kejriwal has decided to go the way of a political party, but what we see of the AAP so far, it is clearly not a conventional party with a top-down leadership, and it appears to be genuinely seeking a new way of being a party, with actual mass participation in decision making, which might change the ground rules for all parties.

The experience of the mobilizations around IAC were behind the massive protests around the Delhi gang-rape. This time, the voices of critique were muted, although a prominent critic was Arundhati Roy, who immediately termed the protests upper class. But again, this was not the case. The protests were sparked off by the rape of a girl on a bus at 9.30 at night. She could have been anybody – she was not in a car, or even an auto. Nobody knew her caste – later it turned out she is from a very poor family and from the Kurmi caste, which is by no means an upper caste – but the point is nobody actually knew who she was – she was Everywoman.

And again, exactly like the IAC movement, there were right-wing voices as well as left-wing and feminist voices against sexual violence. These feminist thoughts were being articulated by not only people calling themselves feminists but ordinary middle class people who may not consider themselves to be very political at all. There were thousands of submissions to the Justice Verma committee and many of these have been made by ordinary people, resident’s Welfare Associations and so on, asking for changes in the broader patriarchal context of society – things like women’s safety and police sensitivity.

There has been a ground level shift among people reflecting decades of feminist intervention at different levels, but there is a real disconnect between the people and politicians. Feminist understandings have caught on in the ordinary public but this is not matched by the understanding of state agencies. Not only was a feminist position NOT articulated by anyone in a position of power or any political organization in a consistent way, most politicians from Left to Right came out with the most misogynist and regressive statements about women and about sexual violence.

And again, people did not have to be mobilized by any organized left wing, right wing or feminist groups. The transformation that has taken place in the last 4-5 years is that people feel like they own the city and can come out in protest on the streets – and I think this can be tracked back to India Against Corruption.

Any mass movement brings together disparate and sometimes  starkly contradictory tendencies.  Don’t we know that from the Indian struggle for independence? Was the Indian bourgeoisie absent from it? Or the religious right of all sorts? Or casteist and Brahminical forces? If absolute purity and a point-to-point matching of our full political agenda is required for us to support a movement, then feminists would be permanently stuck restively in the waiting room of history, for I can assure you that every mass demonstration you see anywhere ever, is packed with patriarchal men and patriarchalized women! Nor does any movement except the women’s movement ever raise patriarchy as an issue. But what is it that we take into account when we do support a movement? One – does the movement express a goal or demand that we support? Two – Does the movement as such explicitly take positions that are anti-women or anti-anything-we-stand-for? (The answers of course, should be yes and no respectively).

The  huge movement in Goa that succeeded in scrapping the SEZ Bill was composed of precisely such a broad formation – from the Church to the Hindu Right, to all of the others  of my community as described above. They came together, they went their separate ways once their campaign succeeded. Nandigram saw a similar formation. Many non-party non-funded citizens’ forums have too. The Narmada Bachao Andolan is another broad alliance coalescing on a single issue. For that matter, at Tahrir Square there were Islamists (Muslim Brotherhood), and people and groups who stand for full-scale capitalism apart from secularists and feminists and workers and trade unions. Now it’s a struggle of secularists against the Muslim right-wing in Egypt, but that is a historically contingent, not necessary or inevitable development.

It is the logic of the development of a mass movement in all its messiness that we should seek to understand, rather than look for that pure, 22-carat revolution where everything will proceed according to the programme laid down by the Left elite. From this perspective, nothing less than our maximum agenda is acceptable – from SEZs to farmers’ suicides, from AFSPA in the Northeast to the murder of democracy in Kashmir. If you will not accept even one of these points, you’re out – we will have nothing to do with you. It is not “they” who say ‘if you are not with us you are against us’, this arrogant divisive slogan has always been ours, on the Left.

Those issues listed above are our issues too, but what if a mass movement does not raise them? What if it articulates itself around a more generalized and widespread concern? Any student of mass movements anywhere in the world knows that mass movements of this scale only arise around issues where the largest sections of the people feel affected by it. They can never arise around sectional issues – however big the sections concerned may be. And the question really is of the potentiality of the movement rather than what it is, at any given point.  It will only be inclusive to the extent that it is able to draw in the largest number.

We will of course have to part ways at some point to fight our separate battles, but we can come together for a specific limited goal.

We stand at the beginning of a new kind of politics that has all kinds of forces within it, but one of these is certainly the potential to radically transform and rejuvenate democracy. We should be prepared to ride that potential, not undermine it.

 

This lecture is based on material from my earlier published work, some of it singly authored, some jointly written with Aditya Nigam, in continuing conversation with whom these ideas have developed.

 

In defense of Prakash Amedkar’s recent statements on political reservations and Afzal Guru


In Defence of Prakash Ambedkar

by Anand Teltumbde

Prakash Ambedkar’s recent statements that the political reservations given to dalits (scheduled castes) and the requirement of mentioning caste in school leaving certificates should be done away with, as also his stand against the hanging of Afzal Guru, all of which have evoked varied reactions, need to be reflected upon.

Prakash Ambedkar is the leader of the Bharipa Bahujan Mahasangh (BBM) – a political outfit that seeks the unity of dalits and backward castes of the lower echelon in Maharashtra with some amount of success to its credit. Three times Member of Parliament and grandson of Babasaheb Ambedkar, with his offbeat views, he is not a stranger to controversies. Some time ago he had created a stir among dalits by publishing a book in Marathi entitled Ambedkar Chalval Sampali Ahe (The Ambedkarite Movement Has Ended). He made two statements recently, creating a furore among certain sections of the public. In the first statement, he said that political reservations given to dalits (scheduled castes) and also the requirement of mentioning caste in school leaving certificates (probably school records) should be stopped. The second statement was against the hanging of Afzal Guru. What is interesting is not the reactions they elicited but the pattern of these responses. While the first statement evoked angry reactions within dalit circles, notably the established dalit leaders and their hangers-on, it was mostly praised and welcomed by others, apparently those from the Hindu Right. The second statement met with a deafening silence from the former and angry reactions from the latter. The so-called progressive India, of course, kept its “dignified silence” on both.

Political Reservations

The genesis of current political reservations for dalits is directly traced to the infamous Poona Pact Ambedkar had to sign under pressure from Gandhi’s fast unto death against the communal award of the British prime minister, Ramsay MacDonald in the aftermath of the three round table conferences (RTCs) in 1931-32. Gandhi – who participated from the second RTC following the Gandhi-­Irwin Pact of May 1931 – vehemently opposed Ambedkar’s demand for separate electo­rates for dalits with an alibi that it would destroy Hindu society. At the end, Ambedkar won the argument and got dalits separate electorates, establishing for the first time their separate political identity from Hindus. In the prevailing political climate, with such demands from various communities, it spelt a milestone win for dalits and a corresponding loss for the Congress. Gandhi declared that he would oppose it and went on a fast unto death in Yerwada Jail from 20 September 1932. On the fifth day, after ensuing countrywide ­tension, he succeeded in blackmailing Ambedkar into giving up separate electorates and instead accepting more number of reserved seats in joint electorates along with a plethora of promises that the Congress would work for the ­upliftment of dalits.

These reserved seats were to be ­secured through two-stage voting; in the preliminary round, only dalits would vote to elect their four potential representatives and in the subsequent round all voters would elect one from among those four. This two-stage system was dropped after the adoption of the Constitution yielding the current form of reserved seats where a dalit representative gets elected by all the voters. It was ­incorporated in Article 330 of the Constitution for an initial period of 10 years, with a proviso that it would be reviewed at the end of the period and dropped if needed. However, ever since, despite there being occasional demands from dalits to end this system, it gets automa­tically renewed every time before its ­expiry with exemplary unani­mity, ­establishing its value to the ruling classes beyond doubt.

These political reservations opened the floodgates of co-optation of dalits and decimated the possibility of their ­independent representation. Since dalits had little impact on the election of dalit politicians, the latter did not need to care for them, leave alone representing their ­interests. Rather, since their election ­entirely depended on the ruling-class parties for resources and vote banks, the dalit leaders became totally subservient to the leadership of these parties. The reserved seats served as politically inert additions to the tally of the ruling-class parties and as an important conduit for managing this inflammable section of the populace. The negative fallout of this system became evident when genuine dalit candidates were easily defeated by political pygmies with ruling-class party support. Ambedkar himself lost in the 1952 general elections to one Narayan Kajrolkar, a Congress candidate. He was again defeated by a political non-entity, one Bhaurao Borkar, fielded by the Congress in a by-election for the Bhandara Lok Sabha reserved seat in 1954. He ­realised that the system of political reservations had become an instrument of perpetuation of slavery and demanded its end on 21 October 1955.

While this reservation has been fully implemented, not a single dalit representative has ever raised his voice against any of the anti-dalit government policies or against the increasing incidence of atrocities. Rather, there is a plethora of examples to prove that they directly or indirectly supported such policies. Even during the post-Ambedkar period, the dalits kept on demanding an end to such reservations, but the ruling classes would not let go of this golden goose. In 1974, the Dalit Panthers of Gujarat had symbolically set fire to Article 330 demanding its end. In 1982, the 50th year of the Poona Pact, Kanshi Ram had launched a countrywide movement for its end, stating that such reservation had created a tribe of chamcha(stooges). But all this history is inconsequential to opportunists like Ramdas Athawale, who reap the “strange and bitter fruit” of this policy, even as they accuse Prakash Ambedkar as being anti-dalit.

Towards Annihilation

While the demand for ending political reservation is clearly justified, the demand for removing caste from school records may be cosmetic so long as reservations in the educational sphere are continued. It may however be justifiably said that those dalits or non-dalits who do not want to mention caste in school records should be allowed to do so. ­Today many people are humiliatingly forced to record the caste and religious identities of their children at the time of admission even though they do not ­believe in them. It may thus be viewed as a laudable suggestion to have a “no caste” option available for those who want to transcend this evil. This might bring down the number of people wanting to avail of reservations and also ­reveal the size of those who detest the caste system.

While this could be proposed as a minimalist solution, it is time one deeply reflected over these caste-based policies which have effectively perpetuated the caste system. Objectively speaking, caste-based reservations only matter in the professional courses being offered by a few reputed institutions – the Indian ­Institutes of Technology, the Indian ­Institutes of Management, and the like. The fact that reservations in these elite institutions go unfilled year after year for the want of candidates implies that not enough students qualify to reach these institutions even after lowering the qualifying cut-off to a dangerous level.

Dispassionate analysis of this pheno­menon would point to the weak foundation of dalit students, which in turn is attributable to the multilayered school education system that dishes out education to children according to the socio-economic standing of their parents. If all children were provided with free, quality education through a common school system as envisaged in the Constitution, there may not be any necessity for having such discriminatory caste-based ­policies. The implementation of the right to education (RTE), which was reluctantly bestowed as a consequence of a Supreme Court judgment and instituted by the much trumpeted RTE Act 2010, is much in violation of the original provisions of the Constitution. It has legitimated the multilayered educational system, mischievously bringing in reservation for the weaker sections as an antidote. ­Dalits as a social group can be seen as the worst victims of this so-called RTE but so effective is their political management that none of their leaders has raised even a feeble voice against it. Job reservation has been rendered ineffective because of negative growth of employment in the public sector since 1997. But instead of noting this stark reality and raising one’s voice against the neo-liberal policies of the government that have brought this about, dalit leaders keep singing the song of reservation and even claim that globalisation has been beneficial to them. Surely, such a stand is not conducive to the “annihilation-of-castes” vision of ­Babasaheb Ambedkar, just reiterated by Prakash Ambedkar.

Afzal Guru

There is an unspoken dictum that dalits are not supposed to speak beyond caste and therefore Prakash Ambedkar’s statement that Afzal Guru should not be hanged might be prima facie disturbing to many. Statesmanlike, in mid-December last year, Prakash rationally argued that the majority of Kashmiris wanted to be part of the Indian union, but if Afzal Guru were hanged, “they will doubt whether they will be part of a secular ­India”. He therefore demanded that the status quo on Afzal Guru be maintained. The statement tacitly implied that the majority of Kashmiris thought that Guru did not deserve the death sentence and if he were to be executed, this would be viewed as being communally inspired.

Afzal Guru’s conviction as well as ­execution has been commented upon by many legal luminaries and human rights activists as being in violation of the law. But, all Prakash Ambedkar did was to demand that the status quo be maintained. This however evoked venomous reaction from sections of the right-wing who had just showered praises on him for his views on reservations. While the angry reactions to his views on reservation from his rivals in dalit politics, who ­always did the bidding for the ruling classes, are understandable, so also is their silence on Afzal Guru. But, what is interesting is the extreme responses of love and hate from the Hindu right-wingers. As the views of individuals unprompted by any organised effort, the comments may reflect their general opposition to caste-based reservations, the sections of the Indian Constitution that have a bearing on these, and the Congress, which is identified as the progenitor of such reser­vations, but the fact is that the Bharatiya Janata Party, their party, today commands the maximum number of reserved seats. What is disturbing in this entire episode is the silence of the self-proclaimed ­progressives.

Anand Teltumbde (tanandraj@gmail.com) is a writer and civil rights activist with the Committee for the Protection of Democratic Rights, Mumbai.

Economic & Political weekly, Vol – XLVIII No. 11, March 16, 2013

 

The disturbing truth about an execution #Afzalguru #deathpenalty


USHA RAMANATHAN, The Hindu March 13,2012

 

 

By hanging Afzal Guru secretly so that he could not approach the courts, and ignoring the pending case that could have affected his sentence, the Home Minister acted illegally

On March 6, 2013, in response to an RTI request, the President’s Secretariat made available documents pertaining to Ajmal Kasab’s mercy petition. People from across the country and the globe had written to the President asking that he use his clemency power so that the power of the state to take life would be reined in. Recurring with unexpected frequency was an appeal that, if the mercy petitions were to be rejected, the “President and the Ministry of Home Affairs … respect the practice of promptly informing the individual, his lawyers, his family, of the decision, reasons for the decision, and proposed date of execution as well as the public of any scheduled execution.” Ajmal Kasab was hanged in secrecy on November 21, 2012. Less than three months later there was another secret execution, of Afzal Guru.

In India, of course, this is not about a ‘practice’. It is the law. On February 9, 2013, when Afzal Guru was hanged, was the law followed?

PROCEDURE FLOUTED

The disturbing truth is that Afzal Guru’s execution was illegal. The government flouted the procedure established by law in executing Afzal Guru the way it did; and the Constitution is categorical, in Article 21, that no one shall be deprived of life or personal liberty except according to procedure established by law. The Jail Manual is clear: “On receipt from the Administrator of the final confirmation about the date of execution of a convict, the convict and his relatives shall be informed about the date of execution by the Superintendent.” ‘On receipt of’ the ‘final confirmation’, the convict is to be informed. It is, however, reported that Afzal Guru was not informed till 5 a.m. on the day that he was hanged; a mere two hours before he was taken to the gallows. It is impossible, not merely improbable, that the Superintendent did not know about the date of execution till that last minute. By not informing Afzal Guru, the Superintendent breached the law.

The relatives too “shall be informed” about the date of the execution on receipt of final confirmation. To inform is not to send a letter or other missive; the duty cast by the law on the Superintendent is to ‘inform.’ The point of the provision is to give notice of the impending execution of the convict. Afzal Guru’s family learnt of the execution when the rest of the world heard about it, and through the press. The letter sent by speed post reached them two days after he had been executed. Informing the family is not, as some have suggested, about humanitarian considerations; this is about a violation of the law in the process of depriving a person of life.

It is reported that Afzal Guru was buried in jail “in accordance with a directive from the Delhi administration, with the jail authorities saying that there was no request from the family to claim it” (Economic Times, 15.2.2013) This was a deliberate and self-serving distortion of facts.

The Jail Manual prescribes that the convict may “if he so desires, be permitted to prepare a will in accordance with his wishes. If the convict does not desire to prepare his will, his statement to that effect shall be recorded by the Superintendent”. Was Afzal Guru given time to decide about his will? If he was informed of his impending execution at 5 a.m., as is reported, could that have provided him with the opportunity to decide about his will? He had not met his family in a long time. He had no time to get legal help — something that evaded him at every turn. And he was being informed of his execution, literally, on his way to the gallows. Does this constitute conformity with the law? Plainly not.

DELIBERATE BREACH

It appears from pronouncements following the execution that these breaches were not caused due to oversight; that they were deliberate. If there are no adverse consequences for these deliberate violations of the procedure prescribed while taking life, it will clear the way for absolute power over life and death. Afzal is beyond reach, so the wrong done to him cannot be undone. His family, however, has borne the pain that this injustice, and violations of the law, have brought to them. Few would disagree that the family has been wronged. There have to be consequences. A public apology which will be an acknowledgement of the wrong done — that will also dilute the impunity that is growing every passing day. Reparation, to the family that has been wronged. And, action against those who were in violation of the law; that would be an act of respect for the rule of law.

Secret executions seem to have acquired the status of state practice. When Kasab was hanged, surreptitiously, in the early hours of November 21, 2012, the Home Minister explained that one of the reasons for practising secrecy was to avoid the possibility of anyone approaching the court, which could delay the execution. He repeated it, as one would a formula, after Afzal Guru’s execution. This is unconstitutional. No one can be deprived of his or her right to judicial recourse. For the Home Minister of the country to ensure secret execution so that such judicial recourse may be denied is against all norms of civilised jurisprudence.

A Bench of the Supreme Court has reserved orders on the effect of delay on the execution of the sentence of death. The judgment of the court, which is yet to be delivered, would have had a direct bearing on whether Afzal Guru’s death sentence could be carried out, or not; he had been under the shadow of the death sentence for over 10 years when he was hanged. On 20 February, 2013, when a three judge bench of the Supreme Court stayed the execution of the four alleged aides of the forest brigand Veerappan, it was on the express recognition that the decision of the court that had reserved orders was of direct relevance to the convicts before the court.

This was the judicial consideration to which Afzal Guru was entitled. The punishment is irreversible, and, for that reason, should have been deferred till the outcome in the pending challenge. By executing him secretly so that he may not approach the courts, and by ignoring the pending case that could impact on his death sentence, the Home Minister acted illegally. The court needs to demand an explanation from the Minister about the nature of the power he seems to think he has.

LACK OF REPRESENTATION

On 11 February, 2013, two days after he had been executed, a case was quietly disposed of in the Supreme Court. Early in 2011, Afzal Guru had filed a petition in the Supreme Court asking for his transfer to Srinagar Central Jail so that his family, which included his mother, wife and young son, could visit him — something that distance and cost was making prohibitive. This case was filed through the Supreme Court Legal Services Committee, but the lawyer was repeatedly absent from the hearings, which prompted the court to ask the SCLSC to look into it and submit a report to the court.

As reported by V. Venkatesan in The Hindu (19.2.2013), the lawyer told the court on 23 November 2012 that someone else would be representing Afzal Guru; the court asked the SCLSC to find an explanation for the tardiness and submit a report to the court; the status of the case, on 4 January, 2013 did not indicate that any report had been filed. This was just one more time that Afzal Guru was left without proper representation. And, a single judge, in chambers, on 11 February, merely took judicial notice of the execution, found that the hanging had made the petition infructuous, and dismissed the petition!

The least that this calls for is an enquiry, followed by consequences for violations of the law, an apology and reparation to the family of Afzal Guru, an end to secret executions and a guarantee of non-repetition.

(The writer is research fellow at the Centre for the Study of Developing Societies, teaches law at the Indian Law Institute and is a regular guest professor in many universities around the world)

 

Labour MP John McDonnell urges India to end the #deathpenalty #humanrights


THURSDAY 28 FEBRUARY 2013, The Independent

The British Government should use “every mechanism of communication” to urge India to end the death penalty, a Labour MP has said.

John McDonnell said Britain was “uniquely placed” with its shared history with India to urge its government to halt executions and sign up to the UN Convention opposing the death penalty.

Introducing a backbench business Commons debate on the Kesri Lehar petition to abolish the death penalty in India, the MP for Hayes and Harlington paid tribute to the campaigners, many of whom sat watching the debate in the public gallery.

He said that last year when the “first inkling” was received that India was considering ending its eight year moratorium on implementing the death penalty, members of the Punjabi community in the UK, especially the Punjabi Sikhs came together and launched the campaign.

They secured more than 100,000 names on their petition to abolish the death penalty and address other human rights concerns.

Mr McDonnell said “fears were compounded” when in November 2012 India ended its moratorium and carried out an execution, with a hanging taking place in February this year.

In December 2012 the UN voted for the fourth time for a resolution calling for a global moratorium on executions and while 111 countries voted for, India voted against.

He argued there was a “real risk” that with more than 400 people on death row in India and 100 more sentenced to death each year, many more executions were likely to follow unless action was taken.

He said: “First of all we need to recognise the historical relationship between India and Britain means that the UK Government is uniquely placed to urge the Indian government to end the death penalty.

“Therefore I’m calling on the UK Government to use every forum, every mechanism of communication established with India both formal and informal, to press the Indian government to halt the executions now and then to sign up to the UN Convention opposing the death penalty.

“I wrote to the Prime Minister before his recent visit to India to urge him to raise this issue with the Indian government and I hope that the minister can report back on that, and the continuing pressure that successive governments now across party have been placing upon the Indian government.”

Mr McDonnell urged Britain to raise the issue with European partners to seek a joint representation from all of Europe to India on the subject.

He also said Britain should work with other countries to raise this call within the UN, adding: “With a UN Human Rights Council meeting imminent this is an ideal time to place this back on the UN agenda.”

He appealed to India to “embrace humanity by ending the state killing once and for all”.

The Backbench Business motion, signed by a cross-party group of MPs, states: “That this House welcomes the national petition launched by the Kesri Lehar campaign urging the UK Government to press the Indian government to sign and ratify the Rome Statute of the International Criminal Court and the UN Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, which encompasses the death penalty, with the result that India would abolish the death penalty and lift this threat from Balwant Singh Rajoana and others.”

Foreign Office Minister Hugo Swire said the death penalty “undermined human dignity” and said the British Government continued to aspire to its global abolition.

He told the Commons: “Use of the death penalty in India is a complex issue and it continues to be the subject of much debate across Indian society.

“It was disappointing India’s de facto moratorium on the death penalty which had existed for over eight years ended with the hangings of Mohammad Ajmal Kasab and Mohammad Afzal Guru last November and February this year respectively.

“Kasab and Guru were convicted of very serious crimes, involvement in the Mumbai attacks in 2008 and the 2001 attack on the Indian Parliament. It is important to remember the impact such acts of terrorism have on the people of India.

“Notwithstanding this, it remains the British Government policy to oppose the death penalty in all circumstances as a matter of principle. I hope the Indian government re-establishes a moratorium on executions in line with the global trend towards the abolition of capital punishment.”

Mr Swire said he had reiterated the Government’s position to the Indian administration last week when he accompanied Prime Minister David Cameron to the country.

And he said the India-EU Human Rights Dialogue would present a further opportunity.

The minister added: “They listened to what I had to say, was aware of our consistent position, and stressed to me the very real fear in India created by these acts of terrorism.”

Shadow foreign office minister John Spellar said: “I congratulate Kesri Lehar for their campaign.

“Uniting the community, whatever their views may be, and also gaining very wide public awareness of the issues we are discussing today.

“I also reaffirm the united determination of this Parliament on all sides to secure justice for the Sikh community of the Punjab.”

PA

 

#Deathpenalty cannot be fairly implemented in the US. Is India different?



Martha C. NussbaumThe Indian Express
28 February 2013

The execution of Afzal Guru on February 9 reopened the question of India’s continuing attachment to capital punishment. Like relatively few large industrial democracies, India and the US continue to practise and defend the death penalty. Both recently voted against a UN General Assembly resolution calling for a moratorium on executions with a view to abolition.

 

The two nations are very different in their practices. India has nearly 500 prisoners on death row, but only four have been executed since 1995. In the US, 43 people were executed in 2012 alone. Capital punishment in the US is a state matter, because the federal government chooses not to use it. However, the number of states in which it is still legal is gradually diminishing, with only nine out of 50 still practising it. My own state, Illinois, abolished the death penalty in 2011.

 

Attitudes in the US are changing, but not, on the whole, because of inherent objections to the death penalty. Instead, there is a growing conviction, shared by supporters and opponents, that it cannot be justly implemented. For a long time, it has been evident that the penalty in practice has been biased on grounds of class and race. People able to pay for high-powered lawyers almost never get it, and there is evidence that juries at the sentencing phase are apt to tilt towards people who look more like the majority. Bias is probably present in other criminal penalties as well, especially where juries are used, but the irrevocability of capital punishment makes people attend to it more. When the US Supreme Court briefly invalidated the death penalty in 1972, citing these grounds, states hastened to adopt rule-governed procedures that applied the death penalty without discretion to certain classes of murders defined in advance — only to be told by the Supreme Court in 1976 that criminal defendants facing death have a constitutional right to present their individualised histories at the penalty phase, pleading for mercy. If only a rule-bound death penalty can avoid the problem of bias, and if rule-bound penalties are unacceptable for other reasons, one might conclude that the death penalty cannot be fairly implemented, and this is what I believe. But that conclusion was not drawn by the Supreme Court, so at that level the matter remains open.

More recently, the Supreme Court has held that execution of juveniles and people with severe mental retardation violates the US constitution‘s prohibition of “cruel and unusual punishment”.

 

The recent reaction against the death penalty, however, has other sources, again focused on implementation, but with new information driving the protest. DNA evidence has shown a high level of wrongful convictions in crimes across the board, including some capital crimes, where error, of course, is irremediable. Eyewitness testimony has been shown to be extremely unreliable. Prosecutorial discretion — about when to try a case rather than arranging a plea bargain, and concerning when to ask for the death penalty — has emerged as a frequent source of bias. And — especially pertinent to recent reversals of opinion — confessions have been shown to be highly unreliable, particularly when not videotaped. Police exhaust and mislead defendants until they confess falsely. It was this set of concerns that caused Illinois governor George Ryan to order a moratorium on the death penalty; some years later, our current governor, who insists that in theory he supports it, nonetheless signed the law banning it.

The death penalty, in short, cannot be fairly implemented in the US. We do not need to reach the knotty issue of theoretical justification to conclude that it should be abolished. Is India different? The sparing use of the penalty does, to some extent, undercut the objection of racial and class bias, and the problems of evidence might possibly be surmounted if it is considered only in a small number of cases where all the evidence has been sifted with unusual care. Police conduct might be intensely scrutinised by videotaping all interrogations, although at present that is not the case. Indeed, the police are more often part of the problem, and we might ask whether “encounter killings” are not a de facto form of capital punishment — possibly very biased in implementation. For India, we probably should at least ponder the standard theoretical pros and cons before drawing firm conclusions.

The most common justification for the death penalty is its potential for deterrence. The deterrent effect, however, has not been proved. In the US, it is possible to study the question, since states otherwise demographically similar have adopted different policies — and yet there is no conclusive evidence that the death penalty deters. For India, we should certainly reject deterrence as a rationale, since the types of killers who have been executed in recent years (serial killers and terrorist/political killers) are especially unlikely to be deterred. The latter may even seek martyrdom, as did Nathuram Godse, when he asked for the death penalty in order to show that Gandhi’s non-violence was “being hanged”.

 

If the death penalty doesn’t deter, should we still retain it because people favour it? We must then turn to the primary rationale for banning the death penalty offered by the UN resolution: it “undermines human dignity”. Appeals to human dignity are evocative, yet notoriously slippery. The notion of dignity has little clear content except when used in connection with a family of other concepts and principles. All too often, however, whether in bioethics or in law, people use this resonant term to bring debate to a halt, rather than to pursue the inquiry further. In the case of the death penalty, the need for a fuller argument is all the more urgent when we recollect that Immanuel Kant, a primary defender of the idea that the human being must always be treated as an end and not a mere means — probably the best general articulation of the notion of dignity — wrote that the death penalty is not only permitted but actually required by the respect we owe human dignity. Kant was wrong about many concrete ethical conclusions, but his views should prompt us to search for a fuller account.

 

I see no inherent reason why the death penalty must always violate human dignity, though I am ready to be persuaded. Certainly in both India and the US, prison conditions can often be far more degrading than a painless execution. For me, the telling point against the death penalty (apart from the concerns over implementation that I have raised) is that it encourages vindictive passions and in effect, enacts a type of mob justice. A system of justice should be above revenge; it should express a calm and balanced attitude towards wrongdoing. It is difficult for me to believe that the death penalty can ever express the virtues we rightly associate with the rule of law.

 

This theoretical debate is not over, and should continue. What is crystal clear, however, is that problems of fair implementation render the death penalty utterly unacceptable in today’s United States, and, very likely though not surely, in today’s India as well.

 

 

The writer is a professor of law and ethics at the University of Chicago and author of ‘The Clash Within: Democracy, Religious Violence and India’s Future’, express@expressindian.com

 

Previous Older Entries

Archives

Kractivism-Gonaimate Videos

Protest to Arrest

Faking Democracy- Free Irom Sharmila Now

Faking Democracy- Repression Anti- Nuke activists

JAPA- MUSICAL ACTIVISM

Kamayaninumerouno – Youtube Channel

UID-UNIQUE ?

Enter your email address to follow this blog and receive notifications of new posts by email.

Join 6,233 other followers

Top Rated

Blog Stats

  • 1,765,750 hits

Archives

November 2019
M T W T F S S
« Jun    
 123
45678910
11121314151617
18192021222324
252627282930  
%d bloggers like this: