Something About The Law

I was in Jammu and Kashmir recently, to witness a two-day dialogue on issues of autonomy, sectarian violence and Indo-Pak relations vis-a-vis the Kashmir Valley. To be naively frank, the complexities on the ground were mind-boggling to me. Ensconced in ivory towers, myths have been created by the self and the other about the situation in the Valley – as I observed discussions between local politicians, academics and social workers, these myths were being demolished, in rapid succession. Needless to say, it was shocking to wake up to the amount of disinformation and ambiguity surrounding one of India’s most troubled and beautiful locations.

The air of confidentiality surrounding the dialogue mandates that I be discrete with the particulars of the same. Consequently, I’ve jotted down a couple of issues which I think are of great contemporaneous relevance to the problems faced by the Kashmiri people.

The most important, is undoubtedly, the question of autonomy. During a sideline conversation that I had with a young Kashmiri friend, he told me the Kashmiri youth were overwhelmingly in support of Azaadi, and if a plebiscite was held, there would be few who would choose to be part of the Indian polity. Yet, the great irony lay in the fact that the same people who wanted Azaadi did not know what to do with it! The political space on Azaadi (and the moderate demand of Autonomy) of the Kashmiri people is filled with confusing discourse of the political parties in the State. How else would you explain the six-odd voluminous reports that have been issued by every major political party in J&K, right from Sheikh Abdullah’s Naya Kashmir to the PDP’s Self-Rule Document?

At the heart of the Kashmir problem, yes, with all of militancy, unrest and dissent, lies the issue of governance. It is so profoundly simple, and yet so complicated that clear solutions have become the distant future. For years, indeed, since the time of Independence, the State has felt the need for free and fair elections. The number of people I met, who exhorted that J&K State Governments were blessed by the Centre rather than its people, is many. Governance has been a tricky issue for the Central Government because Kashmir has had a tortuous history – right from claims of the Instrument of Accession being non-existent, to conspiracy theories  as to why the Indian Army did not go after what is now PoK – there are many thorns in the establishment’s path. But in venturing down this dangerous path, one feels, after listening to countless people in Kashmir, that the pulse of the public is yet to be gauged.

What has spawned off a movement for Azaadi and autonomy has now resulted in decades of militancy and unrest. I left for Kashmir a strong Unionist, and remain one, because I believe that there can be no compromise on the territorial integrity of our country. At the same time, it was heart-wrenching to know and hear about the plight of fellow citizens in a far corner, treated and often understood as ‘different’ from the Indian mainstream. Demands of autonomy, I often felt, were justified, if it meant that the people of Jammu and Kashmir had access to better, effective governance. But amidst all the internal turmoil, be it between Jammu, Kashmir, Leh, Kargil or the Chenab Valley, it is important that top priority is accorded to developmental needs of the State. In thrashing out a plan for autonomy, or governance within the federal framework, either through Chidambaram’s ‘quiet diplomacy’ or other modes, its important that the solutions are responsive and reactive.

On the foreign policy front, I do believe that it is time for India to restart negotiations with Pakistan. The latter is in a dire internal situation, and has repeatedly emphasized its willingness to get back to the table. Rather than watching the show unravel in Pakistan, the Indian Government must engage in a composite dialogue on Kashmir. CBMs have shown the way forward, and must be kept in place to further continuity of relationship. Trade and economic relations must improve to benefit J&K, and for once, the hawks must be ignored to take our relations with Pakistan forward.

(The immediate future of Indo-Pak relations will also form the subject of the next post)

This is a court of law, young man, not a court of justice

- Oliver Wendell Holmes

When Khalid Sheikh Mohammed and four other self-confessed perpetrators of the 9/11 attacks stand trial in the Southern District Court of New York  next year,  something about the law that’s unique to the justice system in such high-profile, polarizing instances will come to light.

Its indeed an “honourable” decision to put the detainees to task within the framework of the legal system (see The Hindu’s editorial today) – it would have been far more easier to hold the trial in a military tribunal – and probably come out with the death penalty. In a country where the death penalty has its ardent supporters, even its vocal opponents would’ve hesitated to challenge the verdict in such a heinous act. Sure, the prosecutors would’ve had trouble with issues of torture and waterboarding – but when the jurisprudence of a nation is emphatically in support of the ‘national security’ paradigm, in comparison to the ‘civil liberties’ one, no earth-shattering conclusions are expected.

So why is the case being referred to a civilian court, where the standards are admittedly higher than in military commissions? Does it signify the Obama administration’s commitment to human rights and fair trial? Yes and No. The whole process is angled at Gitmo’s closure, and to move the detainees to a high-security prison near Illinois. And a trial under federal laws is necessary to move them to federal soil, for which the Congress must be given prior notice. Incidental, is the encouragment given to a proper hearing; or rather, it is the price of closing Guantanamo Bay. After all, the detainees must be ‘disposed’ before the facility is closed!

But that’s a debate for another day. What the administration does not realize (or probably does, but is helpless) are the law’s ‘fancies’, to be a little dramatic. When KSM has been waterboarded no less than 183 times, and his comrades tortured to equal extents, will the NY Court accept a confession made under such circumstances? Will jurors,  sworn under oath and required to be selected from the Southern District – minutes away from Ground Zero – be really unbiased? Can the classic doctrine of ‘personal interest’ be really effective here, when jurors have lost friends, families and relatives? And at the end of it all, will the Court actually consider the confessions vitiated, even as the glare of the public eye gets stronger by the day?

There’s no point in calling these trials a farce, as we now realize that something about the law which is unique to cases of such nature. When Kasab, now being tried in a lower court in Mumbai for 26/11 confessed, Judge Tahilyani took the confession on record and sought to continue with the hearing. He could afford to do that, knowing full well that an expected result against the young terrorist will now be substantiated by his own words, while presenting the judgment as an evidence-based verdict. Similarly, when Khalid Sheikh and his fellows have confessed, the inadmissibility of such evidence is not really relevant. Sure, there are thousands of documents and testimonies waiting to be presented in Kasab’s and KSM’s case (heck, Kasab was caught on national television during the act). But if one looks closely, these are frivolous compared to that single statement of admission that the trial must extract, to mete out maximum punishment. But in the process of extraction, there is a disconnect between what society wants to hear, and what the law says about making the detainee say it. And therein lies the problem of balancing the law and pandering to public pressure.

Justice, as it is said, must not just be done, but must also seem to be done. Will justice seem to be done if Sheikh is let off with a lesser punishment,  if he decides to retract his confession  and claim a mere minor involvement in 9/11? (Kasab has sought to do exactly this). The law must act against torture, and the standard to award the death penalty is high. These standards must go beyond moral aspirations – but then, is the law’s justice equivalent to the people’s sense of it?

The Foreign Ministry of the Government of Afghanistan has issued a statement, calling on domestic and foreign media to avoid reporting any poll-related violence in the country on the day of the elections. The statement reads;

All domestic and international media agencies are requested to refrain from broadcasting any incident of violence during the election process from 6am to 8pm on 20 August.

The media have also been asked to stay away from any scene of ‘terrorist incident’ so as to avoid ‘destruction of initial evidence for investigation’. The statement issued by the Government comes in the light of repeated threats by the Taliban to disrupt the polls, some of which have been followed by sporadic violence in Kabul and other parts of the country.

From the Government’s perspective, the move is an attempt to control the ‘negative influence’ of the media (as stated by President Karzai’s spokesperson) to prevent exaggeration of election-day violence, and consequently, fear-mongering among Afghan citizens. However, media entities and rights organizations have been unanimous in condemning the statement; the Government’s call has been cited as an attempt to curtail press freedom, and prevent citizens from knowing about real, and potent security threats on the day of election.

The announcement is but one of the many intriguing aspects of the election process in Afghanistan, which will culminate in the voting session tomorrow. The international community, particularly the US, is extremely concerned about the state of affairs in the country, and the growing influence of the Taliban. Thursday’s election is widely tipped to be in favour of the incumbent Hamid Karzai, whose relations with the US have been favourable, though pocked with inconsistencies. (Karzai, for his part, has appealed to the broad spectrum of ethnic groups in Afghan provinces to ensure his re-election.)

Many countries which hold strategic interest in their relations with Afghanistan, including India and the US, will sleep better if Karzai’s Government is re-elected to another term. While there has been growing discontent against the presence of international troops on Afghan soil and the inconsistent ‘drone attacks’ that have claimed many a civilian’s life, there can be no better, immediate solution to stabilized nation-building than to have back Karzai in power. Again, as most countries acknowledge, this is not because of an unflinching trust in the incumbent’s capabilities, but because of the sheer control he holds over the provinces, in sharp contrast to his poll opponents.

The Taliban threat is still high, and the events in Pakistan bear testimony to its growing potential (notwithstanding reports of Beitullah Mesud’s death) in the region. A nascent Government will be immediately pulled into chaos, especially if it is in the nature of a coalition, allowing the Taliban to regain its footing in key areas of Afghanistan. That the West is keen to see Karzai back in power is clearly evident from the conspicuous absence of official international comment on the misgivings during the campaigning and poll process.

Recently, the BBC claimed to have unearthed a ‘Votes-for-Money’ scandal, where a huge number of voting cards could be bought for a considerable payment. The Afghan Independent Election Commission that oversees the poll has also been accused of not doing enough to prevent abuses. Despite these shortcomings, Western officials maintain that it is better to have a problem-riddled election than not having one at all (Mark Sedwill – British Ambassador to Afghanistan). Add to this, the constant threats from the Taliban to chop off the ‘inked-finger’ of any Afghani who goes to the voting booth.

It is a stand, not many nations can disagree with, considering Afghanistan’s role in any attempt to curb widespread terrorism. Therefore, the move to keep media agencies away from poll-related violence, in as much as it goes against established democratic norms, is likely to be met with little or no resistance by key foreign players.

(This post forms the first in a series of posts on Foreign Policy, which will focus on contemporary issues of international concern)

I read somewhere, when one increasingly talks of democracy, it should be construed to mean a movement by the majority to suppress the rights of a minority. Can’t recall where I read it, but thought that there was in inherent fallacy in that statement. However, if one were to look at the recent amendments to the Gujarat Control of Organised Crime Act (GujCOCA) he or she would agree with that statement as I have. 

The Unlawful Activities Prevention Act does not remain the harshest penal statute anymore. Gujarat has clearly beaten the Centre in this case. The President (indirectly the Union Cabinet) had suggested changes to three crucial amendments to the State bill, which the Gujarat gov. rejected and passed unanimously. These include;

- Making confessions before a police officer legal

- Extending the period of detention of a person standing trial from the present 90 days to 180 days. This also includes increasing the time period for a police custody and filing of a chargesheet. 

- that courts cannot grant bail to an accused without hearing the public prosecutor.

The UPA government did try to take a ‘more humane’ approach to the Bill by asking the Gujarat Government to amend/ delete certain provisions. However, in a political tussle, Modi, as usual accused the Centre for being soft on terror. It is funny how asking a government to make its laws in consonance with rights and the Constitution constitutes being ’soft on terror’. In this case, should be expect another Kartar Singh or PUCL ?

News item here. 

Two historic speeches were delivered yesterday; one by Barack Obama on America’s new and renewed MidEast policy, in a keynote address at Cairo University – and the other by Pratibha Patil, in her inaugural address to the Indian Parliament. Both are of immense significance; while the former indicates a tectonic, and inevitable, shift in US outlook towards Iran, the Palestine/Arab-Israeli conflict and the AfPak region, the latter speech lays down the contours of future governance in the the world’s largest democracy.

The speeches come at a critical juncture: The MidEast region is expected to witness policy and  (even) regime changes in the light of imminent elections in Iran and Lebanon. The right-wing coalition led by Netanayahu in Israel, has presented several problems to the US, with the question of cessation of settlement construction (along the West Bank) being the latest thorn in US-Israeli flesh. At the same time, there is empathy to the cause of Islamic countries, with Obama recognizing Iran’s right to utilize nuclear power for peaceful, civilian purposes and the two-state solution favouring Palestine. Clearly, the current administration has realized that it must step down from the ivory tower of benevolent patronage, and sit right across the table, treating the other end with respect. Find the text of his speech here.

Smt. Patil’s address to the Parliament also comes after a momentous exercise, where the Indian electorate has delivered a decisive mandate in favour of the United Progressive Alliance (UPA). In contradistinction to most pre-poll predictions, the far-from-fractured verdict allows the UPA to smoothen parameters of good governance, an index that is widely acclaimed to have swung the elections in their favour. Indeed, yesterday’s Presidential address laid down the UPA’s course of action for the first few months of its tenure. The entire text is available here.

Major priorities include:-

1. Fortifying national intelligence on terrorism and internal security

2. Ensuring the approval of the Women’s Reservation Bill, The Right to Free and Compulsory Education Bill, Food Security Bil, the Prevention of Communal Violence Bill and a model Public Services Law

3. Issuing a Unique Identity Card to all citizens

4. Increasing public investment in agriculture and irrigation (strengthening existing plans)

5. Reformulating the National Literacy Mission as the National Mission for Female Literacy (taking into account great disparity in literacy levels)

6. Consolidating the flagship welfare programs of the UPA (NREGS, JNNURM, Bharat Nirman, Indira Awas Yojana etc)

7. Increasing Foreign Direct Investment through proper policy regimes.

8. Widening the ambit of the Right to Information to include non-strategic Government activities.

9. Creation of a National Council on Higher Education; &

10. Strengthening strategic relationships with SAARC neighbours, the US, Russia, Europe, Japan and the developing world.

The speeches from both Presidents also elicited different responses. Obama’s address received mixed reactions from the MidEast and others; while citizens, institutions, analysts and leaders agree that the speech signals a definite attempt to end years of hostility and mutual suspicion, they believe that these words must be followed up with action soon.

The address to the Indian Parliament has, by and large, received favourable response from the media and analysts, as the measures proposed are a logical continuation of the previous Government’s policies. Nonetheless, there will be obstacles, both political and practical, while implementing ambitious and popular projects. The mandate of the people becomes important in this regard and the UPA would do well to return the favour through good governance.

The speeches, given by political and constitutional heads of two of the world’s most influential nations, are iconic in character; once transformed into reality, these words could well shape the course of the 21st Century.