Indian Supreme Court

 

Shaheryar Ali

 “…people do not take arms, in an organized fashion, against the might of the state, or against fellow human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is encoded in our collective conscience, we seek an order. However, when that order comes with the price of dehumanization, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt    Supreme Court of India

For the last few years Pakistan has experienced a lot of debate on the doctrines of liberal democracy, the role of judiciary and civil society. These tenants were repeated in the form of mantra again and again by the network of corporate controlled media monopolies and a section of western funded NGOs who have chosen the label of civil society for them. The major emphasis of their resistance model for Pakistan was strengthening of a section of Pakistani establishment represented by superior judiciary. Instead of focusing on the new “democracy in transition” these groups choose to support an institution which had a long history of collaboration with military junta in Pakistan. Over-emphasizing the cleft which emerged between Chief Justice of Pakistan and the ruling section of Pakistani establishment as “change of heart”, they put their full force behind the unelected institution which had a clear right wing agenda. As the “Black Revolution” took hold over Pakistan things started moving in the direction which was being predicted by a minority of analysts including our selves. The superior judiciary instead of attacking the legal barriers which prevent the subalterns of Islamic Republic from achieving the status of “equal in front of Law” re-affirmed those very legal standards which form the basis of legal and cultural apartheid in the Islamic Republic. This was made clear by their re affirmation of Objective Resolution, Two nation theory and infamous and murderous Blasphemy law. In a move highly unusual for British legal tradition the superior judiciary even restrained the parliament from reviewing the infamous Blasphemy law. The total lack of interest in the state sponsored reign of terror in Balochistan clearly defines the superior judiciary of Islamic Republic which was presented as Liberal Messiah by the liberal spokespersons of establishment. The court has never questioned the colonial and post-colonial policies of Islamic Republic in Balochistan, her continuation of Divide and Rule the province applying on the Pashtun section of the population especially the Frontier Constabulary which has been accused by Independent Human Rights groups and Left wing activists of implementing a silent genocide of the Baloch people. “Dr. Nandini Sundar In comparison the supreme court of India has recently passed a judgment which is land mark to say the least. In the judgment of “Dr. Nandini Sundar and others Vs State of Chhattisgarh and Union Government” The supreme court of India declared the state government sponsored “Salwa Jadum” as unconstitutional. The honorable court also prohibited the deployment of local tribal community as SPO (special police officers). The Indian state of Chattisgargh was deploying the British policy of divide and rule and arming the local tribal as militia against the Nexal and Maoist rebels to stop the Left Wing insurgency which is affecting many states of the Union. These Left wing insurgencies have been declared as “single most important threat to Union of India by the Union Government” and multiple operations have been launched. Despite this the honorable court has disregarded what which judiciary of Islamic Republic considers as “National Interest” which prevents them from interpreting the law in “pro-people” way. The Supreme Court of India remained within the scope of Law unlike our Judiciary which has been criticized by president of Supreme Court Bar Association for exceeding its mandate in giving decisions which only have political implication and no pro-people value. The Indian Supreme court in one of its best decision compared the situation in Dantewara, portrayed in Joseph Conrad’s classic “Heart of Darkness”. It then squarely contextualizes both the neo-colonial nature of the Indian state and the fundamental tenets of classical liberal democracy, all the while sticking to the law in its entirety. There is a lesson for Pakistan especially the activists, to understand the difference between the “real” and the “fake”, one cant carve out an Independent pro people judiciary from core of a totalitarian state , it can only come from a process. The difference is the stated objectives of two states, one committed to liberal secular and socialist state and other to an Islamic utopia. “What is important but obviously outside the scope of a judicial review is the cause of violence, the paramount question in the discussion on violence is “exclusion”. Its exclusion which leaves no other option for a human other than violence. When one is reduced ans dehumanised to extant of non human and non entity he transforms to what he is being “described as” the monster, the lesser being the evil incarnate. This is true for the Nexilite, the failure of communist party of India to address the question of revolution and its persistent failure to distance itself from the discourse of Indian Bourgeois and the failure of development of a genuine revolutionary socialist party in India pushed new untouchables of Indian Union to depths of heinous violence. But the Irony is that even the most deplorable violence committed by these groups testifies the genuine need for change. The desperate cry of the people for solution to emerge from the very heart of darkness!!. The very fact that a superior court which in final analysis is nothing but an instrument of state build to maintain the rule of the privileged classes hints at the cause of violence must be seen as signal to ruling classes of India that India is not as shining as portrayed in global posters! But for some one who is used to judiciary of the Islamic Republic its very refreshing. The case of Baloch resistance is similar, the despicable violence being committed against the immigrant working class in Baloch areas, the murder of Punjabi, Siraiki and Kashmiri labourers and chokidars is clearly the result of dehumanisation which Baloch has suffered. The failure of Bloch nationalist leadership, their ambiguous stand on right of self determination, their alliances with Punjabi chauvinists and Islamic Republic’s ruling elite had left no option for these young men and women to loose human Essences! I say human essence because Emanuel Levinas in his post-Holocaust studies has recognised the “first philosophy”, the duty to protect the other, and the first thing human perceives before even cognition is to recognise the need to protect other! , Baloch are killing because it’s what we want them to do. Its what we demand from them, They are the Jew, RAW agent, Infidel , the Jahil out of religion of peace out of the reign of submission , the rebel of Islamic Republic , Rebel to cause of Islam. The sons and daughters of Ignorance. Their daughters are not worth anything, Shazia Marri can’t be Aafia Siddiqi. If brother of Marri take up arms its heinous, it’s despicable yet its understandable! When a court of law recognises the plight of those who are abandoned to violence its heartening, its a living experience like creation of Adam from clay!” If only we can open our eyes and start the process unless it will be a never ending series of black revolutions which but the results will be counter revolutionary. Below is the report by Asia Human Rights Commission on the said judgment An Article by the Asian Human Rights Commission. INDIA: Supreme Court – ‘Salwa Judum’ is unconstitutional by Rolly Shivhare “People do not take arms without reason” — Supreme Court Salwa Judum The recent judgment of the Supreme Court of India in Dr. Nandini Sundar and others Vs State of Chhattisgarh and Union Government indicates that the country’s judicial system is alive, and a citizen can hope for justice from it. In the decision rendered on 5 July 2011, the Supreme Court declared the Chhattisgarh government sponsored Salwa Judum to be unconstitutional. The Court prohibited deploying members of tribal communities as Special Police Officers (SPOs) in any counter-insurgency operation by the state against the Naxals or Maoists, or against any extremist leftist groups operating in the state and/or region. The Court’s decision to prohibit civil militias is a landmark step in protecting marginalised communities from ongoing human rights violations. In essence, the judgment underlines that certain duties of the state cannot be subcontracted out, and further, that the state has the unalienable duty to protect its citizens. The Constitution of India mandates law and order to be the state’s responsibility. When the protector becomes the violator however, it is a threat to democracy. This is exactly what is happening in Chhattisgarh. Chhattisgarh is one of India’s three states–the other two being Manipur and Jammu and Kashmir–where the government formed private militias to combat anti-state movements. When this was challenged publicly as well as in the court, the government argued that it is its constitutional privilege to adopt modes it sees fit to deal with Naxalite and Maoist activities within the state. In essence, the government was arguing that it has a right to perpetuate, indefinitely, a regime of human rights violations, by adopting the same modes deployed by Maoist and Naxalite extremists in combating them. It is this argument that the Court has thrown out, holding it as unconstitutional. The government of Chhattisgarh had deployed 6500 tribal illiterate people as SPOs in the state. The government provided arms to these men and women and let them fight the leftist extremists, an act which within days turned neighbour against neighbour. The state took refuge in the century-old Indian Police Act, 1861, which provides for the appointment of SPOs to perform duties as guides, spotters and translators. SPOs can work as a source of intelligence, and sometimes are also allowed to carry firearms supplied to them for their self-defense. However, in Chhattisgarh, the government appointed SPOs to fight Maoists and Naxalites. It must be noted that the government even recruited minors as SPOs. In actual fact, the government created a division in the community. By identifying persons as either with the extremists or with the government, neutral space in the community was reduced. SPOs, like the Naxalites and Maoists, used their new power for everything, from settling private disputes to silencing political opposition. According to media reports, the number of cases of rape, murder, and other atrocities increased. The Supreme Court judgment noted that the Chhattisgarh government was appointing SPOs without following any legal process, and without evaluating the capacities of appointed tribal youth in undertaking counter insurgency activities. In 2010 the number of SPOs was 3000, but this year it increased to 6500. Unfortunately, these are the persons who become the first target of the Naxalites/Maoists. The Court also held that appointing a civilian as an SPO was a threat to his life, and in violation of article 21 of the Indian Constitution, which guarantees the right to life, with dignity. It must be mentioned here that this is one of the best judgments of the Supreme Court. It begins with a comparison of the situation in Dantewara, portrayed in Joseph Conrad’s classic “Heart of Darkness”. It then squarely contextualises both the neo-colonial nature of the Indian state and the fundamental tenets of classical liberal democracy, all the while sticking to the law in its entirety. As far as Chhattisgarh is concerned, it is rich in natural resources, with 32 percent of its population made up of tribal people, who believe the trees and rivers to be their Gods. These tribal people are forcibly evicted from their ancestral land however, so that their land can be given to private companies and state interests for their gain. When such communities resist eviction, they are tortured to the extent where the only choice left for them is to take up arms. This was humanly acknowledged by the Court when it stated that …people do not take arms, in an organized fashion, against the might of the state, or against fellow human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is encoded in our collective conscience, we seek an order. However, when that order comes with the price of dehumanization, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt. A milestone in Indian democracy, this heartening judgment sees the Supreme Court render a brilliant exposition of the rule of law in the context of the violence unleashed by the Maoists, which has completely distorted the mindset of the state administration. Moreover, the judgment does not end with Chhattisgarh; it has wider implications where similar myopic and irresponsible tactics are employed, like in Manipur and Jammu and Kashmir. About the Author: Ms. Rolly Shivhare is a staff member of Vikas Samwad, a partner organisation of the AHRC, working in Madhya Pradesh. The author is currently interning at the AHRC’s office in Hong Kong and can be contacted at rolly.shivhare@ahrc.asia Courtesy: Asian Human Rights Commission About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong based group was founded in 1984