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 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


“On the political situation in Pakistan, we have seen many analysis, all of which end in confusion , who is dealing with who, who support who, every point ends in a factual contradiction. On an international Marxist website i found an interesting analysis of Pakistani political situation, i thought it should be shared”

By Lal Khan
Friday, 16 November 2007

With the unleashing of a new wave of state terror after the imposition of martial law in the name of a state of emergency, the Musharraf dictatorship has shown its true colours. There has been brutal repression. Thousands of political and trade union activists have been arrested. Women workers have been severely beaten in front of the TV cameras. Trade unions have been further crushed and along with the state oppression there has been an avalanche of price hikes, and increase in poverty and unemployment – all as a direct result of the policies of the present regime.

At the same time the imposition of a state of emergency has further exposed the contradictions and conflicts within the state itself. The condition of the regime is so fragile and desperate that the Supreme Court, which in fact was trying to vent the wrath of the masses arising from the blundering and disastrous policies of the government, could not be tolerated by Musharraf and was dismissed. Through judicial activism, the Supreme Court was acting as a safety valve to preserve the existing order. The act of attacking the judiciary was in reality a self-inflicting wound for a crisis-ridden state. Most dictators in history enter a state of megalomania and madness on the eve of their demise. Cut off from reality, besieged in their echelons of power, they enter into the realm of insanity. Musharraf is no different; he is suffering from the psychosis of indispensability.

Pakistan today is in the throes of a civil war in several areas, the social fabric of the country is in tatters, the economy is crumbling and the army demoralised. More military personnel have been lost in these recent insurgencies than in the wars fought with India. This also shows how the imperialist “war against terror” has proved to be a disaster for every state that has joined the front line. It is also America’s failure ‑ the imperialist rhetoric of “democracy”, “human rights” and “freedom” has been exposed by this act of desperation on the part of Musharraf. It has also exposed the impotency of American might ‑ not just in Iraq and Afghanistan, but now in Pakistan. Musharraf is gambling on that. The Economist (10 November) writes:

“He may have been surprised by the vehemence of the condemnation he has faced, especially from America. But, like a borrower whose insolvency would bring down a bank, he may calculate that much of his former backers’ anger is bluster, covering a fear of their own impotence.”

With Musharraf’s fortunes tumbling and stability being ravaged by the severity of the crisis, the Americans have been trying desperately to bring some stability to their beleaguered ally. They tried to concoct a “deal” between Bhutto and Musharraf to give some support to their policy executioners in Pakistan. But as soon as Bhutto came out of Karachi airport on October 18, the sheer size of the crowd that had gathered sealed the deal.

Napoleon once remarked that there were times in war when every thing you do turns out to be wrong. Musharraf would have gone long ago. One of the major factors that have prolonged his rule was the compromises and capitulation of the opposition at every vital juncture. The main reason being the decline of the left, the hobnobbing of the PPP leadership with US imperialism and the rhetorical anti-imperialism of the Mullahs, whose rise was in fact the product of US policy itself. Across the board, all mainstream political parties are committed to the same economic doctrine that the Musharraf regime has pursued over the last eight years. This means that in a society ravaged by extreme hunger, poverty, disease, ignorance, unemployment, and other basic issues facing society, had in reality been abandoned by the traditional political leadership. They had no alternative economic policy or programme for the oppressed masses. The media, the intelligentsia and other institutions dominating the social and political horizon were obsessed with issues like “democracy”, “independence of the judiciary”, “liberal secularism”, “the constitution”, “the rule of law”, “good governance”, etc.

The parameters of all the political and intellectual debate were strangled within the conflicts of the political and state superstructure. After the failure of the economic model of Keynesianism in the 1960s and 1970s, all regimes, both dictatorial and democratic, have been aggressively pushing the policies of so-called “trickle down economics” and espousing the glories of the “free market”. This has been disastrous for the masses in general and society as a whole. The uneven and combined pattern of growth has devastated both the physical and social infrastructure. The plight of the masses has become agonizing.

Yet the reality is that the Pakistani economy is in such a dire state that no politician could seriously embark upon any policy that could possibly salvage this rotting capitalism. Without its overthrow not a single issue faced by society can be solved. The ex-lefts and the traditional leadership shudder at this. Hence, they want to go into oblivion and drag the masses along with them. The Islamic fundamentalists have their real base in black money from drugs and weapons smuggling ‑ the madrassas, the fanatical zealots and reactionary tendencies being the main shield for their criminal financial networks and the black economy. Unless these financial resources are severed, the monster of fundamentalism will not go away. Above all, this is the financial material interest that props up and sponsors this religious bigotry. This is not going to happen under the existence of capitalism. After all, the black economy is as much a part of this system as a malignant tumour is part of a diseased body.

The petty bourgeois notion of finding a political solution to the war in the tribal areas and Swat is absurd and utopian. The regime has tried several “political solutions” from jirgas (assembly of tribal elders) to some of the most rotten compromises with the Taliban. Yet the conflict has flared up again and again. The crisis is too deep, intensified by the evolution of this paralytic capitalism and has now escaped the control of the structures of the existing system. It needs a surgical or revolutionary solution which is not possible through the military aggression of a decaying state or political compromises between different factions of finance capital. These contradictions have exploded as a result of the intensifying socio-economic crisis.

Similarly the lawyers’ movement, although there were heroic deeds within it, could not get mass support because its demands and aims did not reflect the needs of the masses. Words such as “civil society”, and “citizen” are the product of a Newspeak created by the intelligentsia in the service of the NGOs ‑ sponsored by Social Democracy in the West. This terminology is deliberately fabricated to blur the class divide and confuse the class struggle. These petty bourgeois outfits are totally absorbed by capitalist society. Most of these ex-lefts have a contemptuous attitude towards socialism and are trying to inject reformism into a society, the economic system of which has lost the capacity to reform. More than 150 years ago, Karl Marx very aptly described these tendencies in, The Eighteenth Brumaire of Louis Bonaparte. He wrote:

“The fact that democratic republican institutions are required as a means, not of doing away with two extremes, capital and wage labor, but of weakening their antagonism and transforming it into harmony, epitomizes the peculiar character of social democracy. (…)

“But the ‘democrat’ because he represents the petty bourgeoisie, that is a transition class, in which the interests of two classes simultaneously mutually blunt each other imagines himself elevated above the class antagonism generally. The democrats concede that a privileged class confronts them, but they, along with all the rest of the nation, form the ‘people’. What they represent is the people’s rights; when a struggle is impending, they do not need to examine the interests and positions of the different classes.”

  “Now, if, when it comes to the actual performance, their interests prove to be uninteresting and their potency impotence, then either the fault lies with pernicious sophists, who split the indivisible people into different hostile camps, or the army was too brutalized and blinded to comprehend that the pure aims of democracy are the best thing for it itself, or the whole thing has been wrecked by a detail in its execution, or else an unforeseen accident has this time spoilt the game. In any case, the democrat comes out of the most disgraceful defeat just as immaculate as he was innocent when he went into it, with the newly won conviction that he is bound to win, not that he himself and his party have to give up the old standpoint, but, on the contrary, that conditions have to ripen to suit him.” (pp 46, 50, 51)

Even up until a few days ago Musharraf considered himself to be acting according to these notions. He was the apostle of “enlightened moderation”, “liberation”, a “democrat” in pursuit of “human rights”, “women’s rights”, “secularism” and other such things. The fact that he has resorted to state repression demonstrates the futility of a genuine democracy and other such liberties in a crisis ridden economic set up.

Paradoxically, most of these slogans end up in the same language as the rhetoric being broadcast by US imperialism on a world scale. Hence, fundamentalism and other reactionary forces do not have to make much of an effort to paint these “liberal”, “secular” civil society activists as an extension of imperialism. The rhetoric on imperialist “democracy” and “freedom” has been exposed in Iraq and Afghanistan.

Here in Pakistan, there is a seething revolt and revulsion toward the USA, and especially in the Pushtoon areas. The fundamentalists are trying to exploit this. But due to their own convoluted and obscurantist ideas they have not been able to get a mass base beyond certain limits. The real irony is that most “liberal” and “democratic” politicians, including the PPP leadership, are relying and appealing to US imperialism to reinstate democracy, get fair and free elections and force Musharraf to abdicate or give in to civilian rule.

The whole political establishment is waiting for the Americans to intervene and solve this mess for them. The man who is supposed to carry out this great democratic task is none other than the butcher of Honduras ‑ John Negroponte, the assistant US Secretary of State. What he is going to do does not need much explanation.

The question of free and fair elections and democracy are important. But if we take a glance at the chequered history of Pakistan, we can see that the only elections which were relatively free and fair were in 1970. If we look at the context in which those elections took place, we can see that there was a revolutionary upsurge of the masses which had brought the state to its heels. In reality these elections were relatively free because of the enormous pressure exerted by the 1968-69 revolution.

In those conditions, the state could not dare to rig them. The present movement of Benazir and her rapidly changing stance towards the Musharraf dictatorship is the product of another totally different contradiction ‑ the class antagonism in society. The long march she announced was brutally suppressed and subverted to some extent when the State could easily detain Benazir in Lahore and diffuse the thrust of the rallies. However, the regime has proven incapable of quelling the movement as a whole.

The students are joining in as have the lawyers, journalists and other sectors of society. The ideological conflicts have reopened between the different opposition parties. The right-wing APDM refused to join in the long march. When Imran Khan, who has been in league with the right wing, went to the Punjab University, a stronghold of the fundamentalist IJT ( Islami Jamiat Talaba), the student wing of the Jamaat-e-Islami, his ardent ally in the APDM, he was given a bashing by IJT activists and bundled into police custody.

After her initial mumblings of ‘Roti, Kapra aur Makan’, (Food, clothing, and shelter- the founding slogan of the PPP) in Dubai and Karachi, Bhutto has been withdrawing from that stance. She has been consciously reluctant to issue a call for a 24-hour general strike that could have bolstered her long march ‑ because along all the routes of the march there are industrial belts with millions of workers.

The one element missing in this movement against the Musharraf dictatorship is the entrance of the Pakistani proletariat onto the scene as an organised force. If the movement continues for any length of time, achieves a greater rhythm and higher momentum, the workers, who are not unaffected by the rapidly changing situation, could join in. Then the floodgates would open.

The discontent amongst vast sections of the Pakistani proletariat is enormous. They are seething with revolt. In the telecommunications, power, water, electricity, airlines, and postal sectors ‑ in fact in almost all sectors of industry ‑ there is a rising anger against the severe attacks upon the workers by this regime.

The state has plans to intensify those attacks. If Benazir had linked those demands with the political movement and called for a general strike on November 13, the day she announced the launching of the long march to Islamabad, Musharraf would have been finished.

In any case he is hanging by a thread. But such a call would have antagonized the Americans and threatened the system she wants to preserve. Hence, she has resorted to forming alliances with right-wing parties, including the Jamat-e-Islami, for a transition to democracy.

Just yesterday the Jamat gave Imran Khan a lesson on their democratic ideals. Perhaps she can learn a bit from Imran’s experience. Musharraf is weak and dithering. But as of yet the Americans have not abandoned him completely. Negroponte might succeed in striking another deal. Musharraf is so disgraced by the current mayhem that he may accept harsher terms. Even if he is removed and elections are held under a new set-up things won’t change substantially. Benazir could become prime minister as a result of elections in January, if they are held. But those elections would almost certainly be rigged. It is not ruled out that the agencies of the state might spring up a right-wing coalition through this doctored electoral process. Another military coup cannot be ruled out either.

In the present uncertainty that engulfs Pakistan there are all sorts of rumours going around. But whatever the outcome, Pakistan is not going to escape this conflagration any time soon. If Musharraf, the commander-in-chief, couldn’t control the agencies and fundamentalist elements in the army, how would Benazir be able to do so within the context of the same teetering state structures, economic set-up and disjointed society?

In power under capitalism she will have to resort to the same policies of “trickle down economics” and as a result carry out the dictates of US imperialism. But the symbolic aspect of another PPP government could bring to the fore the other side of the class divide. The proletariat and oppressed masses are yearning for change. In spite of the pernicious suppression of media reports on this aspect of Pakistani society, the country has revolutionary traditions. There have been long periods of exploitation and socio-economic repression. The conditions of the toiling masses of Pakistan have become intolerable. They are losing patience. A change ‑ with their traditional party in power ‑ however symbolic it may be, could trigger a mass revolt.

The slowing down and impending recession of the world capitalist economy will have a devastating impact on the already rapidly deteriorating Pakistani economy. This will exasperate the social contradictions, and for Benazir to cope with such a scenario, on a capitalist basis, would be a nightmare. The vague illusion will evaporate and there will be no option for the working classes but to move on to revolutionary action.

If, with the lack of a clear programme and direction, and the hesitant and confusing policies of the leadership, the movement fizzles out, the prospect of right-wing government will become more probable. The ruling class might keep Bhutto in opposition for a later date when the threat of the movement erupts again.

With the presence of a strong Marxist organization such a revolutionary movement would not stop where it left off in 1968-69. That movement created a tradition ‑ the PPP. This will also bring the question of the survival of the PPP itself to the fore. The only option left is to implement the founding manifesto of the Party, which calls for a socialist transformation of society. That is the only way forward for Pakistan. All other roads lead to disaster and barbarism.——–