Harsh Kapoor
Mon, 12 Mar 2007 17:01:56 -0800
South Asia Citizens Wire | March 13, 2007 | Dispatch No. 2376 - Year 9 [1] Pakistan : The Big Chief and the Chief Justice i) Price of 'clinging to power' (Editorial, Daily Times) ii) Beware the ideas of March (Editorial, The News) [2] Sri Lanka: Once More, The Need For International Human Rights Monitoring (Rohini Hensman) [3] Bangladesh: Justice for Nurjahan (Shahidul Alam's Blog) [4] India: Freedom of expression and Gujarat - Through the smoke screen (AG Noorani) [5] India: Communalism - A Communalised Gujarat, Modi and Civil Society (Achut Yagnik Interview) - Terrorism: Biased Investigation (Ram Puniyani) ____ [1] Daily Times March 12, 2007 EDITORIAL: Price of 'clinging to power' President General Pervez Musharraf recently explained to a Canada-based South Asia analyst why he wanted to stay in office for another five years. Simple, as he would say, "to roll back religious extremism, ensure political stability and sustain economic growth". He wanted to see those who supported moderation win at the federal and provincial levels, and his "key concern", he insisted, was preventing the Talibanisation of his country, especially the Pushtun areas along the Afghan border. General Musharraf repeated his dream of converting Pakistan into an "energy and trade corridor" and denied vehemently that elements from within the army were sympathetic to the Taliban and Talibanisation. The analyst reached this conclusion: "In his eighth year of rule, Musharraf remains very much secure in his position; no domestic political force has been able to oust him from power". The above interview was reported a day ago, at a time when many in Pakistan were anguishing about General Musharraf's latest action of sacking the Chief Justice of Pakistan in a ruthless, even brutal, manner. The Supreme Court Bar Association (SCBA) and Pakistan Bar Council (PBC) have both loudly rejected his "way" of seeking the ouster of the Justice Iftikhar Muhammad Chaudhry. They have also disbarred the lawyer who had sent his letter of indictment to the chief justice, ostensibly prompting the primer minister to advise the president to file a reference against the CJP. Editorially, the national press has excoriated the government on various counts, including for not waiting till the elections had been held and scuttling the good impression that it was willing to face litigation at the apex court about the matter of President Musharraf's dual office and re-election as president of Pakistan. The truth of the matter is that, notwithstanding the point of law, the lawyers' protests are undermining the popular trust reposed in the government. As they marched on the roads of the High Court seats in the provinces, and in some cases even in the districts, the "moderate" lawyers even questioned the wisdom of passing over the senior-most judge after the chief justice, Justice Rana Bhagwan Das, and instead allowing the second most senior judge to take over. Senior retired judges have protested at the way the chief justice was called to the Army House and asked to resign with President Musharraf sitting imperiously in front of him in military uniform. If the "moderates" of President Musharraf were fearing the possible mobilisation of the masses under the APC call later this month, they are now condemned to see a much more ominous foretaste of it among the educated class. The lawyers have never accepted governance under General Musharraf. While in some cities they have been mobilised effectively by the rightwing and religious opposition, now there is protest in the length and breadth of Pakistan among a very significant segment of society. The more rough-edged political mobilisation is yet to come. Justice Chaudhry may have erred temperamentally when faced by a widespread dereliction of the state machinery. One could say that he lost his patience when confronted with the complaints and reports appearing in the national press about how the state was remiss in its duties and how the outlaws were defying its writ. He may have become isolated in his unrealistic passion to set things right, but the challenges he presented to the government were popular with the people. How can we blame the people if they desire extremism also in the act of correction, since that extremism has now become endemic in Pakistan. In a way, Justice Chaudhry fell to the conditions that might soon challenge President Musharraf himself. There are large chunks of territory where there is no law, and instead of being rolled back this territory is spreading like a stain of blood and swallowing up the areas under law. In Balochistan, instead of ending the "area B" conditions of lawlessness, the province is in the grip of insurgency and terrorism. In the Tribal Areas, President Musharraf's "peace agreements" have actually worsened the social conditions and the population is now looking more for security - which may come from the Taliban - than the writ of the Pakistani state. In his 8th year, President Musharraf must realise that he has not succeeded in achieving what he had promised to the nation in 1999 and 2002. He had also made pledges to the international community which the international community increasingly feels he has not been able to fulfil. What should his response be to this situation? Should he acknowledge and leave - and he will be remembered for what he has achieved in many aspects of governance - or should he be spurred by his failure to insist on staying on? Anybody looking at the developing scenario in Pakistan and abroad would say he should democratise Pakistan and let Pakistanis decide his case. He should allow the assemblies to be elected in a free and fair election - and that will mean restoring the confidence of a rejectionist opposition with certain electoral reforms - and then let the new legislatures re-elect him in accordance with the Constitution. After eight years in power, it is also time that he retired from the army and became a civilian president, if the parliament so agrees. * o o o Editorial, The News, March 11, 2007 BEWARE THE IDEAS OF MARCH To say that the 'suspension' of the Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, upon the filing of a reference by President Pervez Musharraf under Article 209 of the Constitution is a controversial move would be an understatement. The chain of events set in motion on Friday by the filing of the reference is only going to further exacerbate the rocky relationship between the executive and the judiciary. First the facts as they stand: the president does have the constitutional right to file a reference under Article 209 with the Supreme Judicial Council (SJC) if he receives "information" that a judge of the Supreme Court or the High Court "may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct". The chief justice was, according to several news reports, summoned to meet the president at the latter's camp office where he was asked to explain the allegations in the letter. Accord ing to the official APP news agency, he failed to give a satisfactory defence and was told that a reference was being sent to the SJC against him on the grounds contained in the letter (this was also corroborated by the minister of state for information in his appearance on a TV show). The SJC comprises the chief justice of the Supreme Court, the next two most senior judges of the Court and the two most senior chief justices of the high courts. Since Justice Chaudhry himself would be heading the SJC in normal circumstances, his place will be taken by the Acting Chief Justice of the Supreme Court, Javed Iqbal. However, it is unclear whether Justice Rana Bhagwandas, next in seniority after Justice Chaudhry and reported to be presently on leave abroad, will be included in the SJC when it takes up the presidential reference this coming week. Of course, all this may come to naught -- the hearing of the reference by the SJC, that is -- if Justice Chaudhry chooses to resign. The facts, however, do not end there. The basis of the reference, according to the minister of state for information who said this to a private television channel on Friday, seems to be a letter written by a Supreme Court advocate and otherwise well-known personality which contained allegations that Justice Chaudhry had turned his courtroom into a "slaughterhouse", that he was seeking protocol over and above that due to someone holding his post, that he used his influence to get his son posted in the police after he failed to qualify and that he would announce short orders but would change the verdict in the written judgement. There were other allegations as well but these seemed the more substantive ones. However, no allegations of financial impropriety have been laid in the letter (the text of the reference, though, has not been made public). As far as the issue of appointment of the acting CJ is concerned, the ministers of the government have been saying that the next mos t senior judge, Justice Rana Bhagwandas, who should have been appointed according to the Constitution, was on leave and outside the country. Given this peculiar situation with a reference filed against the chief justice himself, if the reference is indeed heard by the SJC there may arise the possibility that one of its members benefits from its eventual outcome. It would be fair to assume that many people will see this run of events with suspicion. In fact, some have linked it to a statement made by a leading politician recently linking a possible declaration of a state of emergency as a justification for extending the National Assembly by one year. Many will also link the action taken by the government with the fact that the chief justice was a strong proponent of judicial activism and that some of this may have stepped on powerful toes. For example, the Supreme Court struck down the Pakistan Steel Mills privatisation deal which was an embarrassment for the government, took strong note of the New Murree project which had strong vested interests backing it, and of late had been regularly hearing petitions filed by relatives of citizens claiming that the latter had been detained incommunicado by government intelligence agencies. During the course of these hearings, revelations came to light which again caused some embarrassment for t he government because some of the disturbing allegations seemed to have been correct. As already pointed out earlier, the Supreme Judicial Council is to meet this coming week and has invited Justice Chaudhry to present his side of the story. Pending that hearing and pending the SJC's examination of the said reference, and upon receipt of its recommendations by the president, Justice Chaudhry will not perform his duties as Chief Justice of Pakistan. Because this hearing is yet to take place, it is premature to comment on this aspect of the matter. However, questions are bound to (and should) be asked, especially about the manner in which the chief justice was summoned and the reference against him filed on the basis of a single letter (so far we have been made to understand that this is the case). Some jurists, among them former Supreme Court judges and lawyers of considerable standing, have questioned the government's decision to suspend the chief justice: they say that while the filing of the reference is very much within the president's powers under Article 209, the matter of suspending the highest judicial officer in the land is not. The argument -- a cogent one -- runs along the following lines: it is a canon of justice that no one should be condemned unheard and that suspension is not something envisaged under the said article. Of course, common sense would require that any judge against whom a reference has been filed with the SJC and if he is eligible to be a member of the SJC should himself step aside. However, so the argument goes, this is not something that Article 209 is categorical about. Of course, there is also the general observation -- being made across the board -- that the allegations mentioned in the letter may be difficult to prove other than the posting of Justice Chaudhry's son for which there may well be documentary evidence (such evidence, however, may well implicate the government itself, since it would show that it acquiesced to the request). Further, should a request for protocol be held against any pa r ticular government officer given that it is now the norm for senior state functionaries to expect such treatment? These arguments and counter-arguments are bound to go on and may well intensify in the coming days but one thing is for sure: what happened in Friday is certainly not a red letter day as far as the state and its relationship with the judiciary is concerned. One now waits anxiously for the SJC's meeting scheduled for this Tuesday -- provided nothing further happens before that. ______ [2] The Lanka Academic March 12, 2007 ONCE MORE, THE NEED FOR INTERNATIONAL HUMAN RIGHTS MONITORING by Rohini Hensman The recommendations of Allan Rock to the UN Security Council on 9 February show that the issue of the Sri Lankan government's complicity in the conscription of child soldiers has to be addressed. There have been two responses to this charge. The Sinhala nationalists have shouted themselves hoarse, proclaiming this is a smear propagated by pro-LTTE institutions. (Apparently they have not noticed that Mr Rock made even harsher criticisms of the LTTE.) And the President has promised an enquiry into the charge, even as other members of the government dismiss it as false. Neither of these responses carries any conviction. When US government spokespeople deny that their forces have killed thousands of innocent Iraqi civilians, no one who is intelligent and well-informed believes them, because all the evidence points to the truth of the allegations. When the LTTE denies having killed Rajiv Gandhi, Lakshman Kadirgamar and Hindu priest Selliah Parameswara Kurukkal, no one believes them either, because the evidence goes against them. Similarly, convincing evidence has been presented demonstrating that children have been abducted by Karuna's forces in the East with the collusion of the armed forces. Why should we believe the denials of the Sinhala nationalists rather than the human rights activists and organisations making the allegations? Those making the allegations are charged with supporting the LTTE, but it is surely the Sinhala nationalists themselves who are boosting the credibility of the LTTE by misrepresenting Sinhalese people as power-hungry maniacs, and thus reinforcing the argument that Tamils need a separate state. They have not contributed an iota to defeating the LTTE, although Sinhala nationalists in the state security forces and the JVP certainly proved their ability to massacre tens of thousands of Sinhalese between 1987 and 1991 - far more than the LTTE has killed! It is precisely the people they vilify who have worked tirelessly to defeat the LTTE. It is Tamil human rights activists who exposed the human rights violations of the LTTE at the risk of their own lives, and in many cases paid a heavy price for their courage, getting killed or driven into exile. Along with Tamil politicians opposed to the LTTE, they have performed the almost impossible task of shifting the international perception of the LTTE as the sole representative of Tamils in Sri Lanka, exposing the totalitarian, murderous methods by which they sought to project themselves in this role. If anti-LTTE Tamils are today saying that government forces are implicated in the abhorrent practice of child conscription, then we certainly have to take them seriously. The UN and organisations like Human Rights Watch also played a crucial role in the set-backs suffered by the LTTE. The Sri Lankan armed forces have fought equally well in the past, and have been defeated. If today the LTTE is unable to retaliate with the same ferocity, it is in large measure due to pressure from these international bodies on various governments to clamp down on the LTTE's acquisition of funds and military supplies in their countries. If the UN and Human Rights Watch are accusing government forces of aiding and abetting the conscription of children and abduction of young men, then we have to take them seriously too. Given the seriousness of the charges, a promise by the government to look into the matter is a totally inadequate response. How can anyone take a criminal investigation seriously if it is conducted by the institution accused of the crime, especially when the institution denies that the crime was committed at all? This example also exposes the limitations of the Commission of Enquiry into Extrajudicial Killings and Disappearances, and the International Independent Group of Eminent Persons (IIGEP) appointed as observers of its work. While the setting up of these bodies is a welcome move, their terms of reference are far too narrow. Restricting the coverage of the enquiry to a small number of cases, in most of which there has been ample opportunity for the perpetrators to cover their tracks, destroy evidence and terrorise witnesses, makes it useless as a means of preventing the gross violations of human rights taking place every day. And lack of capacity to carry out rigorous criminal investigations makes it unlikely that successful prosecutions would follow. There is an Alternative There is an alternative, which has been proposed repeatedly by human rights groups and activists, and that is UN-backed international human rights monitors who would have the capacity and authority to investigate allegations of human rights violations on the spot, and report their findings directly to the public as well as to the government. If the TMVP and the government are sincere about wanting to end abuses like child conscription, abductions and extrajudicial killings, they would welcome such a body. It would confirm their claimed innocence, and allow them to prosecute individuals who might be involved in such activities. The SLMM has discredited international monitoring by turning a blind eye to gross human rights abuses by the LTTE, but this would be different. The SLMM was not set up to monitor human rights, nor did it have the expertise to do so; its task was to monitor violations of the 2002 CFA, which had an inbuilt bias towards the LTTE. UN-appointed human rights monitors would have a different agenda, and would be qualified to monitor human rights. Not being tied to the 2002 CFA, they would have no reason to ignore or downplay abuses by the Tigers. If, then, the government refuses to request an international human rights monitoring mission to work in Sri Lanka, we can only conclude that it is perpetrating and/or complicit in human rights violations which it wants to hide. In the absence of any neutral body capable of investigating and reporting on violations, it is only too easy to claim that all the rampant abuses taking place are the work of the LTTE. The Tigers are happy with this arrangement too, because it allows them to do exactly the same thing, attributing their own crimes to the government and TMVP. The general public and international community, unable to find out which crimes were committed by whom but able to see quite clearly that both sides are lying, can only conclude that both are equally guilty. Thus the government becomes an accomplice in covering up the LTTE's crimes, and simultaneously tars itself with the same brush that it uses to blacken the LTTE. This is not very intelligent behaviour, and could have disastrous consequences if similar sanctions to those that have been enforced against the LTTE are also enforced against the government, on the grounds that it and its allies are committing the same war crimes (attacks on civilians, child conscription, etc.) as the LTTE. What is to be Done? While only the Norwegian mediators could be foolish enough to suggest that the government open a second front in the war by attacking Karuna, the government's current course of action is equally dangerous. The president's military and civilian advisors seem to have suggested handing over the East to Karuna as a de facto separate state governed by different laws from the rest of Sri Lanka, in order to get his assistance in defeating their common enemy the LTTE, just as Premadasa armed the LTTE in order to get Prabhakaran's assistance in getting rid of their common enemy, the IPKF. No doubt they think that Karuna can be deprived of power once the LTTE is defeated, just as Premadasa may have thought he could contain the LTTE once the IPKF had gone, but this could be a suicidal strategy, as Premadasa found to his cost. A more sensible course of action would be to tackle the problem while Karuna is as dependent on the GOSL as the government is dependent on him, and negotiate a human rights agreement with him which binds both sides to renounce human rights violations such as abductions, attacks on civilians and child conscription. There would not be any need for a mediator in these negotiations, but Ian Martin, the human rights expert earlier involved in the peace process, and/or Professor Philip Alston, could be consulted about formulating the agreement. This can then be monitored by an independent international human rights monitoring mission. Karuna has already pledged to release all the child soldiers in his forces, stop recruiting children in the future, and provide the UN with access to his military camps, so this would merely be a means of verifying that he is complying with his commitments. If he wishes to displace the LTTE in the East, he must prove to the people there that he is better than Prabakaran. The government, in return, should provide security to TMVP cadre and offices, and funds to pay adult, voluntary recruits, so that the temptation to kidnap people, as fighters and labourers or for ransom, is removed. It would help the government to avert a potentially embarrassing situation if it were to offer the new human rights agreement to the LTTE as well. That would also appease members of the international community like the British Foreign Minister, who are putting pressure on the government to resume negotiations with the LTTE. A proposal for a human rights agreement that would end the most evil consequences of the war would have to be taken seriously by the international community as a valid way to push the peace process forward. It may be difficult for the government to rein in war criminals in its own ranks and in its armed forces, having given them a free run for far too long. Yet it is absolutely vital that it should do so, if it wishes to preserve any semblance of credibility among Tamils and the international community. Here, again, the presence of international monitors would ameliorate the difficulty, by constituting a neutral body which can be presumed to be free from the factional conflicts and paranoid accusations currently plaguing even the ruling party. The Importance of Command Responsibility Sri Lanka's legal system too would need to be overhauled in order to deal with the problems it now faces, bringing it into line with international law. The importance of the doctrine of command responsibility can be assessed from the fact that in its absence, it would not be possible to convict Prabakaran in a court of law for any of the countless crimes committed by the LTTE, since it would be impossible to prove that he even commanded them, much less that he was physically present when they were committed or played any part in them. It is only through the doctrine of command responsibility - according to which a person who is in command of a military force is held to be responsible for war crimes committed by them if he knew, or should have known, of them, and did not prevent them or punish those responsible for them - that he could be found guilty of these crimes. This is an integral part of the Rome Treaty of the International Criminal Court, which Sri Lanka should sign and ratify. But even without doing so, it can bring its legal system into line with the provisions of international law. This would ensure that in future, war criminals can be brought to justice, instead of being allowed to get away scot free as they have in the past. The late 1980s showed us where the culture of impunity can take us if it is allowed to grow unchecked, and that is not a place which any sane person would want to revisit. Racism, Communalism and Small Brains Some years ago, an anti-racist poster in Britain consisted of a large rectangle divided into four quarters. In the first three quarters were identical large brains, labelled something like 'European,' 'African' and 'Asian'. In the last quarter was a tiny brain, labelled 'Racist'. We could adapt this poster for use in Sri Lanka, by labelling the first three brains 'Sinhala,' 'Tamil' and 'Muslim'. But we would need two peanut-sized brains in the last quarter, labelled 'Sinhala nationalist' and 'Tamil nationalist'. Not only are the brains of these people too small to grasp notions of equality, justice and democracy, they are not even capable of acting in their own strategic interests. In the 1980s, the LTTE had the sympathy of the majority of Tamils and the international community. If they now seem to be limping along, it is largely a consequence of Prabakaran's propensity to shoot himself in the foot by alienating Tamils, the international community, and even his own second-in-command, Karuna. On the other side, the Sinhala nationalists seem to be trying to do the same thing, alienating all the support successive governments have managed to garner over the past decade. Instead of allowing itself to be pushed into this suicidal course, the government should be retaining its supporters and disarming its critics among Tamils and the international community by inviting an international human rights monitoring mission to investigate and report on violations on an ongoing basis, and prosecuting those who are found guilty of such violations. It is only such measures, along with maximum devolution within a united - not unitary - Sri Lanka, which can defeat the separatist struggle of the LTTE politically. There is no other way in which a victory can be won. Fortunately, small-brain disease is not congenital, but seems to be the result of an attack by the lethal virus of racism/communalism. Children can be protected from this disease and it can be prevented from spreading by putting those who suffer from it in quarantine. Isolating ethnic nationalists of all varieties and combating their violent and undemocratic agendas are crucial elements of a strategy to restore to health the body politic in Sri Lanka. ______ [3] http://shahidul.wordpress.com/2007/03/10/ JUSTICE FOR NURJAHAN Photographs Shahidul Alam Text Rahnuma Ahmed It was reported in the papers as suicide. On 10 January 1993 Nurjahan, a woman in her twenties from a struggling peasant household from the Maulvi Bazar district of north-east Bangladesh, was found dead from poisoning at her parents' house in the village of Chattokchara. Nurjahan's death has raised many issues for the Bangladeshi women's movement. Her tragedy has highlighted the manifold forms of women's subordination within marriage, the family and within the community. First, Nurjahan was abandoned by her husband. Then it was the imam who held the knowledge about whether she was free to marry, and he misled her. Finally, it was the members of the shalish, all men, who judged and punished her. There are few reminders of Nurjahan herself. Of her belongings, a torn corner of a shari, and a shawl she was wearing when she died, have been put aside. Her few remaining clothes were being worn by women in her family. Her only other belongings, a pot and two pans. were being used by her mother. The family has no photographs. Her grave, like that of the shordar is a small clearing on a hillock near the village, scarcely recognisable as such. The district commissioner promised that the site will be named "Nurjahan tila". The government, in turn, announced that a road would soon be built to Chattokchara. However, in all likelihood, this is probably more significant for visiting journalists and officials, than for her family. The exhibition is being held to commemorate International Women's Day and staged in collaboration with Ain O Shalish Kendro (ASK), a legal rights organization and Drik's long standing partner. Dr. Hameeda Hossain, co-founder of ASK will speak on the occasion. The exhibition will be inaugurated at 5:00PM on Monday, March 12th, 2007 at the Drik Gallery in House 58, Road 15A, Dhanmondi, Dhaka -1209. The show will remain open till 22 March 2007 everyday 3 pm to 8 pm. Free Admission. Vellore 11th March 2007 ______ [4] http://communalism.blogspot.com/2007/03/through-smoke-screen.html Hindustan Times THROUGH THE SMOKE SCREEN AG Noorani March 12, 2007 'How can Parzania ever be shown [in Gujarat] without our approval?" Babu Bajrangi claimed. Who is he and what is the film about? Bajrangi is the principal accused in the Naroda Patiya massacre case, where more than 100 people were killed during the Gujarat pogrom of 2002. He has two other claims to fame: involvement in a project to kidnap Hindu girls married to non-Hindus and force them to divorce their husbands and the bashing up of young couples on college campuses or gardens. For one such act, he was arrested on December 12. What is the film about? On February 28, 2002, Azhar Mody went missing from Gulberg Society in Ahmedabad. The family had taken refuge in the home of Ehsan Jaffri, who himself was the one the mob was after. Many were killed besides him. Azhar got separated in the chaos and has not been found since. The film is about his parents' desperate search for him. His father, Dara Mody, had hoped that after watching the film, "Amdavadis would be sensitised to our plight. But it seems one powerful person decides which films people can watch". Bajrangi could not have gone so far unless he had the tacit support of Chief Minister Narendra Modi, judicially called the Neo of our times. The film's director, Rahul Dholakia, scion of an eminent Gujarati family, belongs to the city and has known the family since 1996. He shared their grief. "Most of all, I felt the pain of a mother's heart." The film is not about the pogrom. It is about "the trauma and anguish of a simple Parsi family which calls Ahmedabad its home, got caught in the 2002 riots, and which lost a young son... I decided to make a film to tell the world about their search. No person involved in this film is expecting monetary benefits". It stars Naseeruddin Shah and Sarika. Dholakia was flatly told by everyone, including the president of the Gujarat Multiplex Owners Association, Manubhai Patel, that the film's release needed Bajrangi's consent. On February 6, Patel, after meeting Bajrang Dal activists and Dholakia, said, "As of now, we have taken a decision not to show the film. Though the police have promised protection to multiplexes, we don't want to take any chances." Neither he, nor Bajrangi, nor any of the Bajrang Dal members who sat at the meeting had seen the film. Bajrangi declared, "I will not disclose my strategy but I will certainly do something to ensure that the film is not shown here." Dholakia disclosed that one of the theatre owners was tipped off that the state government "had taken a decision on not showing Parzania"; not by this devious stratagem. Dholakia asks, "If Amu, a film based on the anti-Sikh riots of 1984, or Black Friday, on the Mumbai serial blasts of 1993, could be screened, why not Parzania?" The question, though legitimate, is pointless in the face of officially-supported mob terror. As businessmen, theatre owners submit. Mahesh Bhatt's film Zakhm suffered this fate and so did Fanaa. In Gujarat, the real issue is whether the law is powerless to foil unofficial bans by the State, using or condoning the mob. It is not. The fundamental right to freedom of speech and expression implies the right to receive information and the business of running the 13,500 theatres in the country is, in the words of the US Supreme Court in a different context, a business "affected with a public interest". It involves not only the owners' right to exhibit but also those of the viewers to watch films. Some nuances and concepts on the right, while well-known abroad, are little developed in India. Free speech involves pluralism, democracy and the public good in free debate. Theatre owners' rights are not absolute. As our Supreme Court ruled, they "have no unrestricted right" to exhibit films. "They are carrying on the business under a licence containing the terms and conditions" prescribed by law. The court has upheld S.12 (u) of the Cinematograph Act, 1952, which empowers the Government of India (GOI) to issue directions to licensees to exhibit films which are or intended for educational purposes, or deal with "news and current events", documentaries or "indigenous films". They are produced by the Films Division of the GOI. This law is aimed at "promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision-making on public issues". It is designed "to further free speech and expression and not to curtail it". It would be another matter if "a propaganda film" is imposed on the owner or "a film conveying views which he objects to". It noted that films play an important role in a country where illiteracy is widespread and access to knowledge is limited. Since none of the theatre owners had seen Parzania, the question of it "conveying views which he objects to" does not arise. What is in issue is the collective decision made under coercion not to exhibit a particular film and, relatedly, the state government's tacit support to Bajrangi. This affects the people's fundamental right to watch the film. The US Supreme Court's ruling is decisive: "The people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends of purposes of the First Amendment (Guarantee of Free Speech). It is the right of viewers and listeners, not the right of broadcasters, which is paramount." This applies to theatre owners, no less. It ruled later that the goal is to achieve "the widest possible dissemination of information from diverse and antagonistic sources". The public interest is harmed by a system "heavily weighted in favour of the financially affluent or those with access to wealth" - or those who enjoy official support to terror, one might add. Our Supreme Court has agreed with both these rulings. Relevant is the analogy of picketing; permissible as an "expression" of protest; not as "action" that obstructs others. Professor Eric Barendt asks: "What if the principle media of expression are controlled by particular individuals or corporations and they deny members of minority groups the opportunity to express their views... should or may government intervene to promote freedom of expression in the interests of pluralism." The French Conseil ruled that the right to free speech conferred on readers a right to choose. "Media pluralism is a constitutional value." Our Supreme Court has, however, repeatedly drawn a distinction between the print media and TV and films. Some curbs on the latter are permissible. The Supreme Court has ruled that "the State cannot plead its inability to handle the hostile problem. It is its obligatory duty to prevent it and protect the freedom of expression". In Gujarat, the State has itself supported, if not created, the forces of intimidation. The court can do two things - order Modi to prosecute Bajrangi and associates and pay damages for violating Dholakia's right to screen films. The theatre owners should be given an option to respond. They did not object to the contents of the film. If they do on the merits they should be heard. But if their refusal is capricious, they can be ordered to screen the film. The citizen's right to see Parzania must be upheld. The case is a challenge not only to the legal system but to India's artistic and intellectual community and its plural polity. Centuries ago, Solon, when asked how a people could preserve their liberties, replied, "Those who are uninjured by an arbitrary act must be taught to feel as much indignation at it as those who are injured." ______ [5] [Among other additions at Communalism Watch] A COMMUNALISED GUJARAT, MODI AND CIVIL SOCIETY [This is a two part interview with Achut Yagnik. Part I: 'There is no civil society in Gujarat'; Part II 'The Congress is No Match for Modi'] http://communalism.blogspot.com/2007/03/communalised-gujarat-modi-and-civil.html TERRORISM: BIASED INVESTIGATION by Ram Puniyani http://communalism.blogspot.com/2007/03/terrorism-biased-investigation.html _/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/ Buzz for secularism, on the dangers of fundamentalism(s), on matters of peace and democratisation in South Asia. SACW is an independent & non-profit citizens wire service run since 1998 by South Asia Citizens Web: www.sacw.net/ SACW archive is available at: bridget.jatol.com/pipermail/sacw_insaf.net/ DISCLAIMER: Opinions expressed in materials carried in the posts do not necessarily reflect the views of SACW compilers. _______________________________________________ SACW mailing list SACW@insaf.net http://insaf.net/mailman/listinfo/sacw_insaf.net