Harsh Kapoor
Mon, 24 Sep 2007 01:21:01 -0700
South Asia Citizens Wire | September 23-24, 2007 | Dispatch No. 2452 - Year 10 running [1] Sri Lanka: Militarism or a political solution (editorial, The Island) [2] India - Gujarat: Minorities Under Attack: Sangh Prepares for the Coming Elections [3] India: Who's to judge the judges? - Scandal In The Palace (Arundhati Roy) [4] India: Sethusamudram Canal: An Expensive Voyage? (Jacob John) [5] Announcements: (i) Book release : To Make the Deaf Hear - Ideology and Programme of Bhagat Singh and his Comrades by S. Irfan Habib (New Delhi, 26 September 2007) (ii) Commemoration 100th birth anniversary of Bhagat Singh (Bonsor, 28 September, 2007) (iii) Films for Distribution - Magic Lantern Foundation ______ [1] The Island 22 September 2007 Editorial MILITARISM OR A POLITICAL SOLUTION Feting the naval personnel who had destroyed three LTTE sea vessels, Defence Secretary Gotabhaya Rajapakse has said that the implementation of a political solution won't be possible until the LTTE is crushed militarily. He made this shocking statement in the presence of his brother President Mahinda Rajapaksa. We must therefore assume that this is the official Government line. Only a few days earlier, Mahinda Rajapaksa, in an interview with the India media, had acknowledged that the Tamils had genuine grievances and reiterated his commitment to a political solution based on the APRC proposals. But, we have totally contradictory statements by members of this Government, depending on the nature of the audience. So, we are never sure what the government's official policy is - if there is one. If the Government is committed to a political solution, one cannot understand why it has to await the defeat of the LTTE. If a consensus political solution acceptable to major Sinhala, Tamil and Muslim parties is offered to the country, there can be no doubt that it will be accepted at a country-wide referendum resulting in the marginalization of both the LTTE and the chauvinist elements among the Sinhalese. But, if, on the other hand, the Tamils and Muslims are to continue enduring the present militarism in the North and East, it will be extremely difficult to sell any political package to the minorities, even if we assume that it is possible for this Government to come up with a meaningful package. Tamil civilians will then be inclined to support the LTTE, if the LTTE decides to go underground and resume guerrilla warfare in areas under government control. Whatever the government may say, it is clear that in the East the Karuna group continues to enjoy Government patronage. Old habits die hard! The Karuna Group continues to employ the same tactics as their erstwhile colleagues by intimidating and eliminating anyone who challenges them. It is a short-term self-defeatist policy to go along with terrorism to defeat terrorism. Constitutional Proposals Prof. Tissa Vitarana has been saddled with the unenviable task of formulating and presenting a proposal acceptable to one and all. He is placed in the same predicament as his former senior party colleague who was responsible for drafting the 1972 Constitution. Colvin R de Silva pandered to Sinhala nationalism and helped sow the seeds of Tamil militancy. Vitarana seems to have done better in getting agreement on many issues. But, he needs to stand his ground, even in the face of Presidential pressure, and stick to the document he has already proposed and released. Trying to appease nationalist elements within the Government will destroy all the good work that he has done so far. Coming up with proposals that are unlikely to be acceptable to the minorities and the major parties is the recipe for the perpetuation of the war. Dr. Sumansiri Liyanage and a number of Tamil and Muslim liberals have urged, this week, that words like 'unitary' and 'federal' must be avoided. These are emotive words in our context and no consensus will be possible so long as they find themselves in a draft solution. The minorities want power-sharing which will not be taken away at some future date. The Sinhala nationalists fear a separatist move in the future. Both parties can reach middle ground if the words such as 'unitary' are avoided and safeguards to prevent secession are written into the Constitution. UNP MP and former minister K. N. Choksy has proposed the term 'Union of Regions' for the proposed 2000 Constitution. The SLFP readily agreed to this. Vitarana's draft proposals go on to a more detailed definition of a united Sri Lanka. He avoids using any emotive word and strikes a balance between minority needs and majority fears. His proposals are, therefore, commendable and they have won broad acceptance. It is understood that there is agreement on nearly all the substantive issues. It will be disaster if the proposals are scuttled by the Sinhala nationalists just by the irrational insistence on the use of the word 'unitary'. But for this the Governments must make its intentions clear. Do they or don't they want a political solution that will achieve consensus and help marginalise the extremists? The first mistake the government made was to exclude the TNA from the APRC. Were they seeking to bring about conditions conducive to a political settlement or was the APRC a mere dilatory tactic? And when the experts' panel of the APRC made its recommendations, strong indications were given that the Government preferred to go along with the three-man minority report. But, pressure from various quarters has changed the Presidential stance. The unit of devolution will remain the Province. But will he also change his stance on the use of the term 'unitary'? Elections in the East It is becoming clearer that we are not going to have any fair election in the East. The Karuna Group is having a free rein in the East, thanks to Government patronage. No Tamil party is going to field candidates let alone contest an election. Anyone who comes forward will have to do so at the risk of being physically eliminated, just the way politicians suffered at the hands of the LTTE during elections in Jaffna. TULF President V. Anandasangaree was kept under virtual house arrest by the LTTE. The EPDP had to go around with military escorts. There is bound to be a similar situation in the East, should there be an election. The EPDP has already suffered assassinations as a warning that they have no right to be present in the East. Given the fact that the Karuna Group enjoys government patronage, other Tamil groups like the EPDP cannot expect the kind of protection they have in Jaffna. It will, therefore be, in the long term, totally counter-productive to have an election at this stage. Those elected will owe their positions to Karuna and with their new found political status, they will certainly prove difficult to handle in the longer term. The Government must realise that hasty attempts to defeat the 'enemy' by promoting counter-terrorism will prove self-defeating as experience suggests. ______ [2] India: Gujarat http://tinyurl.com/2ffr8r MINORITIES UNDER ATTACK: SANGH PREPARES FOR THE COMING ELECTIONS After receiving distress calls for help from members of the Muslim community from various villages of Surat district a team rushed there. Yusuf Shaikh, President All India Quami Mahaz and Convener, Samajik Nyay Kendra, Dushyantbhai S. Somabhai Unjakar from Samajik Nyay Kendra, Baroda and Shabnam Hashmi, a social activists from Anhad, Delhi and member of the National Integration Council visited the following places: Village Hathoda, Village Velaccha, Village Kosamba, Village Navi Kosadi, Village Kosadi and Kim Char Rasta. This report is based on the visit of the team to various affected villages and other areas and interviews with the victims and other villagers of these areas. There are a number of other villages which have been attacked but we could not visit all of them. Background: For the last few months, violence has been constantly taking place against minorities in Gujarat especially in the districts of Vadodara and Surat. In July 2007, an attack was organized against the Muslim community living in Kosamba. The Gau Rakshak Suraksha Samiti has been at the forefront of these attacks. Detailed Fact Finding report of Kosamba attack attached Village Kosadi: On 18th around 11am approximately 20 goons led by Jasu Darbar reached Kasodi. Jasu Darbar -a local bad element and also the Vice President of the Gau Rakshak Suraksha Samiti, Mangrol was regularly visiting the village for over 6 months and harassing the people especially the butchers and he used to extract 'hafta' from them to allow them to continue their business. On 18th under the pretext of inspecting and looking for a lost calf of some local tribal he entered the village along with 20 goons in two cars and 5 motorcycles. They reached the very end of the village near the crematorium. The whole group started abusing the local Muslims and threatened to burn the houses of local villagers. The local residents asked him to go back with his group and not to create a situation which will lead to tension in the village. Jasu Darbar took out swords from his car and soon an altercation started. The local people also brought wooden sticks for their protection. Most of the people who had accompanied Jasu darbar fled from the scene leaving their 5 motorcycles and two cars there and Jasu was surrounded by the local people and beaten up with sticks. The village Deputy Sarpanch called the Mamlatdar and they put an injured Jasu Darbar in a vehicle to take him to hospital. He collapsed on the way. Following this the Police arrived and entered the mosque where Muslims were praying and took away about 25 people on the pretext of taking their statements and till this report is filed no one knows where they are kept. The local people talked to the police a number of times asking them to arrest the culprits and punish them but release the innocents but to no avail. We met the Sarpanch Laxman bhai Chotubhai Vasava and the Deputy Sarpanch Hasin Ismailji bhai and a number of local people who had gathered as our team arrived there. Laxmanbhai Vasava and Hasinbhai informed us that there are about 1000 families and half of them are from the minority community, the others Adivasis, Lohar and Dalits. There has been no communal problems in the village between the communities. Following this the Gau Raksha Suraksha Samiti and various units of the Sangh- VHP, Bajrand Dal etc organised attacks on a number of nearby villages and systematic attacks, looting and burning of property and businesses and terrorizing of Muslims by the Police and goons is taking place for since September 18, 2007. Constant phone calls are coming from different parts as we write and file this report: Visit to Hatoda, Kosamba and Velachcha 1. Velachcha: Destroyed- 22 Muslim houses, 3 shops , 2 motorbikes- started at Time: 5.15pm 22 houses have been totally gutted. When we visited Valechcha on 19th September, 2007 the smoke was still coming out of the houses. There was nothing left in the houses. The families fled from the village. The police was present and the fire brigade trying to douse the fire. The victims whom we met in Hatoda told us that the attack on these houses took place in the presence of the Police and at that point there was enough police and could have stopped the attackers. Instead the attackers after reaching the spot spoke to the police and the police went and stood hundred meters away in front of the local school in Velachcha, while the attackers used petrol and kerosene to burn the houses. The fire brigades arrived too late to save any belongings. Men, women, small children fled from the houses to save lives, hid for a few hours in jungles, then walked through the night and only on 19 th morning at 5.30am some of them reached Hathoda- a Muslim dominated village, some reached Kosamba and some were still missing. Most of them had left without chappals or slippers and they reached with thorns all over their feet in bruised state. The families have lost everything except a set of clothes that they were wearing. The local residents of Hatoda village are looking after the families. The government has made no arrangement for any relief. We spoke to the DSP on the phone. He refused to file their FIRs as he said police has already filed the FIR. In fact the DSP told us that we are disturbing the peace in the district. Later when the paralegal team of the Centre for Social Justice team after documenting individual cases went to the police station, he again refused to file any FIR. Those whose houses were burnt: Bazar Vistar Padar- 3 houses 1. Ismail Yakub 2. Manubibi 3. Sairabibi Shaikh Masjid Mohalla 1. Shaikh Usmanmian Gulzarmian 2. Irfankhan Pathan 3. Mehranbibi Gulzarmian Shaikh 4. Hanifmian Gulzarmian Shaikh 5. Salimmian Gulzarmian Shaikh 6. Gulammian Rehmanmian 7. Hydermian Rehmanmian 8. Jabbarmohd Rehman Shaikh 9. Chotumian rehmanmian 10. Shabbibmian Gulzarmian 11. Bikhanmian Amirmian 12. Amirmian Rasulmian 13. Usmanmian Gulzarmian 14. Shaikh MOhd Noormian 15. Mian Mohd Hydermian 16. Mohd Aslam Ghulam Nabi Shaikh 17. Rafikmian Hydermain 18. Fatimabibi Mohdmian Shaikh 19. Farookmian Bambayya ( Chelliya) 20. Ahmad Mohd Shaikh Shops: 1. Cycle and Cutlery: 2. Chicken shop 3. xx Those who attacked, burnt and looted the houses: Attackers who came from Tarsadi village 1. Kishore Singh Kosada 2. Dayabhai Rabari 3. Jango Rabari 4. Chetan ( Raj Mobile shopwala) 5. Mohan Rabari 6. Kalu Chotalia 7. Jaideep Gabbar 8. Guddu Bhaiya Attackers from the Velachha village 1. Dharmendra Singh Chauhan 2. Chandra Singh Chauhan Urf Umesh Arvind tailor 3. UdaySinh Ramsinh Chauhan 4. Hareshbhai Jeevanbhai Prajapati 5. Naveenbhai Hiralal Shah 6. Ghemalsinh Chauhan 7. Chattrasinh Gambhirsinh Chauhan 8. Pankaj Panchal 9. Dinesh Sukha Koli Patel ( tempowala) 10. Bharat kalidas Adivasi ( rikshawwala) 11. Haresh Mulji Makwana 12. Samir Sawawala Visit to Mosali village and Mosali Char Rasta Jasu Darbar's body was brought for postmortem to referral hospital situated in Mosali around 4pm. About 150 people from outside the village had gathered at the hospitals. Most of them were on motorcycles. After coming out of the hospital they attacked the Muslim shops which were near the hospital and then they went on a looting and burning spree across the village. According to the eye witnesses the Police was though out present and did not take any step to stop the looting and burning. Names of victims whose shops were burnt and looted (we could not meet some of the victims, so there shop names are mentioned instead of their names: 1. Ibrahim Panchbhaiya 2. Ayub Panchbhaiya 3. Umar -Radio Service 4. Lucky cloth store 5. Rashid bhai- Shan Footware 6. Kasimbhai Khalifa- Takdeer hair Art 7. Fatimaben Farook- Tailor House 8. Steel furniture-recently opened 9. Pan Centre shop- Musabhai Bobat 10. Hashimbhai- Paras Watch Centre 11. Tea Stall- Sureshbhai Vasava 12. we saw three more burnt shops but could not get the names of the owners. Most of the shop owners were able to fled in time and were not physically attacked but a young shop owner Rashidbhai who was inside the shop after putting the shutter down was badly beaten up. The attackers opened the shutter, Rashidbhai ran to the first floor of the shop, he was dragged down and severely beaten up. The Gau Rakshak Suraksha Samiti members looted from Rashibhai's shop- a laptop, mobile phone and 60,000 cash. His motorcycle Honda was burnt down. We spoke to a large number of local residents from the majority community who had gathered there. They told us that both the communities lived together peacefully and there has been no history of communal tension between the, they ate together, celebrated together different festivals. The attackers they sad had all come from outside. Mosali Char Rasta After attacking and burning the shops inside the village the mob moved outside and reached the Mosali Char Rasta. The mob used stones and bricks to break open the locks of the shops and looted and burnt down the shops: 1. provision store- owner-Shuaib Mohd Patel- totally burnt down 2. hotel- cold drinks-safari telecentre- 40 crates looted, partially burnt 3. auto part shop- super auto garage 4. biku auto parts garage- owner-yakub ibrahim biku- totally burnt down 5. hotel vasraiwala-owner- ibrahim tadwala-dhabha- From this shop it is interesting to note that the members of the Gau Rakshak Suraksha samiti looted -two cylinders, one chulha, a sack of Potatoes , sack of onion, oil and wheat floor.- Partially burnt On the Char Rasta the following was burnt too: truck burnt- owner- Yusuf Musaji Ugraddar- GRV 7602 Jeep- Manjulaben Jeep-belongs to Mehmood Shaiklh's wife There were 12 policemen present throughout this period when the shops were being burnt. According to the eye witnesses they did not take any steps to stop the attackers. Nava Kasodi On our way to Kasodi we had briefly stopped at Nava Kasodi and met some of the victims from different places who had taken refuge there. Abdul Kada's bike was burnt in Vadoli, his house attacked, glasses broken Those who attacked included: Bhalabhai Darbar, pradeepbhai, sukhabhai, rajubhai, shambhubhai, ( sarpanh), jitubhai, vikram, rakesh, arun, bhupendra, babubhai, haresh. Kim Char Rasta We received several calls from the Kim Char Rasta as it was being attacked while we were visiting other villages. As we reached the Kim Char Rasta we saw 5 motorcycles on the main Char Rasta which were recently burnt. Smoke was coming out and a stench of rubber being burnt was in the atmosphere. We had visited several calls from the mosque so we went to the Madani mosque. Prakash Manjra LCB constable and PI Rabari along with approximately 25 policemen stormed the mosque with rifles and wearing shoes. Because of the month of Ramzan there were a lot of people resting in the hall of the mosque. It was around 1.15pm. The policemen immediately started breaking the glasses and mercilessly beat up many people who were inside the mosque. When we reached the mosque it was littered with broken glasses and there were blood stains all over the mosque floor. It was evident that people were attacked in every corner of the mosque. We were told that many people, young and old were mercilessly beaten up on their thighs, on their shoulders and all over the body with rifle butts. The police then picked up around 15 people and took them away. It is only now after 24 hours that we have been able to find out that they have been taken to a place near Navi Pardi in galore police quarters. One of the boys Arshad was beaten up in custody and his condition is very critical; sources have informed us today on phone. Places we could not visit Kemraj Char Rasta- mosque attacked, Asarma village- attacked Demands 1. Immediate arrest of culprits - the members of the Gau Rakshak Suraksha Samiti and other hoodlums who attacked the villages. 2. The people responsible for attacking Jasu Darbar should be apprehended and innocent people released immediately. 3. Release of innocent people arrested from the mosques. 4. Open Relief Camp and provide relief urgently to the victims who have lost their houses. 5. Suspend DSP Jha responsible for the safety of the citizens of his area and other lower rank officers, who were present at the spot but did not do anything to stop the attackers. 6. Suspend PI Pardi and Prakash Manjra LCB constable. ______ [3] Outlook Magazine October 1, 2007 Who's to judge the judges?: Justice Y.K. Sabharwal SCANDAL IN THE PALACE Judges in India are divine beings. And if you're an ex-CJI, your sins are above mortal reproach. ............ by Arundhati Roy Scandals can be fun. Especially those that knock preachers from their pulpits and flick halos off saintly heads. But some scandals can be corrosive and more damaging for the scandalised than the scandalee. Right now we're in the midst of one such. At its epicentre is Y.K. Sabharwal, former Chief Justice of India, who until recently headed the most powerful institution in this country-the Supreme Court. When there's a scandal about a former chief justice and his tenure in office, it's a little difficult to surgically excise the man and spare the institution. But then commenting adversely on the institution can lead you straight to a prison cell as some of us have learned to our cost. It's like having to take the wolf and the chicken and the sack of grain across the river, one by one. The river's high and the boat's leaking. Wish me luck. The higher judiciary, the Supreme Court in particular, doesn't just uphold the law, it micromanages our lives. Its judgements range through matters great and small. It decides what's good for the environment and what isn't, whether dams should be built, rivers linked, mountains moved, forests felled. It decides what our cities should look like and who has the right to live in them. It decides whether slums should be cleared, streets widened, shops sealed, whether strikes should be allowed, industries should be shut down, relocated or privatised. It decides what goes into school textbooks, what sort of fuel should be used in public transport and schedules of fines for traffic offences. It decides what colour the lights on judges' cars should be (red) and whether they should blink or not (they should). It has become the premier arbiter of public policy in this country that likes to market itself as the World's Largest Democracy. Ironically, judicial activism first rode in on a tide of popular discontent with politicians and their venal ways. Around 1980, the courts opened their doors to ordinary citizens and people's movements seeking justice for underprivileged and marginalised people. This was the beginning of the era of Public Interest Litigation, a brief window of hope and real expectation. While Public Interest Litigation gave people access to courts, it also did the opposite. It gave courts access to people and to issues that had been outside the judiciary's sphere of influence so far. So it could be argued that it was Public Interest Litigation that made the courts as powerful as they are. Over the last 15 years or so, through a series of significant judgements, the judiciary has dramatically enhanced the scope of its own authority. Investigate Sabharwal L-R: Arvind Kejriwal, Swami Agnivesh, Shanti Bhushan and Prashant Bhushan at a press meet Today, as neo-liberalism sinks its teeth deeper into our lives and imagination, as millions of people are being pauperised and dispossessed in order to keep India's Tryst with Destiny (the unHindu 10% rate of growth), the State has to resort to elaborate methods to contain growing unrest. One of its techniques is to invoke what the middle and upper classes fondly call the Rule of Law. The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who they're designed to protect. For instance, from the early '90s, we have seen the systematic dismantling of laws that protect workers' rights and the fundamental rights of ordinary people (the right to shelter/health/education/water). International financial institutions like the imf, the World Bank and the adb demand these not just as a precondition, but as a condition, set down in black and white, before they agree to sanction loans. (The polite term for it is structural adjustment. ) What does the Rule of Law mean in a situation like this? Howard Zinn, author of A People's History of the United States, puts it beautifully: "The Rule of Law does not do away with unequal distribution of wealth and power, but reinforces that inequality with the authority of law. It allocates wealth and poverty in such indirect and complicated ways as to leave the victim bewildered." [Photo:] Papa's the best judge: Justice Sabharwal's sons were running their businesses out of his 'official' Motilal Nehru Marg house As it becomes more and more complicated for elected governments to be seen to be making unpopular decisions (decisions, for example, that displace millions of people from their villages, from their cities, from their jobs), it has increasingly fallen to the courts to make these decisions, to uphold the Rule of Law. The expansion of judicial powers has not been accompanied by an increase in its accountability. Far from it. The judiciary has managed to foil every attempt to put in place any system of checks and balances that other institutions in democracies are usually bound by. It has opposed the suggestion by the Committee for Judicial Accountability that an independent disciplinary body be created to look into matters of judicial misconduct. It has decreed that an fir cannot be registered against a sitting judge without the consent of the chief justice (which has never ever been given). It has so far successfully insulated itself against the Right to Information Act. The most effective weapon in its arsenal is, of course, the Contempt of Court Act which makes it a criminal offence to do or say anything that "scandalises" or "lowers the authority" of the court. Though the act is framed in arcane language more suited to medieval ideas of feminine modesty, it actually arms the judiciary with formidable, arbitrary powers to silence its critics and to imprison anyone who asks uncomfortable questions. Small wonder then that the media pulls up short when it comes to reporting issues of judicial corruption and uncovering the scandals that must rock through our courtrooms on a daily basis. There are not many journalists who are willing to risk a long criminal trial and a prison sentence. Until recently, under the Law of Contempt, even truth was not considered a valid defence. So suppose, for instance, we had prima facie evidence that a judge has assaulted or raped someone, or accepted a bribe in return for a favourable judgement, it would be a criminal offence to make the evidence public because that would "scandalise or tend to scandalise" or "lower or tend to lower" the authority of the court. Yes, things have changed, but only a little. Last year, Parliament amended the Contempt of Court Act so that truth becomes a valid defence in a contempt of court charge. But in most cases (such as in the case of the Sabharwal...er... shall we say "affair") in order to prove something it would have to be investigated. But obviously when you ask for an investigation you have to state your case, and when you state your case you will be imputing dishonourable motives to a judge for which you can be convicted for contempt. So: Nothing can be proved unless it is investigated and nothing can be investigated unless it has been proved. The only practical option that's on offer is for us to think Pure Thoughts. For example: a. Judges in India are divine beings. b. Decency, wholesomeness, morality, transparency and integrity are encrypted in their DNA. c. This is proved by the fact that no judge in the history of our Republic has ever been impeached or disciplined in any way. d. Jai Judiciary, Jai Hind. It all becomes a bit puzzling when ex-chief justices like Justice S.P. Bharucha go about making public statements about widespread corruption in the judiciary. Perhaps we should wear ear plugs on these occasions or chant a mantra. It may hurt our pride and curb our free spirits to admit it, but the fact is that we live in a sort of judicial dictatorship. And now there's a scandal in the Palace. Last year (2006) was a hard year for people in Delhi. The Supreme Court passed a series of orders that changed the face of the city, a city that has over the years expanded organically, extra-legally, haphazardly. A division bench headed by Y.K. Sabharwal, chief justice at the time, ordered the sealing of thousands of shops, houses and commercial complexes that housed what the court called 'illegal' businesses that had been functioning, in some cases for decades, out of residential areas in violation of the old master plan. It's true that, according to the designated land-use in the old master plan, these businesses were non-conforming. But the municipal authorities in charge of implementing the plan had developed only about a quarter of the commercial areas they were supposed to. So they looked away while people made their own arrangements (and put their lives' savings into them.) Then suddenly Delhi became the capital city of the new emerging Superpower. It had to be dressed up to look the part. The easiest way was to invoke the Rule of Law. The sealing affected the lives and livelihoods of tens of thousands of people. The city burned. There were protests, there was rioting. The Rapid Action Force was called in. Dismayed by the seething rage and despair of the people, the Delhi government beseeched the court to reconsider its decision. It submitted a new 2021 Master Plan which allowed mixed land-use and commercial activity in several areas that had until now been designated 'residential'. Justice Sabharwal remained unmoved. The bench he headed ordered the sealing to continue. Vasant Kunj Mall: When Rule of Law winked and looked away Around the same time, another bench of the Supreme Court ordered the demolition of Nangla Macchi and other jhuggi colonies, which left hundreds of thousands homeless, living on top of the debris of their broken homes, in the scorching summer sun. Yet another bench ordered the removal of all "unlicensed" vendors from the city's streets. Even as Delhi was being purged of its poor, a new kind of city was springing up around us. A glittering city of air-conditioned corporate malls and multiplexes where mncs showcased their newest products. The better-off amongst those whose shops and offices had been sealed queued up for space in these malls. Prices shot up. The mall business boomed, it was the newest game in town. Some of these malls, mini-cities in themselves, were also illegal constructions and did not have the requisite permissions. But here the Supreme Court viewed their misdemeanours through a different lens. The Rule of Law winked and went off for a tea break. In its judgement on the writ petition against the Vasant Kunj Mall dated October 17, 2006 (in which it allowed the construction of the mall to go right ahead), Justices Arijit Pasayat and S.H. Kapadia said: "Had such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money. The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the present cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise." It's a bit complicated, I know. A friend and I sat down and translated it into ordinary English. Basically, a. Even though in this present case the construction may be unauthorised and may not have the proper clearances, huge amounts of money have been invested and demolition is not the only option. b. Unlike private individuals or private limited companies who have been allotted land and may have flouted the law, these allottees are corporate bodies and institutions and there is no question of their having indulged in any malpractice in order to get sanctions or approval. The question of corporate bodies having indulged in malpractice in getting approval or sanction does not arise. So says the Indian Supreme Court. What should we say to those shrill hysterical people protesting out there on the streets, accusing the court of being an outpost of the New Corporate Empire? Shall we shout them down? Shall we say 'Enron zindabad'? 'Bechtel, Halliburton zindabad'? 'Tata, Birla, Mittals, Reliance, Vedanta, Alcan zindabad'? 'Coca-Cola aage badho, hum tumhaare saath hain'? This then was the ideological climate in the Supreme Court at the time the Sabharwal "affair" took place. It's important to make it clear that Justice Sabharwal's orders were not substantially different or ideologically at loggerheads with the orders of other judges who have not been touched by scandal and whose personal integrity is not in question. But the ideological bias of a judge is quite a different matter from the personal motivations and conflict of interest that could have informed Justice Sabharwal's orders. That is the substance of this story. In his final statement to the media before he retired in January 2007, Justice Sabharwal said that the decision to implement the sealing in Delhi was the most difficult decision he had made during his tenure as chief justice. Perhaps it was. Tough Love can't be easy. In May 2007, the Delhi edition of the evening paper Mid Day published detailed investigative stories (and a cartoon) alleging serious judicial misconduct on the part of Justice Sabharwal. The articles are available on the internet. The charges Mid Day made have subsequently been corroborated by the Committee for Judicial Accountability, an organisation that counts senior lawyers, retired judges, professors, journalists and activists as its patrons. The charges in brief are: 1. That Y.K. Sabharwal's sons Chetan and Nitin had three companies: Pawan Impex, Sabs Exports and Sug Exports whose registered offices were initially at their family home in 3/81, Punjabi Bagh, and were then shifted to their father's official residence at 6, Motilal Nehru Marg. 2. That while he was a judge in the Supreme Court but before he became chief justice, he called for and dealt with the sealing of commercial properties case in Delhi. (This was impropriety. Only the chief justice is empowered to call for cases that are pending before a different bench.) . 3. The Midday journalists have been held for contempt. Why? For an imagined insult to unnamed judges! That at exactly this time, Justice Sabharwal's sons went into partnership with two major mall and commercial complex developers, Purshottam Bagheria (of the fashionable Square 1 Mall fame) and Kabul Chawla of Business Park Town Planners (BPTP) Ltd. That as a result of Justice Sabharwal's sealing orders, people were forced to move their shops and businesses to malls and commercial complexes, which pushed up prices, thereby benefiting Justice Sabharwal's sons and their partners financially and materially. 4. That the Union Bank gave a Rs 28 crore loan to Pawan Impex on collateral security which turned out to be non-existent. (Justice Sabharwal says his sons' companies had credit facilities of up to Rs 75 crore.) 5. That because of obvious conflict of interest, he should have recused himself from hearing the sealing case (instead of doing the opposite-calling the case to himself.) 6. That a number of industrial and commercial plots of land in Noida were allotted to his sons' companies at throwaway prices by the Mulayam Singh/ Amar Singh government while Justice Sabharwal was the sitting judge on the case of the Amar Singh phone tapes (in which he issued an order restricting their publication.) 7. That his sons bought a house in Maharani Bagh for Rs 15.46 crore. The source of this money is unexplained. In the deeds they have put down their father's name as Yogesh Kumar (uncharacteristic coyness for boys who don't mind running their businesses out of their judge father's official residence.) All these charges are backed by what looks like watertight, unimpeachable documentation. Registration deeds, documents from the Union ministry of company affairs, certificates of incorporation of the various companies, published lists of shareholders, notices declaring increased share capital in Nitin and Chetan's companies, notices from the Income Tax department and a CD of recorded phone conversations between the investigating journalist and the judge himself. These documents seem to indicate that while Delhi burned, while thousands of shops and businesses were sealed and their owners and employees deprived of their livelihood, Justice Sabharwal's sons and their partners were raking in the bucks. They read like an instruction manual for how the New India works. When the story became public, another retired chief justice, J.S. Verma, appeared on India Tonight, Karan Thapar's interview show on CNBC. He brought all the prudence and caution of a former judge to bear on what he said: "...if it is true, this is the height of impropriety...every one who holds any public office is ultimately accountable in democracy to the people, therefore, the people have right to know how they are functioning, and higher is the office that you hold, greater is the accountability...." Justice Verma went on to say that if the facts were correct, it would constitute a clear case of conflict of interest and that Justice Sabharwal's orders on the sealing case must be set aside and the case heard all over again. This is the heart of the matter. This is what makes this scandal such a corrosive one. Hundreds of thousands of lives have been devastated. If it is true that the judgement that caused this stands vitiated, then amends must be made. Sealing fates: Is it Enron zindabad, to hell with the poor? But are the facts correct? Scandals about powerful and well-known people can be, and often are, malicious, motivated and untrue. God knows that judges make mortal enemies-after all, in each case they adjudicate there is a winner and a loser. There's little doubt that Justice Y.K. Sabharwal would have made his fair share of enemies. If I were him, and if I really had nothing to hide, I would actually welcome an investigation. In fact, I would beg the chief justice to set up a commission of inquiry. I would make it a point to go after those who had fabricated evidence against me and made all these outrageous allegations. What I certainly wouldn't do is to make things worse by writing an ineffective, sappy defence of myself which doesn't address the allegations and doesn't convince anyone (Times of India, September 2, 2007). Equally, if I were the sitting chief justice or anybody else who claims to be genuinely interested in 'upholding the dignity' of the court (fortunately this is not my line of work), I would know that to shovel the dirt under the carpet at this late stage, or to try and silence or intimidate the whistle-blowers, is counter-productive. It wouldn't take me very long to work out that if I didn't order an inquiry and order it quickly, what started out as a scandal about a particular individual could quickly burgeon into a scandal about the entire judiciary. But, of course, not everybody sees it that way. Days after Mid Day went public with its allegations, the Delhi high court issued suo motu notice charging the editor, the resident editor, the publisher and the cartoonist of Mid Day with Contempt of Court. Three months later, on September 11, 2007, it passed an order holding them guilty of criminal Contempt of Court. They have been summoned for sentencing on September 21. What was Mid Day's crime? An unusual display of courage? The high court order makes absolutely no comment on the factual accuracy of the allegations that Mid Day levelled against Justice Sabharwal. Instead, in an extraordinary, almost yogic manoeuvre, it makes out that the real targets of the Mid Day article were the judges sitting with Justice Sabharwal on the division bench, judges who are still in service (and therefore imputing motives to them constitutes Criminal Contempt): "We find the manner in which the entire incidence has been projected appears as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members. The nature of the revelations and the context in which they appear, though purporting to single out former Chief Justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself. The Supreme Court sits in divisions and every order is of a bench. By imputing motive to its presiding member automatically sends a signal that the other members were dummies or were party to fulfil the ulterior design." Nowhere in the Mid Day articles has any other judge been so much as mentioned. So the journalists are in the dock for an imagined insult. What this means is that if there are several judges sitting on a bench and you have proof that one of them has given an opinion or an order based on corrupt considerations or is judging a case in which he or she has a clear conflict of interest, it's not enough. You don't have a case unless you can prove that all of them are corrupt or that all of them have a conflict of interest and all of them have left a trail of evidence in their wake. Actually, even this is not enough. You must also be able to state your case without casting any aspersions whatsoever on the court. (Purely for the sake of argument: What if two judges on a bench decide to take turns to be corrupt? What would we do then?) So now we're saddled with a whole new school of thought on Contempt of Court: Fevered interpretations of imagined insults against unnamed judges. Phew! We're in La-la Land. In most other countries, the definition of Criminal Contempt of Court is limited to anything that threatens to be a clear and present danger to the administration of justice. This business of "scandalising" and "lowering the authority" of the court is an absurd, dangerous form of censorship and an insult to our collective intelligence. The journalists who broke the story in Mid Day have done an important and courageous thing. Some newspapers acting in solidarity have followed up the story. A number of people have come together and made a public statement further bolstering that support. There is an online petition asking for a criminal investigation. If either the government or the courts do not order a credible investigation into the scandal, then a group of senior lawyers and former judges will hold a public tribunal and examine the evidence that is placed before them. It's all happening. The lid is off, and about time too. ______ [4] Economic and Political Weekly July 21, 2007 SETHUSAMUDRAM CANAL: AN EXPENSIVE VOYAGE? The economic viability of the Sethusamudram Canal rests on weak grounds, for the savings in time for ships travelling from the east to west coasts are not as large as advertised and some shipping companies may even find the tariffs too expensive to make it worth switching from the current shipping lanes. by Jacob John http://www.epw.org.in/uploads/articles/10823.pdf ______ [5] ANNOUNCEMENTS: (i) Director, Nehru Memorial Museum and Library and Three Essays Collective cordially invite you to the release of the book To Make the Deaf Hear Ideology and Programme of Bhagat Singh and his Comrades by Dr. S. Irfan Habib NISTADS, New Delhi on Wednesday, 26 September 2007 at 6.00 P.M. in the Auditorium, Library Building Teen Murti House, New Delhi Prof. Romila Thapar Professor Emeritus, JNU will release the book Prof. Mridula Mukherjee Director, Nehru Memorial Museum and Library will chair Main Speakers: Prof. K.N. Panikkar, Eminent Historian Shri Jagmohan Singh, Nephew of Shaheed Bhagat Singh RSVP 23015333,23010666 Tea: 7pm --- (ii) With great pride and humbleness in our hearts, we invite you to the commemoration of the 100th birth anniversary of Shaheed (Martyr) Bhagat Singh " Revolution is an inalienable right of mankind. Freedom is an imperishable birth right of all." - Bhagat Singh ---------------------------------------------------- Friday September 28th, 2007 at 6:30 pm Bonsor Community Centre, 6550 Bonsor (right next to Metrotown Skytrain Station - behind the Bay Store) Entrance by donation (pay what you can) ---------------------------------------------------- The evening will be in Punjabi/Urdu/Hindi/English and include film, shayari/poetry, talks, readings of Bhagat Singhs writing, plus a photo exhibit hosted by the Indo-Canadian Workers Association. All across South Asia and amongst South Asian diaspora, September 28th 2007 is being honoured as the 100th birth anniversary of one of South Asias most well-known freedom fighter's Bhagat Singh. Bhagat Singh joined the Quit India movement in 1921 and over the years, became a cofounder and leader of the Naujavan Bharat Sabha and Samajvadi Prajatantra Sangha. He was hung at the age of 24; and although portrayed by the British as a terrorist for engaging in acts of armed resistance, Bhagat Singh became a legend, symbolizing courage, bravery, and revolution. As he said : "The war neither began with us nor is it going to end with our lives. It is easy to kill individuals but you cannot kill the ideas." His martyrdom prompted an entire generation of youth to continue the fight for independence. This event will mark the legacy of Bhagat Singh as well the relevance of his ideas and actions today as the people of South Asia are caught in the crosshairs of US interventions, the World Bank and IMF, corporate globalization, militarization, and crushing levels of poverty and inequality. We hope you will join us. Organized by Radical Desi Youth. Supported by: Bulland Awaaz on Co-op Radio, Chetna Dalit Association, Indo-Canadian Workers Association, Komagata Maru Heritage Foundation, Punjabi Artists Association Richmond, Siraat Collective, South Asian Network for Secularism and Democracy, Watan Magazine For more information call 778 885 0040 or email [EMAIL PROTECTED] --- (iii) Dear Friends, I am delighted to announce that the contract that Under Construction draws up with filmmakers is now non-exclusive. Under Construction is Magic Lantern Foundation's initiative for distributing independent films. You can find details of this initiative on our website www.magiclanternfoundation.org in the page marked: Films for Distribution. I also take this opportunity to welcome filmmakers - Indian and foreign - to talk to us about distributing your films. Please don't respond to this list though but write to Priyanka Mukherjee at <[EMAIL PROTECTED]> For those who don't know us, we follow a simple system. We draw up a contract, take a master, run copies, and sell either VCD or DVD copies. We retain 35% of the revenue towards our costs and remit 65% to the filmmakers as royalty. We remit royalties every quarter. Filmmakers can choose how long they want to give us the film for and the territories they want us to work in. Filmmakers also jointly decide with us the price of copies. We also have a another system in place for those who don't want to formalise the relation and prefer to give us copies to sell. In this case we remit 80% as royalty to the filmmakers. However, these films retain their original identity (cover etc) and also sales only takes place at the events like film festivals or mass meetings where we create a 'sale opportunity' and not through the internet or through using retailers as re-sellers. Nevertheless, we have filmmakers who use both systems, even though the former is more popular. We also have foreign filmmaker's films in distribution. However, for them the territory is restricted to either the territorial borders of India or at most South Asia. The Indian filmmakers can choose any - India, South Asia, Asia, World. Royalty payment to foreign filmmakers is still a little problem as banks take a huge chunk off as transferring costs. (Also foreigners have to pay tax deducted at source even if 1 Rupee is generated, and the percentage of tax is guided by the Double-Taxation Treaty that the Government of India has signed with the nation the filmmaker belongs to.) So rather than follow a quarterly system we pay once a year or when at least the equivalent of 100 dollars have accumulated, whichever is earlier. I won't go into more details now but I welcome anyone who is interested to talk to Priyanka. However before writing off I want to add one important detail. Before taking films on for distribution we preview and select and not all films are taken on. This is because to us the initiative is for creating space, for creating political space for a different sort of dialogue and using films to assist that discourse - nevertheless our definition of politics is broad as well as nuanced as the eclectic collection of films on our website will demonstrate. So this is a non-commercial, non-broadcast distribution for education aimed at connecting films to audience and thereby expanding as well as creating an audience base for independent films. We look forward to hearing from you. Warmly, Gargi Sen Magic Lantern Foundation J 1881 Chittaranjan Park, Basement, New Delhi 110019 P: +91 11 41605239 and 26273244 E: [EMAIL PROTECTED]/ [EMAIL PROTECTED] W: http://www.magiclanternfoundation.org _/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/ 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: http://insaf.net/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