EDITORIAL

Gone with
the wind?

In 1993 when top secessionist leaders of Jammu and Kashmir were lodged in New Delhi’s Tihar jail, they got an opportunity to directly inter-act with each other. Very wisely they felt that they should have a joint political superstructure. This, it was realised, would gain respectability for their movement. Any struggle had to be based on logic and reasoning and not seen to be backed by the gun, they thought. There was a serious apprehension as well that their own role would be usurped by the militants if the latter continued to call the shots. Nobody would acknowledge them as members of the political class were they to play a secondary role. They concluded, therefore, that it was of utmost urgency that they should articulate their views and philosophy in a manner that the others were not frightened away. Broadly, All-Party Hurriyat Conference was born of such mature and subtle thinking. Its emergence was widely hailed as a well-intentioned measure to bring some sanity and stability to the State’s political scenario. Such warm reception was not entirely surprising. Although.......more

Kashmir: Peace and violence

By B. Raman

The situation in Jammu & Kashmir, which was show-ing definitive signs of normalisation since the coming into office of a new coalition Government headed by Chief Minister Mufti Mohammad Sayeed in October last year, is again giving cause for concern, with a deterioration in the ground situation..........more

Compassionate punishment

Bharat Jhunjhunwala

The Government of India has placed advertisements to discourage people from discriminating against AIDS patients. An AIDS patient is shown to be eating his lunch alone in a factory canteen. An enlightened worker sits and shares a meal with him.....more

Judicial system
cries for change

By V R Krishna Iyer

It is pathetic, even bathetic, that our Indo-Anglian legal process and its personnel should have, so rapidly after Independence, forfeited credibility in courts because of (a) forensic inefficiency....more

EDITORIAL

Gone with the wind?

In 1993 when top secessionist leaders of Jammu and Kashmir were lodged in New Delhi’s Tihar jail, they got an opportunity to directly inter-act with each other. Very wisely they felt that they should have a joint political superstructure. This, it was realised, would gain respectability for their movement. Any struggle had to be based on logic and reasoning and not seen to be backed by the gun, they thought. There was a serious apprehension as well that their own role would be usurped by the militants if the latter continued to call the shots. Nobody would acknowledge them as members of the political class were they to play a secondary role. They concluded, therefore, that it was of utmost urgency that they should articulate their views and philosophy in a manner that the others were not frightened away. Broadly, All-Party Hurriyat Conference was born of such mature and subtle thinking. Its emergence was widely hailed as a well-intentioned measure to bring some sanity and stability to the State’s political scenario. Such warm reception was not entirely surprising. Although a conglomeration of secessionist outfits of different hues, it had seemed it would fill in a vacuum and become amenable to reason gradually. National Conference, the premier political outfit of the State, was lying dormant. At that critical moment, it had authored its own irrelevance. People’s Democratic Party was nowhere in sight. Fear had hung low in the air that in the absence of a political platform the Kashmiri society would drift towards complete anarchy. Hurriyat Conference had generated such hopes that when it inaugurated its office in the national capital, many top nationalist leaders, including Mr Inder Kumar Gujral who became the Prime Minister later, were present to hail the move.

Indeed, the appointment of Mirwaiz Moulvi Umar Farooq as the first chairman of Hurriyat Conference had come as a surprise. He was at that time just like any other teenager totally unaware of the nuances of the tough and murky politics of the State. Cruel circumstances had pushed him into the inferno. One thought that given their vast knowledge and experience either Syed Ali Shah Geelani or the late Abdul Ghani Lone would be the first chairman of the conglomeration. Was Mirwaiz given the baton to mollify him and his loyal supporters following the assassination of his illustrious father? One theory was that his religious status had tilted the scales in his favour. Since that pre-emptied the possibility of his arrest, he would be best placed to guide the movement with the help of senior associates who would be in and out of jail. That was the argument behind the scene. Subsequently, while Mr Geelani had become the chairman, the charismatic Lone was denied the job — the practice of unanimous selection for the post was abandoned in his case. Instead, an election was forced which he had lost by one vote. This electoral outcome was the genesis of one of the most spectacular political battles in the State. Never the one to take a defeat lying low, Lone took up the theme that Jammu and Kashmir was a political problem and that foreign mercenaries had no role in it beyond extending a helping hand. This had angered the pro-Pakistan lobby. Mr Geelani retorted that it was a religious dispute, implying thereby that it was a continuation of the two-nation theory, and that the foreign militants were allies in the campaign; even today he sticks to this position and says that Lashkar-e-Toiba and Jaish-e-Mohammad are ‘friends’. Lone had showed rare nerve and guts in reiterating his stand in Pakistan’s capital Islamabad and ‘Azad’ Kashmir’s capital Muzaffarrabad, the base camp of terrorist organisations. He had come around to the view that a dialogue among all regions of the undivided State as it had existed in 1947 and between India and Pakistan alone could lead to a lasting solution. For his courageous stance he had to make the supreme sacrifice when he was gunned down in Srinagar’s Idgah ground last year. Small wonder that many countries, including the United States, which were appreciatively watching his peace efforts, had reacted with anger and anguish to his dastardly murder.

The Lone-Geelani tussle had exposed the false ceiling over Hurriyat Conference. If the roof had not fallen, it was because Lone had carried out his fight within the conglomeration itself. With this background in view, it sounds ironic that Mr Geelani has now formalised split in Hurriyat Conference. He has declared himself chairman of ‘the real Hurriyat’ in opposition to the one headed by Moulvi Abbas Ansari. As discussed in these columns earlier, the organisation has faced multiple splits with Mr Shabbir Ahmad Shah having parted company long ago and Jamaat-e-Islami and Jammu-Kashmir Liberation Front keeping all their options open. What is revealing is that down the line Hurriyat constituents are fragmenting. Lone’s People’s Conference had split long ago with the slain leader’s old associates, Mr Ghulam Mohammad Hubbi and Mr Ghulam Ahmad Gulzar, parting company with the heirs, Mr Sajjad Lone and Mr Bilal Lone, who have stayed put with Moulvi Abbas Ansari. Mr Hubbi and Mr Gulzar have declared themselves to be the real PC and joined Mr Geelani. A section of People’s League, which was a member of the undivided Hurriyat executive, has done likewise. The latest blow has been dealt to Muslim Conference of former Hurriyat chairman Prof Abdul Ghani Bhat. Mr Ghulam Nabbi Sumjhi has formalised the split in Muslim Conference by removing the Professor from the post of chairman ‘to restore the dignity and authority of the party’s constitution’. He has ‘dissolved’ all district and tehsil units of the organisation. As is well known, Mr Bhat has aligned himself with Moulvi Abbas Ansari. Mr Sumjhi has moved close to Mr Geelani. Though there is no formal division so far, there is continuing turmoil within Jamaat-e-Islami. A significant section of the fundamentalist organisation remains loyal to Mr Geelani who is one of its main architects. A fall-out from the division in the Hurriyat is that Moulvi Abbas Ansari has condemned Organisation of Islamic Conference (OIC) for having invited Mr Geelani to its forthcoming meeting. His observation that the organisation has hurt the interests of the Muslims more than serving them shows his pique and anger. Why is it that Hurriyat Conference and all its erstwhile constituents are in such an undisguised discomfort? Had they stayed together, they would have realised the tremendous opportunity the post 9/11 global scenario had created for them to play a positive and meaningful role under one umbrella organisation. Is it because of the decline in the militants’ gunpower — notwithstanding a couple of serious terrorist attacks recently — that they feel that the united Hurriyat Conference has lost its real strength to dictate people? In that event, is this not proved that they have no ideological thrust and support? This point is further driven home by lukewarm public response to their recent strike calls. Clearly each constituent of Hurriyat Conference has come around to the view that it should somehow retain its own constituency in the hope of seeing better days again. An idea that was supposed to lend credibility to political leaders and move the people has thus been sucked away as if in a whirlpool of the Wullar lake.

Kashmir: Peace and violence

By B. Raman

The situation in Jammu & Kashmir, which was show-ing definitive signs of normalisation since the coming into office of a new coalition Government headed by Chief Minister Mufti Mohammad Sayeed in October last year, is again giving cause for concern, with a deterioration in the ground situation.

Amongst the positive signs of normalisation, one could cite the two successful visits by the Prime Minister, Atal Bihari Vajpayee, to Srinagar since April, the visit by Smt. Sonia Gandhi, the leader of the opposition Congress (I), the remarkable revival of domestic tourism with over 100,000 tourists from other parts of India visiting the Valley this summer and the uninterrupted flow of Hindu pilgrims.

During his first visit, the Prime Minister addressed a well-attended public meeting in Srinagar, the first by a Prime Minister in nearly a decade. His second visit was to preside over a meeting of the inter-State Council, which was attended by many Chief Ministers from the rest of India. Sonia Gandhi visited Srinagar to preside over a brain-storming session of her party leaders from all over India. The fact that all these meetings could be held without any major security problem spoke well of the improvement in the ground situation.

Amongst other positive signs were the revival of normal political activity with State leaders from different mainstream political parties undertaking tours of their constituencies for mass contact with the people and indications of the moderate elements in the Hurriyat Conference, being unhappy over the way pan-Islamic Pakistani Punjabi organisations, which are members of Osama bin Laden’s International Islamic Front (IIF,) have hijacked the militant movement started by some indigenous Kashmiri elements in 1989, to achieve their own pan-Islamic objectives, which have nothing to do with the interests and objectives of the Kashmiris.

This unhappiness was reflected in the way the moderate elements marginalised the pro-Pakistan elements led by the Jamaat-e-Islami (JEI) leader Syed Ali Shah Geelani and had them excluded from positions of influence in the Hurriyat. To this, the pro-Pakistan elements retaliated by convening a meeting of the pro-Pakistan rump and expelling the moderate elements, which has resulted in a split.

It was not as if violence had completely stopped in the valley during this period. Sporadic acts of terrorism continued to take place, with the focus on eliminating moderate elements such as Abdul Majeed Dhar of the Hizbul Mujahideen (HM), who was reportedly unhappy with the way Syed Salauddin, the Pakistan-based Amir of the HM, was completely towing the line of Pakistan’s Inter-Services Intelligence (ISI) and JEI led by Qazi Hussain Ahmed.

The Indian Prime Minister’s continued insistence on the stoppage of Pakistan-sponsored cross-border terrorism before India could agree to talks with the military-civilian hotch-potch Government in Islamabad and international, particularly US, understanding of the Indian stand and concerns over the continuing cross-border infiltration of terrorists from Pakistan have resulted in the ISI and the JEI, joining hands in an attempt to re-kindle acts of terrorism in the Valley.

Consequently, in recent weeks, more particularly since the Prime Minister’s second visit to Srinagar last month, acts of terrorism have been stepped up in the Valley and there are indications of a similar attempt to orchestrate acts of terrorism in Mumbai and other parts of India. Amongst the organisations being used in this regard are the Lashkar-e-Toiba (LET), the Jaish-e-Mohammad (JEM) and the HM. The LET and the JEM, both Pakistani Punjabi organisations, have been responsible for most of the acts of terrorism, particularly suicide terrorism, in J&K and other parts of India since they joined the IIF after its formation by bin Laden in 1998.

The HM is the appendage of the JEI of Qazi Hussain Ahmed of Pakistan. The HM, whose leaders and their training camps were thrown out of Afghanistan by the Taliban after it captured Kabul in September, 1996, because of its links with Gulbuddin Hekmatyar’s Hizbe Islami (HI), which was then fighting against the Taliban, has recently joined hands with the dregs of the Taliban, Al Qaeda and the HI operating against the security forces of the Hamid Karzai Government in Afghanistan from sanctuaries in the North-West Frontier Province (NWFP) and Balochistan of Pakistan, with the complicity of serving and retired officers of the Pakistani Army and ISI.

At the same time, the HM has also joined hands with the LET and the JEM for stepping up acts of terrorism in Indian territory. A group of serving officers of the Pakistani Army and the ISI headed by Gen. Mohammed Aziz, a member of the Sudan tribe from Pakistan-Occupied Kashmir (POK), who is presently Chairman, Joint Chiefs of Staff Committee, and a group of retired officers headed by Lt.Gen. (retd) Hamid Gul, former Director-General of the ISI, have been guiding the operations in both Afghanistan and India.

It would be incorrect to view their activities as being undertaken without the knowledge or approval of Musharraf, who has been covertly approving their operations while ostensibly marking his distance from them. The remarks of Aziz, indirectly critical of Musharraf, while addressing a meeting at Rawalakot in PoK, while Musharraf was away to the US for his Camp David summit with President Bush in June last, were made with his prior nod in order to create an impression that the activities of these groups in Afghanistan and India were without Musharraf’s approval. (ADNI)

Compassionate punishment

Bharat Jhunjhunwala

The Government of India has placed advertisements to discourage people from discriminating against AIDS patients. An AIDS patient is shown to be eating his lunch alone in a factory canteen. An enlightened worker sits and shares a meal with him. A message is given that AIDS does not spread by eating together hence AIDS patients should not be discriminated against. A News Release issued by Amnesty International in December 2002 says in a similar tone, "Despite the grave nature of the pandemic many governments are unwilling to acknowledge the needs of lesbian, gay, bisexual and transgendered people, sex workers, and injecting drug users." Both the Government of India and Amnesty International want that such deviant sexual behaviour should be accepted and protected. Indeed, every person in difficulty should be dealt with compassionately. But compassion should not become sanction for license. Simultaneous effort should be made to wean the affected person from his wrong ways. Jesus Christ said hate the sin, not the sinner. In the same tone these reformers say make war against AIDS, not against people with AIDS. But there is a basic difference between the two. Christ was engaged in reforming the sinners by psychic and spiritual means. When he said ‘Do not hate the sinner,’ he was acknowledging that the person was engagaed in sin and Jesus was simultaneously trying to take him out of the sin. He was not encouraging the sinner to continue to sin. But the Government of India absolves the AIDS patient of any wrongdoing on his part. Amnesty International too only talks of the ‘needs’ of these people, not their responsibilities. The message is that such deviant behaviour is okay. People affected with AIDS have to make no reform. They have only to be protected and pampered by the society.

The second aspect of the problem is social. It is contended by the human right activists that coercion is not helpful in controlling disease like AIDS. The poor are the first victims of AIDS. If the society punishes the AIDS patients then they loose all hope in life, go underground and engage in yet more of the same irresponsible behaviour. The difficulty is that ‘only compassion’ strategy equally encourages errant behaviour. The guilty is absolved of his guilt. Others are also informed that wrong behaviour will bring forth no punishment. Thus we have to balance compassion and punishment. An optimum mix of the two has to be used. Too much punishment will push the problem underground. Too little punishment will encourage more persons to take to errant behaviour. The third aspect of the problem is that of economic policy. It is true that the poor are at the highest risk of acquiring AIDS. They become so hopeless that it matters not whether they get AIDS. They live for the day. An editorial in Equinet, a newsletter devoted to AIDS, quotes a miner from South Africa: "Every time you go underground you have to wear a lamp on your head. It is only with luck if you come to the surface still alive because everyday somebody gets injured or dies". It would be natural to think in such a situation that "catching a disease that could kill you ten years down the road might be less pressing than trying to gain some control over life—or perhaps even enjoying life in some minor way (through alcohol or sex) before getting crushed by falling rock." People in urban slums face this problem everyday. Rag pickers spend the whole day carrying street picking on their backs. They are dead tired by the evening. Their feet ache and they are sullen. They cannot sleep. And, if they are unable to rest then they are unable to go for rag picking the next day. They are in a hopeless situation. They remain poor if they drink because they have less money left. They remain poor if they do not drink because they are unable to go to work the next day. The solution to this problem is not compassion for AIDS victims and alcoholics but change of policies that are responsible for such pitiable conditions of the poor. The solution is to provide adequate safety equipment to the miner so that he is not hopeless about his life ten years later. The solution is to generate employment so that people do not have to eke a living picking rags. It is strange that the likes of Bill Gates will provide millions to help AIDS victims while, at the same time, extracting billions from the poor countries by selling software that is priced ten times it cost of production. The Government of India encourages the use of mechanical harvesters and excavators which eat the jobs that would have gone to the poor. Amnesty International will look the other way when rich countries extract the wealth of poor countries by enforcing monopolies through their patent laws. Then these gentlemen will turn around to provide compassionate help to the victims. Pray, why not remove the cause of their problem itself? This is no different than a smuggler giving ten percent of his income in charity. Every person should, therefore, be held accountable for his conduct. One who had indulged in bad behaviour should be punished and discriminated against. The Government of India should preface its advertisement by telling the AIDS patient that he is responsible for this disease. Of course, this should be done with a sense of compassion rather than hate.

Judicial system cries for change

By V R Krishna Iyer

It is pathetic, even bathetic, that our Indo-Anglian legal process and its personnel should have, so rapidly after Independence, forfeited credibility in courts because of (a) forensic inefficiency and delay, (b) inability to vindicate people's rights from fraud and over-reaching and (c) belief that the law cannot deliver justice, which is its functional raison d'etre.

Systemic legal justice, as an instrument, a process and product, if subjected to social audit, professional accountability and performance test will reveal a grave deficit, cry for change in methodology and manpower and seek comfort in the plea that the politician and the parliamentary process behave worse! Unfair to compare the disorder and entropy in the Courts with the howl, hell and hurl and worse, in our Houses.

What a fall, my countrymen, with due respect to the many exceptions! In this context, it is proper to cite what is not known adequately to judges, lawyers and the laity, viz, the United Nations Basic Principles on the Independence of the Judiciary. Principle 8 thereof provides:

"In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary."

Principle 2 commands the judiciary to decide cases before them "without any restrictions, improper influences, inducements from any quarter or for any reasons". Fair trial, as a fundamental right, demands speedy hearing and early finality, as our Supreme Court has held.

Other countries have also set standards for the robed brethren and for the basics of a fair hearing. We must never forget that democracy will become dysfunctional without an activist judiciary. So, our focus of reform must turn on the nature of the judicial process, which conceptually takes in the infrastructure, judicial cadres substantive and procedural changes and easier access to the court's portals for the common people.

Pragmatism and principle must be blended so as to fulfil the constitutional mandate of fair trial, free legal aid and litigative finality before litigant mortality. The current scenario is unhappy and needs creative transformation beyond tinkering and cosmetic colouring.

Judicial management is like other business management and must not be primitive. Planned forensic development must be neither mechanical and haphazard nor numerically considered. No scientific restructuring is possible without planning. So drawing up of Perspective Plans and Five-Year Plans for Indian justice, with schemes of modernisation and projects for technology incorporation, provision of accommodation and other facilities for courts and judges, and the manner of financing the plans must be a systematic, institutional desideratum.

Selection of judges is a careful exercise, beyond politicisation, communalisation, lucrative practice, nepotism, Oxbridge pedantry and the like. Character, values, social philosophy and sensitive, dynamic drive to do justice are part of the criteria complex.

The dialectical analysis of the judicial pathology will drive us to the realization of the following realities. First is the horrendous hurdle of docket logjam and its twin-the tidal rise of arrears with diminishing disposals by tardy judges and no hope of halting the mounting waves of cases. How shall we tackle this docket explosion and delay syndrome?

Secondly, the arcane procedures of the adversary system modelled mainly on the colonial paradigms, making litigation a difficult project, at once expensive and endless, thro' appeals, reviews, revisions and myriad interlocutory intricacies. So much so, for an indigent and illiterate, agrestic and proletarian community search for judicial justice is 'a riddle wrapped in a mystery inside an enigma’.

The whole law of evidence, pleadings, hearings and intermediate wrangles is primitive and untouched by technology or modern management skills. A grocer runs his shop better than the court its work. Lord Devlin long ago observed: "If our business methods were as antiquated as our legal methods, we should be a bankrupt country".

But will Indian judges laze or read their papers, since they take unpardonable time ever to deliver judgements after arguments are closed?

Chief Justice Warren Burger holds for India even to day:

"We are still trying to operate courts with fundamentally the same basic methods, the same procedures and the same machinery, Roscoe Pound said were not good enough in 1906. In the super-market age we are trying to opeate the courts with with cracker-barrel corner grocer methods and equipment - vintage 1900".

Our courts are paper-logged, even as our secretariats are file-flooded. Nothing moves in the court and papers travel from court to court horizontally and vertically. Only the starts know when the last signature will finalise the list.-CNF

 
 



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