To all those who have been attending our last two sessions on the Ayodhya dispute, thank you for coming and strengthening the debate here at PILSARC!
Tomorrow, despite a resolution passed last week to move on to the controversial Armed Forces Special Powers Act, 1958 / 1992 (J&K), we have decided to spend one more session threshing out the Babri debacle.
The judgement arrived just a few hours back, therefore the delay in sending out this mail - I am pleased to invite you all to the third session of the PILSARC Friday talk series. To those who missed the last two sessions, here is your chance to catch up and have your views heard on what is arguably the most hotly debated and socially volatile judgement in recent years.
Please bring along friends / colleagues / interesting people you know / students, and join us as we begin analysing the Allahabad High Court's pronouncement on the Ayodhya title suit.
What - Ayodhya judgement analysed
Who - Lead by Dr. Rajeev Dhavan
When - Tomorrow, Friday, 01 October, 2010
What time - 5.30 p.m.
Where - PILSARC Library (Basement), A 131, New Friends Colony, Delhi - 25
Tea, snacks and copies of the available discussion materials are on us, as is the difficult responsibility of steering the conversation!
The PILSARC Friday Talk Series is intended to provide a free and informal forum for intelligent, critical, analytical minds to speak out and have their voices heard.
I look forward very much to seeing you all here tomorrow evening!
Regards,
Rashmi
Friday, October 1, 2010
Ayodhya Title Suit Judgement of the Allahabad High Court
The Babri Masjid was destroyed on the 6th December 1992. It has all along been assumed that the site on which it stood belonged to the Sunni Wakf Board, this having been decided in the 1940s; and the Hindu claim having been rejected in 1885. It is also clear that the Muslims did not lose the right to full ownership of the site after the fateful idols were installed because the Wakf Board filed its suit before 12 years expired. The present judgment of the High Court seems to set aside the Muslim claim to full ownership of the site and seeks to make out a case of joint ownership of some part of the site. On what this is based will only be known once these massive judgments are read.
At this stage, without reading the full judgment it appears that there is a split decision, 2:1 in favour of a three way division of the site. The dissenting judge, Justice Sharma seems to have been wholly on the side of the Hindu argument. Justice S.U Khan found discrepancies in some of the evidence and does not appear to have accepted fully that the pillars found below the Mosque were of a live Hindu Temple that was destroyed between 1526 – 28. Nevertheless Justice S.U Khan and Justice Sudhir Agarwal have concluded that there should be a three way split of the area between the parties, with the site on which the present prayer is being made going to the Hindus and the rest being divided. Both Justice Khan and Agarwal seem to recognize the Hindu sentiment, that this was Ram Janmabhoomi, needs to be respected and built a case for the right to prayer at that sight on this speculative basis. This is speculative because no one can really pin point where the mythical Lord Ram was born or even that centuries ago prayer in fact took place at this sight to commemorate the birth of Lord Ram.
The judges seem to have over reached themselves on the legal question and decided something doubtfully to and offer a solution which nobody had asked for. This is why many are calling this judgment as not a judgment of a court of law based on legalities, but a Panchayati judgment looking for a solution for the future. If the legal questions had been properly answered the site would have belonged to the Muslim community and the Hindu right to prayer would have been recognized as a moral rather than a legal right which the Muslims should consider conceding. Both, honour and dignity would have been satisfied. In this way the judgment could have been a basis to work towards an enduring solution. But the Muslim legal rights not have been recognized, seems to make the very existence of the Sunni Wakf Board’s rights to the land and the presence of the Babri Masjid a chimera. The fact of the matter is that the site does belong to the Sunni Wakf Board. There was a Masjid on that site which is centuries old even if disused. That Masjid was destroyed on 6th December 1992 as an act of sacrilege. To even hint that the very legal foundation of the existence of the Masjid was infirm seems a misplaced way of going about things.
In the negotiations in 1989 under PM Rajiv Gandhi and of 1991-92 under PM Narasimha Rao one of the most important questions was whether Babur in fact destroyed a Temple to build a Mosque. In Muslim terms, this would have made the site haram. This had to be proved to the satisfaction of the Muslims. I am not entirely sure that in the light of archaeological evidence, the Muslims will be satisfied that this has been proved to their satisfaction. Even within the judgment, as we know it now, there may appear to be some discrepancy about this singularly important question. If indeed, archaeological evidence may suggest that there may have been a Temple in and around this site earlier, then Babur did not destroy an existing living temple to render the site haram. Judges are ill equipped to answer questions of this nature on which historians and archaeologists differ fundamentally.
To that extent, both Muslim pride and dignity may not have been served by this judgment, both on the question of Muslim ownership of the site as well as whether Babur in fact destroyed an existing living temple to render the site haram.
The next question is whether this judgment of a three way split is a workable solution for the future to create peace with dignity for all. No one can oppose the idea that a shared site in which Hindu, Muslim and secular can co-exist peacefully. But is this in fact a workable solution on a correct basis for an enduring solution for the future? In the future, will Muslims, Hindus and secularists look back at this solution with pride; and support it to the hilt. It may be difficult to countenance and accept the idea that although the Muslims were denuded to the right of the full site, they must nevertheless accept one third of what they were entitled to on a basis that they were not really entitled to it.
For the moment a lot is going to depend on the generosity of the Muslims to accept the denuding of their right and the proposed solution. It would have been better if the Muslims’ full ownership were recognized along with the right to Hindu prayer. The secular angle to this is that no minority should be forced into a legal solution in which their full rights have not been recognized and they have been given a compensatory one third as part of a new truth, justice and the Indian way of life. The Indian way of life required that no community or group should be pushed into a solution through an incorrect basis of law and moral entitlement.
Although the destruction of the Mosque on 6th December 1992 was not an issue before the court, the fact that a Mosque was destroyed on a Sunni Wakf Board site cannot be denied. The entire world is asking what Indian governance and justice had to offer in the wake of this act of sacrilege. The offer made by the Court which appears to have no legal basis is that Hindu sentiment should be respected. And, as an exercise in distributive justice, the Muslim should be given a part of a cake that is cut three ways. Both the world outside India as well as within the country may continue to make the accusation that India is a Hindu country which is prepared to marginalize the dignity, respect and entitlement of its minorities.
We must all make a plea for calm; but a plea for calm does not mean accepting this verdict. If the Muslim community as an act of grace accepts it and does not appeal to the Supreme Court that may well be the end of the matter, subject to a fair division of the one third split which would not be as easy as the judgment may assume.
But having won the Babri Masjid case, the Hindus should now stop seeking a recriminatory path of so called historic injustice by Muslim or Christian invaders. There should be no call, “Mathura next and Varanasi thereafter.” The Places of Worship (Special Provisions) Act, 1991 says that, on all other sites, rights that existed on 15th August 1947 should be respected. This parliamentary closure of remedying historical injustices should therefore be closed.
At this stage, without reading the full judgment it appears that there is a split decision, 2:1 in favour of a three way division of the site. The dissenting judge, Justice Sharma seems to have been wholly on the side of the Hindu argument. Justice S.U Khan found discrepancies in some of the evidence and does not appear to have accepted fully that the pillars found below the Mosque were of a live Hindu Temple that was destroyed between 1526 – 28. Nevertheless Justice S.U Khan and Justice Sudhir Agarwal have concluded that there should be a three way split of the area between the parties, with the site on which the present prayer is being made going to the Hindus and the rest being divided. Both Justice Khan and Agarwal seem to recognize the Hindu sentiment, that this was Ram Janmabhoomi, needs to be respected and built a case for the right to prayer at that sight on this speculative basis. This is speculative because no one can really pin point where the mythical Lord Ram was born or even that centuries ago prayer in fact took place at this sight to commemorate the birth of Lord Ram.
The judges seem to have over reached themselves on the legal question and decided something doubtfully to and offer a solution which nobody had asked for. This is why many are calling this judgment as not a judgment of a court of law based on legalities, but a Panchayati judgment looking for a solution for the future. If the legal questions had been properly answered the site would have belonged to the Muslim community and the Hindu right to prayer would have been recognized as a moral rather than a legal right which the Muslims should consider conceding. Both, honour and dignity would have been satisfied. In this way the judgment could have been a basis to work towards an enduring solution. But the Muslim legal rights not have been recognized, seems to make the very existence of the Sunni Wakf Board’s rights to the land and the presence of the Babri Masjid a chimera. The fact of the matter is that the site does belong to the Sunni Wakf Board. There was a Masjid on that site which is centuries old even if disused. That Masjid was destroyed on 6th December 1992 as an act of sacrilege. To even hint that the very legal foundation of the existence of the Masjid was infirm seems a misplaced way of going about things.
In the negotiations in 1989 under PM Rajiv Gandhi and of 1991-92 under PM Narasimha Rao one of the most important questions was whether Babur in fact destroyed a Temple to build a Mosque. In Muslim terms, this would have made the site haram. This had to be proved to the satisfaction of the Muslims. I am not entirely sure that in the light of archaeological evidence, the Muslims will be satisfied that this has been proved to their satisfaction. Even within the judgment, as we know it now, there may appear to be some discrepancy about this singularly important question. If indeed, archaeological evidence may suggest that there may have been a Temple in and around this site earlier, then Babur did not destroy an existing living temple to render the site haram. Judges are ill equipped to answer questions of this nature on which historians and archaeologists differ fundamentally.
To that extent, both Muslim pride and dignity may not have been served by this judgment, both on the question of Muslim ownership of the site as well as whether Babur in fact destroyed an existing living temple to render the site haram.
The next question is whether this judgment of a three way split is a workable solution for the future to create peace with dignity for all. No one can oppose the idea that a shared site in which Hindu, Muslim and secular can co-exist peacefully. But is this in fact a workable solution on a correct basis for an enduring solution for the future? In the future, will Muslims, Hindus and secularists look back at this solution with pride; and support it to the hilt. It may be difficult to countenance and accept the idea that although the Muslims were denuded to the right of the full site, they must nevertheless accept one third of what they were entitled to on a basis that they were not really entitled to it.
For the moment a lot is going to depend on the generosity of the Muslims to accept the denuding of their right and the proposed solution. It would have been better if the Muslims’ full ownership were recognized along with the right to Hindu prayer. The secular angle to this is that no minority should be forced into a legal solution in which their full rights have not been recognized and they have been given a compensatory one third as part of a new truth, justice and the Indian way of life. The Indian way of life required that no community or group should be pushed into a solution through an incorrect basis of law and moral entitlement.
Although the destruction of the Mosque on 6th December 1992 was not an issue before the court, the fact that a Mosque was destroyed on a Sunni Wakf Board site cannot be denied. The entire world is asking what Indian governance and justice had to offer in the wake of this act of sacrilege. The offer made by the Court which appears to have no legal basis is that Hindu sentiment should be respected. And, as an exercise in distributive justice, the Muslim should be given a part of a cake that is cut three ways. Both the world outside India as well as within the country may continue to make the accusation that India is a Hindu country which is prepared to marginalize the dignity, respect and entitlement of its minorities.
We must all make a plea for calm; but a plea for calm does not mean accepting this verdict. If the Muslim community as an act of grace accepts it and does not appeal to the Supreme Court that may well be the end of the matter, subject to a fair division of the one third split which would not be as easy as the judgment may assume.
But having won the Babri Masjid case, the Hindus should now stop seeking a recriminatory path of so called historic injustice by Muslim or Christian invaders. There should be no call, “Mathura next and Varanasi thereafter.” The Places of Worship (Special Provisions) Act, 1991 says that, on all other sites, rights that existed on 15th August 1947 should be respected. This parliamentary closure of remedying historical injustices should therefore be closed.
Wednesday, September 22, 2010
Babri Masjid - PILSARC Friday Talk Series, September 24, 5.30 p.m., PILSARC Library
To those who attended last week's talk on the Babri debacle, thank you for your participation, I hope to see you here every week! To those who missed last week, we hope you will make it this week!
As agreed upon last week, we're taking the Babri Masjid talk ahead this week, and I am pleased to invite you once again, for a follow up discussion that will locate the Babri controvesy within the larger schema of Indian secularism and hopefully, weave in other areas of interest, notably, the Kashmir question, during the conversation.
I hope you will all come and be moved to participate actively, please feel free to bring along friends / colleagues / like minded people.
Tea and snacks are on us, as also the responsibility of steering the discussion!
Topic - Babri controversy within the scheme of Indian Secularism; flash points - Kashmir
Lead by - Dr. Rajeev Dhavan
Where - PILSARC Library, Basement, A-131 New Friends Colony, Delhi
When - 5.30 p.m.
I look forward to seeing you this Friday at the PILSARC Library at 5.30 p.m.,
Warm regards,
Rashmi Raman
Senior Researcher,
PILSARC
--
Public Interest Legal Support and Research Centre,
A - 131, New Friends Colony,
New Delhi - 110025
Telephone +91 11 2684 1079 / 2682 2525
Email - pilsarc@gmail.com
As agreed upon last week, we're taking the Babri Masjid talk ahead this week, and I am pleased to invite you once again, for a follow up discussion that will locate the Babri controvesy within the larger schema of Indian secularism and hopefully, weave in other areas of interest, notably, the Kashmir question, during the conversation.
I hope you will all come and be moved to participate actively, please feel free to bring along friends / colleagues / like minded people.
Tea and snacks are on us, as also the responsibility of steering the discussion!
Topic - Babri controversy within the scheme of Indian Secularism; flash points - Kashmir
Lead by - Dr. Rajeev Dhavan
Where - PILSARC Library, Basement, A-131 New Friends Colony, Delhi
When - 5.30 p.m.
I look forward to seeing you this Friday at the PILSARC Library at 5.30 p.m.,
Warm regards,
Rashmi Raman
Senior Researcher,
PILSARC
--
Public Interest Legal Support and Research Centre,
A - 131, New Friends Colony,
New Delhi - 110025
Telephone +91 11 2684 1079 / 2682 2525
Email - pilsarc@gmail.com
Wednesday, September 15, 2010
PILSARC Friday Talk Series - The Babri Masjid Debacle, 17 September 2010, 5.30 p.m.
For this week's session of the Friday Talk Series initiative launched by the Public Interest Legal Support and Research Centre, we focus on the Babri Masjid question, in the wake of the imminent judgement to be pronounced later this month, and identify the legal and socio-political context in which the dispute is grounded.
Topic - "The Babri Masjid Debacle"
Time - 5.30 p.m.
Place - Library (Basement), The Public Interest Legal Support and Research Centre, A-131, New Friends Colony
PILSARC's Friday Talk Series are designed as an informal gathering where all participants are encouraged to speak their minds and engage in robust debate. All are welcome.
Topic - "The Babri Masjid Debacle"
Time - 5.30 p.m.
Place - Library (Basement), The Public Interest Legal Support and Research Centre, A-131, New Friends Colony
PILSARC's Friday Talk Series are designed as an informal gathering where all participants are encouraged to speak their minds and engage in robust debate. All are welcome.
Wednesday, September 8, 2010
Position available - Litigation Junior
One position available for a Litigation junior to a renowned Senior Advocate of the Supreme Court of India.
What we offer - Excellent research environment and interesting work. Remuneration Rs. 20,000/- per month.
Qualifications - Law school graduate, prior work experience preferable, but not mandatory.
Should be willing to start work immediately and relocate to Delhi.
Send in updated CV and cover letter to pilsarc@gmail.com
Deadline for receiving applications - 20 September 2009
ATTENTION - The position has been filled
What we offer - Excellent research environment and interesting work. Remuneration Rs. 20,000/- per month.
Qualifications - Law school graduate, prior work experience preferable, but not mandatory.
Should be willing to start work immediately and relocate to Delhi.
Send in updated CV and cover letter to pilsarc@gmail.com
Deadline for receiving applications - 20 September 2009
ATTENTION - The position has been filled
The Politics of Belgaum: How malleable is Indian Federalism?
If the Belgaum agitation is taken seriously, India’s federated states will never acquire territorial integrity. The essence of Maharashtra’s claim is that all the border villages in neighboring Karnataka, where even a bare majority speak Marathi, should be handed over to become part of Maharashtra. Over sixty years these demands have been accompanied by violence, threats and the emergence of Pan-Marathi fundamentalist nationalism.
Belgaum is in the news again because Marathi politicians resent an affidavit by the Union of India of 2010 refusing to accept Maharashtra claims to Karnataka’s border villages. In 2004 Maharashtra filed a case against Karnataka in the Supreme Court effectively claiming 865 villages in Belgaum, Karwar, Bidar, Gulbarga in Karnataka on the basis of alleged linguistic majorities in these 865 villages. In Karwar, the claim for 301 villages is based on the claim that Konkani is a dialect of Marathi. Maharashtra’s claim rests on four principles: (i) the villages as a unit (ii) geographical contiguity (iii) linguistic majority and (iv) wishes of the people. Shorn of pretences, if Maharashtra’s claim to annex border villages in neighbouring states where there is a Marathi speaking majority were to be applied as a principle, inter-state border claims would never stop; and resurrected each time border villages show linguistic change. Movements of people across borders would be encouraged and villages colonized to create linguistic majorities to facilitate their annexation. Taking to its illogical conclusion, Indian federalism is invited to permit its States the indulgence of cross border conquest by linguistic head-count supported by noisy, even violent, politics.
It is really not necessary to go into historical controversies over recognizing linguistic federalism in India. Before independence the cause of linguistic federalism was espoused by the Congress’s sessions in 1920, and 1927, the Nehru Committee Report (1926), and the creation of Sindh and Orissa on a linguistic basis in 1936. After independence the Dar Commission and the JVP Committee of 1948 suggested status quo and caution unless “public sentiment was insistent”. This was not intended to be, but became, an invitation to agitation. In 1954-55 the States Reorganization Committee (SRC) recommended a basis for linguistic federalism including separate states also for Vidarba and Telengana – demands for which continue today. But the SRC did not elevate “linguistic (and cultural) homogeneity as an exclusive and binding principle overriding all other considerations, administrative, financial or political”. Even if the ‘wishes of the people’ were ascertainable, they were subject to the “larger national interest”. Linguistic federalism was not an absolute or exclusive basis for federalism.
Indian federalism permits new states to be created out of old ones with the scantiest of consultation with state legislations(Article 3). The absence of territorial integrity was never visualized as permanent. The territorial integrity of these new states was intended to be respected. These provisions were to creatively enable a multi-cultural nation to emerge from an alien empire and 550 odd Princely States. The basis of these revisional endeavours have been founded on language, culture, administrative convenience and peoples’ demands. The defining moment was 1956 when the States Reorganization Commission (1956) effectively responded to Potti Sreeramulu’s fast to death in 1954, overruled Nehru’s cautionary reserve and enabled Parliament to create Andhra, Kerala, Karnataka(then Mysore) on a linguistic basis. Later exercises were based both on language and culture to enable the creation of Gujarat and Maharashtra (1960), Punjab, Haryana (1966) and Himachal and the North Indian States (1971), Sikkim by accession (1975), Goa (1987) and the tribal states of Jharkhand and Chattisgarh (2000). Tribal areas have been designated within States to enable autonomy for these areas (Constitution’s 5th-6th Schedules). Union territories have been created for Delhi, Chandigarh, Pondicherry and various Islands. Questions loom large as to whether UP should be broken into several states, States of Vidarbha and Telengana be created and a mountain State be created out of Bengal.
Nobody visualized continuing border disputes. Maharashtra’s border claims are a way in which an uncompromising and fearful Marathi politics reinforces itself. Over 1955-6, the Maharashtra’s agitation led to 105 killings by police firing. Around that time, C.D. Deshmukh resigned as Finance Minister in support of Maharashtra’s claim. Many methods to resolve these disputes were tried: the use of the Western Zonal Councils (which failed), Committees from the warring states (which failed) and examination of Commissions headed by serving or retired judges (which succeeded).
The Justices Wanchoo (1952) and Mishra Commissions (1953) split Bellary to give three districts to Andhra and the rest to Karnataka. The case was decided on its facts and hardly authorizes compulsory splitting of districts by villages, a view rejected by the Union in 1966. This is equally true of Justice Shah’s efforts on Punjab and Haryana. The fact remains that the Belgaum dispute was referred to the formidable ex-Justice M.C. Mahajan who received 2240 memoranda and spoke to 7572 persons, visiting 17 places, rejected the village unit formula, relying on panchayat boundaries. Interestingly what the Commission presented was that between 1951 and 1961, the Marathi majority in Belgaum slipped into a minority, or bare majority in various areas, and increased in others – with Maharashtra adding and subtracting their claims based on the 1961 census. Demographic movements are inevitable. A right to movement and to settle in any part of India inheres in all persons and community. The Marathi speaking majority in 1951 in some areas had been reduced in 1961 (46%). Unhappy, with Mahajan’s report, Maharashtra resorted to agitational protest.
In determining these questions, do we go to the census of 1951, 1961, 1971, 2001 or 2011. Nothing could be more absurd than redrawing state boundaries after each census! The present agitation arises because of a Counter-Affidavit of 2010 by the Union of India reiterating its stand that “language (is) not the sole criteria” for determining boundaries and “the transfer of certain areas to Karnataka was neither arbitrary and wrong”.
Marathi politics tries to reinforce a false pernicious identity through uncompromising agitation. In 1996, 10 ladies from Belgaum started a hunger strike on the issue Chief Ministers of Maharashtra have kept the issue alive between 1997-2002. The Supreme Court case was filed in 2002. The Supreme Court cannot and should not determine these matters and strike down the 1956 and 1960 Reorganization Acts to unsettle settled demarcations, open Pandora’s box and create new border tensions.
The claim on Belgaum and other areas is part of a pan-Marathi nationalism. The obverse of this agitation is the campaign to threaten non-Marathis in Bombay so that even film stars have been coerced into submission.
The Shiva Sena and MNS claim to be trustees of the Maharatha cause to the hilt. Chief Minister Chavan was anxious not to miss the bus and made the absurd suggestion of making the disputed areas a Union Territory. The agitation will continue in the monsoon session of Parliament. If Chavan’s suggestion is talked through, is there a case for Mumbai becoming Union-territory to make it available for all?
India has a rich multi-lingual and multi-cultural federalism. Freedom of movement has enabled workers and business to travel to all corners of India. New states may and will be created to make Indian federalism more manageable. These border disputes which are fuelled by politically inspired jingoism must stop – now!
Belgaum is in the news again because Marathi politicians resent an affidavit by the Union of India of 2010 refusing to accept Maharashtra claims to Karnataka’s border villages. In 2004 Maharashtra filed a case against Karnataka in the Supreme Court effectively claiming 865 villages in Belgaum, Karwar, Bidar, Gulbarga in Karnataka on the basis of alleged linguistic majorities in these 865 villages. In Karwar, the claim for 301 villages is based on the claim that Konkani is a dialect of Marathi. Maharashtra’s claim rests on four principles: (i) the villages as a unit (ii) geographical contiguity (iii) linguistic majority and (iv) wishes of the people. Shorn of pretences, if Maharashtra’s claim to annex border villages in neighbouring states where there is a Marathi speaking majority were to be applied as a principle, inter-state border claims would never stop; and resurrected each time border villages show linguistic change. Movements of people across borders would be encouraged and villages colonized to create linguistic majorities to facilitate their annexation. Taking to its illogical conclusion, Indian federalism is invited to permit its States the indulgence of cross border conquest by linguistic head-count supported by noisy, even violent, politics.
It is really not necessary to go into historical controversies over recognizing linguistic federalism in India. Before independence the cause of linguistic federalism was espoused by the Congress’s sessions in 1920, and 1927, the Nehru Committee Report (1926), and the creation of Sindh and Orissa on a linguistic basis in 1936. After independence the Dar Commission and the JVP Committee of 1948 suggested status quo and caution unless “public sentiment was insistent”. This was not intended to be, but became, an invitation to agitation. In 1954-55 the States Reorganization Committee (SRC) recommended a basis for linguistic federalism including separate states also for Vidarba and Telengana – demands for which continue today. But the SRC did not elevate “linguistic (and cultural) homogeneity as an exclusive and binding principle overriding all other considerations, administrative, financial or political”. Even if the ‘wishes of the people’ were ascertainable, they were subject to the “larger national interest”. Linguistic federalism was not an absolute or exclusive basis for federalism.
Indian federalism permits new states to be created out of old ones with the scantiest of consultation with state legislations(Article 3). The absence of territorial integrity was never visualized as permanent. The territorial integrity of these new states was intended to be respected. These provisions were to creatively enable a multi-cultural nation to emerge from an alien empire and 550 odd Princely States. The basis of these revisional endeavours have been founded on language, culture, administrative convenience and peoples’ demands. The defining moment was 1956 when the States Reorganization Commission (1956) effectively responded to Potti Sreeramulu’s fast to death in 1954, overruled Nehru’s cautionary reserve and enabled Parliament to create Andhra, Kerala, Karnataka(then Mysore) on a linguistic basis. Later exercises were based both on language and culture to enable the creation of Gujarat and Maharashtra (1960), Punjab, Haryana (1966) and Himachal and the North Indian States (1971), Sikkim by accession (1975), Goa (1987) and the tribal states of Jharkhand and Chattisgarh (2000). Tribal areas have been designated within States to enable autonomy for these areas (Constitution’s 5th-6th Schedules). Union territories have been created for Delhi, Chandigarh, Pondicherry and various Islands. Questions loom large as to whether UP should be broken into several states, States of Vidarbha and Telengana be created and a mountain State be created out of Bengal.
Nobody visualized continuing border disputes. Maharashtra’s border claims are a way in which an uncompromising and fearful Marathi politics reinforces itself. Over 1955-6, the Maharashtra’s agitation led to 105 killings by police firing. Around that time, C.D. Deshmukh resigned as Finance Minister in support of Maharashtra’s claim. Many methods to resolve these disputes were tried: the use of the Western Zonal Councils (which failed), Committees from the warring states (which failed) and examination of Commissions headed by serving or retired judges (which succeeded).
The Justices Wanchoo (1952) and Mishra Commissions (1953) split Bellary to give three districts to Andhra and the rest to Karnataka. The case was decided on its facts and hardly authorizes compulsory splitting of districts by villages, a view rejected by the Union in 1966. This is equally true of Justice Shah’s efforts on Punjab and Haryana. The fact remains that the Belgaum dispute was referred to the formidable ex-Justice M.C. Mahajan who received 2240 memoranda and spoke to 7572 persons, visiting 17 places, rejected the village unit formula, relying on panchayat boundaries. Interestingly what the Commission presented was that between 1951 and 1961, the Marathi majority in Belgaum slipped into a minority, or bare majority in various areas, and increased in others – with Maharashtra adding and subtracting their claims based on the 1961 census. Demographic movements are inevitable. A right to movement and to settle in any part of India inheres in all persons and community. The Marathi speaking majority in 1951 in some areas had been reduced in 1961 (46%). Unhappy, with Mahajan’s report, Maharashtra resorted to agitational protest.
In determining these questions, do we go to the census of 1951, 1961, 1971, 2001 or 2011. Nothing could be more absurd than redrawing state boundaries after each census! The present agitation arises because of a Counter-Affidavit of 2010 by the Union of India reiterating its stand that “language (is) not the sole criteria” for determining boundaries and “the transfer of certain areas to Karnataka was neither arbitrary and wrong”.
Marathi politics tries to reinforce a false pernicious identity through uncompromising agitation. In 1996, 10 ladies from Belgaum started a hunger strike on the issue Chief Ministers of Maharashtra have kept the issue alive between 1997-2002. The Supreme Court case was filed in 2002. The Supreme Court cannot and should not determine these matters and strike down the 1956 and 1960 Reorganization Acts to unsettle settled demarcations, open Pandora’s box and create new border tensions.
The claim on Belgaum and other areas is part of a pan-Marathi nationalism. The obverse of this agitation is the campaign to threaten non-Marathis in Bombay so that even film stars have been coerced into submission.
The Shiva Sena and MNS claim to be trustees of the Maharatha cause to the hilt. Chief Minister Chavan was anxious not to miss the bus and made the absurd suggestion of making the disputed areas a Union Territory. The agitation will continue in the monsoon session of Parliament. If Chavan’s suggestion is talked through, is there a case for Mumbai becoming Union-territory to make it available for all?
India has a rich multi-lingual and multi-cultural federalism. Freedom of movement has enabled workers and business to travel to all corners of India. New states may and will be created to make Indian federalism more manageable. These border disputes which are fuelled by politically inspired jingoism must stop – now!
The Nuclear Bill - Confounding Confusion
The Nuclear Bill
Confounding Confusion
The Indian Parliament’s most popular method of passing legislation is with sparse, or no, discussion. Democratic voices have to be media shrill and strong to register. In the case of the Civil Nuclear Bill (CNL Bill) the voices were strong.
The basic objection of the protestors was that having surrendered sovereignty to America under the Nuclear Deal, the Nuclear Bill played to the interest of foreign suppliers and Indian operators and others to cheat the people of India from just recompense. Remember Hiroshima. Remember Chernobyl. Remember Bhopal. The hue and cry led to referring the Bill to the Dr. Subbarami Reddy Committee on 13 May 2010 whom Vice-President Hamid Ansari accused of interpolation. It reported on 18 August 2010 with a dissent from Dr. Barun Mukherjee who pointed out that “many countries are not members of any liability convention and only 4 out of 30 members having ratified the 1997 convention.” He found the suggested changes to the present provisions “absurdly low”. Salman Pathak’s other dissenting view was that the Committee had failed to “keep the interests of the Indian people … as its core concern” and “unduly favour(ed) foreign suppliers”. The Committee heard the government Departments, visited Nuclear plants, was satisfied with the safety measures and heard some NGOs, Trade Unions, Business Associations and the Insurance Industry.
Passing this Bill was critical to show India’s good faith to America and other supplier nations. Compromises were worked out with the BJP, when they could not be forced on the Left. The CNL Bill broadly contains (i) liability and (ii) machinery provisions. Some 18 amendments were tabled, seven were accepted mostly over the liability provisions.
After the amendment, the Bill fails to exude a complete and comprehensive responsibility for accidents, victims, loss and livelihood. In the Bichri case (1995), following Oleum Gas (1986), the Supreme Court has laid down absolute liability (whether negligent or intentional or otherwise) for any and all damage due to escape from a hazardous unit. This is still good law; and woe-betide a Parliament that destroys this umbrella protection.
Liability Provisions
The Bill continues to shortchange liability and therefore responsibility. Some provisions are unoriginally salutary; some inadequate. (i) By making the Bill applicable to government owned or controlled by government (new Section 3A), private operators are excluded from the operation of the Act. It is an improvement only because present operators are government controlled and owned. But, with this and also the changed meaning of “operator”, the Bill vitally excludes future private operators from the Act. One problem is solved; another imbedded. (ii) Changes were made by the Committee in the definition clauses. The Health Secretary had wisely recommended that nuclear damage should include loss of life, injury and “immediate and long term health impact (Clause 2(f)(i)). Likewise ‘environment’ was to do be given a wider meaning (iii) The big change is in Clause 6 of the Bill is to empower the government to increase the liability from 300 SDR (Special Drawing Rights (SDR) equal to about Rs.2100 crores) if it wants. Then a graded and lesser responsibility is now introduced for different kinds of reactors and plants. Why this mambo-jambo? The Committee had suggested tripling the liability. Why not an absolute liability clause which simply says that the maximum liability shall be the actual damage caused. Why should the tax payer pay the amount in excess beyond the maximum? Further, the new change requires that, if necessary, the government will assume the liability of private operator, if in the public interest. Clearly, issues have been fudged. (iv) Suppliers liability was, and remains guarded. The Committee wanted the Indian operator (mind you, not the victim) to have the “right to recourse” against the supplier for any connected damage, but left the operator with the defence that if the damage was not intentional the supplier would not be liable. The BJP wanted this ‘intent’ defence dropped. However, the Lok Sabha passed the Bill with the ‘intent’ clause intact! What is not clear is what a “right to recourse” means? 10 years of litigation? Arbitration? In other words, the liability amendments short change peoples’ concerns, make a farce of the operators’ liability, deny absolute liability and let off the supplier for connected but not intentional loss.
Machinery Provisions
Some changes were also made in the machinery provisions (i) Most cases would go to a Claims Commissioner unless the government wants to send it to a Claim Commission. Good grief! Why? (ii) As for the composition of the Claims Commission is concerned, only the composition of the selection committee to appoint Commissioners is now stated (clause 20). But we are still left with the possibility of either a sitting judge being appointed or an advocate of 10 years standing (including a party hack!) as chairperson. For the other members, with the minimum age at 55 years, the posts are ripe for retired bureaucrats. These are cosmetic changes. (iii) The Lok Sabha rightly accepted a possible extension in the limitation (time to claim) to 20 years. But, it should have been left to the Commission or Commissioners to go beyond the twenty years if necessary (clause 18). (iv) There is nothing grand in the changes allowing compensation cases going to the writ or special jurisdiction of the High Court or Supreme Court (clause 35). The reason is simple. These jurisdictions cannot be ousted by Parliament even through a constitutional amendment! (L. Chandra’s case (1999)). These provisions are part of the unalterable basic structure of the Constitution. So, no big deal!
The parliamentary process is besieged with compromise. That is understandable. But to what extent? The government’s major concerns are those of the suppliers and insurers to the extent they impact on the supply of technology – fuel and so on. It fears that stringent provisions will dry out supply; and it must conform to international conventions even though these have been written by supplier nations, without attracting requisite signatures. We do live in a global world. Even with India advancing economically, it needs technology. To some extent, principles will be compromised. But that is not the issue. A sovereign parliament has sovereign responsibilities to its own peoples. The question is whether this Bill meets the measure of responsibility due to Indian victims? Or have these responsibilities been short changed. In this, Parliament has failed in achieving the right balance and sold its sovereignty for a song.
The liability provisions have been increased overall, but do not encompass recompense for the total effect. The graded changes for some nuclear operations mean that the limit has gone down in some cases rather than up. The residuary responsibility (which can be huge) is left to the government and the tax payer. The machinery provisions are unchanged. Dual optional machinery is created. The adjudicating incumbents could be anybody. The provisions are tailored for favoured lawyers and administrators. The judicial review to the High Court and Supreme Court already exists. The hype is meaningless.
The Nuclear Liability Bill is a bad compromise. All of the Committee’s suggestions have not been accepted. Parliament has been mesmerized by cosmetic changes. Even though, the supplier, operators and insurers have won, the American suppliers are not happy with this statutory mess. God forbid catastrophe; but should it come, we are as legally unprepared as we were for Bhopal.
Confounding Confusion
The Indian Parliament’s most popular method of passing legislation is with sparse, or no, discussion. Democratic voices have to be media shrill and strong to register. In the case of the Civil Nuclear Bill (CNL Bill) the voices were strong.
The basic objection of the protestors was that having surrendered sovereignty to America under the Nuclear Deal, the Nuclear Bill played to the interest of foreign suppliers and Indian operators and others to cheat the people of India from just recompense. Remember Hiroshima. Remember Chernobyl. Remember Bhopal. The hue and cry led to referring the Bill to the Dr. Subbarami Reddy Committee on 13 May 2010 whom Vice-President Hamid Ansari accused of interpolation. It reported on 18 August 2010 with a dissent from Dr. Barun Mukherjee who pointed out that “many countries are not members of any liability convention and only 4 out of 30 members having ratified the 1997 convention.” He found the suggested changes to the present provisions “absurdly low”. Salman Pathak’s other dissenting view was that the Committee had failed to “keep the interests of the Indian people … as its core concern” and “unduly favour(ed) foreign suppliers”. The Committee heard the government Departments, visited Nuclear plants, was satisfied with the safety measures and heard some NGOs, Trade Unions, Business Associations and the Insurance Industry.
Passing this Bill was critical to show India’s good faith to America and other supplier nations. Compromises were worked out with the BJP, when they could not be forced on the Left. The CNL Bill broadly contains (i) liability and (ii) machinery provisions. Some 18 amendments were tabled, seven were accepted mostly over the liability provisions.
After the amendment, the Bill fails to exude a complete and comprehensive responsibility for accidents, victims, loss and livelihood. In the Bichri case (1995), following Oleum Gas (1986), the Supreme Court has laid down absolute liability (whether negligent or intentional or otherwise) for any and all damage due to escape from a hazardous unit. This is still good law; and woe-betide a Parliament that destroys this umbrella protection.
Liability Provisions
The Bill continues to shortchange liability and therefore responsibility. Some provisions are unoriginally salutary; some inadequate. (i) By making the Bill applicable to government owned or controlled by government (new Section 3A), private operators are excluded from the operation of the Act. It is an improvement only because present operators are government controlled and owned. But, with this and also the changed meaning of “operator”, the Bill vitally excludes future private operators from the Act. One problem is solved; another imbedded. (ii) Changes were made by the Committee in the definition clauses. The Health Secretary had wisely recommended that nuclear damage should include loss of life, injury and “immediate and long term health impact (Clause 2(f)(i)). Likewise ‘environment’ was to do be given a wider meaning (iii) The big change is in Clause 6 of the Bill is to empower the government to increase the liability from 300 SDR (Special Drawing Rights (SDR) equal to about Rs.2100 crores) if it wants. Then a graded and lesser responsibility is now introduced for different kinds of reactors and plants. Why this mambo-jambo? The Committee had suggested tripling the liability. Why not an absolute liability clause which simply says that the maximum liability shall be the actual damage caused. Why should the tax payer pay the amount in excess beyond the maximum? Further, the new change requires that, if necessary, the government will assume the liability of private operator, if in the public interest. Clearly, issues have been fudged. (iv) Suppliers liability was, and remains guarded. The Committee wanted the Indian operator (mind you, not the victim) to have the “right to recourse” against the supplier for any connected damage, but left the operator with the defence that if the damage was not intentional the supplier would not be liable. The BJP wanted this ‘intent’ defence dropped. However, the Lok Sabha passed the Bill with the ‘intent’ clause intact! What is not clear is what a “right to recourse” means? 10 years of litigation? Arbitration? In other words, the liability amendments short change peoples’ concerns, make a farce of the operators’ liability, deny absolute liability and let off the supplier for connected but not intentional loss.
Machinery Provisions
Some changes were also made in the machinery provisions (i) Most cases would go to a Claims Commissioner unless the government wants to send it to a Claim Commission. Good grief! Why? (ii) As for the composition of the Claims Commission is concerned, only the composition of the selection committee to appoint Commissioners is now stated (clause 20). But we are still left with the possibility of either a sitting judge being appointed or an advocate of 10 years standing (including a party hack!) as chairperson. For the other members, with the minimum age at 55 years, the posts are ripe for retired bureaucrats. These are cosmetic changes. (iii) The Lok Sabha rightly accepted a possible extension in the limitation (time to claim) to 20 years. But, it should have been left to the Commission or Commissioners to go beyond the twenty years if necessary (clause 18). (iv) There is nothing grand in the changes allowing compensation cases going to the writ or special jurisdiction of the High Court or Supreme Court (clause 35). The reason is simple. These jurisdictions cannot be ousted by Parliament even through a constitutional amendment! (L. Chandra’s case (1999)). These provisions are part of the unalterable basic structure of the Constitution. So, no big deal!
The parliamentary process is besieged with compromise. That is understandable. But to what extent? The government’s major concerns are those of the suppliers and insurers to the extent they impact on the supply of technology – fuel and so on. It fears that stringent provisions will dry out supply; and it must conform to international conventions even though these have been written by supplier nations, without attracting requisite signatures. We do live in a global world. Even with India advancing economically, it needs technology. To some extent, principles will be compromised. But that is not the issue. A sovereign parliament has sovereign responsibilities to its own peoples. The question is whether this Bill meets the measure of responsibility due to Indian victims? Or have these responsibilities been short changed. In this, Parliament has failed in achieving the right balance and sold its sovereignty for a song.
The liability provisions have been increased overall, but do not encompass recompense for the total effect. The graded changes for some nuclear operations mean that the limit has gone down in some cases rather than up. The residuary responsibility (which can be huge) is left to the government and the tax payer. The machinery provisions are unchanged. Dual optional machinery is created. The adjudicating incumbents could be anybody. The provisions are tailored for favoured lawyers and administrators. The judicial review to the High Court and Supreme Court already exists. The hype is meaningless.
The Nuclear Liability Bill is a bad compromise. All of the Committee’s suggestions have not been accepted. Parliament has been mesmerized by cosmetic changes. Even though, the supplier, operators and insurers have won, the American suppliers are not happy with this statutory mess. God forbid catastrophe; but should it come, we are as legally unprepared as we were for Bhopal.
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