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E D I T O R I A L P A G E |
![]() Monday, June 21, 1999 |
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Bus ride to Dhaka HOLDING ELECTIONS |
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Kashmiri
Pandits: numbers dont help Kargil
conflict: many facets No
more letters to Pakistani friends
Mr
Sastri and Liberalism |
Meaning of marriage IN the global village it is important to keep abreast of the popular thinking on issues which may appear to be of peripheral interest to us. Two decades ago, who could have visualised that certain hush-hush subjects would one day be taken out of the closet of morality for public discussion and debate. Today, Ashok Row Kavi is a self-confessed champion of the gay movement and a respectable member of the countrys fast-expanding high society. Gay marriages and lesbian unions are now discussed more openly in the media and seminar circuit than ever before. As in the case of technology so in the sphere of adopting global values, India usually takes a long time catching up with the rest of the world. But like the tortoise it ends up being where the hare is. It is in this context that the Canadian House of Commons stand on the definition of marriage should be of more than academic interest to us. It should provide useful information to those who arrange discussions on sexuality to prove that they have arrived. It should also help the political class to redefine its role in the matter of initiating debate and making laws on socially relevant issues. For the old-fashioned Indians, who have a valid reason to be unhappy and uncomfortable with the speed with which the new generation is throwing out the time-tested social norms and values, the Canadian House of Commons interpretation of the institution of marriage should prove to be a source of hope for a better tomorrow. The Canadian lawmakers
were forced to intervene following a liberal
interpretation of the institution of marriage by the
countrys Supreme Court. The Supreme Court ruling
came in a case in which a lesbian had applied for alimony
from her former partner. Indian parliamentarians should
call for copies of the debate on the institution of
marriage in the Canadian House of Commons. They
should,thereafter, dig up records,if any,of their own
contribution to the debate on an issue which in the
global village affects India as much as it does the rest
of the world. What makes the Canadian interpretation
unique is that the initiative for rejecting the Supreme
Court ruling on heterosexual marriages came from the
opposition Conservative Reforms Party and was supported
by the ruling Liberal Party. The lawmakers agreed that
marriage is and should remain a union of one man
and one woman to the exclusion of all others. To
leave no room for doubt they expressed themselves against
equality for gays and lesbians. It was just
as well that while announcing support for the Reforms
motion Justice Minister Anne McLellan clarified that
this government has no intention of changing the
definition of marriage or legislating same-sex marriages.
No jurisdiction worldwide defines a legal marriage as
existing between same-sex partners. Even in
countries like Denmark and the Netherlands the
distinction between marriage and the same-sex partnership
has been retained. |
HOLDING
ELECTIONS THE BJP spokesman, Mr Venkiah Naidu, has now clarified that neither his party nor the government has any plans to postpone the parliamentary elections in view of the continued aggression by Pakistan on the Kargil sector. This sets at rest the confusion caused by the varying statements by the Prime Minister and the BJP President, Mr Kushabhau Thakre. While the Prime Minister firmly stated that the elections would be held on schedule, Mr Thakre, in response to a question by a journalist, did not rule out the postponement of the poll. I have the impression that, as of now, the government appears to be confident of clearing Kargil of the aggressors by October, or at least the situation not deteriorating to a point in which the elections may have to be postponed. And if the Election Commission has given any thought to it, it has not made it public. The Home Minister, Mr L.K. Advani, appears to be confident that the undeclared war would not escalate and the parliamentary poll would be held as scheduled. He is also confident of providing security personnel for the poll. Thus it would be an academic exercise to consider what would happen if the necessity to defer the elections arose. However, academic exercises are not a taboo for journalists and it would be worthwhile to examine the shortcomings in the Constitution. The first point to note is that the power of superintendence, direction and control of elections vests in the Election Commission (Article 324), And this power includes, it has been judicially held, the right to defer an election, but not to cancel it. It will be recalled that the Vajpayee government had been convassing for any early election, but it was the Election Commission that decided, after consulting the political parties, to hold the elections in September the exact dates are still to be announced. It will be further recalled that the Election Commission had, on its own, postponed the assembly elections in Bihar and this was upheld by the Supreme Court. However, the relevant question before us is whether the Election Commission, even if it were so minded, can postpone parliamentary elections in a manner that would defeat the constitutional provision that a period of six months shall not elapse between one session and another. The answer must be in the negative. It is clear from the Constituent Assembly debates that the debate on the duration of parliamentary sessions was influenced by two considerations. The first was the provision in the 1935 Act that the legislatures must meet at least once in a year. And Dr Ambedkar was able to explain to the House that all that the Raj was interested in was the legislatures approving the revenue collection measures of the government. Thus there was at least one provincial legislature which had met for only18 days in a year. All that the draft Constitution was providing was the minimum period for which Parliament and the state legislature must meet there was no limit to the maximum number of days for which it could meet. The second consideration was the experience during World War II. It was pointed out, for instance, that British Parliament had, during the war, extended its life to nine years and no questions were asked while, even amidst war, the USA had the Presidential and Congressional elections on time. Therefore, the Constituent Assembly opted for the extension of the life of Parliament, by one year, even in an emergency, and no more. No deep thought was given to the question of not holding elections in the event of an Emergency caused by external aggression or war. This is clear from the provisions on the Emergency itself. While certain rights could be suspended when the Emergency, caused by internal or external factors, was in force, the Constituent Assembly did not provide for the suspension of an election beyond six months after the dissolution of the House. The message is therefore clear. Every effort must be made to hold the parliamentary elections and reconstitute Parliament by the third week of October. However, let us come to the hypothetical question of the country facing a situation in which parliamentary elections cannot be held. Since the Election Commission is entrusted with the task of holding elections, which must be free and fair to the extent possible, it will have to recommend to the President that the elections must be postponed to a date beyond the stipulated six months. The President will then come into the picture. He will naturally hold wide consultations with the political parties and constitutional experts. He could take the initiative and suggest the formation of a national government. Unlike his predecessors, he is unlikely to be misunderstood by the nation because the President is not suspected to have an ambition of his own to become the Prime Minister. The BJP is opposed to the idea of a national government, but it could be persuaded to see reason. For the alternative would be chaos. Consider this. When faced with a warlike situation, the President (the political executive that is) has the power to declare an Emergency in the country. But the Emergency cannot last beyond a month, unless approved by each House of Parliament by the majority of the members and by a two-thirds majority of those present and voting. In the event of the Lok Sabha having been dissolved, the Rajya Sabha must approve the proclamation in the manner described above. In that event the period of one month will start, as far as the Lok Sabha is concerned, from the date on which the House reassembles. As things stand today, the ruling coalition does not have a majority in the Rajya Sabha, not to speak of two-thirds majority. Thus even if the Emergency were to be declared, it would not last beyond a month. Little wonder, a
constitutional expert I consulted said he had not given
any thought to the hypothetical question I had put to
him. He promised to get back to me after doing some
thinking. The nation too must apply its mind and firmly
decide whether it must have elections irrespective of
external aggression or war, or whether it would like to
amend the Constitution so that, if need be, parliamentary
elections, and reconstitution of the House, may be
deferred beyond the stipulated 180 days. |
Of
politico-military
relationship IN a democratic society, the military is considered an important segment. It serves society both as its defender and guardian. It was Clausewitz, the Prussian military thinker, who not only extended the role of the military but also brought deeper interaction between the polity and the military. According to him, the military stems from the polity but, a sound polity too draws sustenance from an effective military. In a way, the two are inseparable, yet the military serves as a subordinate to the polity of a nation. History is full of instances when during the time of knighthood both the military and state power combined in the monarch as in the case of Napoleon. But the conflict arose when the two were compartmentalised. Drawing same analogy to the present geopolitical situation, one can see the same difference between the military and civilian governments in most countries. South Asia too is replete with examples in which out of the seven states constituting it, nations like Pakistan and Bangladesh have experienced military rule for a considerably long period. Myanmar continues to be ruled by a military junta. While the cause for the military government in Pakistan was the failure of the political machinery and a corrupt bureaucracy, which mostly overlapped with similar situations in Bangladesh and Myanmar. India presents a unique picture of apolitical defence forces, even though the political system in the country is run by power hungry, opportunistic and corrupt politicians with the bureaucracy not far behind, rather leading them. One strong legacy that independent India has retained, unlike Pakistan and Bangladesh, is the invincible military service. Had there not been the system of cantonments, forced discipline, hard training and a regimented life, it is wondered whether we would have inherited this organisation in the present form. All these 52 years the defence forces have indeed given this country a protective shield without which India would have disintegrated long ago. At the close of alien rule in India the marked difference between military and other services was that the former was considered serving the British interests only and required Indianisation. But after 1947 a reverse trend set in. The armed forces today present a complete picture of an integrated, cohesive and professional service committed truly to their charter. However, seeing the changing pattern among various other sections of society, including the political leadership, the time has come for a discussion on the status of the defence forces. In this contest, what is most significant is the emerging relationship between the military and the polity. In the military history of free India, 1971 serves as the watershed year in the area of politico-military relationship, when it was at its peak. Consequently, we could liberate Bangladesh and keep at bay both China and the USA from interfering in the Dhaka war. On the contrary, the political leadership in India treated the defence forces in an undeserving manner during those fateful days in 1965 that we lost the war with China. Had it not been for Lal Bahadur Shastri as Prime Minister and Lt Gen Harbaksh Singh as Army Commander, the picture would have been more dismal later on. There was complete
scepticism in the defence services when Mr George
Fernandes took over as Defence Minister due to his
swadeshi orientation. But contrary to his
image, he introduced certain reformatory changes,
outstanding among these being the acclimatisation of the
bureaucracy in the border areas and the attempts to
bridge the gap between his ministry and the defence
services. On the other hand, the unceremonious removal of
the then naval chief Admiral Vishnu Bhagwat, and the
subsequent developments put a question mark on the smooth
functioning of the Defence Ministry and its relationship
with the three wings of the armed forces. The aspect of
relationship needs to be studied dispassionately and
seriously. Let this become a major item on the agenda for
the new government that will be formed after the coming
elections. |
Kashmiri Pandits: numbers dont help
THE full text of the June 11 verdict of the National Human Rights Commission (NHRC) on Kashmiri Pandits is now available. And I must immediately confess that the verdict is a scholarly attempt to address a difficult domestic question rooted in international law, the question whether the attack on Kashmiri Pandits by militants in the valley amounts to genocide or not. To that extent, the alarm expressed in this column last week over the NHRCs pronouncement in the negative was unjustified. But only to that extent. For, reading the full verdict per se and comparing it with the NHRCs allied order regarding the applicability of the central Human Rights Act to the state of Jammu and Kashmir, my conviction that the verdict is wrong stands doubly enhanced. The two orders passed by the NHRC the same day in the same case one dealing with a preliminary objection as to the NHRCs jurisdiction over Jammu and Kashmir, and the other with the merits of the plea as to genocide present, in fact, a study in contrast. The mere form of legislation is not conclusive, says the Commission inter alia in its order on the preliminary objection. In view of the trends in the progressive domestic use of international human rights norms, the contention that international covenants are not applicable in a country unless they are re-incarnated in domestic legislation (as urged by the state of J&K and endorsed by a substantial body of juristic opinion the world over) does not seem to retain any strength or vitality. The universality of the human rights regime and the humanitarian base of international human rights norms, says the Commission, more effusive than precise in its choice of language, underlies and ensures their domestic application. Let us turn now to its other order on the merits of the petition filed by the Panun Kashmir movement. Genocide, warns the Commission at the very outset, quoting UN Special Rapporteur Benjamin Whitaker, is the ultimate crime and it is essential to exercise the greatest responsibility when discussing a subject so emotive. This is a different Commission al-together, a com-mission extremely wary of the power of words. And almost recoiling at them. So fearful are the connotations of the term (genocide), it confesses, and impelled by its own fears, proceeds to construct a highly restrictive interpretation of the term as defined in the Genocide Convention of 1948. Genocide, reads Article 2 of the Convention, reproduced in this column last week as well, means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. To these clear and express definitional elements the Commission adds, by interpretation, two major and substantive limitations. One, physical; the other, metaphorical. The metaphorical (to take that up first) arises out of the ultimate nature of the crime of genocide. Picking up the word from Benjamin Whitakers report on genocide, the NHRC employs it repeatedly to distinguish genocide not only from homicide but also from massacre, ethnic cleansing and other crimes against humanity. It is its ultimate nature that, alongwith the other, physical criterion of numbers, transforms the crime of genocide to a plane of evil that is unique... That the number of the victims of genocide is central to the NHRCs perspective is more than apparent from the illustrations of genocide that it recounts in a separate section of its order. The Holocaust (six million Jews done to death); the Khmer Rouge killings in Cambodia between 1975 and 1978 (upto a million persons killed); the killings in Rwanda since April, 1994 (an estimated five lakh civilians, though another estimate puts the number of dead close to one million). These are the three main illustrations given, apart from the Tutsi massacres of the Hutus in Burundi in 1965 and 1972, the Paraguayan massacre of Ache Indians before 1974 and the genocide in Bosnia and Herzegovina, all of which are left unquantified. The main illustrations one, the Holocaust, preceding the adoption of the Genocide Convention and being its premier cause, the others occurring thereafter all involve millions of, or at least upto a million, people killed. It is obvious that even though the NHRC does not (and perhaps cannot) specify a precise numerical cut-off, it is convinced from its reading of history that a staggering numerical scale of victims is an essential, unwritten element of the definition of genocide in law. It is this, more than anything else, that appears in the eyes of the NHRC to have worked against the Kashmiri Pandits and led to a rejection of their charge of genocide. About three lakh forced to move out of the valley, no doubt, but just about a thousand persons killed. And that is hardly genocide. It is this, this logic of numbers, that is the ultimate fallacy of the NHRCs verdict, a fallacy which apart from other things kills the Genocide Convention in letter and spirit. |
Kargil conflict: many facets
UNSETTLING, disturbing sights are getting etched in psyches bodies of our young valiant soldiers being brought back from the Kargil and Batalik sectors, grief-stricken relatives performing the last rites, civilian population fleeing homes and hearths or else getting displaced, and political men and women (I just cannot brainwash myself to call them leaders for they are leading us to simply nowhere) continually coming forth with very typical political speeches. And in one such speech, BJP president Kushabhau Thakre let out some of his views if war escalates there could be chances of the elections getting postponed. Of course, this immediately caught the attention and till date there is an unease together with the general feeling that this war should not be allowed to escalate. Havoc and deaths ought to be prevented and our sovereignty maintained by shrewd diplomacy and a stable government at the Centre, which keeps a strong vigil at our borders instead of relying on shepherds. Moving ahead in the context of the civilian population also getting affected it would be important to mention here that in spite of the long spell of turmoil in the valley and around, no voluntary counselling network has been functioning there. And not even now when hundreds of families are simply fleeing or else are getting displaced. In my last weeks column I had mentioned that the International Committee of the Red Cross had sought the GOIs permission to evaluate the humanitarian needs along the LoC but were still awaiting the permission to do so. And to know what the Indian chapter of the Red Cross was contributing towards relief measures to those fleeing or displaced, I tried to get in touch with the Secretary-General of the Indian Red Cross, who is also DG Health Services Mr SP Agarwal. But this seemed an impossible task, for throughout June 18 in spite of contacting his office several times, he never came on the line and nor returned the calls. Yes, you have guessed right. He was, as his harassed sounding PAs called it, in that state of never ending meetings! Hopefully, this series of peculiarly long lasting meetings would lead him on those villages lying close to the LoC where the civilian population is most likely to be affected, in case there is an escalation in the ongoing disturbance. Before I move on it gets imperative to mention here that historian GMD Sofi in his two volume book Kashmir states that the people of Dras have been called Dards and he goes on to quote Frederic Drew who in his book titled Jummoo and Kashmir Territories (London 1875) describes Dards as these fellows are hardy and enduring as any men I have ever met with; though living in the most trying circumstances of climate they are not oppressed and weighed down by them, but keep such a cheerfulness as the inhabitants of the most-favoured climes and countries may envy... Fate of tourist & Amarnath Yatra? And when the Director-General of Tourism Ashok Pradhan was asked if in this present state the annual Amarnath yatra, beginning next month, is likely to be affected this is what he had to say: Though it would not be correct for me to comment on this for the yatra is managed by the J&K Government but I feel that it would carry on unaffected. Coming to the other area of concern the decline in the tourist flow to the valley he said: Regarding the tourist flow to the valley all I can say is that last week I was myself there and went all over the valley, even to Gulmarg, Khilanmarg and didnt face any problems. Yes, there were many tourists there and I spoke to several from MP and Bengal and also from other parts of the country. State tourism officers informed me that in April and May they received over two lakh tourists but with the present situation there had been some decline ...... And he brushes aside the query that the closing of Srinagar airport for a few days affected and brought about a change in the tourists mood as such may be the airport closure was necessary for the air operations.... but why should the disturbances in Kargil affect the tourist in the valley for he ought to know that it is 150 km away ..... I went all over and found it all perfectly okay ....... And whilst Mr Pradhan went just till the J&K valley, it is said, that his minister Omang Apang went still further to Leh, and is still there. What a diversion! And in the midst of all
this there was the launch of Oriflames special
beauty products for India. The press conference seemed
more like a boring school meet with the Oriflame bosses
going on and on about their products that included a
newly formulated fairness cream. Those endless, long
winding speeches were followed by a fashion show
to highlight the effect of those products on Indian skin
and hair. But alas, when the producer of the show, Yatan
Ahluwalia tried to upseat people it became a little too
risky to stick on. One lady had a fall in the confusion
and left the venue soon after, and when we were told to
shift, we too left the venue, lest some more falls take
place. |
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