Did 32,000 Kerala girls join ISIS?

 

Jail is the rule, Bail is the exception in India

 

Should the Indian government be using Sedition Laws at the drop of a hat?

 

Why the draconian sedition law must go

Faizan Mustafa in The Indian Express

Whether people in a free country committed to the liberty of thought and freedom of expression can be criminally punished for expressing their opinion about the government is the moot question. Does the government have the right to affection? What is the origin of the law of sedition in India? How did the framers of the Constitution deal with it? How have our courts interpreted this sedition provision?

In the last seven years, an extreme nationalist ideology actively supported by pliant journalists repeatedly used aggressive nationalism to suppress dissent, mock liberals and civil libertarians and several governments routinely invoked Section 124-A that penalises sedition. An 84-year-old Jesuit priest, Stan Swamy, and 21-year-old Disha Ravi were not spared. A number of CAA (Citizenship Amendment Act) protesters are facing sedition charges. NCRB data shows that between 2016 to 2019, there has been a whopping 160 per cent increase in the filing of sedition charges with a conviction rate of just 3.3 per cent. Of the 96 people charged in 2019, only two could be convicted.

On Thursday, a two-judge bench of Justices U U Lalit and Vineet Saran observed that “every journalist is entitled to the protection under the Kedar Nath judgment (1962)” on the petition filed by journalist Vinod Dua. Dua had sought the quashing of an FIR against him filed by a BJP leader of Himachal Pradesh. The bench took eight months to pronounce its order as arguments had concluded on October 6, 2020.

Justice Lalit in his 117-page historic judgment demolished all the arguments against the wider application of the sedition provision. The court entertained Dua’s writ petition under Article 32 as the Himachal Pradesh police failed to complete the investigation and submit its report under Section 173 of the Code of Criminal Procedure. The Court found that statements attributed to Dua that the Prime Minister had used deaths and terror threats to garner votes were indeed not made in the talk show on March 30, 2020.

The Court relied on the Kedar Nath judgement in which the apex court had held that a citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or with the intention of creating public disorder. Section 124A read along with explanations is not attracted without such an allusion to violence. The Court concluded that statements made by Dua about masks, ventilators, migrant workers, etc. were not seditious and were mere disapprobation so that Covid management improves. The same were certainly not made to incite people to indulge in violence or create any disorder. The Court in Para 44 concluded that Dua’s prosecution would be unjust and would be violative of the freedom of speech.

Governments of opposition parties, including the Congress, have also indiscriminately invoked sedition charges against intellectuals, writers, dissenters and protesters. In fact, it was a Congress government that had made sedition a cognisable offence in 1974. Arundhati Roy, Aseem Trivedi, Binayak Sen and even those who opposed the nuclear plant in Kudankulam, Tamil Nadu and the expansion of the Sterlite plant in Thoothukudi were booked under Sec 124-A.

Section 124-A was not a part of the original Indian Penal Code drafted by Lord Macaulay and treason was confined just to levying war. It was Sir James Fitzjames Stephen who subsequently got it inserted in 1870 in response to the Wahabi movement that had asked Muslims to initiate jihad against the colonial regime. While introducing the Bill, he argued that Wahabis are going from village to village and preaching that it was the sacred religious duty of Muslims to wage a war against British rule. Stephen himself was interested in having provisions similar to the UK Treason Felony Act 1848 because of his strong agreement with the Lockean contractual notion of allegiance to the king and deference to the state.

Mahatma Gandhi, during his trial in 1922, termed Section 124-A as the “prince among the political sections of IPC designed to suppress liberty of the citizen”. He went on to tell the judge that “affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give fullest expression to his disaffection so long as it does not contemplate, promote or incite to violence”. Though Justice Maurice Gwyer in Niharendu Dutt Majumdar (1942) had narrowed the provision and held that public disorder was the essence of the offence, the Privy Council in Sadashiv Narayan Bhalerao (1947) relying on Explanation 1 observed public disorder was not necessary to complete the offence.

Strangely, the Fundamental Rights Sub-Committee (April 29, 1947) headed by Sardar Patel included sedition as a legitimate ground to restrict free speech. When Patel was criticised by other members of the Constituent Assembly, he dropped it. Constitutionally, Section 124A being a pre-Constitution law that is inconsistent with Article 19(1)(a), on the commencement of the Constitution, had become void. In fact, it was struck down by the Punjab High Court in Tara Singh Gopi Chand (1951).

Justice Lalit ought to have clarified the distinction between “government established by law” and “persons for the time being engaged in carrying on the administration” as the visible symbol of the state made by the Court in Kedar Nath. The very existence of the state will be in jeopardy if the government established by law is subverted. This observation did require some clarification by the Court as the state and government are not the same. Governments come and go but the Indian state is a permanent entity. Criticism of ministers cannot be equated with the creation of disaffection against the State. No government, as Mahatma Gandhi told Judge R S Broomfield, has a right to love and affection. India of the 21st century should not think like Stephen who was too worried about Macaulay’s code not penalising criticism of the government, however severe, hostile, unfair or disingenuous. We must understand that no slogan by itself, howsoever provocative such as “Khalistan Zindabad” can be legitimately termed as seditious as per the Balwant Singh (1995) judgment of the Supreme Court.

The Congress’s loss in the 2019 general election is attributed to, among other reasons, its manifesto’s promise that it would remove the sedition provision if voted to office. In 2018, the Law Commission had recommended that the sedition law should not be used to curb free speech. Let the criminal law revision committee working under the Ministry of Home Affairs make the bold recommendation of dropping the draconian law. A political consensus needs to be forged on this issue.

Habeas Porcus - The failure of the Indian Judiciary

 

Pakistan's Trials

Najam Sethi in The Friday Times

Let’s face it. Whatever some may think of Nawaz Sharif’s omissions and however much others may hate him for his commissions, the fact remains that he has demonstrated the courage of his conviction that the unaccountable Miltablishment has no business interfering in the affairs of an elected government, much less in engineering its rise or fall.

Nawaz has held firm to this conviction since 1993 when he was dismissed from office, restored by the Supreme Court and then compelled to step aside. He met the same fate in 1999 and spent seven years in forced exile. Now he is behind the bars for the same “crime” (he insisted on putting General Pervez Musharraf on trial for treason and demanding an end to the politics of non-state actors in domestic and foreign policy). He could have spent another ten years in exile in the comfort of his luxury flats in London – much like Benazir Bhutto, General Musharraf or Altaf Hussain, closer to home, and Lenin, Khomeini and many others in historical time — and looked after his ailing wife. But he chose instead to return, along with his daughter, and go straight to jail “to honour the sanctity of the ballet box”.

This is an unprecedented political act with far reaching consequences. It has driven a spike in the Punjabi heartland of the Miltablishment and irrevocably degraded the ultimate source of its power and legitimacy. The provinces of Balochistan, Sindh and KP have witnessed outbursts of anti-”Punjabi Miltablishment” sub-nationalism from time to time but this is the first time in 70 years that a sizeable chunk of Punjab is simmering not against the “subversive” parties and leaders of other provinces but against its very own “patriotic” sons of the soil. This is that process whereby the social contract of overly centralized and undemocratic states is rent asunder. In that sense, it is the Miltablishment which is on trial.

Unfortunately, the judiciary, too, is on trial. In a democratic dispensation, it is expected to fulfil three core conditions of existence. First, to provide justice to lay citizens in everyday matters. Second, to uphold the supremacy of parliament. Third, to remain above the political fray as a supremely neutral arbiter between contending parties and institutions. On each count, tragically, it seems amiss. Hundreds of thousands of civil petitioners have been awaiting “insaf” for decades. The apex courts are making laws instead of simply interpreting them. And the mainstream parties and leaders are at the receiving end of the stick while “ladla” sons and militants are getting away with impunity. At some time or the other in the past or present, controversy has dogged one or more judges. But the institution of the judiciary is in the dock of the people today because it is perceived as aiding and abetting the erosion of justice, neutrality and vote-sanctity. In 2007, the “judicial movement for independence” erupted against an arbitrary act by a dictator against a judge. In that historical movement, the PMLN was fully behind the lawyers and judges. The irony in 2018, however, is that the same lawyers and judges are standing on the side of authoritarian forces against the PMLN.

The third “pillar” of the state – Media – is no less on trial. It is expected to “freely” inform the people so that they can make fair and unbiased choices. But it is doing exactly the opposite. A couple of media houses have succumbed to severe arm-twisting and opted to gag themselves; many have meekly submitted to censorship “advice”; most are silent for or blind for material gains. The proliferation of TV channels was meant to be a bulwark against authoritarian or unaccountable forces. But a failing economy and political uncertainty has pitted the channels against one other for the crumbs, which has given a leg up to those on the “right side” of the fence. At any rate, the corporatization of the media by big capitalist interests has served to protect the powerful at the expense of the weak.

Finally, the fourth pillar of the state — Parliament — is about to be stripped of its representative credentials. The castration of the two mainstream parties and their leaders is aimed at empowering one “ladla” leader and his party, a host of militant religious groups and a clutch of opportunist “independents” to storm the citadels of the legislature.

Is all hope lost? Are we collectively fated to be victims of a creeping authoritarian and unaccountable coup by the “pillars” of the state in tandem?

No. Sooner than later, the media and judiciary will begin to crack. Neither can survive by being “pro-government” for long. Every chief justice seeks to make his own mark on history as distinct from his predecessor and no judge can shrug away the weight of popular opinion for long. The electronic and print media, too, cannot allow social media to run away with independent digital news and analysis pegged to financial sources outside Pakistan.

Meanwhile, we, the people, must get ready to suffer.

We're one crucial step closer to seeing Tony Blair at The Hague

Desmond Tutu has helped us see the true nature of what the former prime minister did to Iraq and increased pressure for a prosecution

• 
• • George Monbiot
  • guardian.co.uk, Monday 3 September 2012 17.30 BST

Tony Blair arrives at the Royal Courts of Justice in London to give evidence on media ethics to the Leveson inquiry in May 2012. Photograph: Dan Kitwood/Getty Images

For years it seems impregnable, then suddenly the citadel collapses. An ideology, a fact, a regime appears fixed, unshakeable, almost geological. Then an inch of mortar falls, and the stonework begins to slide. Something of this kind happened over the weekend.

When Desmond Tutu wrote that Tony Blair should be treading the path to The Hague, he de-normalised what Blair has done. Tutu broke the protocol of power – the implicit accord between those who flit from one grand meeting to another – and named his crime. I expect that Blair will never recover from it.

The offence is known by two names in international law: the crime of aggression and acrime against peace. It is defined by the Nuremberg principles as the "planning, preparation, initiation or waging of a war of aggression". This means a war fought for a purpose other than self-defence: in other words outwith articles 33 and 51 of the UN Charter.

That the invasion of Iraq falls into this category looks indisputable. Blair's cabinet ministers knew it, and told him so. His attorney general warned that there were just three ways in which it could be legally justified: "self-defence, humanitarian intervention, or UN security council authorisation. The first and second could not be the base in this case." Blair tried and failed to obtain the third.

His foreign secretary, Jack Straw, told Blair that for the war to be legal, "i) there must be an armed attack upon a state or such an attack must be imminent; ii) the use of force must be necessary and other means to reverse/avert the attack must be unavailable; iii) the acts in self-defence must be proportionate and strictly confined to the object of stopping the attack." None of these conditions were met. The Cabinet Office told him: "A legal justification for invasion would be needed. Subject to law officers' advice, none currently exists."

Without legal justification, the attack on Iraq was an act of mass murder. It caused the deaths of between 100,000 and a million people, and ranks among the greatest crimes the world has ever seen. That Blair and his ministers still saunter among us, gathering money wherever they go, is a withering indictment of a one-sided system of international justice: a system whose hypocrisies Tutu has exposed.

Blair's diminishing band of apologists cling to two desperate justifications. The first is that the war was automatically authorised by a prior UN resolution, 1441. But when it was discussed in the security council, both the American and British ambassadors insisted that 1441 did not authorise the use of force. The UK representative stated that "there is no 'automaticity' in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the council for discussion as required in paragraph 12." Two months later, in January 2003, the attorney general reminded Blair that "resolution 1441 does not authorise the use of military force without a further determination by the security council".

Yet when Blair ran out of options, he and his lieutenants began arguing that 1441 authorised their war. They are still at it: on Sunday, Lord Falconer tried it out on Radio4. Perhaps he had forgotten that it has been thoroughly discredited.

The second justification, attempted again by Blair this weekend, is that there was a moral case for invading Iraq. Yes, there was one. There was also a moral case for not invading Iraq, and this case was stronger.

But a moral case (and who has launched an aggressive war in modern times without claiming to possess one?) does not provide a legal basis. Nor was it the motivation for the attack. In September 2000, before they took office, a project run by future members of the Bush administration – including Dick Cheney, Donald Rumsfeld and Paul Wolfowitz – produced a report which said the following: "While the unresolved conflict with Iraq provides the immediate justification, the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein." Their purpose, they revealed, was "maintaining American military pre-eminence". The motivation for deposing Saddam Hussein was no more moral than the motivation for arming and funding him, two decades before.

But while the case against Blair is strong, the means are weak. Twenty-nine people have been indicted in the international criminal court, and all of them are African. (Suspects in the Balkans have been indicted by a different tribunal). There's a reason for this. Until 2018 at the earliest, the court can prosecute crimes committed during the course of an illegal war, but not the crime of launching that war.

Should we be surprised? Though the Nuremberg tribunal described aggression as "the supreme international crime", several powerful states guiltily resisted its adoption. At length, in 2010, they agreed that the court would have jurisdiction over aggression, but not until 2018 or thereafter. Though the offence has been recognised in international law for 67 years, the international criminal court (unlike the Rwanda and Yugoslavia tribunals, which hear cases from before they were established) will be able to try only crimes of aggression committed beyond that date.

The other possibility is a prosecution in one of the states (there are at least 25) which have incorporated the crime of aggression into their own laws. Perhaps Blair's lawyers are now working through the list and cancelling a few speaking gigs.

That the prospect of prosecution currently looks remote makes it all the more important that the crime is not forgotten. To this end, in 2010 I set up a bounty fund –www.arrestblair.org – to promote peaceful citizens' arrests of the former prime minister. People contribute to the fund, a quarter of which is paid out to anyone who makes an attempt which meets the rules. With our fourth payment last week, we've now disbursed more than £10,000. Our aim is the same as Tutu's: to de-normalise an act of mass murder, to keep it in the public mind and to maintain the pressure for a prosecution.

That looked, until this weekend, like an almost impossible prospect. But when the masonry begins to crack, impossible hopes can become first plausible, then inexorable. Blair will now find himself shut out of places where he was once welcome. One day he may find himself shut in.

Why Russia locks up so many entrepreneurs

By Rebecca Kesby

BBC World Service

In the last 10 years Russia has imprisoned nearly three million entrepreneurs, many unjustly. This statistic comes from a new ombudsman for business rights, Boris Titov, who says it is "hard to find another social group persecuted on such a large scale". How has this come about?

Businessmen have complained for years that people have been able to frame commercial rivals - by paying corrupt police officers to plant evidence and make arrests to order. But only now are they being taken seriously.

More and more well-heeled entrepreneurs have been joining, even leading street protests in recent months, with reform of the courts one of their main demands.

Perhaps those protests influenced President Putin's decision last month to create a post of "ombudsman for business rights" - but he might also have been persuaded by the $84bn in capital that left Russia last year, a record amount. Russians are investing overseas because they fear for the safety of their businesses at home.

"The economy will be completely destroyed," says entrepreneur Vladimir Perevezin. "Because businessmen are not safe in our country - anyone could be sent to jail."

Perevezin knows what it's like. He was imprisoned for more than seven years after being framed, he says, for money laundering.

His friend Valery Gaiduk was also imprisoned for three years, convicted of fraud. "I'm 100% sure that a rival paid to have me arrested," he says. He had been co-owner of a successful dental practice, but he claims police officers took a $500,000 bribe to frame him.

At the root of the problem is the criminal justice system itself. Statistically, once officially accused of a crime in Russia, there is little chance of proving your innocence. Less than 1% of all criminal cases that make it to court result in a not guilty verdict or acquittal - and that figure comes from Prime Minister Dmitry Medvedev.

Critics say that in practice, if not in theory, courts operate on an assumption of guilt. The prosecution takes the word of the police, and the judge takes the word of the prosecution - no matter how unconvincing the evidence may be.

"If a person ends up in a police cell as a suspect - he will find himself in court no matter what, and the court will find him guilty. That's guaranteed," says Marat Khisamutdinov, a former police officer.

It's not surprising then that, off the record, many Muscovites are prepared to admit paying bribes to police officers when arrested - even if they're innocent.

"It's best to solve the problem as soon as possible, at the police station," Khisamutdinov says.

"You only really need to pay the lowest arresting police officers. The rest of the machine works automatically."

It's much more expensive, by all accounts, to buy your release once the wheels of justice have begun to turn. Valery Gaiduk says he was offered freedom for $300,000, but did not pay as he was unsure the deal would be honoured.

One of the few judges prepared to talk openly about the failings of Russian courts is Sergei Zlobin, who resigned as head of the Volgograd regional criminal board four months ago. His portrait of life as a modern Russian judge is extraordinary.

"Often there are huge gaps in the evidence," Zlobin says.

"Investigators make serious mistakes, but the system is such that even these mistakes are used as evidence against the defendant, and the guilty verdict must be issued anyway - otherwise the judge will face problems."

Zlobin says that in the thousands of cases he heard in the 15 years he was a judge, he only ever issued seven not guilty verdicts - and five of them were later overturned. Issuing a not guilty verdict, he says, was not only a "waste of time" it was risky.

Judges come under all kinds of pressure from the Federal Security Services, the prosecutors and the chairman of the court not to acquit defendants, he says, including blackmail. The result? Many innocent people are locked up.

Zlobin and his family have received threats and abusive messages since his resignation. He knows it's risky to speak openly, but says his conscience compels him to do so.

"Sometimes I just had to follow the instructions from above. Now, with hindsight, I understand that what I was doing was wrong, and moreover, it was illegal... and I deeply regret it."

Several judges and lawyers told me that the system acts to protect itself, rather than the letter of the law.

Asked if he had ever accepted a bribe to arrest someone on false charges, former police officer Marat Khisamutdinov refuses to answer.

Would an officer would feel guilty about framing an innocent person? "No" he answered. "You don't know him, you'll never see him again, and you get a financial reward - so why do you care?"

The business community will be watching Boris Titov's next move very closely.

He has hinted at a possible amnesty for prisoners serving time for "economic crimes", if it is their first offence.

This could affect more than 100,000 businessmen.

It would not, however, have any implications for the most famous jailed businessmen - Mikhail Khodorkovsky (once Russia's richest man) and his partner Platon Lebedev - as both have been convicted more than once.

Rebecca Kesby's Assignment, Russia: Waiting for Justice, will be broadcast on the BBC World Service on Thursday 5 July. Download a podcast or browse the Assignment archive.

Stiglitz - Bankers must go to jail

Joseph Stiglitz tells Ben Chu that rogue financiers have proven that regulation must get
tougher

Ben Chu
Monday, 2 July 2012

The Barclays Libor scandal may have shocked the British public, but Joseph Stiglitz saw it
coming decades ago. And he's convinced that jailing bankers is the best way to curb market
abuses. A towering genius of economics, Stiglitz wrote a series of papers in the 1970s and
1980s explaining how when some individuals have access to privileged knowledge that others
don't, free markets yield bad outcomes for wider society. That insight (known as the theory
of "asymmetric information") won Stiglitz the Nobel Prize for economics in 2001.

And he has leveraged those credentials relentlessly ever since to batter at the walls of "free
market fundamentalism".

It is a crusade that has taken Stiglitz from Massachusetts Institute of Technology, to the
Clinton White House, to the World Bank, to the Occupy Wall Street camp and now, to
London, to promote his new book The Price of Inequality.

And kind fortune has engineered it so that Stiglitz's UK trip has coincided with a perfect
example of the repellent consequences of asymmetric information.

When traders working for Barclays rigged the Libor interest rate and flogged toxic financial
derivatives – using their privileged position in the financial system to make profits at the
expense of their customers – they were unwittingly proving Stiglitz right.

"It's a textbook illustration," Stiglitz said. "Where there are these asymmetries a lot of these
activities are directed at rent seeking [appropriating resources from someone else rather than
creating new wealth]. That was one of my original points. It wasn't about productivity, it
was taking advantage."

Yet Stiglitz's interest in the abuses of banks extends beyond the academic. He argues that
breaking the economic and political power that has been amassed by the financial sector in
recent decades, especially in the US and the UK, is essential if we are to build a more just
and prosperous society. The first step, he says, is sending some bankers to jail. " That ought
to change. That means legislation. Banks and others have engaged in rent seeking, creating
inequality, ripping off other people, and none of them have gone to jail."

Next, politicians need to stop spending so much time listening to the financial lobby, which,
according to Stiglitz, demonstrates its spectacular economic ignorance whenever it claims
that curbs on banks' activities will damage the broader economy.

This talk of economic ignorance brings us to the eurozone crisis and the extreme austerity
policies being pursued. Stiglitz is depressed. In 2000 he resigned from the World Bank and
launched an excoriating attack on the way it and its sister institution, the International Monetary Fund, handled the Asian financial crisis of the late 1990s. He condemned the IMF
for imposing brutal and inappropriate adjustment policies on bailed out nations – medicine
which, he argued, merely pushed nations further into crisis. "For me there's some nostalgia
here," he says.

Does he see any hope for the eurozone, I ask, or is it now heading, inevitably, for a breakup?
"It is a train that can still be stopped" he says. "But the relevant question is the politics in
Germany. Have they created in their rhetoric a dynamic that makes it difficult to stop? In
particular [German Chancellor] Angela Merkel's rhetoric that the crisis was caused by
profligacy. She's framed the issue as profligacy, rather than framing it as 'the European
system is fundamentally flawed' ".

The central argument of his latest oeuvre is that the huge inequalities of income and wealth
that have developed in the US and elsewhere in the West over recent decades are not only
unjust in themselves but are retarding growth.

"Every economy needs lots of public investments – roads, technology, education," he says.
"In a democracy you're going to get more of those investments if you have more equity.
Because as societies get divided, the rich worry that you will use the power of the state to
redistribute. They therefore want to restrict the power of the state so you wind up with
weaker states, weaker public investments and weaker growth."

It's an elegantly simple proposition. And one that logically points to a radical manifesto of
redistribution and higher taxation in the name of the general public good. Time will tell
whether this comes to be regarded as another manifestation of towering economic genius.
But, for now, crusading Stiglitz has one more weapon in his hands with which to batter down
those walls of folly