What more is needed to stoke reaction?

Arun Shourie: Saturday, December 29, 2007

The Task Force on Border Management, one of the four that were set up in the wake of the Kargil War, reported with alarm about the way madrassas had mushroomed along India’s borders. On the basis of information it received from intelligence agencies, it expressed grave concern at the amount of money these madrassas were receiving from foreign sources. It reported that large numbers were being ‘educated’ in these institutions in subjects that did not equip them at all for jobs — other than to become preachers and teachers producing the same type of incendiary unemployables. It expressed the gravest concern at the way the madrassas were reinforcing separateness in those attending them — through the curriculum, through the medium of instruction, through the entire orientation of learning: the latter, the Task Force pointed out, was entirely turned towards Arabia, towards the ‘golden ages’ of Islamic rule. It pointed to the consequences that were certain to flow from ‘the Talibanisation’ of the madrassas. [In spite of what the Task Forces themselves advised, namely that their reports be made public, the reports have been kept secret. Accordingly, I have summarised the observations of the Task Forces in some detail in Will the Iron Fence Save a Tree Hollowed by Termites? Defence imperatives beyond the military, ASA, Delhi, 2005.]

And what does the Sachar Committee recommend? ‘Recognition of the degrees from madrassas for eligibility in competitive examinations such as the civil services, banks, defence services and other such examinations’! It recommends that government use public funds to encourage formation of Muslim NGOs and their activities. It recommends that government provide financial and other support to occupations and areas in which Muslims predominate. It recommends that Muslims be in selection committees, interview panels and boards for public services.

It recommends that a higher proportion of Muslims be inducted in offices that deal with the public — ‘the teaching community, health workers, police personnel, bank employees and so on.’ It recommends ‘provision of ‘equivalence’ to madrassa certificates/degrees for subsequent admissions into institutions of higher level of education.’ It recommends that banks be required to collect and maintain information about their transactions — deposits, advances — separately for Muslims, and that they be required to submit this to the Reserve Bank of India! It recommends that advances be made to Muslims as part of the obligation imposed on banks to give advances to Priority Sectors. It recommends that government give banks incentives to open branches in Muslim concentration areas. It recommends that, instead of being required to report merely ‘Amount Outstanding’, banks be told to report ‘Sanctions or Disbursements to Minorities’. It recommends that financial institutions be required to set up separate funds for training Muslim entrepreneurs, that they be required to set up special micro-credit schemes for Muslims. It recommends that all districts more than a quarter of whose population is Muslim be brought into the prime minister’s 15-point programme.

‘There should be transparency in information about minorities in all activities,’ the Committee declares. ‘It should be made mandatory to publish/furnish information in a prescribed format once in three months and also to post the same on the website of the departments and state governments...’ It recommends that for each programme of government, data be maintained separately about the extent to which Muslims and other minorities are benefiting from it. But it is not enough to keep data separately. Separate schemes must be instituted. It recommends that special and separate Centrally Sponsored Schemes and Central Plan Schemes be launched for ‘minorities with an equitable provision for Muslims.’ It recommends special measures for the promotion and spread of Urdu. It recommends the adoption of ‘alternate admission criteria’ in universities and autonomous colleges: assessment of merit should not be assigned more than 60 per cent out of the total — the remaining 40 per cent should be assigned in accordance with the income of the household, the backwardness of the district, and the backwardness of the caste and occupation of the family. It recommends that grants by the University Grants Commission be linked to ‘the diversity of the student population.’ It recommends that pre-entry qualification for admission to ITIs be scaled down, that ‘eligibility for such programmes should also be extended to the madrassa educated children.’ It recommends that ‘high quality government schools should be set up in all areas of Muslim concentration.’ It recommends that resources and government land be made available for ‘common public spaces’ for adults of — its euphemism — ‘Socio-Religious Categories’ to ‘interact’.

It recommends that incentives to builders, private sector employers, educational institutions be linked to ‘diversity’ of the populations in their sites and enterprises. For this purpose it wants a ‘diversity index’ to be developed for each such activity.

It recommends changes in the way constituencies are delimited. It recommends that where Muslims are elected or selected in numbers less than adequate, ‘a carefully conceived ‘nomination’ procedure’ be worked out ‘to increase the participation of minorities at the grass roots.’

It notes that there already are the Human Rights Commission and the Minorities Commission ‘to look into complaints by the minorities with respect to state action.’ But these are not adequate as the Muslims still feel that they are not getting a fair share. The solution? Here is its recommendation, and a typical passage:

‘It is imperative that if the minorities have certain perceptions of being aggrieved,’ notice the touchstone — ‘if the minorities have certain perceptions of being aggrieved’ — ‘all efforts should be made by the state to find a mechanism by which these complaints could be attended to expeditiously. This mechanism should operate in a manner which gives full satisfaction to the minorities’, notice again the touchstone — not any external criterion, but ‘full satisfaction to the minorities’ — ‘that any denial of equal opportunities or bias or discrimination in dealing with them, either by a public functionary or any private individual, will immediately be attended to and redress given. Such a mechanism should be accessible to all individuals and institutions desirous to complain that they have received less favourable treatment from any employer or any person on the basis of his/her SRC [Socio-Religious Category] background and gender.’

The responsibility is entirely that of the other. The other must function to the full satisfaction of the Muslims. As long as the Muslims ‘have certain perceptions of being aggrieved,’ the other is at fault...

So that everyone is put on notice, so that everyone who is the other is forever put to straining himself to satisfy the Muslims, the Committee recommends that a National Data Bank be created and it be mandatory for all departments and agencies to supply information to it to document how their activities are impacting Muslims and other minorities. On top of all this, government should set up an Assessment and Monitoring Authority to evaluate the benefits that are accruing to the minorities from each programme and activity...

This is the programme that every secularist who is in government is demanding that the government implement forthwith. And every secularist outside — the ever-so-secular CPI(M), for instance — is scolding the government for not implementing swiftly enough. What splendid evolution! Not long ago, unless you saw a Muslim as a human being, and not as a Muslim, you were not secular. Now, if you see a Muslim as a human being and not as a Muslim, you are not secular!

Consequences

The first consequence is as inevitable as it is obvious: such pandering whets the appetite. Seeing that governments and parties are competing to pander to them, Muslims see that they are doing so only because their community is acting cohesively, as a vote bank. So, they act even more as a bank of votes.

For the same reason, a competition is ignited within the community: to prove that he is more devoted to the community than his rival, every would-be leader of the community demands more and more from governments and parties. When the concession he demanded has been made, he declares, ‘It is not being implemented’. And he has a ready diagnosis: because implementation, he declares, is in the hands of non-Muslims. Hence, unless Muslims officers are appointed in the financial institutions meant for Muslims... With demand following demand, with secularist upon secularist straining himself to urge the demands, the leader sets about looking for grievances that he can fan. When he can’t find them, he invents them...

Governments make the fatal mistake, or — as happened in the case of the British when they announced separate electorates for Muslims — they play the master-stroke: they proffer an advantage to the community which that community, Muslims in this case, can secure only by being separate — whether this be separate electorates in the case of Lord Minto or separate financial institutions in the case of Manmohan Singh.

The community in its turn begins to assess every proposal, every measure, howsoever secular it may be, against one touchstone alone: ‘What can we extract from this measure for Muslims as Muslims?’How current the description rings that Cantwell Smith gave in his book, Modern Islam in India, published in the 1940s, of the effect that the British stratagem of instituting separate electorates for Muslims had had on the Muslim mind. The separate electorates led Muslims, as they had been designed to lead them, he observed, ‘to vote communally, think communally, listen only to communal election speeches, judge the delegates communally, look for constitutional and other reforms only in terms of more relative communal power, and express their grievances communally.’ [Wilfred Cantwell Smith, Modern Islam in India, Second Revised Edition, 1946, reprint, Usha Publications, New Delhi, 1979, p. 216]. Exactly the same consequence will follow from implementing the Sachar proposals — and the reason for that is simple: the essential point about the proposals is the same — that is, the Muslims can obtain them by being separate from the rest of the country.

The reaction cannot but set in. ‘As Muslims are being given all this because they have distanced themselves from the rest of us, why should we cling to them?’ the Hindus are bound to ask. ‘On the contrary, we should learn from them. Governments and political parties are pandering to Muslims because the latter have become a bank of votes. We should knit ourselves into a solid bloc also.’

Do you think they need a Pravin Togadia to tell them this? The genuflections of governments and parties write the lesson on the blackboard. And the abuse hurled by secularists drills it in: by the excellent work that Narendra Modi has done for development, he had already made himself the pre-eminent leader of Gujarat; by the abuse they have hurled at him, the secularists, in particular the media, have enlarged his canvas to the country.

Vital Distinctions

Arun Shourie

"Dear Arun", writes Mr. Som Benegal, the sharpest of pins to many a baloon, "Why do you always equate the Urdu press with Muslims? I write a 600 word editorial every single day in TEJ which is in Urdu -- and which is neither Muslim, nor communal in any way. (I hope I am not pseudo-secular!) There are other Urdu papers which are not Muslim; indeed some are very, very anti-Muslim. May be sometimes you should also read some voices of 'sanity' (or pseudo- sanity!)".

A telling point. Even in ordinary times we tend to generalize. When tensions rise, when controversies sharpen, we tend to do so all the more - even though that is precisely the time when we should be keeping every possible exception, every distinction in mind.

"There must be an end to appeasing Muslims," we hear that said. In point of fact the Muslims are not the ones whom governments and politicians have been appeasing. They have been appeasing brokers of Muslims -- politicians and priests who set themselves up as the leaders of Muslims. The telling point about that appeasement has been that it has done nothing for the average Muslim. In fact, it has brought great harm upon him: his real problems remained unattended; a massive Hindu reaction was stoked; he was led by that appeasement to believe that these brokers were the ones who were powerful, that they would be his deliverers -- he was thereby, disabled even further for the future.

Of course, the politicians would not have pandered to these brokers if the community had been deaf to the latter. And so there is a sense in which by bending to Bukhari or Shahabuddin governments and politicians were not just bending to the brokers but to the community -- that is, it is not just that these brokers out of the blue took up issues like Satanic Verses or Shah Bano which had little to do with the real problems of the community, the latter itself looked upon these issues as the real ones. That is true. But only up to a point: the community fell in line behind these brokers all the more blindly as the attention that leaders like Rajiv and VP Singh and a succession of governments paid them signalled to the community that these brokers were indeed the ones who were influential.

By not making the distinction between having appeased Muslims and having appeased brokers of Muslims we therefore wrongly imagine that Muslims have been hogging too much of the chapati. Worse, we blame the wrong entity and thereby plummet for the wrong remedy. The cause is not the ordinary Muslim -- it is the broker, and the leader who props up that broker, and the latter happens to be a Hindu more often than a Muslim.

Consider the infiltrators from Bangladesh. Who has been smuggling them on to the electoral rolls? Who has been legitimising their residence by pressurising local administrations to issue them ration cards? True, some of the ones who did this most systematically in Assam were Muslims -- Fakhruddin Ali Ahmed, Moinul Haq Choudhury, Anwara Taimur. But the ones who have been master-minding this in Delhi for instance are Congress leaders, and these happen to be Hindus.

The fact that new voices are being heard since 6 Decemeber warrants an even finer distinction. Hindus should distinguish, that is, not just between ordinary Muslims and Muslim leaders but, among the latter, between the familiar leaders -- who the Muslims themselves today see have brought such cost on their heads -- and the ones they may turn to in the future. Ayodhya has demolished, for the time being at least, the brokers who became important after 1977 -- Bukhari, Shahabuddin, Owaisi, Suleiman Sait etc. Which political leader today would be seen sending his emissary to Bukhari for points to be included in his party's manifesto? It is true of course that a few hall meetings of intellectuals, a few articles in newspapers by them do not mean that a new leadership is in place. But it is equally true that if we continue to lump the familiar old leaders and the possible new leaders together, even more so if we continue to focus only on the old leaders, we may nip a possible -- and very consequential -- change in the bud.

The Media

The media has a vital role to play in this matter. "Who created these leaders in the first place?", a leading Muslim intellectual remonstrated with me in Bombay in the wake of 6 Dec. "Don't just blame the politicians who dealt with them. You fellows in the press are the ones who made these fellows synonymous with the very word 'Muslim'. They had little following among the Muslims. It is the importance you gave them which convinced the ordinary Muslim to fall in line behind them. And now the poor, ordinary Muslim is being punished for what these leaders have been saying and doing."

"And you continue to give such persons the same sort of importance even today," he added. He gave the example of another "Imam" in Bombay whom he named. The man had been patronised and built up by a politician very powerful in Maharashtra then - a Hindu, whom he also named. The politician had patronised the "Imam" by bestowing land upon him. The "Imam" had built flats on it, and sold each flat to several Muslims. The defrauded purchases had taken him to court. In fact so intense was the hostility to the man that the "Imam" had to flee Bombay. He had been living in Goa all these years. The cases were still going on. But come the riots, the man had come back, and his statements and posturings -- all intransigent -- were suddenly again being given banner headlines by the newspapers. The politician-patron being important once again, the man had been given jeeps with whirling red lights to escort him. This sort of attention by the State, said the liberal, will without doubt lead the ordinary, frightened Muslims to believe that this was the man who could secure protection for them. The much was the result of what the politician was doing. But the result was left in no doubt by the newspapers giving so much importance to the statements of the man -- a man who had been so decisively turfed out by the community so recently.

As a result on the one hand ordinary Muslims are misled, and on the other the wrong stereotype of them is formed in the Hindu mind. Over the last few years, the stereotype among Hindus of the average Muslim has been the visage of Bukhari, the intransigence of Shahabuddin and Suleiman Sait, the bargains of Owaisi. The media has contributed to reinforcing this stereotype. When stories have had to be done and obtaining "the Muslim point of view" has been thought necessary, the reflex in newspaper offices has been to contact Shahabuddin or Bukhari and report their view as the views of Muslims in general.

Imagine if the stereotype of the Muslim in the Hindu mind today were not Bukhari, imagine if the role model in the mind of the Muslim himself were not Shahabuddin, but Mr. Abdul Kalam. He is a Muslim too, and few have done for our rocket and space programmes, and therefore for the defence of our country, what he has. The Hindu would not react the way he does to Muslims as a category. The Muslim would not conclude that the options for him are to follow Bukhari or nothing. Of course, the real remedy is to have many, many more Abdul Kalams -- for a stereotype cannot be conjured on exceptions. And that reminds us of the need for Muslims and the rest to do everything possible for improving the educational and technical standards of Muslims. But simultaneously the media can help that very upgradation by putting every Abdul Kalam at the center of the stage.

Further Distinctions

The example of Mr. Abdul Kalam points to an even more vital matter: even worse than confounding these brokers with ordinary Muslims is the tendency at such moments of tension to brand an entire group -- Muslims in this case -- as disloyal to the country. Bal Thackeray's rhetoric is an extreme example of such branding.

Many of our rulers joined up with the French, the Portugese, the English to do in their immediate rivals. There were many Hindus among them. That pattern continues to this day. To take a current example, persons who have been secreting away money in Swiss banks have been, among other things, undermining our economy; they have been making our country vulnerable by leaving it all the more dependent on foreign aid etc. Are these primarily Hindu or Muslim? The ones who engineered the bank scam -- they undermined a vital institution and much else, and thereby made our country more vulnerable. How many Hindus, how many Muslims?

It is true of course that supra-nationalism is one of the hallmarks of Islam. And there IS a sense in which Muslims here identify with what they come to see as an Islamic issue or Islamic State elsewhere. But the way out of that is not Thackeray's. The way is to inform them about the real condition of the people in these Islamic countries, to give them facts about the nature of these Islamic regimes -- about the corruption and venality, about how the enormous earnings from oil have been squandered by profligacy and mismanagement, about the woeful condition of women and minorities, about the fratricide among these regimes all supposedly belonging to a common identity. Assume for a moment that the oft-repeated charge is true -- that some persons in Muslim localities celebrate the victories of Pakistan's teams over Indian cricket teams. That a few burst crackers cannot be taken as proof of the sentiment of an entire community. But assume for a moment that Muslims in general have their heart in Pakistan and those crackers are but a symptom. Surely, the way to deal with that is not Bal Thackeray's -- of clobbering the entire community each time some one bursts crackers. The way that will work is to inform the community about the condition of mohajirs in Karachi, about that of the Ahmediyas and of women all over Pakistan, about the murderous jostling among Punjabis and Sindhis. And to have an invincible cricket team!

Things to do

Simple distinctions, and yet the more strained the times the more important it is that we keep them in mind. And there is another thing. As tensions intensify, as diferences sharpen we tend more and more to exchange views only with persons who share our views. But that is just the time when we must reach out beyond our circle.

So, lots and lots of meetings at which Muslims and Hindus speak what is in their mind and heart. And there are three keys:

*
Muslims and Hindus - whether they be intellectuals or priest -- should talk to each other directly, and not through politicians, nor through secularists who set themselves up as referees;
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They must speak out everything that is in their hearts;
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And the two must in a sense ask themselves diametrically opposed questions.

Hindus for instance must ask themselves what exactly the benefits are which the Muslims have wrested disproportionately from the State. The Muslims on the other hand must ask themselves whether the "victories" their leaders won in their names brought them anything, whether these "victories" are not the precise thing that convinced the Hindus that Muslims were wresting undue advantages from the State. Muslims must see that if they make a fetish of separateness -- of some chimerical "separate identity" -- they will be consigning themselves not just to separateness but to discrimination. The Hindus on the other hand must be always watchful that the well-reasoned arguments of Mr Advani do not become the occasion, that they do not come to be used as license by some local bully to wreak vengeance. Muslims must remember that irrespective of what Hindu scriptures may have said, the Hindus too will become a bit "Islamic" if Muslim leaders make intransigence the badge of commitment to the Faith. The Hindus on the other hand must keep the opposite in mind: the "victories" of Shahabuddin etc. stoked such a mighty reaction among Hindus; will the rhetoric of Bal Thackeray or Ritambhara not legitimise a reaction too?

From 'A Secular Agenda'

The Judgement Vs the Interim Order

Arun Shourie
��The mandate (which the Act imposes upon the Central Government),�� the Supreme Court said in its 1994 judgement on the Ayodhya case, ��is that in managing the property so vested in the Central Government, the Central Government or the authorised person shall ensure maintenance of the status quo [and here the Court quoted merely reproduced -- for the second time within ten lines -- the words in the Act itself) in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janmabhumi-Babri Masjid, stood.��

There had been some discussion, the Court remarked alluding to the special pleading that had gone on, as to what exactly was meant by ��the area�� -- the ��entire area�� that had been taken over or what. But the provision itself sets out clearly what is meant, said the Court.

The meaning is not the entire area that had been taken over and was specified in the Schedule annexed to the Act, the Court held -- ��since the words which follow qualify its meaning confining it only to the site on which this structure, commonly known as the Ram Janmabhumi-Babri Masjid stood, which site or area is undoubtedly smaller and within the area specified in the Schedule.��

Moreover, the Court specified, the land over which the structure had stood has not been acquired to be held in perpetuity by the Government. It has not been acquired to be put to sundry use by the Government. The sole purpose for which it has been acquired, the Court specified, is to hand it back to its rightful owners -- Hindus or Muslims -- once the dispute about who owned it is settled.

The acquisition is not absolute, the Court declared. It is not for perpetuity. The relevant provisions are ��transitory�� ��for the purpose of its subsequent transfer to the person found entitled to it as a result of the adjudication of the dispute for the resolution of which this step was taken��.

The Presidential Reference also makes clear, the Supreme Court declared, that ��the acquisition of the disputed area was not meant to be absolute but limited to holding it as a statutory receiver till the resolution of the dispute; and then to transfer it...��

��The duty of the Central Government as the statutory receiver,�� the Court emphasised yet again, ��is to hand over the disputed area in accordance with Section 6 of the Act, in terms of the adjudication made in the suits for implementation of the final decision therein. This is the purpose for which the disputed land has been acquired.��

Contrast this emphatic, unambiguous, recurring declaration of the Supreme Court about what the purpose is for which the disputed land was acquired with the secularist clap-trap: the land must be used for building a hospital, a school, a playground, a park, a memorial... -- that is, for anything but for handing it back to the Hindus should they win the title-suit and thereafter reconstruct the temple -- the ancient, well-documented temple -- that Mir Baqi and his crew demolished.

That the disputed area has been acquired solely for this purpose, and that the mandate to maintain the status quo applies only to the disputed area was set out by the Supreme Court in its judgement not once, not twice, but at seven different places.

And there is a clear reason, said the Court, why the Act has mandated that the status quo be maintained on the disputed area till it is transferred back to its rightful owner.

��Unless the status quo is ensured,�� the Court explained, ��the final outcome on resolution of the disputed area may be frustrated by any change made in the disputed area which may frustrate the implementation of the result in favour of the successful party and render it meaningless.

A direction to maintain the status quo in the disputed property is a well-known method and the usual order made during the pendency of a dispute for preserving the property and protecting the interest of the true owner till the adjudication is made.��

Now, as is well known, the area over which the structure stood is but a fraction of the total area that the Government had acquired: the structure per se had covered just a third of an acre, the appurtenant platform etc. had covered another 2.5 acres or so; but the Government had taken over about sixty seven acres.

The only area over which there was a dispute about ownership -- the part over which there has been a dispute ever since the temple was destroyed -- are the one-third to 2.7 acres. Muslims have maintained that as they had acquired it and built a mosque on it long ago, it is their�s forever.

Hindus have maintained that it had been wrested from them by force, that what was sacred to them was razed, that they have never abandoned their ownership of it, that they have -- even when denied access to it -- continued to venerate it from the platforms, the bye-lanes around the spot.

After recounting the successive stages by which the Hindus have come to physically resume worship of the idols at the spot at least since 1949, the Supreme Court observed, ��On the other hand, at least since December 1949 the Muslims have not been offering worship at any place in the disputed site though, it may turn out at the trial of the suits that they had a right to do so.�� This limited area is what is known as the ��disputed area��.

About the rest of the area, the Supreme Court noted with emphasis, there is no dispute at all. "The narration of facts indicates," the Court said, "that the acquisition of properties under the Act affects the rights of both the communities and not merely those of the Muslim community.

The interest claimed by the Muslims is only over the disputed site where the mosque stood before its demolition. The objection of the Hindus to this claim has to be adjudicated. The remaining entire property acquired under the Act is such over which no title is claimed by the Muslims. A large part thereof consists of properties of Hindus of which the title is not even in dispute.��

The purpose for which this undisputed area had nonetheless been acquired was to ensure that, should courts ultimately decide that the disputed site in fact belongs to Muslims, they should not be prevented from enjoying the property by not having access to it.

Indeed, the Court went further. Elaborating on the significance of the words that had been used in the Act itself in this regard -- the words ��so far as may be�� -- the Court held, ��This provides for the situation of transfer being made, if necessary, at any stage and of any part of the (undisputed) property, since Section 7(2) is applicable only to the disputed area.��

Lest any authority use even this clear enunciation to hold on to the undisputed area, the Court added, ��The provision however does not countenance the dispute remaining unresolved or the situation continuing perpetually.

The embargo on transfer till adjudication, and in terms thereof, to be read in Section 6(1), relates only to the disputed area, while transfer of any part of the excess area, retention of which till adjudication of the dispute relating to the disputed area may not be necessary, is not inhibited till then, since the acquisition of the excess area is absolute subject to the duty to restore it to the owner if its retention is found to be unnecessary, as indicated.��

But are all the sixty-seven acres needed for this limited purpose? Should more be acquired to ensure full enjoyment by Muslims in the event they win the title suit? The Court�s answer was absolutely unambiguous: "... the extent of adjacent area considered necessary is in the domain of policy and not a matter for judicial scrutiny or a ground for testing the constitutional validity of the enactment...��

Because of its preoccupations at the time, the Government had not been able to determine, much less indicate to the Court how much and what parts of the undisputed area were required. The Court observed, ��However, at a later stage when the exact area acquired which is needed for achieving the professed purpose of acquisition can be determined, it would not merely be permissible but desirable that the superfluous excess area is released from acquisition and reverted to its earlier owner.��

The Court did not just say, Government ��may�� or ��might�� return this undisputed area to its Hindu owners. It held that the Government is duty-bound to do so, that once it has determined what exact portion is needed for the limited purpose of enabling Muslims to enjoy the disputed site if the courts ultimately hold in their favour, the undisputed portion ��must�� be restored to the undisputed owners.

Contrast these emphatic, unambiguous, recurrent declarations of the Supreme Court with what has now been stated in the interim order. In this order, the judges state, ��Furthermore, no part of the aforesaid land shall be handed over by the Government to anyone and the same shall be retained by the Government till the disposal of this writ petition nor shall any part of this land be permitted to be occupied or used for any religious purpose or in connection therewith.��

How can this be squared with the judgement of the Constitution Bench on the case? Actually, there was one way to square the two. But that turned out to be a telltale embarrassment! In the paragraph preceding the one I have just quoted, the judges set out what they meant by ��the aforesaid land��.

Ordering that counter-affidavits and rejoinders be filed successively in four weeks each, the judges directed, ��In the meantime, we direct that on the 67.703 acres of land located in revenue plot Nos. 159 and 160 in village Kot Ramchandra which is vested in the Central Government, no religious activity of any kind by anyone either symbolic or actual including bhumipuja, shall be permitted or allowed to take place.��

Only two revenue plots in just one revenue village. That left the overwhelming part of the undisputed land out of the Court�s order, and, therefore, one could have assumed that in some sense this interim order conforms to the judgement. But the omission had but to be brought to its attention, and the Court foreclosed that construction!

Yet that is but one of several reasons why the Prime Minister was entirely right when, during his response in the Rajya Sabha on 14 March, he said -- in the understatement so characteristic of him -- that the new order will have to be discussed in detail some day.

Indian Express
March 17, 2002

POTO: Approve Swiftly, and then Toughen it (Part II of II)

Arun Shourie

The provisions of TADA were much more stringent than those of the new Ordinance. The constitutionality of those provisions, of TADA itself had been challenged in the courts. The Supreme Court specifically upheld TADA, and declared its provisions -- the much more stringent provisions -- to be in accord with the Constitution.

While I happen to be in Government, my assessment for Parliament is the opposite one to that of the critics: the Ordinance bends too far back to accommodate human rightists, and that includes some impractical judgments too -- like that of the Supreme Court in D. K. Basu Vs State of West Bengal.

Under TADA, as we just saw, the accused was allowed only one appeal that to the Supreme Court. Even with that restriction, the judgment in the Rajiv Gandhi assassination case took all of eight years. By allowing another intermediate appeal -- to the High Court -- we are ensuring that the period would be not eight but a multiple of eight years!

Similarly, recall the provision that allows a lawyer to meet the accused while he is being interrogated. Imagine that the police have nabbed a terrorist sent across by the Lashkar-e-Tayyaba. He is certain to have been saturated with indoctrination to the point that he is nothing but a killing machine. Do you think he is going to give you information over a cup of tea? And if lawyers are going to be meeting him from time to time during interrogation, is there the slightest chance that you will be able to extract information -- information about their plans, about their networks, that is information which is literally a matter of life and death for our people and our country?

But-such is the condition of public life and public discourse in India today, and so far removed from reality are some of our judgments that a provision like that one about lawyers has had to be incorporated in the Ordinance.

Based on their experience in dealing with organized gangs of criminals, the states of Maharashtra, Andhra, Karnataka have formulated laws. Why should the law for combating terrorists be more circumspect than the laws required for neutralizing gangsters? But that is what the Ordinance is. To give just one example, the state laws provide that the Review Committees -- to consider orders passed by the Home Department shall be headed by the Chief Secretary, but the Ordinance requires that the corresponding Committee for terrorists must be headed by a High Court judge. What entitles terrorists or their agents to greater solicitude?

Similarly, consider the deletion of "disruptive activities" from the Ordinance. TADA provided that any action that questions or disrupts the sovereignty and territorial integrity of India or is intended to do so, or which is intended to bring about or supports a claim for the secession of any part of India from the Union shall be a crime under TADA. Imagine how far we have fallen when even such a provision has had to be jettisoned -- even from a law the specific purpose of which is to thwart terrorists out to break our country.

The charge that such provisions were used against Muslims, that TADA was an anti-minorities law was a travesty. The facts, as I had pointed out at the time, were completely to the contrary. The notorious case of abuse was by the Congress-I led Government of Gujarat: it threw almost 19,000 persons in jail under TADA, and these were farmers opposing its policies. I don�t recall any protests against that abuse by those who are now imagining possible abuses in the future. Just as important, ninety eight per cent of those arrested in Gujarat got bail under that very Act from the courts. In Kashmir it is true that the overwhelming proportion of persons held under TADA were Muslims: but they were arrested not because they were Muslims, they were arrested because they were out to break the country. These two instances apart, the proportion of Muslims among the total arrested under TADA was only 4.5 per cent.

But such is the shadow that the falsehoods circulated at the time cast, that even six years later, and with thousands more having been killed by terrorists, the provision about activities aimed at disrupting the sovereignty and territorial integrity of the country has had to be excluded from the Ordinance.

"But what was the need for an Ordinance? Should the Government not have first evolved a consensus on the matter?"

Is there never to be a finality? Not even in a matter relating to the security of the country? Guess since when the efforts to bring about a consensus on this law have been going on? Since May 1995. TADA was allowed to lapse because opportunist politicians looking for issues that would curry favour with the Muslim vote bank saw an opportunity. That itself was a crime -- an instrument vital to the security and defence of the country was sacrificed to the crassest political calculation. Then began the long march.

A Criminal Law Amendment Bill was drafted and circulated in 1995. It was abandoned. Consultations continued with all and sundry. The matter was eventually referred to the Law Commission in 1998. That Commission deliberated on the question for two years -- giving its report and draft Bill in April 2000.

That draft was considered at meetings of Directors General and Inspectors General of Police, of Chief Secretaries and Home Secretaries of state governments. It was considered at the Chief Ministers� Conference on Internal Security last year. It was sent to the Human Rights Commission for its observations. It was sent to the state governments for their comments.

Should the process go on indefinitely? And what are the prospects of "evolving a consensus" when it has become an article of faith of everyone who is out of office that his job is to block everything a Government does? That his job is to block even what he was doing when he was in office, in fact even what he is today doing in the states in which he is in office?

The comments that the states sent to the draft Bill themselves tell the tale. The Congress(I) is opposing the Ordinance. In fact, when the Law Commission�s draft was circulated, the (Congress-I) Government of Delhi supported the enactment of the law in toto. The (Congress-I) Government of Karnataka supported the enactment of the law in toto.

The (Congress-I) Government of Nagaland supported the law in toto. The (Congress-I) Government of Madhya Pradesh, the (Congress-I) Government of Rajasthan, and the (Congress-I) Government of Maharashtra supported the enactment of the law, they sent suggestions about specific clauses.

The CPI(M) Governments of Kerala, West Bengal and Tripura sent their usual "principled" opposition. That Government in Kerala has gone. The one in West Bengal is trying to cover up its embarrassment for having finalised its own version of the Maharashtra Act. The Government of Tripura, after some initial show of reluctance because of "the party�s stand", has begun using corresponding provisions from other enactments relating to national security.

Not just those governments in the states, representatives of those parties at "the national level" have in general endorsed the need for a law to deal specifically with terrorists and their organizations. The leading figure in Parliament from the CPI(M) went so far as to counsel Government that it should study what Israel is doing in the matter. One of the most highly regarded leaders of the Congress(I) in Parliament stated that the Indian Penal Code is inadequate for combating terrorism, that a special law is needed, that in fact the draft Bill itself was not adequate. Nailing the falsehood that is being circulated, he said that the Bill does not shift the onus of proof on to the accused, that the provisions only seek to raise a presumption in certain circumstances. He said that there were many loopholes in the Bill, and for that reason it should go to the Select Committee or Standing Committee of the House...

This process has been going on for six years. In the meanwhile terrorists have continued to maim, kill, blow up, bum...

Fifty-five thousand people killed... that is five times the number we have lost in the 1962, 1965, 1971 and Kargil wars. And we are still stalled -- awaiting a consensus before getting even a law in place to deal with terrorism.

My plea, therefore, is the one opposite to that of the critics: the Ordinance should be approved at the first opportunity, and soon thereafter toughened -- the diluted provisions should be replaced by tougher ones -- closer to those of TADA.

Part I - POTO: Interception, Confession, Confessions, Torture

BJP Today
December 1-15, 2001